THIRD AMENDED AND RESTATED BY-LAWS
OF
PRIME SUCCESSION HOLDINGS, INC.
(formerly Prime Succession, Inc.)
(hereinafter called the "Corporation")
ARTICLE I
MEETINGS OF STOCKHOLDERS
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Section 1. PLACE OF MEETING AND NOTICE. Meetings of the
stockholders of the Corporation shall be held at such place either within or
without the State of Delaware as the Board of Directors may determine.
Section 2. ANNUAL AND SPECIAL MEETINGS. Annual meetings of
stockholders shall be held, at a date, time and place fixed by the Board of
Directors and stated in the notice of meeting, to elect a Board of Directors and
to transact such other business as may properly come before the meeting. Special
meetings of the stockholders may be called by the President for any purpose and
shall be called by the President or Secretary if directed by the Board of
Directors or requested in writing by the holders of not less than 20% of the
capital stock of the Corporation. Each such stockholder request shall state the
purpose of the proposed meeting.
Section 3. NOTICE. Except as otherwise provided by law, at
least 10 and not more than 60 days before each meeting of stockholders, written
notice of the time, date and place 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.
Section 4. QUORUM. Except as otherwise provided by law or by
the Third Amended and Restated Certificate of Incorporation of the Corporation
(the "Restated Certificate of Incorporation"), the holders of a majority of the
shares of the Corporation's issued and outstanding capital stock entitled to
vote thereat shall constitute a quorum at all meetings of the stockholders for
the transaction of business. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
such meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at
such meeting.
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Section 5. VOTING. Except as otherwise provided by law, by the
Restated Certificate of Incorporation or by these Restated By-Laws, all matters
submitted to a meeting of stockholders shall be decided by a vote of the holders
of record of more than a majority of the Corporation's issued and outstanding
shares of capital stock present in person or represented by proxy at the meeting
and entitled to vote thereat.
Section 6. ACTION BY STOCKHOLDERS. Any action required or
permitted by the General Corporation Law to be taken at any annual or special
meeting of Stockholders of the Corporation may be taken without a meeting if
Stockholders holding a majority of the voting shares consent thereto in writing,
and the writing or writings are filed with the minutes of meetings of
Stockholders.
ARTICLE II
DIRECTORS
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Section 1. GENERAL POWERS. Except as otherwise provided in the
Restated Certificate of Incorporate or these Restated By-laws, the business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors. The Board of Directors may adopt such rules and regulations,
not inconsistent with the Restated Certificate of Incorporation or these
Restated By-Laws or applicable laws, as it may deem proper for the conduct of
its meetings and the management of the Corporation. In addition to the powers
expressly conferred by these Restated By-Laws, the Board of Directors may
exercise all powers and perform all acts that are required by these Restated
By-Laws or the Restated Certificate of Incorporation or by statute, to be
exercised and performed by the stockholders.
Section 2. NUMBER, ELECTION AND REMOVAL OF DIRECTORS.
Directors shall, except as otherwise required by statute or by the Restated
Certificate of Incorporation, be elected by a plurality of the votes cast at the
annual meeting of stockholders by the holders of shares present in person or
represented by proxy at the meeting and entitled to vote in the election. The
Board of Directors may consist of not less than 1 but not more than 10 members.
Until another number is fixed by the Board of Directors or stockholders in
accordance with the next following sentence, the Board of Directors shall
consist of 5 members. The exact number of Directors within the minimum and
maximum limitations specified in the preceding sentence shall be fixed from time
to time by resolution adopted at any meeting of the stockholders or by a
majority of the entire Board of Directors then in office, whether or not present
at a meeting. Vacancies and newly created directorships resulting from any
increase in the number of Directors may be filled by a majority of the Directors
then in office, although less than a quorum, or by the sole remaining Director
or by the stockholders. A Director may be removed with or without cause by the
stockholders.
Section 3. MEETINGS. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Regular meetings of the Board of Directors shall be held at such times and
places as may from time to time be fixed by the Board of Directors or as may be
specified in a notice of meeting. Special meetings of the Board of Directors may
be called by the Chairman, if there is one, the President or any
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two Directors. Notice of any such special meeting stating the place, date and
hour thereof shall be given to each Director either by mail not less than 48
hours before the date of such meeting, by telephone or telegram on 24 hours'
notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate under the circumstances.
Section 4. QUORUM; BOARD ACTION. One-third of the total number
of Directors shall constitute a quorum for the transaction of business. If a
quorum is not present at any meeting of the Board of Directors, the Directors
present may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until such a quorum is present. Except as otherwise
provided by law, the Restated Certificate of Incorporation or these Restated
By-Laws, the act of a majority of the Directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors.
Section 5. COMMITTEES. The Board of Directors may, by
resolution adopted by the unanimous vote of the whole Board, designate one or
more committees, including, without limitation, an Executive Committee, to have
and exercise such power and authority as the Board of Directors shall specify.
