BY-LAWS OF HEALTHCARE SERVICES, INC. (a Delaware corporation)
Exhibit 3.3
OF
HEALTHCARE SERVICES, INC.
(a Delaware corporation)
ARTICLE I
CERTIFICATE OF INCORPORATION; GOVERNING LAW; STOCKHOLDERS’ AGREEMENT
CERTIFICATE OF INCORPORATION; GOVERNING LAW; STOCKHOLDERS’ AGREEMENT
1.1. Certificate of Incorporation of the Corporation; Governing Law.
These By-Laws are subject to the Certificate of Incorporation of the Corporation and the
General Corporation Law of the State of Delaware (the “General Corporation Law”). In these By-Laws,
references to laws, the Certificate of Incorporation and By-Laws mean, respectively, the laws of
the State of Delaware, the provisions of the Certificate of Incorporation of the Corporation and
the By-Laws of the Corporation as from time to time in effect.
1.2. Stockholders’ Agreement.
If any provision of these By-Laws shall conflict with any provision of any agreement among the
stockholders of the Corporation (a “Stockholders’ Agreement”), the applicable provision of the
Stockholders’ Agreement shall control, provided that such provision is not contrary to applicable
law or otherwise unenforceable.
ARTICLE II
STOCKHOLDERS
STOCKHOLDERS
2.1. Certificates Representing Stock.
(a) Every holder of stock in the Corporation shall be entitled to have a certificate
signed by, or in the name of, the Corporation by the Chief Executive Officer or the President and
by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation representing the number of shares owned by such person in the Corporation. If such
certificate is countersigned by a transfer agent other than the Corporation or its employee or by a
registrar other than the Corporation or its employee, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or
registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at the date of issue.
(b) Whenever the Corporation shall be authorized to issue more than one class of stock or more
than one series of any class of stock, and whenever the Corporation shall issue any shares of its
stock as partly paid stock, the certificates representing shares of any such class or series or of
any such partly paid stock shall set forth thereon the statements prescribed by the General
Corporation Law. Any restrictions on the transfer or registration of transfer of any shares of
stock of any class or series shall be noted conspicuously on the certificate representing such
shares.
(c) The Corporation may issue a new certificate of stock in place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Board of
Directors may require the owner of any lost, stolen or destroyed certificate, or such person’s
legal representative, to give the Corporation a bond sufficient to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new certificate.
2.2. Fractional Share Interests.
The Corporation may, but shall not be required to, issue fractions of a share.
2.3. Stock Transfers.
Upon compliance with provisions restricting the transfer or registration of transfer of shares
of stock, if any, transfers or registration of transfer of shares of stock of the Corporation
shall be made only on the stock ledger of the Corporation by the registered holder thereof, or by
such person’s attorney thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer agent or a registrar, if any, and on surrender of
the certificate or certificates for such shares of stock properly endorsed and the payment of all
taxes due thereon.
2.4. Record Date for Stockholders.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of Directors 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 of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting. If no record date has been
fixed by the Board of Directors, 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 day 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. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which
-2-
record date shall not precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such action. If no record
date has been fixed, the record date for determining stockholders for any such purpose shall be at
the close of business on the day on which the Board of Directors adopts the resolution relating
thereto.
2.5. Meaning of Certain Terms.
As used herein in respect of the right to notice of a meeting of stockholders or a waiver
thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting,
as the case may be, the term “share” or “shares” or “share of stock” or “shares of stock” or
“stockholder” or “stockholders” refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the Corporation is authorized to issue
only one class of shares of stock, and said reference is also intended to include any outstanding
share or shares of stock and any holder or holders of record of outstanding shares of stock of any
class upon which or upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the General Corporation
Law confers such rights notwithstanding that the Certificate of Incorporation may provide for more
than one class or series of shares of stock, one or more of which are limited or denied such rights
thereunder; provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series which is otherwise
denied voting rights under the provisions of the Certificate of Incorporation, including any
preferred stock which is denied voting rights under the provisions of the resolution or resolutions
adopted by the Board of Directors with respect to the issuance thereof.
