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EXHIBIT 3.2
SECOND AMENDED AND RESTATED BYLAWS
OF ODYSSEY HEALTHCARE, INC.
(A Delaware Corporation)
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TABLE OF CONTENTS
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ARTICLE I OFFICES.................................................................................................1
1.1 Registered Office and Agent...........................................................................1
1.2 Other Offices.........................................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS...............................................................................1
2.1 Annual Meeting........................................................................................1
2.2 Special Meeting.......................................................................................2
2.3 Place of Meetings.....................................................................................2
2.4 Notice................................................................................................2
2.5 Notice of Stockholder Business at Annual Meeting......................................................2
2.6 Voting List...........................................................................................3
2.7 Quorum................................................................................................3
2.8 Adjournments..........................................................................................3
2.9 Order of Business.....................................................................................4
2.10 Required Vote; Withdrawal of Quorum...................................................................4
2.11 Method of Voting; Proxies.............................................................................4
2.12 Record Date...........................................................................................4
2.13 Conduct of Meeting....................................................................................5
2.14 Inspectors............................................................................................5
2.15 Certain Rules of Procedure Relating to Stockholder Meetings...........................................5
2.16 Requests for Stockholder List and Corporation Records.................................................6
ARTICLE III DIRECTORS.............................................................................................6
3.1 Management............................................................................................6
3.2 Number; Qualification; Election; Eligibility; Term....................................................6
3.3 Nomination of Director Candidates.....................................................................6
3.4 Change in Number......................................................................................7
3.5 Removal...............................................................................................8
3.6 Resignation...........................................................................................8
3.7 Newly Created Directorships and Vacancies.............................................................8
3.8 Place of Meetings.....................................................................................8
3.9 Regular Meetings......................................................................................8
3.10 Special Meetings......................................................................................8
3.11 Election of Officers..................................................................................9
3.12 Notice of Special Meetings............................................................................9
3.13 Quorum; Majority Vote.................................................................................9
3.14 Procedure.............................................................................................9
3.15 Presumption of Assent.................................................................................9
3.16 Compensation..........................................................................................9
ARTICLE IV COMMITTEES............................................................................................10
4.1 Designation; Powers..................................................................................10
4.2 Number; Qualification; Term..........................................................................10
4.3 Committee Changes....................................................................................10
4.4 Alternate Members of Committees......................................................................10
4.5 Regular Meetings.....................................................................................10
4.6 Special Meetings.....................................................................................10
4.7 Quorum; Majority Vote................................................................................10
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4.8 Minutes..............................................................................................10
4.9 Compensation.........................................................................................11
4.10 Responsibility.......................................................................................11
ARTICLE V NOTICE.................................................................................................11
5.1 Method of Notice.....................................................................................11
5.2 Waiver...............................................................................................11
ARTICLE VI OFFICERS..............................................................................................11
6.1 Number; Titles; Term of Office.......................................................................11
6.2 Removal and Resignation..............................................................................12
6.3 Vacancies............................................................................................12
6.4 Authority............................................................................................12
6.5 Compensation.........................................................................................12
6.6 Chairman of the Board................................................................................12
6.7 President............................................................................................12
6.8 Vice Presidents......................................................................................13
6.9 Treasurer............................................................................................13
6.10 Assistant Treasurers.................................................................................14
6.11 Secretary............................................................................................14
6.12 Assistant Secretaries................................................................................14
ARTICLE VII CERTIFICATES AND STOCKHOLDERS........................................................................15
7.1 Certificates for Shares..............................................................................15
7.2 Replacement of Lost or Destroyed Certificates........................................................15
7.3 Transfer of Shares...................................................................................15
7.4 Registered Stockholders..............................................................................15
7.5 Regulations..........................................................................................15
7.6 Legends..............................................................................................16
ARTICLE VIII MISCELLANEOUS PROVISIONS............................................................................16
8.1 Dividends............................................................................................16
8.2 Reserves.............................................................................................16
8.3 Books and Records....................................................................................16
8.4 Fiscal Year..........................................................................................16
8.5 Seal.................................................................................................16
8.6 Securities of Other Corporations.....................................................................16
8.7 Telephone Meetings...................................................................................16
8.8 Action Without a Meeting.............................................................................17
8.9 Invalid Provisions...................................................................................17
8.10 Mortgages, etc.......................................................................................17
8.11 Headings.............................................................................................17
8.12 References...........................................................................................17
8.13 Amendments...........................................................................................17
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SECOND AMENDED AND RESTATED BYLAWS
OF
ODYSSEY HEALTHCARE, INC.
