U.S. SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): August 1, 2014 (July 31, 2014)
EMERITUS CORPORATION
(Exact name of registrant as specified in charter)
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Washington |
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1-14012 |
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91-1605464 |
(State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
3131 Elliott Avenue, Suite 500
Seattle, Washington 98121
(Address of principal executive offices) (Zip Code)
(206) 298-2909
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Introduction.
On July 31, 2014, Emeritus Corporation, a Washington corporation (Emeritus), completed the previously announced merger contemplated by that
certain Agreement and Plan of Merger (the Merger Agreement), dated as of February 20, 2014, by and among Emeritus, Brookdale Senior Living Inc., a Delaware corporation (Brookdale), and Broadway Merger Sub Corporation, a
Delaware corporation (Merger Sub) and wholly owned subsidiary of Brookdale. Pursuant to the Merger Agreement, Merger Sub merged with and into Emeritus (the Merger), with Emeritus continuing as the surviving corporation in the
Merger and a wholly owned subsidiary of Brookdale.
Pursuant to the Merger Agreement, at the Effective Time (as defined in the Merger Agreement):
(i) each share of common stock, par value $0.0001 per share (Emeritus Common Stock), of Emeritus outstanding immediately prior to the Effective Time (other than shares (x) held by Brookdale or Emeritus or any of their wholly
owned subsidiaries or (y) with respect to which appraisal rights were properly demanded and not withdrawn under Washington law) was automatically cancelled and converted into the right to receive consideration equal to 0.95 (the Exchange
Ratio) of a share of common stock, par value of $0.01, of Brookdale (Brookdale Common Stock), with cash paid in lieu of fractional shares; (ii) each share of Emeritus restricted stock outstanding immediately prior to the
Effective Time, whether or not then vested, became fully vested and was treated as a share of Emeritus Common Stock, and was cancelled and converted in the same way as all other outstanding shares of Emeritus Common Stock, as described above; and
(iii) each Emeritus stock option outstanding immediately prior to the Effective Time was automatically cancelled and converted into the right of the holder to receive a number of whole shares of Brookdale Common Stock, determined by
(A) multiplying (x) the total number of shares subject to Emeritus stock option by (y) an amount equal to the Applicable Closing Price, less the exercise price per share for such option, and (B) dividing such amount
by the ten-day volume weighted average closing price of Brookdale Common Stock (the VWAP). The number of shares of Brookdale Common Stock issued to holders of Emeritus stock options and to certain electing holders of Emeritus restricted
stock was reduced to cover the minimum amount of any applicable tax withholdings. Emeritus stock options with an exercise price that was equal to or greater than the Applicable Closing Price were terminated and ceased to be outstanding,
without any payment of consideration. The Applicable Closing Price for purposes of the Merger Agreement is calculated by multiplying the VWAP by the Exchange Ratio.
The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is subject to and qualified in
its entirety by reference to the Merger Agreement, a copy of which was attached as Exhibit 2.1 to Emeritus Current Report on Form 8-K filed with the SEC on February 21, 2014, and the terms of which are incorporated herein by reference.
Item 2.01. Completion of Acquisition or Disposition of Assets.
The disclosure set forth in the Introduction is incorporated herein by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On July 31, 2014, in connection with the completion of the Merger, Emeritus notified the New York Stock Exchange (the NYSE) that trading in
Emeritus Common Stock should be suspended and the listing of Emeritus Common Stock on the NYSE should be removed, in each case prior to market open on July 31, 2014. In addition, Emeritus requested that the NYSE file with the Securities and
Exchange Commission (the SEC) an application on Form 25 to delist and deregister Emeritus Common Stock under Section 12(b) of the Securities Exchange Act of 1934 (the Exchange Act), as amended (which Form 25 was filed on
July 31, 2014). Emeritus intends to file with the SEC a Form 15 with respect to Emeritus Common Stock, requesting that Emeritus Common Stock be deregistered under the Exchange Act, and that the reporting obligations of Emeritus with respect to
Emeritus Common Stock under Sections 13(a) and 15(d) of the Exchange Act be suspended.
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Item 3.03. Material Modification to Rights of Security Holders.