2.6. Stockholder Meetings.
(a) Time. The annual meeting shall be held on the date and at the time fixed, from time to
time, by the Board of Directors; provided that the first annual meeting shall be held on a
date within 13 months after the formation of the Corporation, and each successive annual meeting
shall be held on a date within 13 months after the date of the preceding annual meeting. A special
meeting shall be held on the date and at the time fixed by the Board of Directors, except when the
General Corporation Law or any Stockholders’ Agreement confers upon the stockholders the right to
fix the date.
(b) Place. Annual meetings and special meetings shall be held at such place, within or without
the State of Delaware, as the Board of Directors may, from time to time, fix. Whenever the Board of
Directors shall fail to fix such place, the meeting shall be held at the registered office of the
Corporation in the State of Delaware.
(c) Call. Annual meetings may be called by the Board of Directors or by any officer instructed
by the Board of Directors to call the meeting. Special meetings may be called in a similar manner,
except when the Board of Directors is required by the General Corporation Law to call a meeting, or
except when the stockholders are entitled to demand the call of a meeting.
(d) Notice or Waiver of Notice. Written notice of all meetings shall be given, stating the
place, date and hour of the meeting. The notice of an annual meeting shall state that the meeting
is called for the election of Directors and for the transaction of other business which
-3-
may properly come before the meeting, and, if any other action which could be taken at a special
meeting is to be taken at such annual meeting, shall state such other action or actions as are
known at the time of such notice. The notice of a special meeting shall in all instances state the
purpose or purposes for which the meeting is called. If any action is proposed to be taken which
would, if taken, entitle stockholders to receive payment for their shares of stock, the notice
shall include a statement of that purpose and to that effect. Except as otherwise provided by the
General Corporation Law, a copy of the notice of any meeting shall be given, personally or by mail,
not less than ten (10) days nor more than sixty (60) days before the date of the meeting, unless
the lapse of the prescribed period of time shall have been waived, and directed to each stockholder
at such person’s address as it appears on the records of the Corporation. Notice by mail shall be
deemed to be given when deposited, with postage thereon prepaid, in the United States mail. If a
meeting is adjourned to another time, not more than thirty (30) days hence, and/or to another
place, and if an announcement of the adjourned time and place is made at the meeting, it shall not
be necessary to give notice of the adjourned meeting unless the Board of Directors, after
adjournment, fixes a new record date for the adjourned meeting. Notice need not be given to any
stockholder who submits a written waiver of notice before or after the time stated therein.
Attendance of a person at a meeting of stockholders shall constitute a waiver of notice of such
meeting, except when the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in any written waiver of notice.
(e) Stockholder List. There shall be prepared and made, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by this section or the books of the Corporation, or to vote
at any meeting of stockholders.
(f) Conduct of Meeting. Meetings of the stockholders shall be presided over by one of the
following officers in the order of seniority and if present and acting: the Chief Executive
Officer, the President, a Vice President, a chairman for the meeting chosen by the Board of
Directors or, if none of the foregoing is in office and present and acting, by a chairman to be
chosen by the stockholders. The Secretary of the Corporation or, in such person’s absence, an
Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an
Assistant Secretary is present the chairman for the meeting shall appoint a secretary of the
meeting.
(g) Proxy Representation. Every stockholder may authorize another person or persons to act
for such stockholder by proxy in all matters in which a stockholder is entitled to participate,
whether by waiving notice of any meeting, voting or participating at a meeting, or
-4-
expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or
by such person’s attorney-in-fact. No proxy shall be voted or acted upon after three years from its
date unless such proxy provides for a longer period. A duly executed proxy shall be irrevocable if
it states that it is irrevocable and, if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is coupled is an interest in the stock itself or an interest in
the Corporation generally.
(h) Inspectors and Judges. The Board of Directors, in advance of any meeting, may, but
need not, appoint one or more inspectors of election or judges of the vote, as the case may be, to
act at the meeting or any adjournment thereof. If an inspector or inspectors or judge or judges are
not appointed by the Board of Directors, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be appointed as an inspector
or judge fails to appear or act, the vacancy may be filled by appointment made by the person
presiding thereat. Each inspector or judge, if any, before entering upon the discharge of such
person’s duties, shall take and sign an oath faithfully to execute the duties of inspector or judge
at such meeting with strict impartiality and according to the best of his ability. The inspectors
or judges, if any, shall determine the number of shares of stock outstanding and the voting power
of each, the shares of stock represented at the meeting, the existence of a quorum and the validity
and effect of proxies, 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 result, and do such other acts as are proper to conduct the election or
vote with fairness to all stockholders. On request of the person presiding at the meeting, the
inspector or inspectors or judge or judges, if any, shall make a report in writing of any
challenge, question or matter determined by such person or persons and execute a certificate of any
fact so found.