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 Director
to act as the absent or disqualified member.
Section 6. ACTION WITHOUT MEETING. Unless otherwise restricted
by the Restated Certificate of Incorporation or these Restated By-Laws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all
Directors or members of such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 7. COMPENSATION. Each Director, in consideration of
his or her service as such, shall be entitled to receive from the Corporation
such amount per annum or such fees for attendance at Directors' meetings, or
both, as the Board of Directors may from time to time determine, together with
reimbursement for the reasonable out-of-pocket expenses, if any incurred by such
Director in connection with the performance of his or her duties. Each Director
who shall serve as a member of any committee of Directors in consideration of
serving as such shall be entitled to such additional amount per annum or such
fees for attendance at committee meetings, or both, as the Board of Directors
may from time to time determine, together with reimbursement for the reasonable
out-of-pocket expenses, if any, incurred by such Director in the performance of
his or her duties. Nothing contained in this Section 7 shall preclude any
Director from serving the Corporation or its subsidiaries in any other capacity
and receiving proper compensation therefor.
ARTICLE III
OFFICERS
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The officers of the Corporation shall consist of a President,
a Vice President, a Secretary, a Treasurer, and such other additional officers
with such titles as the Board of Directors shall determine, all of which shall
be chosen by and shall serve at the pleasure of the Board of Directors. Such
officers shall have the usual powers and shall perform all the usual duties
incident to their respective offices. All officers shall be subject to the
supervision and direction of the Board of Directors. The authority, duties or
responsibilities of any officer of the Corporation may be suspended by the
President with or without cause. Any officer elected or appointed by the Board
of Directors may be removed by the Board of Directors with or without cause.
ARTICLE IV
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
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Section 1. EXECUTION OF CONTRACTS. The Board of Directors,
except as otherwise provided in these Restated By-laws, may prospectively or
retroactively authorize any officer or officers, employee or employees or agent
or agents, in the name and on behalf of the Corporation, to enter into any
contract or execute and deliver any instrument, and any such authority may be
general or confined to specific instances, or otherwise limited.
Section 2. LOANS. The Board of Directors may prospectively or
retroactively authorize the President or any other officer, employee or agent of
the Corporation to effect loans and advances at any time for the Corporation
from any bank, trust company or other institution, or from any firm, corporation
or individual, and for such loans and advances the person so authorized may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and, when authorized by the Board
of Directors so to do, may pledge and hypothecate or transfer any securities or
other property of the Corporation as security for any such loans or advances.
Such authority conferred by the Board of Directors may be general or confined to
specific instances, or otherwise limited.
Section 3. CHECK, DRAFTS, ETC. All checks, drafts and other
orders for the payment of money out of funds of the Corporation and all
evidences of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
Section 4. DEPOSITS. The funds of the Corporation not
otherwise employed shall be deposited from time to time to the order of the
Corporation with such banks, trust companies, investment banking firms,
financial institutions or other depositories as the Board of Directors may
select or as may be selected by an officer, employee or agent of the Corporation
to whom such power to select may from time to time be delegated by the Board of
Directors.
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ARTICLE V
STOCK AND STOCK TRANSFERS
-------------------------
Section 1. CERTIFICATES REPRESENTING SHARES. The shares of
capital stock of the Corporation shall be represented by certificates in such
form (consistent with the provisions of Section 158 of the General Corporation
Law) as shall be approved by the Board of Directors. Such certificates shall be
signed by the Chairman, the President or a Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and may be
impressed with the seal of the Corporation or a facsimile thereof. The
signatures of the officers upon a certificate may be facsimiles, if the
certificate is countersigned by a transfer agent or registrar other than the
Corporation itself or its employee. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may, unless otherwise
ordered by the Board of Directors, be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at the
date of issue.
Section 2. TRANSFER OF SHARES.
(a) Subject to any transfer restriction contained in
these Restated By- Laws, the Restated Certificate of Incorporation or otherwise,
transfers of shares of capital stock of the Corporation shall be made only on
the books of the Corporation by the holder thereof or by the holder's duly
authorized attorney appointed by a power of attorney duly executed and filed
with the Secretary or a transfer agent of the Corporation, and on surrender of
the certificate or certificates representing such shares of capital stock
properly endorsed for transfer and upon payment of all necessary transfer taxes.
Every certificate exchanged, returned or surrendered to the Corporation shall be
marked "Canceled," with the date of cancellation, by the Secretary or an
Assistant Secretary or the transfer agent of the Corporation. A person in whose
name shares of capital stock shall stand on the books of the Corporation shall
be deemed the owner thereof to receive dividends, to vote as such owner and for
all other purposes as respects the Corporation. No transfer of shares of capital
stock shall be valid as against the Corporation, its stockholders and creditors
for any purpose, except to render the transferee liable for the debts of the
Corporation to the extent provided by law, until such transfer shall have been
entered on the books of the Corporation by an entry showing from and to whom
transferred.