The disclosure set forth in the Introduction and Item 3.01 are incorporated herein by reference.
Item 5.01. Changes in Control of Registrant.
Pursuant to the Merger Agreement, at the Effective Time, Emeritus became a wholly owned subsidiary of Brookdale and, accordingly, a change in control of
Emeritus occurred. The disclosure set forth in the Introduction and Item 5.02 is incorporated herein by reference.
Item 5.02. Departure of
Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection
with the Merger, at the Effective Time, each of the individuals serving as directors and officers of Emeritus ceased serving in such capacities.
In
addition, following the Effective Time, (i) T. Andrew Smith, Brookdales Chief Executive Officer, Mark W. Ohlendorf, Brookdales President and Chief Financial Officer, and Bryan D. Richardson, Brookdales Executive Vice President
and Chief Administrative Officer, became the directors of Emeritus, and (ii) Messrs. Smith, Ohlendorf and Richardson and Kristin A. Ferge, Brookdales Executive Vice President, Chief Accounting Officer and Treasurer, became the executive
officers of Emeritus (as Chief Executive Officer, President and Chief Financial Officer, Executive Vice President and Executive Vice President and Treasurer, respectively). The biographical information with respect to Messrs. Smith, Ohlendorf and
Richardson and Ms. Ferge contained in the Definitive Proxy Statement on Schedule 14A for the 2014 Annual Meeting of Stockholders of Brookdale filed with the SEC on June 6, 2014 is incorporated by reference herein.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
In connection with the Merger, at the Effective Time, the Restated Articles of Incorporation of Emeritus and the Restated Bylaws of Emeritus were each amended
in their entirety and as so amended became the Restated Articles of Incorporation of Emeritus and the Amended and Restated Bylaws of Emeritus.
Copies of
the Restated Articles of Incorporation of Emeritus and the Amended and Restated Bylaws of Emeritus are filed as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
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Exhibit Number |
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Description |
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3.1 |
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Restated Articles of Incorporation of Emeritus Corporation. |
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3.2 |
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Amended and Restated Bylaws of Emeritus Corporation. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this Report to be signed on its behalf by the
undersigned, hereunto duly authorized.
August 1, 2014
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EMERITUS CORPORATION |
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By: |
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/s/ Chad C. White |
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Name: Chad C. White |
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Title: Vice President and Secretary |
INDEX TO EXHIBITS
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Exhibit Number |
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Description |
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3.1 |
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Restated Articles of Incorporation of Emeritus Corporation. |
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3.2 |
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Amended and Restated Bylaws of Emeritus Corporation. |
Exhibit 3.1
RESTATED ARTICLES OF INCORPORATION
OF
EMERITUS CORPORATION
The following Restated Articles of Incorporation are executed by the undersigned, a Washington corporation:
1. The name of the corporation is Emeritus Corporation.
2. The text of the corporations Restated Articles of Incorporation is as follows:
ARTICLE 1. NAME
The name
of this corporation is Emeritus Corporation.
ARTICLE 2. SHARES
This corporation shall have authority to issue 1,000 shares of Common Stock having a par value of $0.01 per share.
ARTICLE 3. PREEMPTIVE RIGHTS
No preemptive rights shall exist with respect to shares of stock or securities convertible into or exercisable for shares of stock of this
corporation.
ARTICLE 4. CUMULATIVE VOTING
The right to cumulate votes in the election of Directors shall not exist with respect to shares of stock of this corporation.
ARTICLE 5. DIRECTORS
The
number of Directors of this corporation shall be determined in the manner provided by the Bylaws and may be increased or decreased from time to time in the manner provided therein.
ARTICLE 6. LIMITATION OF DIRECTOR LIABILITY
To the full extent that the Washington Business Corporation Act, as it exists on the date hereof or may hereafter be amended, permits the
limitation or elimination of the liability of Directors, a Director of this corporation shall not be liable to this corporation or its shareholders for monetary damages for conduct as a Director. Any amendments to or repeal of this Article shall not
adversely affect any right or protection of a Director of this corporation for or with respect to any acts or omissions of such Director occurring prior to such amendment or repeal.