A DELAWARE CORPORATION
PREAMBLE
These Bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation (as the same may be amended and restated from time
to time) of Odyssey Healthcare, Inc., a Delaware corporation (the
"Corporation"). In the event of a direct conflict between the provisions of
these Bylaws and the mandatory provisions of the Delaware General Corporation
Law or the provisions of the certificate of incorporation of the Corporation,
such provisions of the Delaware General Corporation Law or the certificate of
incorporation of the Corporation, as the case may be, will be controlling.
ARTICLE I
OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board may from
time to time determine or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors of the
Corporation (the "Board") and stated in the notice of the meeting or in a duly
executed waiver of notice of such meeting. At such meeting, the stockholders
shall elect directors and transact such other business as may properly be
brought before the meeting. Except as otherwise permitted by law, no stockholder
of the Corporation shall require the Board to call an annual meeting of
stockholders of the Corporation. At such meeting, the stockholders shall elect
directors and transact such other business as may properly be brought before the
meeting.
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2.2 Special Meeting. A special meeting of the stockholders may be
called, and business to be considered at any such meeting may be proposed, at
any time exclusively by a majority of the members of the Board, and no
stockholder of the Corporation shall require the Board to call a special meeting
of stockholders or to propose business at a special meeting of stockholders. A
special meeting shall be held on such date and at such time as shall be
designated by the Board and stated in the notice of the meeting or in a duly
executed waiver of notice of such meeting. Only such business shall be
transacted at a special meeting as may be stated or indicated in the notice of
such meeting or in a duly executed waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the Board. A
special meeting of stockholders may be held at any place within or without the
State of Delaware designated in the notice of the meeting or a duly executed
waive of notice of such meeting. Meetings of stockholders shall be held at the
principal office of the Corporation unless another place is designated for
meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of the President, the
Secretary, or the officer or person(s) calling the meeting, to each stockholder
of record entitled to vote at such meeting. If such notice is to be sent by
mail, it shall be directed to each stockholder at his address as it appears on
the records of the Corporation, unless he shall have filed with the Secretary of
the Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address. Notice
of any meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
2.5 Notice of Stockholder Business at Annual Meeting. (a) At an annual
meeting of the stockholders, only such business shall be conducted as shall have
been brought before the meeting (i) pursuant to the Corporation's notice of
meeting, (ii) by or at the direction of a majority of the members of the Board,
or (iii) by any stockholder of the Corporation who is a stockholder of record at
the time of giving of notice provided for in this Bylaw, who shall be entitled
to vote at such meeting, and who complies with the notice procedures set forth
in paragraph (b) of this Bylaw.
(b) For business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of paragraph (a) of this
Bylaw, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation at the Corporation's principal place of business.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation not less than ninety (90)
days nor more than one hundred twenty (120) days prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in the event
that the date of the meeting is changed by more than thirty (30) days from such
anniversary date, notice by the stockholder to
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be timely must be received no later than the close of business on the tenth day
following the earlier of the day on which notice of the date of the meeting was
mailed or public disclosure of the meeting date was made. A stockholder's notice
to the Secretary with respect to business to be brought at an annual meeting
shall set forth (1) the nature of the proposed business with reasonable
particularity, including the exact text of any proposal to be presented for
adoption, and the reasons for conducting that business at the annual meeting,
(2) with respect to each such stockholder, that stockholder's name and address
(as they appear on the records of the Corporation), business address and
telephone number, residence address and telephone number, and the number of
shares of each class of capital stock of the Corporation beneficially owned by
that stockholder, and (3) any interest of the stockholder in the proposed
business.
(c) Notwithstanding anything in these Bylaws to the contrary,
no business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this Bylaw. The chairman of an annual meeting shall,
if the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
to the meeting and any such business not properly brought before the meeting
shall not be transacted. Nothing in this Bylaw shall relieve a stockholder who
proposes to conduct business at an annual meeting from complying with all
applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations thereunder.
2.6 Voting List. At least ten (10) days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the Board, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and number of
shares registered in the name of each stockholder. For a period of ten (10) days
prior to such meeting, such list shall be kept on file at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of meeting or a duly executed waiver of notice of such meeting or, if not
so specified, at the place where the meeting is to be held and shall be open to
examination by any stockholder during ordinary business hours. Such list shall
be produced at such meeting and kept at the meeting at all times during such
meeting and may be inspected by any stockholder who is present.
2.7 Quorum. At each meeting of stockholders of the Corporation, the
holders of a majority of the issued and outstanding shares of capital stock of
the Corporation entitled to vote on a matter, present in person or by proxy,
shall constitute a quorum for the transaction of business, except as otherwise
provided by law, the certificate of incorporation of the Corporation, or these
Bylaws.