(b) A written restriction on the transfer or registration
of transfer of capital stock of the Corporation, if permitted by Section 202 of
the General Corporation Law and noted conspicuously on the certificate
representing such capital stock, may be enforced against the holder of the
restricted capital stock or any successor or transferee of the holder, including
an executor, administrator, trustee, guardian or other fiduciary entrusted with
like responsibility for the person or estate of the holder. Except as provided
in Section 6 of the Restated Certificate of Incorporation or unless noted
conspicuously on the certificate representing such capital stock, a restriction,
even though permitted by Section 202 of the General Corporation Law, shall be
ineffective except against a person with actual knowledge of the restriction. A
restriction on the transfer or registration of transfer of capital stock of
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the Corporation may be imposed either by the Restated Certificate of
Incorporation or by an agreement among any number of stockholders or among such
stockholders and the Corporation. No restriction so imposed shall be binding
with respect to capital stock issued prior to the adoption of the restriction
unless the holders of such capital stock are parties to an agreement or voted in
favor of the restriction.
Section 3. TRANSFER AND REGISTRY AGENTS. The Corporation may
from time to time maintain one or more transfer offices or agents and registry
offices or agents at such place or places as may be determined from time to time
by the Board of Directors.
Section 4. LOST, DESTROYED, STOLEN AND MUTILATED CERTIFICATES.
The holder of any shares of capital stock of the Corporation shall immediately
notify the Corporation of any loss, destruction, theft or mutilation of the
certificate representing such shares, and the Corporation may issue a new
certificate to replace the certificate alleged to have been lost, destroyed,
stolen or mutilated. The Board of Directors may, in its discretion, as a
condition to the issue of any such new certificate, require the owner of the
lost, destroyed, stolen or mutilated certificate, or his or her legal
representatives, to make proof satisfactory to the Board of Directors of such
loss, destruction, theft or mutilation and to advertise such fact in such manner
as the Board of Directors may require, and to give the Corporation and its
transfer agents and registrars, or such of them as the Board of Directors may
require, a bond in such form, in such sums and with such surety or sureties as
the Board of Directors may direct, to indemnify the Corporation and its transfer
agents and registrars against any claim that may be made against any of them on
account of the continued existence of any such certificate so alleged to have
been lost, destroyed, stolen or mutilated and against any expense in connection
with such claim.
Section 5. RULES AND REGULATIONS. The Board of Directors may
make such other rules and regulations as it may deem expedient, not inconsistent
with these Restated By-laws or with the Restated Certificate of Incorporation,
concerning the issue, transfer and registration of certificates representing
shares of its capital stock.
ARTICLE VI
INDEMNIFICATION
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Section 1. INDEMNITY UNDERTAKING. To the fullest extent
permitted by law (including, without limitation, Section 145 of the General
Corporation Law of the State of Delaware), the Corporation shall indemnify any
person who is or was made, or threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding (a "Proceeding"), whether civil,
criminal, administrative or investigative, including, without limitation, an
action by or in the right of the Corporation to procure a judgment in its favor,
by reason of the fact that such person, or a person of whom such person is the
legal representative, is or was a Director or officer of the Corporation, or is
or was serving in any capacity at the request of the Corporation for any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise (an "Other Entity"), against judgments, fines, penalties, excise
taxes, amounts paid in settlement and costs, charges and expenses (including
attorneys' fees and disbursements). Persons who are not Directors or
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officers of the Corporation may be similarly indemnified in respect of service
to the Corporation or to an Other Entity at the request of the Corporation to
the extent the Board of Directors at any time specifies that such persons are
entitled to the benefits of this Article VI.
Section 2. ADVANCEMENT OF EXPENSES. The Corporation shall,
from time to time, reimburse or advance to any Director or officer or other
person entitled to indemnification hereunder the funds necessary for payment of
expenses, including attorneys' fees and disbursements, incurred in connection
with any Proceeding, in advance of the final disposition of such Proceeding;
PROVIDED, HOWEVER, that, if required by the General Corporation Law, such
expenses incurred by or on behalf of any such Director, officer or other person
may be paid in advance of the final disposition of a Proceeding only upon
receipt by the Corporation of an undertaking, by or on behalf of such Director,
officer or other person indemnified hereunder, to repay any such amount so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right of appeal that such Director, officer or other
person is not entitled to be indemnified for such expenses.
Section 3. RIGHTS NOT EXCLUSIVE. The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted pursuant
to, this Article VI shall not be deemed exclusive of any other rights which a
person seeking indemnification or reimbursement or advancement of expenses may
have or to which such person hereafter may be entitled under any statute, the
Restated Certificate of Incorporation, these Restated By-Laws, any agreement,
any vote of stockholders or disinterested Directors or otherwise, both as to
action in his or her official capacity and as to action in another capacity
while holding such office.