ARTICLE 7. SHAREHOLDER APPROVAL BY CONSENT IN LIEU OF MEETING
So long as this corporation is not a public company, corporate action required or permitted to be approved by a shareholder vote at a meeting
of shareholders may be taken without a meeting or a vote if the corporate action is approved by a single shareholder consent or multiple counterpart shareholder consents executed by shareholders holding of record, or otherwise entitled to vote, in
the aggregate not less than the minimum votes that would be necessary to approve such corporate action at a meeting at which all shares entitled to vote on the corporate action were present and voted.
ARTICLE 8. AUTHORITY TO AMEND ARTICLES OF INCORPORATION
This corporation reserves the right to amend or repeal any of the provisions contained in these Articles of Incorporation in any manner now or
hereafter permitted by the Washington Business Corporation Act or by these Articles of Incorporation, and the rights of the shareholders of this corporation are granted subject to this reservation.
Dated: July 31, 2014
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EMERITUS CORPORATION |
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By |
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/s/ Chad C. White |
Name: Chad C. White Title: Vice
President and Secretary |
CERTIFICATE ACCOMPANYING
RESTATED ARTICLES OF INCORPORATION
OF
EMERITUS CORPORATION
The Restated Articles of Incorporation do not contain an amendment to the Articles of Incorporation.
Dated: July 31, 2014
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EMERITUS CORPORATION |
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By |
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/s/ Chad C. White |
Name: |
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Chad C. White |
Title: |
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Vice President and Secretary |
Exhibit 3.2
AMENDED BY-LAWS
OF
EMERITUS
CORPORATION
ARTICLE I
Offices
Section 1.1
Registered Office. The registered office of the Corporation in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware, County of New Castle. The name of the Corporations registered agent at such address shall
be The Corporation Trust Company.
Section 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 of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II
Stockholders
Section 2.1 Annual Meetings. An annual meeting of stockholders shall be held each year for the election of directors at
such date, time and place either within or without the State of Delaware as shall be designated by the Board of Directors. Any other proper business may be transacted at the annual meeting of stockholders.
Section 2.2 Special Meetings. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman,
if any, the Vice Chairman, if any, or the President and shall be called by the Chairman or the Secretary at the request, in writing, stating the purpose or purposes of the meeting, of stockholders who hold a majority of the outstanding shares of
each class of capital stock entitled to vote at the meeting. Each special meeting shall be held at such date, time and place either within or without the State of Delaware as shall be designated by the person or persons calling such meeting at least
ten days prior to such meeting.
Section 2.3 Notice of Meeting. Unless otherwise provided by law, whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the date, time and place of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any meeting shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation.
Section 2.4 Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same
or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
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Section 2.5 Quorum. Unless otherwise provided by law or the Certificate of
Incorporation of the Corporation (the Certificate of Incorporation), at each meeting of stockholders, the presence in person or representation by proxy of the holders of a majority of the outstanding shares of each class of
capital stock entitled to vote at the meeting shall constitute a quorum for the transaction of business. For purposes of the foregoing, two or more classes or series of capital stock shall be considered a single class if the holders thereof are
entitled to vote together as a single class at the meeting. In the absence of a quorum, the stockholders so present and represented may, by vote of the holders of a majority of the shares of capital stock of the Corporation so present and
represented, adjourn the meeting from time to time until a quorum shall attend, and the provisions of Section 2.4 of these By-laws shall apply to each such adjournment. Shares of its own capital stock belonging on the record date for the
meeting to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.
Section 2.6 Organization. Meetings of stockholders shall be presided over by the Chairman, if any, or in his absence by the Vice
Chairman, if any, or in his absence by the President, or, in the absence of the foregoing persons, by a chairman designated by the Board of Directors, or, in the absence of such designation, by a chairman chosen at the meeting. The Secretary shall
act as secretary of the meeting, but, in the absence of the Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 2.7 Voting; Proxies. Unless otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote at
any meeting of stockholders shall be entitled to one vote for each share of capital stock held by him which has voting power on the subject matter submitted to a vote at the meeting. Each stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the 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 stockholder may revoke any proxy
which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary before the proxy is voted. Unless otherwise
required by law, voting of stockholders for the election of directors need not be by written ballot. Voting of stockholders for all other matters need not be by written ballot unless so determined at a stockholders meeting by the vote of the holders
of a majority of the outstanding shares of each class of capital sock present in person or represented by proxy at the meeting and entitled to vote on the subject matter submitted to a vote at the meeting. Unless otherwise provided by law or the
Certificate of Incorporation, the vote of the holders of a majority of the shares of capital stock of the Corporation present in person or represented by proxy at a meeting at which a quorum is present and entitled to vote on the subject matter
submitted to a vote at the meeting shall be the act of the stockholders.