(i) Quorum. Except as the General Corporation Law or these By-Laws may otherwise
provide, the holders of a majority of the outstanding shares of stock entitled to vote shall
constitute a quorum at a meeting of stockholders for the transaction of any business. The
stockholders present may adjourn the meeting despite the absence of a quorum. When a quorum is once
present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.
(j) Voting. Each stockholder entitled to vote in accordance with the terms of the
Certificate of Incorporation and of these By-Laws shall be entitled to one vote, in person or by
proxy, for each share of stock entitled to vote held by such stockholder. In the election of
Directors, a plurality of the votes present at the meeting shall elect. Any other action shall be
authorized by a majority of the votes cast except where the Certificate of Incorporation or the
General Corporation Law prescribes a different percentage of votes and/or a different exercise of
voting power.
Voting by ballot shall not be required for corporate action except as otherwise provided by
the General Corporation Law.
-5-
2.7. Stockholder Action without Meetings.
Any action required to be taken, or any action which may be taken, at any annual or special
meeting of stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by
the holders of the outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those stockholders who have not
consented in writing and shall be delivered to the Corporation by delivery to its registered
office in Delaware, its principal place of business or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation’s registered office shall be by hand or by certified or
registered mail, return receipt requested.
ARTICLE III
DIRECTORS
DIRECTORS
3.1. Functions and Definition.
The business and affairs of the Corporation shall be managed by or under the direction of the
Board of Directors of the Corporation. The use of the phrase “whole Board” herein refers to the
total number of Directors which the Corporation would have if there were no vacancies.
3.2. Qualifications and Number.
A Director need not be a stockholder, a citizen of the United States, or a resident of the
State of Delaware. The initial Board of Directors shall consist of five (5) persons. Thereafter
the number of Directors constituting the whole board shall be at least five (5). Subject to the
foregoing limitation and except for the first Board of Directors, such number may be fixed from
time to time by action of the stockholders or of the Board of Directors, or, if the number is
not fixed, the number shall be five (5). The number of Directors may be increased or decreased
by action of the stockholders or of the Board of Directors.
3.3. Election and Term.
The first Board of Directors, unless the members thereof shall have been named in the
Certificate of Incorporation or a Stockholders’ Agreement, shall be elected by the incorporator or
incorporators and shall hold office until the first annual meeting of stockholders and until their
successors have been elected and qualified or until their earlier resignation or removal. Any
Director may resign at any time upon written notice to the Corporation. Thereafter, Directors who
are elected at an annual meeting of stockholders, and Directors who are elected in the interim to
fill vacancies and newly created Directorships, shall hold office until the next annual meeting of
stockholders and until their successors have been elected and qualified or until their earlier
resignation or removal. In the interim between annual meetings of stockholders or of special
meetings of stockholders called for the election of Directors and/or for the removal of
-6-
one or more Directors and for the filling of any vacancies in the Board of Directors, including
vacancies resulting from the removal of Directors for cause or without cause, any vacancy in the
Board of Directors may be filled by the vote of a majority of the remaining Directors then in
office, although less than a quorum, or by the sole remaining Director.
3.4. Meetings.
(a) Time. Regular meetings shall be held at such time as the Board shall fix, but not less
frequently than quarterly. Special meetings may be called upon notice.
(b) First Meeting. The first meeting of each newly elected Board may be held immediately after
each annual meeting of the stockholders at the same place at which the meeting is held, and no
notice of such meeting shall be necessary to call the meeting, provided a quorum shall be present.
In the event such first meeting is not so held immediately after the annual meeting of the
stockholders, it may be held at such time and place as shall be specified in the notice given as
provided for special meetings of the Board of Directors, or at such time and place as shall be
fixed by the consent in writing of all of the Directors.
(c) Place. Meetings, both regular and special, shall be held at such place within or without
the State of Delaware as shall be fixed by the Board.
