8-K

UNITED STATES

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):  February 26, 2016 (February 22, 2016)

ENVISION HEALTHCARE HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

Delaware	001-36048	45-0832318
(State or other jurisdiction	(Commission	(IRS Employer
of incorporation)	File Number)	Identification No.)

6200 S. Syracuse Way, Suite 200, Greenwood Village, Colorado	80111
(Address of principal executive offices)	(Zip Code)

(303) 495-1200

(Each registrant’s telephone number, including area code)

(Former name or former address, if changed since last report)

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 (see General Instruction A.2. below):

oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

oSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(b)Director Resignation

On February 23, 2016, Randel G. Owen, the Executive Vice President, Chief Financial Officer and Chief Operating Officer of Envision Healthcare Holdings, Inc. (the “Company”) resigned as a director of the Board of Directors (the “Board”) of the Company following the Board’s annual review of its corporate governance practices and the Board’s composition based on director independence.  Mr. Owen had served as a non-independent director of the Company since August 2011.  Mr. Owen’s resignation did not result from any disagreement with the Company and Mr. Owen will continue to serve as the Company’s Executive Vice President, Chief Financial Officer and Chief Operating Officer.  With Mr. Owen’s resignation, the size of the Board is now eight directors.

(e)New Long Term Incentive Program

On February 22, 2016, the Compensation Committee (the “Committee”) of the Board approved a new long-term incentive program that will provide annual equity awards to certain of the Company’s key employees, including the Company’s named executive officers, under the Envision Healthcare Holdings, Inc. 2013 Omnibus Incentive Plan (the “Plan”). The Committee also approved the first grants of awards under this program on February 24, 2016.

A significant portion of each annual award under this program will consist of performance share units, on the terms described below, in order to further align the interests of the Company’s management with its stockholders.  Of the annual awards granted for 2016, 40% of the aggregate grant date value consists of performance share units and 60% of the aggregate grant date value consists of either stock options, in the case of the Company’s most senior management, or restricted stock units, for other key employees.  For the 2016 awards, the total aggregate grant date value of an executive’s awards under the program, assuming achievement of target performance, equals a percentage of each executive’s annual base salary, with the applicable percentage determined by such executive’s responsibilities.

The 2016 awards granted to all employees under this program cover 2,443,946 shares (assuming maximum pay out of the performance share units), which is equal to approximately 1.3% of the shares of Company common stock outstanding as of December 31, 2015, on a fully diluted basis.  The number of shares actually issued under this program will be decreased if the 2016 performance share units ultimately pay out below the maximum performance level.

Of the 2016 awards granted under this program, the aggregate grant date value of Mr. Sanger’s awards, at target level, will equal 400% of his base salary, the aggregate grant date fair value of awards to both Mr. Owen and Mr. Zimmerman, at target level, will equal 200% of their respective base salaries, the aggregate grant date fair value of awards to Mr. Ratton, at target level, will equal 100% his base salary, and the aggregate grant date fair value of awards to Dr. Packard, at target level, will equal 50% of his base salary. The 2016 awards granted to the Company’s named executive officers under this program cover 770,573 shares (assuming maximum pay out of the performance share units).

The following table provides additional information regarding allocation of these awards among the Company’s named executive officers:

2

Executive Officer	Target Award as a Percentage of Base Salary	Award Mix
William A. Sanger, Chairman, Chief Executive Officer and President	400%	40% Performance Share Units and 60% Stock Options
Randel G. Owen, Executive Vice President, Chief Operating Officer and Chief Financial Officer	200%
Todd G. Zimmerman, Chief Executive Officer of EmCare and Executive Vice President of the Company	200%
Steve W. Ratton, Jr., Executive Vice President, Chief Strategy Officer and Treasurer	100%
Dighton G. Packard, Chief Medical Officer	50%

Performance Share Units

Under this long-term incentive program, performance share units granted to our named executive officers and other key employees will cliff vest after a specified performance period based on the Company’s total shareholder return compared to the companies included in the S&P Composite 1500 Health Care Index over the same period, subject to the employee’s continued employment through the performance period.

For the performance share units granted in 2016, this performance period will be a three year period commencing on January 1, 2016 and ending on December 31, 2018.  For each performance share award, the number of shares that will ultimately vest will be in the range of 0% to 150% of a target share number, with 25% of the target number vesting if the Company’s percentile rank is 25%, 100% of the target amount vesting if the Company’s percentage rank is 50%, and 150% of the target amount vesting if the Company’s percentile rank is 75% or more.

Accelerated vesting of a prorated amount of the performance share units will occur if, during a performance period, the employee dies or becomes disabled (prorated based on actual performance through the date of death or disability) or retires at or after age 55 with 10 years of service (prorated based on actual performance at the end of the performance period).  Also, “double-trigger” vesting will apply to these performance share units (i.e., performance share units will vest if a change in control occurs and the employee’s employment is terminated by the Company without cause or by the employee for good reason during a performance period within a 24 month period following the change in control), unless the performance share units are not assumed in the change in control.  If the award recipient’s employment terminates for any other reason prior to the end of the performance period, all unvested performance share units will be forfeited.

This description of the performance share units granted under this program is qualified in its entirety by reference to the Form of the Employee Performance Share Agreement, which is attached as Exhibit 10.1 and incorporated herein by reference.

3

Stock Options

Stock options granted to our named executive officers and other senior management under this long-term incentive program will vest in equal installments over a three year period based on the executive’s continued employment, have an exercise price equal to the closing stock price of a share of the Company’s common stock on the NYSE on the grant date and otherwise reflect the terms of stock options previously granted by the Company since its initial public offering.  Also, “double-trigger” vesting will apply to these stock options (i.e., unvested stock options will vest if a change in control occurs and the executive’s employment is terminated by the Company without cause or by the executive for good reason within a 24 month period following the change in control), unless the stock options are not assumed in the change in control.

This description of the stock options granted under this program is qualified in its entirety by reference to the Form of the Employee Stock Option Agreement, which is attached as Exhibit 10.2 and incorporated herein by reference.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On February 23, 2016, the Board adopted amendments to the Company’s By-Laws (as amended and restated, the “Second Amended and Restated By-Laws”), effective immediately, to adopt a majority voting standard and director resignation process for uncontested director elections, and to change the Board’s committee structure.