Section 2.8 Fixing Date for Determination of
Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the
Board of Directors may fix, in advance, a record date which shall not be more than sixty days nor less than ten days before the date of such meeting, more than ten days after the date upon which the resolution fixing the record date with respect to
the taking of corporate action by written consent without a meeting is adopted by the Board of Directors or more than sixty 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 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; (b) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written
consent is expressed; (c) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when prior action by the Board of Directors is required, shall be at the close of business on
the day on which the Board of Directors adopts the resolution taking such prior action; and (d) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. 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.
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Section 2.9 List of Stockholders Entitled to Vote. The Secretary shall make, at least
ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, 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.
Section 2.10 Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided by the Certificate of Incorporation, any action required by law to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
Board of Directors
Section 3.1 Powers; Number; Qualifications. Unless otherwise provided by law or the Certificate of Incorporation, the business and
affairs of the Corporation shall be managed by or under the direction of the Board of Directors. Unless otherwise provided by the Certificate of Incorporation, the Board of Directors shall consist of such number of directors as the Board of
Directors shall from time to time designate. Unless otherwise provided by the Certificate of Incorporation, directors need not be stockholders.
Section 3.2 Election; Term of Office; Resignation; Removal; Vacancies. Each director shall hold office until his successor is
elected and qualified or until his earlier death, resignation or removal. Any director may resign at any time upon written notice to the Corporation directed to the Board of Directors or the Secretary. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. Any director or the entire Board of Directors may be removed, with or without cause, by the vote of the holders of a
majority of shares of capital stock then entitled to vote at an election of directors. Whenever the holders of shares of any class or series of capital stock are entitled to elect one or more directors by the provisions of the Certificate of
Incorporation, the provisions of the preceding sentence shall apply, with respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series of capital stock and
not to the vote of the holders of the outstanding shares of capital stock as a whole. Unless otherwise provided by the Certificate of Incorporation or by these By-laws, vacancies and newly created directorships resulting from any increase in the
authorized number of directors or any other cause may be filled by the vote of a majority of the directors then in office, even if less than a quorum, or by the vote of the sole remaining director. Whenever the holders of shares of any class or
classes of capital stock or series thereof are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, vacancies and newly created directorships of such class or classes or series thereof may be filled by the
vote of a majority of the directors elected by such class or classes or series thereof then in office, or by the vote of the sole remaining director so elected.
Section 3.3 Regular Meetings. Regular meetings of the Board of Directors shall be held at such dates, times and places either
within or without the State of Delaware as the Board of Directors shall from time to time determine.
Section 3.4 Special
Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman, if any, the Vice Chairman, if any, the President or by any member of the Board of Directors. Each special meeting shall be held at such date, time
and place, either within or without the State of Delaware, as shall be fixed by the person or persons calling the meeting.
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Section 3.5 Notice of Meetings. Written notice of each meeting of the Board of
Directors shall be given which shall state the date, time and place of the meeting. The written notice of any meeting shall be given at least twenty-four hours in advance of the meeting to each director.
Notice may be given by letter, telegram, telex or facsimile and shall be deemed to have been given when deposited in the United States mail, delivered to the telegraph company or transmitted by telex or facsimile, as the case may be.
Section 3.6 Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or of such committee, by means of conference telephone or similar communication equipment by means of which all persons participating in the meeting can hear each other, and
participation in the meeting pursuant to this by-law shall constitute presence in person at such meeting.