(d) Call. No call shall be required for regular meetings of the Board of Directors or any
committee thereof for which the time and place have been fixed. Special meetings of the Board of
Directors or any committee thereof may be called by or at the direction of any two or more
Directors.
(e) Notice or Actual or Constructive Waiver. No notice shall be required for regular meetings
for which the time and place have been fixed. Written, oral or any other mode of notice of the time
and place shall be given for special meetings at least twenty-four (24) hours prior to the meeting;
notice may be given by telephone or telefax (in which case it is effective when given) or by mail
(in which case it is effective seventy-two (72) hours after mailing by prepaid first class mail).
The notice of any meeting need not specify the purpose of the meeting. Any requirement of
furnishing a notice shall be waived by any Director who signs a written waiver of such notice
before or after the time stated therein. Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except when the Director attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
(f) Quorum and Action. A majority of the whole Board shall constitute a quorum except when a
vacancy or vacancies prevents such majority, whereupon a majority of the Directors in office shall
constitute a quorum, provided that such majority shall constitute at least one-third (1/3) of the
whole Board. Any Director may participate in a meeting of the Board by means of a conference
telephone or similar communications equipment by means of which all Directors participating in the
meeting can hear each other, and such participation in a meeting of the Board shall constitute
presence in person at such meeting. A majority of the Directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place. Except as herein otherwise provided, and
except as otherwise provided by the General Corporation Law, the act of the Board shall be the act
by vote of a majority of the Directors
-7-
present at a meeting, a quorum being present. The quorum and voting provisions herein stated shall
not be construed as conflicting with any provisions of the General Corporation Law and these
By-Laws which govern a meeting of Directors held to fill vacancies and newly created Directorships
in the Board.
(g) Chairman of the Meeting. The Chief Executive Officer, if present and acting, shall
preside at all meetings. Otherwise, the President, if present and acting, or any other Director
chosen by the Board, shall preside.
3.5. Removal of Directors.
Any or all of the Directors may be removed for cause or without cause by the stockholders.
3.6. Committees.
The Board of Directors may, by resolution passed by a majority of the whole Board, designate
one or more committees, each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more Directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the Board, shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which may require it. In
the absence or disqualification of any member of any such committee or committees, the members
thereof present at any meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member.
3.7. Action in Writing.
Any action required or permitted to be taken at any meeting of the Board of Directors or any
committee thereof may be taken without a meeting if all members of the Board or 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 or committee.
ARTICLE IV
OFFICERS
OFFICERS
4.1. Executive Officers.
The Board of Directors may elect or appoint a Chief Executive Officer, a President, one or
more Vice Presidents (which may be denominated with additional descriptive titles), a Secretary,
one or more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers and such other
officers as it may determine. Any number of offices may be held by the same person.
-8-
4.2. Term of Office; Removal.
Unless otherwise provided in the resolution of election or appointment, each officer shall
hold office until the meeting of the Board of Directors following the next annual meeting of
stockholders and until such officer’s successor has been elected and qualified or until the
earlier resignation or removal of such officer. The Board of Directors may, at any time, or from
time to time, remove any officer for cause or without cause.
4.3. Authority and Duties.
All officers, as between themselves and the Corporation, shall have such authority and
perform such duties in the management of the Corporation as provided below, as may be changed or
supplemented by the Board of Directors in the resolutions appointing such officers or in any other
resolution of the Board of Directors.
(a) Chief Executive Officer. The Chief Executive Officer of the Corporation shall
have such duties as customarily pertain to that office. Subject to the direction of the Board of
Directors, the Chief Executive Officer will exercise general direction and supervision of the
business and affairs of the Corporation and will perform such other duties as from time to time
may be assigned to him by the Board of Directors. The Chief Executive Officer will have general
authority to execute bonds, deeds, mortgages and contracts in the name and on behalf of the
Corporation; to cause the employment or appointment of such employees and agents of the
Corporation (other than officers of the Corporation) as the conduct of the business of the
Corporation may require, and to fix their compensation; to remove or suspend any employee or agent
who will not have been appointed by the Board of Directors; and, in general, to exercise all the
powers generally appertaining to the chief executive officer of a corporation.