Section 1.08 of the Second Amended and Restated By-Laws provides that directors will be elected by the vote of a majority of votes cast in any uncontested director election.  The “majority of votes cast” means that the number of shares voted “for” a director nominee must exceed the number of votes cast “against” the nominee’s election, not including abstentions and broker non-votes. If a director nominee fails to receive a majority of votes cast, the nominee is required to promptly tender his or her resignation, contingent upon acceptance of the resignation by the Board. The Board’s Nominating and Corporate Governance Committee will consider the resignation and recommend to the Board whether or not to accept the resignation, after considering all relevant factors.  In contested elections, director nominees will continue to be elected by a plurality of votes cast.

The Second Amended and Restated By-Laws also remove references to the Board’s Executive and Finance Committees and to make certain other technical revisions. The Board will no longer be required to designate an Executive Committee or Finance Committee of the Board.  The duties previously performed by the Finance Committee have been assumed by the Audit Committee. The foregoing description of the Second Amended and Restated By-Laws is qualified in its entirety by reference to the Second Amended and Restated By-Laws, which are attached as Exhibit 3.1 and incorporated herein by reference.

Item 9.01.  Financial Statements and Exhibits.

(d) Exhibits

Exhibit Number	Description
3.1	Second Amended and Restated By-Laws, effective as of February 23, 2016
10.1	Form of Employee Performance Share Agreement.
10.2	Form of Employee Stock Option Agreement.

4

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	ENVISION HEALTHCARE HOLDINGS, INC.
	(Registrant)
February 26, 2016	By:	/s/ Craig A. Wilson
		Craig A. Wilson Senior Vice President, General Counsel and Secretary

5

EXHIBIT INDEX

Exhibit Number	Description
3.1	Second Amended and Restated By-Laws, effective as of February 23, 2016
10.1	Form of Employee Performance Share Agreement.
10.2	Form of Employee Stock Option Agreement.

6

EX-3.1

Exhibit 3.1

ENVISION HEALTHCARE HOLDINGS, INC.

SECOND AMENDED AND RESTATED BY-LAWS

Effective as of February 23, 2016

ENVISION HEALTHCARE HOLDINGS, INC.

BY-LAWS

Table of Contents

		Page
	ARTICLE I
	MEETINGS OF STOCKHOLDERS
Section 1.01.	Annual Meetings	1
Section 1.02.	Special Meetings	1
Section 1.03.	Participation in Meetings by Remote Communication	1
Section 1.04.	Notice of Meetings; Waiver of Notice	2
Section 1.05.	Proxies	2
Section 1.06.	Voting Lists	3
Section 1.07.	Quorum	3
Section 1.08.	Voting	3
Section 1.09.	Adjournment	4
Section 1.10.	Organization; Procedure; Inspection of Elections	4
Section 1.11.	Consent of Stockholders in Lieu of Meeting	5
Section 1.12.	Notice of Stockholder Proposals and Nominations	5
	ARTICLE II
	BOARD OF DIRECTORS
Section 2.01.	General Powers	10
Section 2.02.	Number and Term of Office	10
Section 2.03.	Classification; Election of Directors	10
Section 2.04.	Regular Meetings	10
Section 2.05.	Special Meetings	10
Section 2.06.	Notice of Meetings; Waiver of Notice	11
Section 2.07.	Quorum; Voting	11
Section 2.08.	Action by Telephonic Communications	11
Section 2.09.	Adjournment	11
Section 2.10.	Action Without a Meeting	12
Section 2.11.	Regulations	12
Section 2.12.	Resignations of Directors	12
Section 2.13.	Removal of Directors	12
Section 2.14.	Vacancies and Newly Created Directorships	12
Section 2.15.	Compensation	12
Section 2.16.	Reliance on Accounts and Reports, etc.	12

Table of Contents

(continued)

		Page
	ARTICLE III
	COMMITTEES
Section 3.01.	How Constituted	13
Section 3.02.	Members and Alternate Members	13
Section 3.03.	Committee Procedures	13
Section 3.04.	Meetings and Actions of Committees	13
Section 3.05.	Resignations and Removals	14
Section 3.06.	Vacancies	14
	ARTICLE IV
	OFFICERS
Section 4.01.	Officers	14
Section 4.02.	Election	14
Section 4.03.	Compensation	15
Section 4.04.	Removal and Resignation; Vacancies	15
Section 4.05.	Authority and Duties of Officers	15
Section 4.06.	President	15
Section 4.07.	Vice Presidents	15
Section 4.08.	Secretary	16
Section 4.09.	Treasurer	16
	ARTICLE V
	CAPITAL STOCK
Section 5.01.	Certificates of Stock; Uncertificated Shares	17
Section 5.02.	Facsimile Signatures	17
Section 5.03.	Lost, Stolen or Destroyed Certificates	18
Section 5.04.	Transfer of Stock	18
Section 5.05.	Registered Stockholders	18
Section 5.06.	Transfer Agent and Registrar	18
	ARTICLE VI
	INDEMNIFICATION
Section 6.01.	Indemnification	19
Section 6.02.	Advance of Expenses	19
Section 6.03.	Procedure for Indemnification	20
Section 6.04.	Burden of Proof	20

ii

Table of Contents

(continued)

		Page
Section 6.05.	Contract Right; Non-Exclusivity; Survival	20
Section 6.06.	Insurance	21
Section 6.07.	Employees and Agents	21
Section 6.08.	Interpretation; Severability	21
	ARTICLE VII
	OFFICES
Section 7.01.	Registered Office	22
Section 7.02.	Other Offices	22
	ARTICLE VIII
	GENERAL PROVISIONS
Section 8.01.	Dividends	22
Section 8.02.	Reserves	22
Section 8.03.	Execution of Instruments	22
Section 8.04.	Voting as Stockholder	23
Section 8.05.	Fiscal Year	23
Section 8.06.	Seal	23
Section 8.07.	Books and Records; Inspection	23
Section 8.08.	Electronic Transmission	23
	ARTICLE IX
	AMENDMENT OF BY-LAWS
Section 9.01.	Amendment	23
	ARTICLE X
	CONSTRUCTION
Section 10.01.	Construction	24

iii

ENVISION HEALTHCARE HOLDINGS, INC.