2.8 Adjournments. If a quorum shall not be present, in person or by
proxy, at any meeting of stockholders or any adjournment thereof, the chairman
of the meeting or a majority in interest of the stockholders entitled to vote
thereat who are present, in person or by proxy, may adjourn the meeting from
time to time, without notice other than announcement at the meeting (unless the
Board, after such adjournment, fixes a new record date for the adjourned
meeting), until a quorum shall be present, in person or by proxy. At any
adjourned meeting at which a
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quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present, in person or by proxy; provided that, if the adjournment is for more
than thirty (30) 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 of record entitled to vote at the adjourned meeting.
2.9 Order of Business. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting.
2.10 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
law, the certificate of incorporation of the Corporation, or these Bylaws, a
different vote is required, in which case such express provision shall govern
and control the decision of such question. The stockholders present at a duly
constituted meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
2.11 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or these Bylaws, each
outstanding share of capital stock of the Corporation, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders. Elections of directors need not be by written ballot. At any
meeting of stockholders, every stockholder having the right to vote may vote
either in person or by a proxy executed in writing by the stockholder or by his
duly authorized attorney-in-fact. Each such proxy shall be filed with the
Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after three (3) years from the date of its execution, unless
otherwise provided in the proxy. If no date is stated in a proxy, such proxy
shall be presumed to have been executed on the date of the meeting at which it
is to be voted. Each proxy shall be revocable unless expressly provided therein
to be irrevocable and coupled with an interest sufficient in law to support an
irrevocable power or unless otherwise made irrevocable by law.
2.12 Record Date. For the purpose of determining 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 may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board,
for any such determination of stockholders, such date in any case to be not more
than sixty (60) days and not less than ten (10) days prior to such meeting nor
more than sixty (60) days prior to any other action. If no record date is fixed:
(a) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the date on which notice is given or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
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(b) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
(c) 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 may fix a new record date for
the adjourned meeting.
2.13 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's duties shall be
performed by the officer given the authority to act for such absent or
non-acting officer under these Bylaws or by some person appointed by the
meeting.
2.14 Inspectors. The Board may, 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 his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his 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, and 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.
2.15 Certain Rules of Procedure Relating to Stockholder Meetings. All
stockholder meetings, annual or special, shall be governed in accordance with
the following rules:
(a) Only stockholders of record will be permitted to present
motions from the floor at any meeting of stockholders.
(b) The chairman of the meeting shall preside over and conduct
the meeting in a fair and reasonable manner, and all questions of procedure or
conduct of the meeting shall be decided solely by the chairman of the meeting.
The chairman of the meeting shall have all power and authority vested in a
presiding officer by law or practice to conduct an orderly meeting. Among other
things, the chairman of the meeting shall have the power to adjourn or recess
the meeting, to silence or expel persons to ensure the orderly conduct of the
meeting, to declare motions or persons out of order, to prescribe rules of
conduct and an agenda for the meeting, to impose reasonable time limits on
questions and remarks by any stockholder, to limit the number of questions a
stockholder may ask, to limit the nature of questions and comments to one
subject matter at a time as dictated by any agenda for the meeting, to limit the
number of speakers or
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persons addressing the chairman of the meeting or the meeting, to determine when
the polls shall be closed, to limit the attendance at the meeting to
stockholders of record, beneficial owners of stock who present letters from the
record holders confirming their status as beneficial owners, and the proxies of
such record and beneficial holders, and to limit the number of proxies a
stockholder may name.
2.16 Requests for Stockholder List and Corporation Records.
Stockholders shall have those rights afforded under the Delaware General
Corporation Law to inspect a list of stockholders and other related records and
make copies or extracts therefrom. Such request shall be in writing in
compliance with Section 220 of the Delaware General Corporation Law. In
addition, any stockholder making such a request must agree that any information
so inspected, copied or extracted by the stockholder shall be kept confidential,
that any copies or extracts of such information shall be returned to the
Corporation and that such information shall only be used for the purpose stated
in the request. Information so requested shall be made available for inspecting,
copying or extracting at the principal executive offices of the Corporation.
Each stockholder desiring a photostatic or other duplicate copies of any of such
information requested shall make arrangements to provide such duplicating or
other equipment necessary in the city where the Corporation's principal
executive offices are located. Alternative arrangements with respect to this
Section 2.16 may be permitted in the discretion of the President of the
Corporation or by vote of the Board.
ARTICLE III
DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed under the direction of the Board. Subject to the restrictions imposed by
law, the certificate of incorporation of the Corporation, or these Bylaws, the
Board may exercise all the powers of the Corporation and do all such lawful acts
and things as are not by law or otherwise directed or required to be exercised
or done by the stockholders.