Section 4. CONTINUATION OF BENEFITS. The rights to
indemnification and reimbursement or advancement of expenses provided by, or
granted pursuant to, this Article VI shall continue as to a person who has
ceased to be a Director or officer (or other person indemnified hereunder) and
shall inure to the benefit of the executors, administrators, legatees and
distributees of any such person.
Section 5. INSURANCE. The Corporation shall have the 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 an
Other Entity, 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 or the
Restated Certificate of Incorporation or under Section 145 of the General
Corporation Law of the State of Delaware or any other provision of law.
Section 6. BINDING EFFECT. The provisions of this Article VI
shall be a contract between the Corporation, on the one hand, and each Director
and officer who serves in such capacity at any time while this Article VI is in
effect and/or any other person indemnified hereunder, on the other hand,
pursuant to which the Corporation and each such Director, officer or other
person intend to be legally bound. No repeal or modification of this
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Article VI shall affect any rights or obligations with respect to any state of
facts then or theretofore existing or thereafter arising or any proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
Section 7. PROCEDURAL RIGHTS. The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted pursuant
to, this Article VI shall be enforceable by any person entitled to such
indemnification or reimbursement or advancement of expenses in any court of
competent jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) to have made a
determination prior to the commencement of such action that such indemnification
or reimbursement or advancement of expenses is proper in the circumstances nor
an actual determination by the Corporation (including its Board of Directors,
its independent legal counsel and its stockholders) that such person is not
entitled to such indemnification or reimbursement or advancement of expenses
shall constitute a defense to the action or create a presumption that such
person is not so entitled. Such a person shall also be indemnified for any
expenses incurred in connection with successfully establishing his or her right
to such indemnification or reimbursement or advancement of expenses, in whole or
in part, in any such proceeding.
Section 8. SERVICE DEEMED AT CORPORATION'S REQUEST. Any
Director or officer of the Corporation serving in any capacity (a) another
corporation of which a majority of the shares entitled to vote in the election
of its directors is held, directly or indirectly, by the Corporation or (b) any
employee benefit plan of the Corporation or any corporation referred to in
clause (a) shall be deemed, in each case, to be doing so at the request of the
Corporation.
Section 9. ELECTION OF APPLICABLE LAW. Any person entitled to
be indemnified or to receive reimbursement or advancement of expenses as a
matter of right pursuant to this Article VI may elect to have the right to
indemnification or reimbursement or advancement of expenses interpreted on the
basis of the applicable law in effect at the time of the occurrence of the event
or events giving rise to the applicable Proceeding, to the extent permitted by
law, or on the basis of the applicable law in effect at the time such
indemnification or reimbursement or advancement of expenses is sought. Such
election shall be made, by a notice in writing to the Corporation, at the time
indemnification or reimbursement or advancement of expenses is sought; PROVIDED,
HOWEVER, that if no such notice is given, the right to indemnification or
reimbursement or advancement of expenses shall be determined by the law in
effect at the time indemnification or reimbursement or advancement of expenses
is sought.
ARTICLE VII
GENERAL PROVISIONS
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Section 1. NOTICES. Whenever any statute, the Restated
Certificate of Incorporation or these Restated By-Laws require notice to be
given to any Director or
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stockholder, such notice may be given in writing by mail, addressed to such
Director or stockholder at his address as it appears in the records of the
Corporation, with postage thereon prepaid or by telex, telegram or other form of
electronic mail or by telecopy (and subsequently confirmed by any other
permitted means hereunder) and shall be deemed transmitted when personally
delivered or deposited in the mail or delivered to a courier service or a
carrier for electronic transmittal (as the case may be).
Section 2. FISCAL YEAR. The fiscal year of the Corporation
shall be fixed by the Board of Directors.
ARTICLE VIII
SEAL
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The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
ARTICLE IX
PROXIES AND CONSENTS
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Unless otherwise directed by the Board of Directors, the
Chairman of the Board, the President, any Vice President, the Secretary or the
Treasurer or Chief Financial Officer, or any one of them, may execute and
deliver on behalf of the Corporation proxies respecting any and all shares or
other ownership interests of any Other Entity owned by the Corporation. Any such
officer may appoint such person or persons as the officer shall deem proper to
(a) represent and vote the shares or other ownership interests so owned by the
Corporation at any and all meetings of holders of shares or other ownership
interests of such Other Entity, whether general or special, and (b) execute and
deliver consents respecting such shares or other ownership interests. Any such
officer may also attend any meeting of the holders of shares or other ownership
interests of such Other Entity and thereat vote or exercise any or all other
powers of the Corporation as the holder of such shares or other ownership
interests.