SECOND AMENDED AND RESTATED BY-LAWS

As amended and restated effective February 23, 2016

ARTICLE I

MEETINGS OF STOCKHOLDERS

Section 1.01.  Annual Meetings.  The annual meeting of the stockholders of Envision Healthcare Holdings, Inc. (the “Corporation”) for the election of directors to succeed directors whose terms expire and for the transaction of such other business as properly may come before such meeting shall be held each year either within or without the State of Delaware, on such date and at such place, if any, and time as exclusively may be fixed from time to time by resolution of the Corporation’s Board of Directors (the “Board”) and set forth in the notice or waiver of notice of the meeting, unless, subject to the certificate of incorporation of the Corporation as then in effect (as the same may be amended from time to time, the “Certificate of Incorporation”), the stockholders have acted by written consent to elect directors as permitted by the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”).  The Board may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board.

Section 1.02.  Special Meetings.  Special meetings of the stockholders of the Corporation may be called only in the manner set forth in the Certificate of Incorporation.  Notice of every special meeting of the stockholders of the Corporation shall state the purpose or purposes of such meeting.  Except as otherwise required by law, the business conducted at a special meeting of stockholders of the Corporation shall be limited exclusively to the business set forth in the Corporation’s notice of meeting, and the individual or group calling such meeting shall have exclusive authority to determine the business included in such notice.  Any special meeting of the stockholders shall be held either within or without the State of Delaware, at such place, if any, and on such date and time, as shall be specified in the notice of such special meeting.

Section 1.03.  Participation in Meetings by Remote Communication.  The Board, acting in its sole discretion, may establish guidelines and procedures in accordance with applicable provisions of the DGCL and any other applicable law for the participation by stockholders and proxyholders in a meeting of stockholders by means of remote communications, and may determine that any meeting of stockholders will not be held at any place but will be held solely by means of remote communication.  Stockholders and proxyholders complying with such procedures and guidelines and otherwise entitled to vote at a meeting of stockholders shall be deemed present in person and entitled to vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication.

Section 1.04.  Notice of Meetings; Waiver of Notice.

(a)  The Secretary or any Assistant Secretary shall cause notice of each meeting of stockholders to be given in writing in a manner permitted by the DGCL not less than 10 days nor more than 60 days prior to the meeting to each stockholder of record entitled to vote at such meeting, subject to such exclusions as are then permitted by the DGCL.  The notice shall specify (i) the place, if any, date and time of such meeting, (ii) the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, (iii) in the case of a special meeting, the purpose or purposes for which such meeting is called, and (iv) such other information as may be required by law or as may be deemed appropriate by the Chairman of the Board, Secretary or the Board.  If the stockholder list referred to in Section 1.06 of these By-laws is made accessible on an electronic network, the notice of meeting must indicate how the stockholder list can be accessed.  If the meeting of stockholders is to be held solely by means of electronic communications, the notice of meeting must provide the information required to access such stockholder list during the meeting.

(b)  A written waiver of notice of meeting signed by a stockholder or a waiver by electronic transmission by a stockholder, whether given before or after the meeting time stated in such notice, is deemed equivalent to notice.  Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in a waiver of notice.  Attendance of a stockholder at a meeting is 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 at the meeting on the ground that the meeting is not lawfully called or convened.

Section 1.05.  Proxies.

(a)  Each stockholder entitled to vote at a meeting of stockholders or to express consent to or dissent from corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy.

(b)  A stockholder may authorize a valid proxy by executing a written instrument signed by such stockholder, or by causing his or her signature to be affixed to such writing by any reasonable means, including but not limited to by facsimile signature, or by transmitting or authorizing an electronic transmission (as defined in Section 8.08 of these By-laws) setting forth an authorization to act as proxy to the person designated as the holder of the proxy, a proxy solicitation firm or a like authorized agent.  Proxies by electronic transmission must either set forth, or be submitted with, information from which it can be determined that the electronic transmission was authorized by the stockholder.  Any copy, facsimile telecommunication or other reliable reproduction of a writing or transmission created pursuant to this section may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used if such copy, facsimile telecommunication or other reproduction is a complete reproduction of the entire original writing or transmission.

2

(c)  No proxy may be voted or acted upon after the expiration of three years from the date of such proxy, unless such proxy provides for a longer period.  Every proxy is revocable at the pleasure of the stockholder executing it unless the proxy states that it is irrevocable and applicable law makes it irrevocable.  A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by filing another duly executed proxy bearing a later date with the Secretary.

Section 1.06.  Voting Lists.  The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare, at least 10 days before every meeting of the stockholders (and before any adjournment thereof for which a new record date has been set), 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.  This list, which may be in any format including electronic format, shall be open to the examination of any stockholder prior to and during the meeting for any purpose germane to the meeting as required by the DGCL or other applicable law.  The stock ledger shall be the only evidence as to who are the stockholders entitled by this section to examine the list required by this section or to vote in person or by proxy at any meeting of stockholders.

Section 1.07.  Quorum.  Except as otherwise required by law or by the Certificate of Incorporation, the presence in person or by proxy of the holders of record of a majority of the shares entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business at such meeting.

Section 1.08.  Voting.

(a)  Except as otherwise provided in the Certificate of Incorporation or by applicable law, every holder of record of shares entitled to vote at a meeting of stockholders is entitled to one vote for each share outstanding in his or her name on the books of the Corporation (i) at the close of business on the record date for stockholders entitled to vote at such meeting or (ii) if no record date has been fixed, at the close of business on the day next preceding the day on which notice of the meeting 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.  All matters at any meeting at which a quorum is present shall be decided by the affirmative vote of the holders of at least a majority of the outstanding shares of common stock present in person or represented by proxy at the meeting and entitled to vote on the subject matter in question, except as otherwise provided in Section 1.08(b) of these By-laws with respect to the election of directors or unless otherwise expressly provided by express provision of law, the Certificate of Incorporation or these By-laws.