3.2 Number; Qualification; Election; Eligibility; Term. Except as
otherwise provided in the Certificate of Incorporation, the number of directors
which shall constitute the entire Board shall from time to time be fixed
exclusively by the Board by a resolution adopted by a majority of the entire
Board serving at the time of that vote. Except as otherwise required by law, the
Certificate of Incorporation, or these Bylaws, the directors of the Corporation
shall be elected at an annual meeting of stockholders at which a quorum is
present by a plurality of the votes of the shares present in person or
represented by proxy and entitled to vote on the election of directors or a
class of directors. None of the directors need be a stockholder of the
Corporation or a resident of the State of Delaware. Each director must have
attained the age of majority. All directors must, in order to be elected, meet
the eligibility requirements of Section 3.3.
3.3 Nomination of Director Candidates. (a) Nominations of persons for
election to the Board of the Corporation at a meeting of stockholders may be
made (i) by or at the direction of the Board or (ii) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Bylaw, who shall be entitled to vote for the election
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of the director so nominated and who complies with the notice procedures set
forth in this Bylaw.
(b) Nominations by stockholders shall be made pursuant to
timely notice in writing to the Secretary of the Corporation at the
Corporation's principal place of business. To be timely, a stockholder's notice
shall be delivered to or mailed and received at the principal executive offices
of the Corporation (i) in the case of an annual meeting, not less than ninety
(90) days nor more than one hundred twenty (120) days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is changed by more than thirty
(30) days from such anniversary date, notice by the stockholder to be timely
must be so received not later than the close of business on the tenth (10th) day
following the earlier of the date on which notice of the date of the meeting was
mailed or public disclosure of the meeting date was made, and (ii) in the case
of a special meeting at which directors are to be elected, not later than the
close of business on the tenth (10th) day following the earlier of the day on
which notice of the date of the meeting was mailed or public disclosure of the
meeting date was made. Such notice shall set forth (i) as to each nominee for
election as a director, all information relating to such person that would be
required to be disclosed in solicitations of proxies for election of directors,
or that otherwise would be required, in each case pursuant to Regulation 14A
under the Exchange Act (including such person's written consent to serving as a
director if elected and, if applicable, to being named in the proxy statement as
a nominee), and (ii) if the nomination is submitted by a stockholder of record,
(A) the name and address, as they appear on the Corporation's books, of such
stockholder of record and the name and address of the beneficial owner, if
different, on whose behalf the nomination is made and (B)the class and number of
shares of the Corporation which are beneficially owned and owned of record by
such stockholder of record and such beneficial owner. At the request of the
Board, any person nominated by the Board for election as a director shall
furnish the Secretary of the Corporation that information required to be set
forth in the stockholder's notice of nomination which pertains to the nominee.
(c) No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Bylaw. The election of any director in violation of this Bylaw shall be void and
of no force or effect. The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these Bylaws, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Bylaw.
3.4 Change in Number. If the number of directors that constitutes the
whole Board is changed in accordance with the Certificate of Incorporation and
these Bylaws, the majority of the whole Board that adopts the change shall also
fix and determine the number of directors comprising each class; provided,
however, that any increase or decrease in the number of directors shall be
apportioned among the classes as equally as possible. No decrease in the number
of directors constituting the entire Board shall have the effect of shortening
the term of any incumbent director.
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3.5 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation, these Bylaws, or by law, at the annual meeting
of stockholders or at any special meeting of stockholders called expressly for
that purpose, a director of any class of directors may be removed before the
expiration date of that director's term of office, with cause (as defined in the
certificate of incorporation of the Corporation) only, by an affirmative vote of
the holders of not less than a majority of the outstanding shares of the class
or classes or series of capital stock then entitled to vote at an election of
directors or directors of that class or series, voting together as a single
class.
3.6 Resignation. Any director may resign at any time by giving written
notice to the Corporation; provided, however, that written notice to the Board,
the Chairman of the Board, the Chief Executive Officer or the Secretary shall be
deemed to constitute notice to the Corporation. Such resignation shall take
effect upon receipt of such notice or at any later time specified therein and,
unless otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
3.7 Newly Created Directorships and Vacancies. Newly-created
directorships resulting from any increase in the authorized number of directors
and vacancies on the Board may be filled by no less than a majority vote of the
remaining directors then in office, though less than a quorum, and each director
so chosen shall receive the classification of the vacant directorship to which
he or she has been appointed or, if it is a newly created directorship, shall
receive the classification that at least a majority of the Board designates and
shall hold office until the first annual meeting of stockholders held after his
appointment for the purpose of electing directors of that classification and
until his successor is elected and qualified or, if earlier, until his death,
resignation, retirement, disqualification, or removal from office. If there are
no directors in office, an election of directors may be held in the manner
provided by statute. Except as otherwise provided in these Bylaws, when one or
more directors shall resign from the Board, effective at a future date, a
majority of the directors then in office, including those who have so resigned,
shall have the power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in these Bylaws with respect to
the filling of other vacancies.