Section 3.7 Quorum; Vote Required for Action. Unless otherwise required by law, at each meeting of the Board of Directors, the
presence of one-third of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at a meeting at which a quorum is present shall
be the act of the Board of Directors, unless the vote of a greater number is required by law or the Certificate of Incorporation. In case at any meeting of the Board of Directors a quorum shall not be present, the members of the Board of Directors
present may by majority vote adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall attend.
Section 3.8 Organization. Meetings of the Board of Directors shall be presided over by the Chairman, if any, or in his absence by
the Vice Chairman, if any, or in his absence by the President, or in their absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but, in the absence of the Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 3.9 Action in Lieu of a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if the members of the Board of Directors or of such committee thereof, as the case may be, unanimously consent thereto in
writing, and the writing or writings are filed with the minutes of the proceedings of the Board of Directors or of such committee thereof.
Section 3.10 Compensation of Directors. Unless otherwise provided by the Certificate of Incorporation, no director shall receive
any compensation unless authorized by resolution of the stockholders.
ARTICLE IV
Committees
Section 4.1 Committees. The Board of Directors may, by resolution passed by a majority of the Board of Directors, designate one or
more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member of
such committee at any meeting thereof. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member.
Section 4.2 Power of Committees. Any committee designated by the Board of Directors, to the extent provided in a resolution of the
Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation; but no such committee shall have the power or authority to take any action which
by law may only be taken by the Board of Directors or to take any action with reference to: amending the Certificate of Incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance
of shares of stock adopted by the Board
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of Directors, fix the designation and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation or fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporations property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of dissolution, removing or indemnifying directors or amending these By-laws; and, unless a resolution of the Board of Directors expressly so provides, no such committee shall have
the power or authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the General Corporation Law of the State of Delaware.
Section 4.3 Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors
may adopt, amend and repeal rules for the conduct of its business. In the absence of a resolution by the Board of Directors or a provision in the rules of such committee to the contrary, the presence of a majority of the total number of members of
such committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members present at a meeting at which a quorum is present shall be the act of such committee.
ARTICLE V
Officers
Section 5.1 Officers; Elections. As soon as practicable after the annual meeting of stockholders in each year, the Board of
Directors shall elect from its membership or outside thereof a President and a Secretary. The Board of Directors may also elect from its membership a Chairman of the Board of Directors (herein called Chairman) and a Vice Chairman
of the Board of Directors (herein called Vice Chairman), and from its membership or outside thereof a Chief Executive Officer, one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries,
a Treasurer and one or more Assistant Treasurers and such other officers or agents as it may determine. Unless otherwise provided by the Certificate of Incorporation, any number of offices may be held by the same person.
Section 5.2 Term of Office; Resignation; Removal; Vacancies. Except as otherwise provided by the Board of Directors when electing
any officer, each officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his election, or until his successor is elected and qualified or until his earlier resignation or
removal. Any officer may resign at any time upon written notice to the Corporation directed to the Board of Directors and the Secretary. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it effective. The Board of Directors may remove any officer or agent with or without cause at any time. Any such removal shall be without prejudice to the contractual rights of such officer
or agent, if any, with the Corporation, but the election of an officer or agent shall not of itself create any contractual rights. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board of Directors.
Section 5.3 Powers and Duties. The officers of the Corporation
shall have such powers and duties in the management of the Corporation as shall be stated in these By-laws or in a resolution of the Board of Directors which is not inconsistent with these By-laws and, to the extent not so stated, as generally
pertain to their respective offices, subject to the control of the Board of Directors.
Section 5.4 Chairman of the Board. The
Chairman of the Board shall supervise and direct the Chief Executive Officer and the President, subject to the control of the Board of Directors. The Chairman of the Board shall preside at all meetings of the stockholders and of the Board of
Directors. The Chairman of the Board may sign, with the Secretary or any other proper officer of the Corporation authorized by the Board of Directors, certificates for shares of the Corporation, and deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these By-laws to some other officer or agent of the
Corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chairman of the Board and such other duties as may be prescribed by the Board of Directors from time to
time.