(b)   Each director nominee in an uncontested election of directors (i.e., an election in which the number of director nominees does not exceed the number of directors to be elected at the meeting) shall be elected to the Board by the vote of a majority of the votes cast with respect to such director nominee’s election. In any contested election of directors (i.e., an election in which the number of director nominees exceeds the number of directors to be elected at the meeting), directors shall be elected by

3

a plurality of the votes cast. For purposes of this section, “a majority of votes cast” means that the number of shares voted “for” a director nominee must exceed the number of votes cast “against” that director nominee’s election.  “Abstentions” and “broker non-votes” shall not be counted as votes cast with respect to a director nominee’s election. Following certification of the stockholder vote in an uncontested election, any incumbent director who received a greater number of votes “against” his or her election than votes “for” his or her election shall promptly tender his or her resignation, contingent upon acceptance of such resignation by the Board in accordance with this Section 1.08(b), to the Chairman of the Board.  The Chairman of the Board shall inform the Nominating and Corporate Governance Committee of such tender of resignation, and the Nominating and Corporate Governance Committee shall consider such resignation and recommend to the Board whether to accept the tendered resignation or reject it.  In deciding upon its recommendation, the Nominating and Corporate Governance Committee shall consider all relevant factors, including the qualifications of the director who has tendered his or her resignation and the director’s contribution to the Corporation and the Board.  The Board will act on the recommendation of the Nominating and Corporate Governance Committee no later than 90 days after the certification of the stockholder vote and disclose the decision by filing a Current Report on Form 8-K with the Securities and Exchange Commission.  The Board shall consider the factors considered by the Nominating and Corporate Governance Committee and such additional information and factors that the Board deems relevant.  An incumbent director who tenders his or her resignation to the Board pursuant to this Section 1.08(b) will not participate in the decision of the Nominating and Corporate Governance Committee or the Board.  The stockholders do not have the right to cumulate their votes for the election of directors.

Section 1.09.  Adjournment.  Any meeting of stockholders may be adjourned from time to time, by the chairperson of the meeting or by the vote of a majority of the shares of stock present in person or represented by proxy at the meeting, to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the place, if any, and date and time thereof (and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting) are announced at the meeting at which the adjournment is taken unless the adjournment is for more than 30 days or a new record date is fixed for the adjourned meeting after the adjournment, in which case notice of the adjourned meeting in accordance with Section 1.04 of these By-laws shall be given to each stockholder of record entitled to vote at the meeting.  At the adjourned meeting, the Corporation may transact any business that might have been transacted at the original meeting.

Section 1.10.  Organization; Procedure; Inspection of Elections.

(a)  At every meeting of stockholders the presiding person shall be the Chairman of the Board or, in the event of his or her absence or disability, the President or, in the event of his or her absence or disability, a presiding person chosen by resolution of the Board.  The Secretary or, in the event of his or her absence or disability, the Assistant Secretary, if any, or, if there be no Assistant Secretary, in the absence of the Secretary, an appointee of the presiding person, shall act as secretary of the meeting.

4

The Board may make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient.  Subject to any such rules and regulations, the presiding person of any meeting shall have the right and authority to prescribe rules, regulations and procedures for such meeting and to take all such actions as in the judgment of the presiding person are appropriate for the proper conduct of such meeting.  Such rules, regulations or procedures, whether adopted by the Board or prescribed by the presiding person of the meeting, may include, without limitation, the following:  (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders or records of the Corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants.  The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter of business not properly brought before the meeting shall not be transacted or considered.  Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

(b)  Preceding any meeting of the stockholders, the Board may, and when required by law shall, appoint one or more persons to act as inspectors of elections, and may designate one or more alternate inspectors.  If no inspector or alternate so appointed by the Board is able to act, or if no inspector or alternate has been appointed and the appointment of an inspector is required by law, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting.  No director or nominee for the office of director shall be appointed as an inspector of elections.  Each inspector, before entering upon the discharge of the duties of an inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability.  The inspectors shall discharge their duties in accordance with the requirements of applicable law.

Section 1.11.  Consent of Stockholders in Lieu of Meeting.  Stockholders may not take any action by written consent in lieu of action at an annual or special meeting of stockholders.

Section 1.12.  Notice of Stockholder Proposals and Nominations.

(a)  Annual Meetings of Stockholders.  (i)  Nominations of persons for election to the Board and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders only (A) pursuant to the Corporation’s notice of the meeting (or any supplement thereto) delivered pursuant to Section 1.04 of these By-laws, (B) by or at the direction of the Board or a committee of the Board

5

appointed by the Board for such purpose or (C) by any stockholder of the Corporation who is entitled to vote at the meeting, who complies with the notice procedures set forth in clauses (ii) and (iii) of this Section 1.12(a) and who is a stockholder of record at the time such notice is delivered to the Secretary and at the date of the meeting.

(ii)  For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to subclause (C) of Section 1.12(a)(i) of these By-laws, the stockholder must have given timely notice thereof in writing to the Secretary and, in the case of business other than nominations for persons for election to the Board, such other business must constitute a proper matter for stockholder action.  To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred and twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than thirty (30) days or delayed by more than seventy (70) days from such anniversary date of the preceding year’s annual meeting, notice by the stockholder to be timely must be so delivered not earlier than one hundred and twenty (120) days prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the close of business on the tenth (10th) day following the day on which public announcement of the date of such meeting is first made.  Such stockholder’s notice shall set forth (A) as to each person whom the stockholder proposes to nominate for election or re-election as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder, including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (B) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend the Certificate of Incorporation or these By-laws, the text of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and of the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (1) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner; (2) the class or series and number of shares of capital stock of the Corporation which are owned, directly or indirectly, beneficially and of record by such stockholder and such beneficial owner; (3) a representation that the stockholder is a holder of record of the stock of the Corporation at the time of giving the notice, will be entitled to vote at such meeting and will appear in person or by proxy at the meeting to propose such business or nomination; (4) a representation whether the stockholder or the beneficial owner, if any, will be or is part of a group which will (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (y) otherwise to solicit proxies from