3.8 Place of Meetings. The directors may hold their meetings and may
have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the Board may from time to time determine or as shall be specified
in the notice of such meeting or duly executed waiver of notice of such meeting.
3.9 Regular Meetings. Regular meetings of the Board shall be held at
such times and places as shall be designated from time to time by resolution of
the Board. Notice of such regular meetings shall not be required.
3.10 Special Meetings. Special meetings of the Board shall be held
whenever called by the Chairman of the Board, the President, or any director.
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3.11 Election of Officers. At the first meeting of the Board after each
annual meeting of stockholders at which a quorum shall be present, the Board
shall elect the officers of the Corporation.
3.12 Notice of Special Meetings. The Secretary shall give written or
printed notice of each special meeting to each director no later than ten (10)
days before the meeting. Notice of any such meeting need not be given to any
party entitled to notice who shall, either before or after the meeting, submit a
signed waiver of notice or who shall attend such meeting without protesting,
prior to or at its commencement, the lack of notice to him. Such notice shall
state the place, day and time of the meeting and the purpose or purposes for
which the meeting is called.
3.13 Quorum; Majority Vote. At all meetings of the Board, a majority of
the directors fixed in the manner provided in these Bylaws shall constitute a
quorum for the transaction of business. If at any meeting of the Board there be
less than a quorum present, a majority of those present or any director solely
present may adjourn the meeting from time to time without further notice. Unless
the act of a greater number is required by law, the certificate of incorporation
of the Corporation, or these Bylaws, the act of a majority of the directors
present at a meeting at which a quorum is in attendance shall be the act of the
Board. At any time that the certificate of incorporation of the Corporation
provides that directors elected by the holders of a class or series of stock
shall have more or less than one vote per director on any matter, every
reference in these Bylaws to a majority or other proportion of directors shall
refer to a majority or other proportion of the votes of such directors.
3.14 Procedure. At meetings of the Board, business shall be transacted
in such order as from time to time the Board may determine. The Chairman of the
Board, if such office has been filled, and, if not or if the Chairman of the
Board is absent or otherwise unable to act, the President, if he is a director,
shall preside at all meetings of the Board. In the absence or inability to act
of either such officer, a chairman shall be chosen by the Board from among the
directors present. The Secretary of the Corporation shall act as the secretary
of each meeting of the Board unless the Board appoints another person to act as
secretary of the meeting. The Board shall keep regular minutes of its
proceedings which shall be placed in the minute book of the Corporation.
3.15 Presumption of Assent. A director of the Corporation who is
present at the meeting of the Board at which action on any corporate matter is
taken shall be presumed to have assented to the action unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as secretary of the meeting before
the adjournment thereof or shall forward any dissent by certified or registered
mail to the Secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director who votes in
favor of such action.
3.16 Compensation. The Board shall have the authority to fix the
compensation, including fees and reimbursement of expenses, paid to directors
for attendance at regular or special meetings of the Board or any committee
thereof; provided, that nothing contained herein shall be construed to preclude
any director from serving the Corporation in any other capacity or receiving
compensation therefor.
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ARTICLE IV
COMMITTEES
4.1 Designation; Powers. The Board may, by resolution adopted by a
majority of the entire Board, designate one or more committees. The committee
shall have and may exercise such of the powers of the Board in the management of
the business and affairs of the Corporation as may be provided in such
resolution and as permitted by applicable law.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire
Board. The number of committee members may be increased or decreased from time
to time by resolution adopted by a majority of the entire Board. Each committee
member shall serve as such until the earliest of (i) the expiration of his term
as director, (ii) his resignation as a committee member or as a director, or
(iii) his removal as a committee member or as a director.
4.3 Committee Changes. The Board shall have the power at any time to
fill vacancies in, to change the membership of, and to discharge any committee.
4.4 Alternate Members of Committees. The Board may designate one or
more directors as alternate members of any committee. Any such alternate member
may replace any absent or disqualified member at any meeting of the committee.
If no alternate committee members have been so appointed to a committee or each
such alternate committee members is absent or disqualified, the member or
members of such committee 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 to act at the meeting in the place of any such
absent or disqualified member.
4.5 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
resolution by the committee and communicated to all members thereof.
4.6 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days (2) before such special meeting.
4.7 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the Board shall constitute a quorum for the
transaction of business. If a quorum is not present at a meeting of any
committee, a majority of the members present may adjourn the meeting from time
to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation, or these Bylaws.
4.8 Minutes. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the Board upon the request of the
Board. The minutes of the
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proceedings of each committee shall be delivered to the Secretary of the
Corporation for placement in the minute books of the Corporation.