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Section 5.5 Chief Executive Officer. The Chief Executive Officer shall be the
principal executive officer of the Corporation and, subject to the control of the Board of Directors, shall in general supervise the business and affairs of the Corporation. The Chief Executive Officer shall, in the absence of the Chairman of the
Board, preside at all meetings of the stockholders and of the Board of Directors. The Chief Executive Officer may sign, with the Secretary or any other proper officer of the Corporation authorized by the Board of Directors, certificates for shares
of the Corporation and deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of
Directors or by these By-laws to some other officer or agent of the Corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chief Executive Officer and such other
duties as may be prescribed by the Board of Directors from time to time.
Section 5.6 President. The President shall be
the principal operating officer of the Corporation and, subject to the control of the Board of Directors, shall in general supervise the business operations of the Corporation. The President shall, in the absence of the Chairman of the Board and the
Chief Executive Officer, preside at all meetings of the stockholders and of the Board of Directors. The President may sign, with the Secretary or any other proper officer of the Corporation authorized by the Board of Directors, certificates for
shares of the Corporation and deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of
Directors or by these By-laws to some other officer or agent of the Corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may
be prescribed by the Board of Directors from time to time.
Section 5.7 Vice President. In the absence of the Chief Executive
Officer and the President or in the event of the failure or refusal to act of the Chief Executive Officer and the President, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated, or
in the absence of any designation, then in the order of their election) shall perform the duties of the Chief Executive Officer and the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the
Chief Executive Officer and the President. The Vice President or Vice Presidents, in general, shall perform such other duties as are incident to the office of Vice President, including those duties customarily performed by persons occupying such
office, and shall perform such other duties as, from time to time, may be assigned to the Vice President or Vice Presidents by the Board of Directors, the Chief Executive Officer or the President. The Board of Directors may designate one or more
Vice Presidents as Executive Vice Presidents or Senior Vice Presidents.
Section 5.8 Secretary. The Secretary shall:
(a) keep the minutes of the proceedings of the stockholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these By-laws or as
required by law; (c) be custodian of the corporate records and of any seal of the Corporation and if there is a seal of the Corporation, see that it is affixed to all documents the execution of which on behalf of the Corporation under its seal
is duly authorized; (d) when requested or required, authenticate any records of the Corporation; (e) keep a register of the post office address of each stockholder which shall be furnished to the secretary by such stockholder;
(f) sign with the Chief Executive Officer, the President, a Vice-President or the Chairman of the Board, certificates for shares of the Corporation, the issuance of which shall have been authorized by resolution of the Board of Directors;
(g) have general charge of the stock transfer books of the Corporation; and (h) in general perform all duties incident to the office of secretary and such other duties as, from time to time, may be assigned to the Secretary by the Board of
Directors, the Chief Executive Officer or the President.
Section 5.9 Treasurer. The Treasurer shall: (a) have
charge and custody of and be responsible for all funds and securities of the Corporation; (b) receive and give receipts for moneys due and payable to the Corporation from any source whatsoever, and deposit all such moneys in the name of the
Corporation in such banks, trust companies, or other depositaries as shall be selected by the Board of Directors; (c) in general, perform all of the duties incident to the office of treasurer and such other duties as from time to time may be
assigned to him by the President or by the Board of Directors; and (d) sign with the Chief Executive Officer, the President, a Vice-President or the Chairman of the Board certificates for shares of the Corporation, the issuance of which shall
have been authorized by resolution of the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors
shall determine.
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Section 5.10 Other Officers; Security. The other officers, if any, of the Corporation
shall have such duties and powers as generally pertain to their respective offices and such other duties and powers as the Board of Directors shall from time to time delegate to each such officer. The Board of Directors may require any officer,
agent or employee to give security, by bond or otherwise, for the faithful performance of his duties.
Section 5.11 Compensation
of Officers. The compensation of each officer shall be fixed by the Board of Directors, and no officer shall be prevented from receiving such compensation by virtue of his also being a director.
ARTICLE VI
Stock
Section 6.1 Certificates. Every holder of one or more shares of capital stock of the Corporation shall be entitled to have a
certificate signed by or in the name of the Corporation by the Chairman or Vice Chairman, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, if any, or the Secretary or an Assistant Secretary, certifying
the number of shares owned by him in the Corporation. Any or all of the signatures 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 he were such officer, transfer agent or registrar at the date of issue.