6

stockholders in support of such proposal or nomination; and (5) a certification regarding whether such stockholder and beneficial owner, if any, have complied with all applicable federal, state and other legal requirements in connection with the stockholder’s and/or beneficial owner’s acquisition of shares of capital stock or other securities of the Corporation and/or the stockholder’s and/or beneficial owner’s acts or omissions as a stockholder of the Corporation.  Notice of a stockholder nomination or proposal shall also set forth, as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (A) a description of any agreement, arrangement or understanding with respect to the nomination or proposal and/or the voting of shares of any class or series of stock of the Corporation between or among the stockholder giving notice, beneficial owner, if any, on whose behalf the nomination or proposal is made, any of their respective affiliates or associates and/or other person or persons (including their names) acting in concert with any of the foregoing (collectively, the “proponent persons”); (B) a description of any agreement, arrangement or understanding (including, without limitation, regardless of the form of settlement, any derivative, long or short positions, profit interests, forwards, futures, swaps, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) to which any proponent person is a party, the effect or intent of which is to transfer to or from any proponent person, in whole or in part, any of the economic consequences of ownership of any security of the Corporation, to increase or decrease the voting power of any proponent person with respect to shares of any class or series of stock of the Corporation and/or to provide any proponent person, directly or indirectly, with the opportunity to profit or share in any profit derived from, or to otherwise benefit economically from, any increase or decrease in the value of any security of the Corporation (a “Derivative Instrument”); (C) to the extent not disclosed pursuant to the immediately preceding clause (B), the principal amount of any indebtedness of the Corporation or any of its subsidiaries beneficially owned by such stockholder or by beneficial owner, if any, together with the title of the instrument under which such indebtedness was issued and a description of any Derivative Instrument entered into by or on behalf of such stockholder or such beneficial owner relating to the value or payment of any indebtedness of the Corporation or any such subsidiary; and (D) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder.  The foregoing notice requirements shall be deemed satisfied by a stockholder if the stockholder has notified the Corporation of his or her intention to present a proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act, and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. A stockholder providing notice of a proposed nomination for election to the Board or other business proposed to be brought before a meeting (whether given pursuant to this paragraph (a)(ii) or paragraph (b) of this Section 1.12 of these By-laws) shall update and supplement such notice from time to time to the extent necessary so that the information provided or required to be provided in such notice shall be true and correct (x) as of the

7

record date for determining the stockholders entitled to notice of the meeting and (y) as of the date that is fifteen (15) days prior to the meeting or any adjournment or postponement thereof, provided that if the record date for determining the stockholders entitled to vote at the meeting is less than fifteen (15) days prior to the meeting or any adjournment or postponement thereof, the information shall be supplemented and updated as of such later date. Any such update and supplement shall be delivered in writing to the Secretary at the principal executive offices of the Corporation not later than five (5) days after the record date for determining the stockholders entitled to notice of the meeting (in the case of any update and supplement required to be made as of the record date for determining the stockholders entitled to notice of the meeting), not later than ten (10) days prior to the date for the meeting or any adjournment or postponement thereof (in the case of any update or supplement required to be made as of fifteen (15) days prior to the meeting or adjournment or postponement thereof) and not later than five (5) days after the record date for determining the stockholders entitled to vote at the meeting, but no later than the date prior to the meeting or any adjournment or postponement thereof (in the case of any update and supplement required to be made as of a date less than fifteen (15) days prior the date of the meeting or any adjournment or postponement thereof). The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation and to determine the independence of such director under the Exchange Act and rules and regulations thereunder and applicable stock exchange rules. In addition, a stockholder seeking to bring an item of business before the annual meeting shall promptly provide any other information reasonably requested by the Corporation.

(iii)  Notwithstanding anything in Section 1.12(a)(ii) of these By-laws to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board made by the Corporation at least one hundred (100) calendar days prior to the first anniversary of the preceding year’s annual meeting, then a stockholder’s notice under this Section 1.12(a) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it is received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.

(b)  Special Meetings of Stockholders.  Only such business as shall have been brought before the special meeting of the stockholders pursuant to the Corporation’s notice of meeting shall be conducted at such meeting.  Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting  (1) by or at the direction of the Board or a Committee appointed by the Board for such purpose or (2) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 1.12(b) and at the date of the meeting who is a stockholder of record at the time such notice is delivered to the Secretary.  In the event the Corporation calls a special meeting of stockholders for the purpose of electing

8

one or more directors of the Corporation, any stockholder entitled to vote at such meeting may nominate a person or persons, as the case may be, for election to such position(s) as specified by the Corporation, if the stockholder’s notice as required by Section 1.12(a)(ii) of these By-laws shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the one hundred and twenty (120) days prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(c)  General.

(i)  Only such persons who are nominated in accordance with the procedures set forth in this Section 1.12 shall be eligible to serve as directors and only such business shall be conducted at an annual or special meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section. Except as otherwise provided by applicable law, the Certificate of Incorporation or these By-laws, the presiding person of a meeting of stockholders shall have the power and duty (x) to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 1.12 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made, solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by clause (a)(ii)(C)(4) of this Section 1.12), and (y) if any proposed nomination or business is not in compliance with this Section 1.12, to declare that such defective nomination shall be disregarded or that such proposed business shall not be transacted.

(ii)  If the stockholder (or a qualified representative of the stockholder) making a nomination or proposal under this Section 1.12 does not appear at a meeting of stockholders to present such nomination or proposal, the nomination shall be disregarded and/or the proposed business shall not be transacted, as the case may be, notwithstanding that proxies in favor thereof may have been received by the Corporation.  For purposes of this Section 1.12, to be considered a qualified representative of the stockholder, a person must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

(A)    Whenever used in these By-laws, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation

9

with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

(B)    Notwithstanding the foregoing provisions of this Section 1.12, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 1.12.  Nothing in this Section 1.12 shall be deemed to affect any rights of (x) stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (y) the holders of any series of preferred stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation or of the relevant preferred stock certificate of designation.

(C)    The announcement of an adjournment or postponement of an annual or special meeting does not commence a new time period (and does not extend any time period) for the giving of notice of a stockholder nomination or a stockholder proposal as described above.

ARTICLE II

BOARD OF DIRECTORS

Section 2.01.  General Powers.  Except as may otherwise be 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.  The directors shall act only as a Board, and the individual directors shall have no power as such.

Section 2.02.  Number and Term of Office.  The number of directors constituting the entire Board and the term of office for each director shall be as provided for in the Certificate of Incorporation.