4.9 Compensation. Committee members may, by resolution of the Board, be
allowed a fixed sum and expenses of attendance, if any, for attending any
committee meetings or a stated salary.
4.10 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the Board or any
director of any responsibility imposed upon it or such director by law.
ARTICLE V
NOTICE
5.1 Method of Notice. Whenever by statute, the certificate of
incorporation of the Corporation, or these Bylaws, notice is required to be
given to any committee member, director, or stockholder and no provision is made
as to how such notice shall be given, personal notice shall not be required and
any such notice may be given (a) in writing, by mail, postage prepaid, addressed
to such committee member, director or stockholder at his address as it appears
on the books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice required
or permitted to be given by telegram, telex or telefax shall be deemed to be
delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these Bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE VI
OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the Board may from
time to time elect or appoint, including a Chairman of the Board, one or more
Vice Presidents (with each Vice
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President to have such descriptive title, if any, as the Board shall determine),
and a Treasurer. Each officer shall hold office until his successor shall have
been duly elected and shall have qualified, until his death, until he shall
resign or shall have been removed in the manner hereinafter provided, or, in the
case of the Chairman of the Board, until he shall cease to be a director. Any
two or more offices may be held by the same person. No officer shall execute,
acknowledge, verify or countersign any instrument on behalf of the Corporation
in more than one capacity, if such instrument is required by law, by these
Bylaws or by any act of the Corporation to be executed, acknowledged, verified
or countersigned by two or more officers. The Chairman of the Board, if any,
shall be elected from among the directors. Subject to the foregoing exceptions,
none of the officers need be a stockholder or a director of the Corporation or a
resident of the State of Delaware.
6.2 Removal and Resignation. Any officer or agent elected or appointed
by the Board may be removed by the Board whenever in its judgment the best
interest of the Corporation will be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights. Any officer may resign at any time by giving written notice to
the Corporation; provided, however, that written notice to the Board, the
Chairman of the Board, the President or the Secretary shall be deemed to
constitute notice to the Corporation. Any such resignation shall take effect at
the date of the receipt of such notice or at any later time specified therein,
and unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the Board.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these Bylaws or
as may be determined by resolution of the Board not inconsistent with these
Bylaws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the Board; provided, however, that the Board
may delegate to a committee of the Board, the Chairman of the Board or the
President the power to determine the compensation of any officer or agent (other
than the officer to whom such power is delegated).
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
Board, shall have such powers and duties as may be prescribed by the Board. Such
officer shall preside at all meetings of the stockholders and of the Board. Such
officer may sign, with the Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer or another officer of the Corporation thereunto authorized
by the Board, certificates for shares of the Corporation and any deeds, bonds,
mortgages, contracts, checks, notes, drafts or other instruments, the issue or
execution of which shall have been authorized by resolution of the Board, except
in cases where the signing and execution thereof has been expressly delegated by
these Bylaws or by the Board to some other officer or agent of the Corporation,
or shall be required by law to be otherwise executed.
6.7 President. The President shall be the chief executive officer of
the Corporation and, subject to the Board, he shall have general executive
charge, management, and control of
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the properties and operations of the Corporation in the ordinary course of its
business, with all such powers with respect to such properties and operations as
may be reasonably incident to such responsibilities. The President shall have
the power to appoint and remove subordinate officers, agents and employees,
including Assistant Secretaries and Assistant Treasurers, except that the
President may not remove those elected or appointed by the Board. The President
shall keep the Board and the Executive Committee (if any) fully informed and
shall consult them concerning the business of the Corporation. The President may
sign, with the Secretary, Assistant Secretary, Treasurer or Assistant Treasurer
or another officer of the Corporation thereunto authorized by the Board,
certificates for shares of the Corporation and any deeds, bonds, mortgages,
contracts, checks, notes, drafts or other instruments, the issue or execution of
which shall have been authorized by resolution of the Board, except in cases
where the signing and execution thereof has been expressly delegated by these
Bylaws or by the Board to some other officer or agent of the Corporation, or
shall be required by law to be otherwise executed. If the Board has not elected
a Chairman of the Board or in the absence, inability to act or refusal to act,
of the Chairman of the Board, the President shall exercise all of the powers and
discharge all of the duties of the Chairman of the Board, except for presiding
at meetings of the Board if the President is not also a director. As between the
Corporation and third parties, any action taken by the President in the
performance of the duties of the Chairman of the Board shall be conclusive
evidence that there is no Chairman of the Board or that the Chairman of the
Board is absent or unable or refuses to act.