Section 6.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new
certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his 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 such new certificate.
ARTICLE VII
Indemnification
of Directors and Officers
Section 7.1 Right to Indemnification. Each person who was or is made a party or is threatened
to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a proceeding), by reason of the fact that
such person is or was a director or officer of the Corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an indemnitee), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), against all expenses, liabilities and losses (including,
without limitation, reasonable attorneys fees, judgments, fines and amounts paid in settlement) incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the indemnitees heirs, executors and administrators; provided, however, that, except as provided in Section 7.2 below with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. The right to indemnification conferred in this ARTICLE VII shall be a contract right and shall include the right to be paid by the Corporation the expenses
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incurred in defending any such proceeding in advance of its final disposition (hereinafter an advancement of expenses); provided, however, that, if the Delaware
General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee) shall be made only upon delivery
to the Corporation of an undertaking (hereinafter an undertaking), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further
right to appeal (hereinafter a final adjudication) that such indemnitee is not entitled to be indemnified for such expenses under this ARTICLE VII or otherwise.
Section 7.2 Right of Indemnitee to Bring Suit. If a claim under Section 7.1 above is not paid in full by the Corporation
within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be thirty days, the indemnitee may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a
right to an advancement of expenses) it shall be a defense that, and (b) in any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses
upon a final adjudication that, the indemnitee has not met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware. Neither the failure of the Corporation (including its Board of Directors, independent
legal counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth
in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent counsel or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses,
under this ARTICLE VII or otherwise shall be on the Corporation.
Section 7.3
Non-Exclusivity of Rights under this ARTICLE VII. The rights to indemnification and to the advancement of expenses conferred in this ARTICLE VII shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, By-laws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 7.4 Insurance. The Corporation may purchase and maintain insurance on its own behalf or on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, manager or agent of another corporation, partnership, limited liability company, joint venture,
trust or other enterprise against any expense, liability or loss asserted against him in any such capacity, or arising out of such persons status as such, whether or not the Corporation would have the power to indemnify such person against
such expense, liability or loss under the General Corporation Law of the State of Delaware.
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Section 7.5 Indemnification of Employees and Agents. The Corporation may, to the
extent authorized at any time from time to time by the Board of Directors, grant rights to indemnification and the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this ARTICLE VII with
respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
ARTICLE VIII
Miscellaneous
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors.
Section 8.2 Seal. The Corporation may have, but it is not required to have, a corporate seal which shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.
Section 8.3
Waiver of Notice of Meetings of Stockholders, Directors and Committees. Whenever notice is required to be given by law, the Certificate of Incorporation or these By-laws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person 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. Unless otherwise provided by the Certificate of Incorporation, neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice.
Section 8.4 Interested Directors; Officers; Quorum. No contract or transaction between the Corporation and one or more of its
directors or officers, between the Corporation and any other corporation, partnership, limited liability company, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial
interest, or between the Corporation and any relative of any of its directors or officers, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or solely because the votes of such officer or director are counted for such purpose, if: (a) the material facts as to the relationship or interest of such officer or
director and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority
of the disinterested directors, even though the disinterested directors may be less than a quorum; (b) the material facts as to the relationship or interest of such officer or director and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
Section 8.5 Books and Records. The books and records of the Corporation may be
kept within or without the State of Delaware at such place or places as may be designated from time to time by the Board of Directors. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books
of account and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs or any other information storage device provided that the records so kept can be converted into clearly legible form within
a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.
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Section 8.6 Amendment of By-laws. These By-laws may be amended or repealed, and new
By-laws adopted, by the Board of Directors, but the stockholders entitled to vote may adopt additional By-laws and may amend or repeal any By-laws whether or not adopted by them.
Section 8.7 Stock Held by the Corporation. Shares of voting stock or other equity interests issued by another entity and held in
the name of the corporation may be voted by the chairman, chief executive officer, president or secretary on behalf of the Corporation, on any issue submitted to the stockholders or equity holders of such other entity with respect to which the
Corporation is entitled to vote.
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Emeritus Corp. (NYSE:ESC)
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