Section 2.03.  Classification; Election of Directors.  The Board shall be classified into three classes as provided by the Certificate of Incorporation.  Except as otherwise provided in Section 2.14 of these By-laws, at each annual meeting of the stockholders the successors of the directors whose term expires at that meeting shall be elected.  At each meeting of the stockholders for the election of directors, provided a quorum is present, the directors who are standing for election shall be elected by a plurality of the votes validly cast in such election.

Section 2.04.  Regular Meetings.  Regular meetings of the Board shall be held on such dates, and at such times and places as are determined from time to time by resolution of the Board.

Section 2.05.  Special Meetings.  Special meetings of the Board shall be held whenever called by the Chairman of the Board or, in the event of his or her absence or disability, by the Secretary, or by a majority of the directors then in office, at such place,

10

date and time as may be specified in the respective notices or waivers of notice of such meetings.  Any business may be conducted at a special meeting.

Section 2.06.  Notice of Meetings; Waiver of Notice.

(a)  Notices of special meetings shall be given to each director, and notice of each resolution or other action affecting the date, time or place of one or more regular meetings shall be given to each director not present at the meeting adopting such resolution or other action, subject to Section 2.09 of these By-laws.  Notices shall be given personally, or by telephone confirmed by facsimile or email dispatched promptly thereafter, or by facsimile or email confirmed by a writing delivered by a recognized overnight courier service, directed to each director at the address from time to time designated by such director to the Secretary.  Each such notice and confirmation must be given (received in the case of personal service or delivery of written confirmation) at least 24 hours prior to the time of a special meeting, and at least five days prior to the initial regular meeting affected by such resolution or other action, as the case may be.

(b)  A written waiver of notice of meeting signed by a director or a waiver by electronic transmission by a director, whether given before or after the meeting time stated in such notice, is deemed equivalent to notice.  Attendance of a director at a meeting is 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 at the meeting on the ground that the meeting is not lawfully called or convened.

Section 2.07.  Quorum; Voting.  At all meetings of the Board, the presence of a majority of the total authorized number of directors shall constitute a quorum for the transaction of business.  Except as otherwise required by law, the Certificate of Incorporation or these By-laws, the affirmative vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board.

Section 2.08.  Action by Telephonic Communications.  Members of the Board may participate in a meeting of the Board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting.

Section 2.09.  Adjournment.  A majority of the directors present may adjourn any meeting of the Board to another date, time or place, whether or not a quorum is present.  No notice need be given of any adjourned meeting unless (a) the date, time and place of the adjourned meeting are not announced at the time of adjournment, in which case notice conforming to the requirements of Section 2.06 of these By-laws applicable to special meetings shall be given to each director, or (b) the meeting is adjourned for more than 24 hours, in which case the notice referred to in clause (a) shall be given to those directors not present at the announcement of the date, time and place of the adjourned meeting.

11

Section 2.10.  Action Without a Meeting.  Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing or by electronic transmission, and such writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board.  Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 2.11.  Regulations.  To the extent consistent with applicable law, the Certificate of Incorporation and these By-laws, the Board may adopt such rules and regulations for the conduct of meetings of the Board and for the management of the affairs and business of the Corporation as the Board may deem appropriate.  The Board may elect from among its members a chairperson and one or more vice-chairpersons to preside over meetings and to perform such other duties as may be designated by the Board.

Section 2.12.  Resignations of Directors.  Any director may resign at any time by submitting an electronic transmission or by delivering a written notice of resignation, signed by such director, to the Chairman of the Board or the Secretary.  Subject to Section 1.08(b) of these By-laws, such resignation shall take effect upon delivery unless the resignation specifies a later effective date or an effective date determined upon the happening of a specified event.

Section 2.13.  Removal of Directors.  Directors may only be removed as set forth in the Certificate of Incorporation.

Section 2.14.  Vacancies and Newly Created Directorships.  Any vacancies or newly created directorships shall be filled as set forth in the Certificate of Incorporation.

Section 2.15.  Compensation.  The directors shall be entitled to compensation for their services to the extent approved by the stockholders at any regular or special meeting of the stockholders.  The Board may by resolution determine the expenses in the performance of such services for which a director is entitled to reimbursement.

Section 2.16.  Reliance on Accounts and Reports, etc.  A director, as such or as a member of any committee designated by the Board, shall in the performance of his or her duties be fully protected in relying in good faith upon the records of the Corporation and upon information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees designated by the Board, or by any other person as to the matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.

12

ARTICLE III

COMMITTEES

Section 3.01.  How Constituted.  The Board shall have an Audit Committee, Compensation Committee, Compliance Committee, Nominating and Corporate Governance Committee and such other committees as the Board may determine (collectively, the “Committees”).  Each Committee shall consist of such number of directors as from time to time may be fixed by a majority of the total number of directors then in office and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation to the extent delegated to such Committee by the Board but no Committee shall have any power or authority as to (a) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, (b) adopting, amending or repealing any of these By-laws or (c) as may otherwise be excluded by law or by the Certificate of Incorporation, and no Committee may delegate any of its power or authority to a subcommittee unless so authorized by the Board.  Any Committee may be abolished or re-designated from time to time by the Board.

Section 3.02.  Members and Alternate Members.  The members of each Committee and any alternate members shall be selected by the Board.  The Board may provide that the members and alternate members serve at the pleasure of the Board.  An alternate member may replace any absent or disqualified member at any meeting of the Committee.  An alternate member shall be given all notices of Committee meetings, may attend any meeting of the Committee, but may count towards a quorum and vote only if a member for whom such person is an alternate is absent or disqualified.  Each member or alternate member of any Committee (whether designated at an annual meeting of the Board or to fill a vacancy or otherwise) shall hold office until his or her successor shall have been designated or until he or she shall cease to be a director, or until his or her earlier death, resignation or removal.

Section 3.03.  Committee Procedures.  A quorum for each Committee shall be a majority of its members, unless the Committee has only one or two members, in which case a quorum shall be one member, or unless a greater quorum is established by the Board.  The vote of a majority of the Committee members present at a meeting at which a quorum is present shall be the act of the Committee.  Each Committee shall keep regular minutes of its meetings and report to the Board when required.  The Board may adopt other rules and regulations for the government of any Committee not inconsistent with the provisions of these By-laws, and each Committee may adopt its own rules and regulations of government, to the extent not inconsistent with these By-laws or rules and regulations adopted by the Board.