6.8 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the Board, the Chairman of the Board, or the
President, and (in order of their seniority as determined by the Board, or in
the absence of such determination, as determined by the length of time they have
held the office of Vice President) shall exercise the powers of the President
during that officer's absence, inability to act or refusal to act. Any Vice
President may sign, with the Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer or another officer of the Corporation thereunto authorized
by the Board, certificates for shares of the Corporation and any deeds, bonds,
mortgages, contracts, checks, notes, drafts or other instruments, the issue or
execution of which shall have been authorized by resolution of the Board, except
in cases where the signing and execution thereof has been expressly delegated by
these Bylaws or by the Board to some other officer or agent of the Corporation,
or shall be required by law to be otherwise executed. As between the Corporation
and third parties, any action taken by a Vice President in the performance of
the duties of the President shall be conclusive evidence of the absence or
inability or refusal to act of the President at the time such action was taken.
6.9 Treasurer. The Treasurer shall (a) have charge and custody of and
be responsible for all funds and securities of the Corporation; receive and give
receipts for monies due and payable to the Corporation from any source
whatsoever and deposit all such monies in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected by the Board;
(b) prepare, or cause to be prepared, for submission at each regular meeting of
the Board, at each annual meeting of the stockholders, and at such other times
as may be required by the Board, the Chairman of the Board (if any) or the
President, a statement of financial condition of the Corporation in such detail
as may be required; (c) sign with the Chairman of the Board (if any), the
President, or any Vice President, certificates for shares of the Corporation and
any deeds, bonds, mortgages, contracts, checks, notes, drafts or other
instruments, the issue or
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execution of which shall have been authorized by resolution of the Board, except
in cases where the signing and execution thereof has been expressly delegated by
these Bylaws or by the Board to some other officer or agent of the Corporation,
or shall be required by law to be otherwise executed; and (d) in general,
perform all the duties incident to the office of Treasurer and such other duties
as from time to time may be assigned by the Chairman of the Board (if any), the
President or the Board.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
power and duties as may be assigned to him by the Board, the Chairman of the
Board, or the President. The Assistant Treasurers (in the order of their
seniority as determined by the Board or, in the absence of such a determination,
as determined by the length of time they have held the office of Assistant
Treasurer) shall exercise the powers of the Treasurer during that officer's
absence or inability or refusal to act, but such delegation shall not relieve
the Treasurer from his responsibilities and liabilities of office.
6.11 Secretary. Except as otherwise provided in these Bylaws, the
Secretary shall (a) record the proceedings of the meetings of the stockholders,
the Board and committees of directors in the permanent minute books of the
Corporation kept for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these Bylaws and as required by law; (c) be
custodian of the corporate records and of the seal of the Corporation, and see
that the seal of the Corporation or a facsimile thereof is affixed to all
certificates for shares of the Corporation prior to the issue thereof and to all
documents, the execution of which on behalf of the Corporation under its seal is
duly authorized in accordance with the provisions of these Bylaws; (d) keep or
cause to be kept a register of the post office address of each stockholder which
shall be furnished by such stockholder; (e) sign with the Chairman of the Board
(if any), the President, or any Vice President, certificates for shares of the
Corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts or
other instruments, the issue or execution of which shall have been authorized by
resolution of the Board, except in cases where the signing and execution thereof
has been expressly delegated by these Bylaws or by the Board to some other
officer or agent of the Corporation, or shall be required by law to be otherwise
executed; (f) have general charge of the stock transfer books of the
Corporation; and (g) in general, perform all duties normally incident to the
office of Secretary and such other duties as from time to time may be assigned
by the Chairman of the Board (if any), the President or the Board.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board or the President. The Assistant Secretaries (in the order
of their seniority as determined by the Board of Directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Secretary) shall exercise the powers of the Secretary during
that officer's absence or inability or refusal to act. The Assistant Secretaries
may sign, with the Chairman of the Board, the President or any Vice President,
certificates for shares of the Corporation and any deeds, bonds, mortgages,
contracts, checks, notes, drafts or other instruments, the issue or execution of
which shall have been authorized by a resolution of the Board, except in cases
where the signing and execution thereof has been expressly delegated by these
Bylaws or by the Board to some other officer or agent of the Corporation, or
shall be required by law to be otherwise executed.