(b) President. The President will perform such duties relating to the general
direction and supervision of the Corporation as are from time to time assigned to him by the Board
of Directors or the Chief Executive Officer. The President will have general authority to execute
bonds, deeds, mortgages and contracts in the name and on behalf of the Corporation; to cause the
employment or appointment of such employees and agents of the Corporation (other than officers of
the Corporation) as the conduct of the business of the Corporation may require, and to fix their
compensation, except that any payment required to be made in excess of $50,000 per annum
shall require the approval of the Board of Directors; to remove or suspend any employee or
agent who will not have been appointed by the Board of Directors; and, in general, to exercise
all the powers generally appertaining to the president of a corporation.
(c) Vice President. The several Vice Presidents will perform such duties and have
such powers as may from time to time be assigned to them by the President. In the absence or
disability of the President, the President’s duties will be performed and powers may be exercised
by such Vice President as will be designated by the President or, failing such designation, by the
Vice Presidents in the order of their last election to that office; subject in any case to review
and superseding action by the Board of Directors.
(d) Secretary. The Secretary will attend all meetings of the Board of Directors and
will record all votes and the minutes of all proceedings in a book to be kept for that purpose.
The Secretary will attend to the giving of notice of all meetings of the Board of Directors; the
-9-
Secretary will have custody of the company seal and, when authorized by the Board of Directors,
will have authority to affix the same to any instrument and, when so affixed, it will be attested
by the Secretary’s signature or by the signature of the Treasurer. The Secretary will keep an
account for all books, documents, papers and records of the Corporation, except those for which
some other officer or agent is properly accountable. The Secretary will generally perform all the
duties usually appertaining to the office of secretary of a corporation. In the absence of the
Secretary, such person as will be designated by the President will perform the duties of Secretary.
(e) Treasurer. The Treasurer will have the care and custody of all funds of the
Corporation and will deposit the same in such banks or other depositories as the Board of Directors
will from time to time direct or approve. The Treasurer will keep a full and accurate account of
all funds received and paid on account of the Corporation, and will render a statement of these
accounts whenever the Board of Directors or the President will require. The Treasurer will perform,
all other necessary acts and duties in connection with the administration of the financial affairs
of the Corporation, and will generally perform all the duties usually appertaining to the office of
treasurer of a corporation. When required by the Board of Directors, the Treasurer will give bonds
for the faithful discharge of the Treasurer’s duties in such sums and with such sureties as the
Board of Directors will approve. In the absence of the Treasurer, such person as will be designated
by the President will perform the duties of Treasurer.
ARTICLE V
CORPORATE SEAL
AND
CORPORATE BOOKS
CORPORATE SEAL
AND
CORPORATE BOOKS
The corporate seal, if any, shall be in such form as the Board of Directors shall prescribe.
The books of the Corporation may be kept within or without the State of Delaware, at such place or
places as the Board of Directors may, from time to time, determine.
ARTICLE VI
FISCAL YEAR
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the
Board of Directors.
ARTICLE VII
INDEMNITY
INDEMNITY
7.1. Any person who was or is a party or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that
-10-
he or she is or was a Director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (including employee benefit plans)
(hereinafter an “indemnitee”), shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification than permitted prior thereto), against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such indemnitee in connection with such action, suit or proceeding, if the
indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe such conduct was unlawful. The termination of the
proceeding, whether by judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable
cause to believe such conduct was unlawful.
7.2. Any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he or she is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans) shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification than permitted prior thereto), against expenses
(including attorneys’ fees) actually and reasonably incurred by him or her in connection with the
defense or settlement of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the Corporation and except
that no indemnification shall be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the Corporation unless and only to the extent that
the Court in which such suit or action was brought, shall determine, upon application, that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which such court shall deem
proper.
7.3. All reasonable expenses incurred by or on behalf of the indemnitee in connection with any
suit, action or proceeding, may be advanced to the indemnitee by the Corporation.
7.4. The rights to indemnification and to advancement of expenses conferred in this article shall
not be exclusive of any other right which any person may have or hereafter acquire under any
statute, the Certificate of Incorporation, a By-Law of the Corporation, agreement, vote of
stockholders or disinterested Directors or otherwise.
7.5. The indemnification and advancement of expenses provided by this article shall continue as to
a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such person.
-11-