Section 3.04.  Meetings and Actions of Committees.  Meetings and actions of each Committee shall be governed by, and held and taken in accordance with, the provisions of the following sections of these By-laws, with such By-laws being deemed to refer to the Committee and its members in lieu of the Board and its members:

13

(a)  Section 2.04 (to the extent relating to place and time of regular meetings);

(b)  Section 2.05 (relating to special meetings);

(c)  Section 2.06 (relating to notice and waiver of notice);

(d)  Sections 2.08 and 2.10 (relating to telephonic communication and action without a meeting); and

(e)  Section 2.09 (relating to adjournment and notice of adjournment).

Special meetings of Committees may also be called by resolution of the Board.

Section 3.05.  Resignations and Removals.  Any member (and any alternate member) of any Committee may resign from such position at any time by delivering a written notice of resignation, signed by such member, to the Chairman of the Board or the Secretary.  Unless otherwise specified therein, such resignation shall take effect upon delivery.  Any member (and any alternate member) of any Committee may be removed from such position by the Board at any time, either for or without cause.

Section 3.06.  Vacancies.  If a vacancy occurs in any Committee for any reason, the remaining members (and any alternate members) may continue to act if a quorum is present.  A Committee vacancy may be filled only by the Board.

ARTICLE IV

OFFICERS

Section 4.01.  Officers.  The Board shall elect a President and a Secretary as officers of the Corporation.  The Board may also elect a Treasurer, one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers, and such other officers and agents as the Board may determine (including a Chief Financial Officer).  In addition, the Board from time to time may delegate to any officer the power to appoint subordinate officers or agents and to prescribe their respective rights, terms of office, authorities and duties.  Any action by an appointing officer may be superseded by action by the Board.  Any number of offices may be held by the same person, except that one person may not hold both the office of President and the office of Secretary.  No officer need be a director of the Corporation.

Section 4.02.  Election.  The officers of the Corporation elected by the Board shall serve at the pleasure of the Board.  Officers and agents appointed pursuant to delegated authority as provided in Section 4.01 (or, in the case of agents, as provided in Section 4.06) shall hold their offices for such terms as may be determined from time to time by the appointing officer.  Each officer shall hold office until his or her successor has been elected or appointed and qualified, or until his or her earlier death, resignation or removal.

14

Section 4.03.  Compensation.  The salaries and other compensation of all officers and agents of the Corporation shall be fixed by the Board or in the manner established by the Board.

Section 4.04.  Removal and Resignation; Vacancies.  Any officer may be removed for or without cause at any time by the Board.  Any officer granted the power to appoint subordinate officers and agents as provided in Section 4.01 may remove any subordinate officer or agent appointed by such officer, for or without cause.  Any officer or agent may resign at any time by delivering notice of resignation, either in writing signed by such officer or by electronic transmission, to the Board or the President.  Unless otherwise specified therein, such resignation shall take effect upon delivery.  Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise, may be filled by the Board or by the officer, if any, who appointed the person formerly holding such office.

Section 4.05.  Authority and Duties of Officers.  An officer of the Corporation shall have such authority and shall exercise such powers and perform such duties (a) as may be required by law, (b) to the extent not inconsistent with law, as are specified in these By-laws, (c) to the extent not inconsistent with law or these By-laws, as may be specified by resolution of the Board and (d) to the extent not inconsistent with any of the foregoing, as may be specified by the appointing officer with respect to a subordinate officer appointed pursuant to delegated authority under Section 4.01.

Section 4.06.  President.  The President shall, unless otherwise provided by the Board, be the chief executive officer of the Corporation, shall have general control and supervision of the policies and operations of the Corporation and shall see that all orders and resolutions of the Board are carried into effect.  Unless otherwise provided by the Board, he or she shall manage and administer the Corporation’s business and affairs and shall also perform all duties and exercise all powers usually pertaining to the office of a chief executive officer of a corporation.  He or she shall have the authority to sign, in the name and on behalf of the Corporation, checks, orders, contracts, leases, notes, drafts and all other documents and instruments in connection with the business of the Corporation.  He or she shall have the authority to cause the employment or appointment of such employees or agents of the Corporation as the conduct of the business of the Corporation may require, to fix their compensation, and to remove or suspend any employee or any agent employed or appointed by any officer or to suspend any agent appointed by the Board.  The President shall have the duties and powers of the Treasurer if no Treasurer is elected and shall have such other duties and powers as the Board may from time to time prescribe.

Section 4.07.  Vice Presidents.  If one or more Vice Presidents have been elected, each Vice President shall perform such duties and exercise such powers as may be assigned to him or her from time to time by the Board or the President.  In the event of absence or disability of the President, the duties of the President shall be performed, and his or her powers may be exercised, by such Vice President as shall be designated by the Board or, failing such designation, by the Vice President in order of seniority of election to that office.

15

Section 4.08.  Secretary.  Unless otherwise determined by the Board, the Secretary shall have the following powers and duties:

(a)  The Secretary shall keep or cause to be kept a record of all the proceedings of the meetings of the stockholders, the Board and any Committees thereof in books provided for that purpose.

(b)  The Secretary shall cause all notices to be duly given in accordance with the provisions of these By-laws and as required by law.

(c)  Whenever any Committee shall be appointed pursuant to a resolution of the Board, the Secretary shall furnish a copy of such resolution to the members of such Committee.

(d)  The Secretary shall be the custodian of the records and of the seal of the Corporation and cause such seal (or a facsimile thereof) to be affixed to all certificates representing shares of the Corporation prior to the issuance thereof and to all documents and instruments that the Board or any officer of the Corporation has determined should be executed under seal, may sign (together with any other authorized officer) any such document or instrument, and when the seal is so affixed he or she may attest the same.

(e)  The Secretary shall properly maintain and file all books, reports, statements, certificates and all other documents and records required by law, the Certificate of Incorporation or these By-laws.

(f)  The Secretary shall have charge of the stock books and ledgers of the Corporation and shall cause the stock and transfer books to be kept in such manner as to show at any time the number of shares of stock of the Corporation of each class issued and outstanding, the names (alphabetically arranged) and the addresses of the holders of record of such shares, the number of shares held by each holder and the date as of which each such holder became a holder of record.