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ARTICLE VII
CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
corporation shall be in such form as shall be approved by the Board. The
certificates shall be signed by the Chairman of the Board or the President or a
Vice President and also by the Secretary or an Assistant Secretary or by the
Treasurer or an Assistant Treasurer. Any and all signatures on the certificate
may be facsimiles, engraved or printed and may be sealed with the seal of the
Corporation (which seal may be a facsimile, engraved or printed). If any
officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon, a certificate has ceased to be such officer,
transfer agent, or registrar before such certificate is issued, such certificate
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue. The certificates
shall be consecutively numbered and shall be entered in the books of the
Corporation as they are issued and shall exhibit the holder's name and the
number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The Board may direct
a new certificate or certificates to be issued in place of a certificate or
certificates theretofore issued by the Corporation and alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate or certificates representing shares to be lost or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond with a surety or
sureties satisfactory to the Corporation in such sum as it may direct as
indemnity against any claim, or expense resulting from a claim, that may be made
against the Corporation with respect to the certificate or certificates alleged
to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. 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 or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
7.5 Regulations. The Board shall have the power and authority to make
all such rules and regulations as they may deem expedient concerning the issue,
transfer and registration or the replacement of certificates for shares of stock
of the Corporation.
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7.6 Legends. The Board shall have the power and authority to provide
that certificates representing shares of stock bear such legends as the Board
deems appropriate to assure that the Corporation does not become liable for
violations of federal or state securities laws or other applicable law.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the Board at any
regular or special meeting and may be paid in cash, in property, or in shares of
capital stock of the Corporation. Such declaration and payment shall be at the
discretion of the Board.
8.2 Reserves. There may be created by the Board out of funds of the
Corporation legally available therefor such reserve or reserves as the directors
from time to time, in their discretion, consider proper to provide for
contingencies, to equalize dividends, or to repair or maintain any property of
the Corporation, or for such other purpose as the Board shall consider
beneficial to the Corporation, and the Board may modify or abolish any such
reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and Board and shall keep at its registered office or principal
place of business, or at the office of its transfer agent or registered office
or principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the Board; provided, that if such fiscal year is not fixed by the Board and the
selection of the fiscal year is not expressly deferred by the Board, the fiscal
year shall be the calendar year.
8.5 Seal. The seal of the Corporation, if any, shall be in such form as
from time to time may be approved by the Board. Said seal may be used by causing
it or a facsimile thereof to be impressed or affixed or in any manner
reproduced.
8.6 Securities of Other Corporations. With the prior approval of a
majority of the Corporation's Board, the Chairman of the Board, the President,
or any Vice President, the Corporation shall have the power and authority to
transfer, endorse for transfer, vote, consent, or take any other action with
respect to any securities of another issuer which may be held or owned by the
Corporation and to make, execute, and deliver any waiver, proxy or consent with
respect to any such securities.
8.7 Telephone Meetings. Stockholders (acting for themselves or through
a proxy), members of the Board and members of a committee of the Board may
participate in and hold a meeting of such stockholders, Board or committee by
means of a conference telephone or similar communications equipment by means of
which persons participating in the meeting can hear each other and participation
in a meeting pursuant to this section shall constitute presence in
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person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
8.8 Action Without a Meeting. Unless otherwise restricted by the
certificate of incorporation of the Corporation or by these Bylaws, any action
required or permitted to be taken at a meeting of the Board, or of any committee
of the Board, may be taken without a meeting if a consent or consents in
writing, setting forth the action so taken, shall be signed by all the directors
or all the committee members, as the case may be, entitled to vote with respect
to the subject matter thereof, and such consent shall have the same force and
effect as a vote of such directors or committee members, as the case may be, and
may be stated as such in any certificate or document filed with the Secretary of
State of the State of Delaware or in any certificate delivered to any person.
Such consent or consents shall be filed with the minutes of proceedings of the
board or committee, as the case may be.
8.9 Invalid Provisions. If any part of these Bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
8.10 Mortgages, etc. With respect to any deed, deed of trust, mortgage
or other instrument executed by the Corporation through its duly authorized
officer or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the Board authorizing such
execution expressly state that such attestation is necessary.
8.11 Headings. The headings used in these Bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.12 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.13 Amendments. These Bylaws may be altered, amended, or repealed or
new Bylaws may be adopted by the Board at any regular meeting of the Board or at
any special meeting of the Board if notice of such alteration, amendment,
repeal, or adoption of new Bylaws be contained in the notice of such special
meeting. In addition to any affirmative vote of the holders of any particular
class or series of the capital stock of the Corporation required by law or by
the certificate of incorporation of the Corporation, the affirmative vote of the
holders of not less than eighty percent of the outstanding shares of the
Corporation then entitled to vote upon the election of directors, voting
together as a single class, shall be required for the alteration, amendment, or
repeal of the Bylaws or adoption of new Bylaws by the stockholders of the
Corporation.
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I, the undersigned, being the Secretary of the Corporation DO HEREBY
CERTIFY THAT the foregoing are the Bylaws of said Corporation, as adopted by the
Board of said Corporation on the _____ day of _____________, 2000, and made
effective as of the _____ day of _______________, 2001.
-----------------------------------
, Secretary
------------------------
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
BYLAWS OF ODYSSEY HEALTHCARE, INC.]