(g)  The Secretary shall sign (unless the Treasurer, an Assistant Treasurer or an Assistant Secretary shall have signed) certificates representing shares of the Corporation the issuance of which shall have been authorized by the Board.

(h)  The Secretary shall perform, in general, all duties incident to the office of secretary and such other duties as may be specified in these By-laws or as may be assigned to the Secretary from time to time by the Board or the President.

Section 4.09.  Treasurer.  Unless otherwise determined by the Board, the Treasurer, if there be one, shall be the chief financial officer of the Corporation and shall have the following powers and duties:

(a)  The Treasurer shall have charge and supervision over and be responsible for the moneys, securities, receipts and disbursements of the Corporation, and shall keep or cause to be kept full and accurate records thereof.

16

(b)  The Treasurer shall cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be determined by the Board or the President, or by such other officers of the Corporation as may be authorized by the Board or the President to make such determinations.

(c)  The Treasurer shall cause the moneys of the Corporation to be disbursed by checks or drafts (signed by such officer or officers or such agent or agents of the Corporation, and in such manner, as the Board or the President may determine from time to time) upon the authorized depositaries of the Corporation and cause to be taken and preserved proper vouchers for all moneys disbursed.

(d)  The Treasurer shall render to the Board or the President, whenever requested, a statement of the financial condition of the Corporation and of the transactions of the Corporation, and render a full financial report at the annual meeting of the stockholders, if called upon to do so.

(e)  The Treasurer shall be empowered from time to time to require from all officers or agents of the Corporation reports or statements giving such information as he or she may desire with respect to any and all financial transactions of the Corporation.

(f)  The Treasurer may sign (unless an Assistant Treasurer or the Secretary or an Assistant Secretary shall have signed) certificates representing shares of stock of the Corporation the issuance of which shall have been authorized by the Board.

(g)  The Treasurer shall perform, in general, all duties incident to the office of treasurer and such other duties as may be specified in these By-laws or as may be assigned to the Treasurer from time to time by the Board or the President.

ARTICLE V

CAPITAL STOCK

Section 5.01.  Certificates of Stock; Uncertificated Shares.  The shares of the Corporation shall be represented by certificates, except to the extent that the Board has provided by resolution or resolutions that some or all of any or all classes or series of the stock of the Corporation shall be uncertificated shares.  Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation.  Every holder of stock in the Corporation represented by certificates shall be entitled to have, and the Board may in its sole discretion permit a holder of uncertificated shares to receive upon request, a certificate signed by the appropriate officers of the Corporation, certifying the number and class of shares owned by such holder.  Such certificate shall be in such form as the Board may determine, to the extent consistent with applicable law, the Certificate of Incorporation and these By-laws.

Section 5.02.  Facsimile Signatures.  Any or all signatures on the certificates referred to in Section 5.01 of these By-laws may be in facsimile form.  If any officer, transfer agent or registrar who has signed, or whose facsimile signature has been placed

17

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 or she were such officer, transfer agent or registrar at the date of issue.

Section 5.03.  Lost, Stolen or Destroyed Certificates.  A new certificate may be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed only upon delivery to the Corporation of an affidavit of the owner or owners (or their legal representatives) of such certificate, setting forth such allegation, and a bond or other undertaking as may be satisfactory to a financial officer of the Corporation designated by the Board 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.

Section 5.04.  Transfer of Stock.

(a)  Transfer of shares shall be made on the books of the Corporation upon surrender to the Corporation of a certificate for shares, duly endorsed or accompanied by appropriate evidence of succession, assignment or authority to transfer, and otherwise in compliance with applicable law.  Shares that are not represented by a certificate shall be transferred in accordance with applicable law.  Subject to applicable law, the provisions of the Certificate of Incorporation and these By-laws, the Board may prescribe such additional rules and regulations as it may deem appropriate relating to the issue, transfer and registration of shares of the Corporation.

(b)  The Corporation may enter into agreements with shareholders to restrict the transfer of stock of the Corporation in any manner not prohibited by the DGCL.

Section 5.05.  Registered Stockholders.  Prior to due surrender of a certificate for registration of transfer, the Corporation may treat the registered owner as the person exclusively entitled to receive dividends and other distributions, to vote, to receive notice and otherwise to exercise all the rights and powers of the owner of the shares represented by such certificate, and the Corporation shall not be bound to recognize any equitable or legal claim to or interest in such shares on the part of any other person, whether or not the Corporation shall have notice of such claim or interests.  If a transfer of shares is made for collateral security, and not absolutely, this fact shall be so expressed in the entry of the transfer if, when the certificates are presented to the Corporation for transfer or uncertificated shares are requested to be transferred, both the transferor and transferee request the Corporation to do so.

Section 5.06.  Transfer Agent and Registrar.  The Board may appoint one or more transfer agents and one or more registrars, and may require all certificates representing shares to bear the signature of any such transfer agents or registrars.

18

ARTICLE VI

INDEMNIFICATION

Section 6.01.  Indemnification.

(a)  In General.  The Corporation shall indemnify, to the full extent permitted by the DGCL and other applicable law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (each, a “proceeding”) by reason of the fact that (x) such person is or was serving or has agreed to serve as a director or officer of the Corporation, or (y) such person, while serving as a director or officer of the Corporation, is or was serving or has agreed to serve at the request of the Corporation as a director, officer, employee, manager or agent of another corporation, partnership, joint venture, trust or other enterprise or (z) such person is or was serving or has agreed to serve at the request of the Corporation as a director, officer or manager of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted by such person in such capacity, and who satisfies the applicable standard of conduct set forth in the DGCL or other applicable law:

(i)  in a proceeding other than a proceeding by or in the right of the Corporation, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person or on such person’s behalf in connection with such proceeding and any appeal therefrom, or

(ii)  in a proceeding by or in the right of the Corporation to procure a judgment in its favor, against expenses (including attorneys’ fees) actually and reasonably incurred by such person or on such person’s behalf in connection with the defense or settlement of such proceeding and any appeal therefrom.

(b)  Indemnification in Respect of Successful Defense.  To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any proceeding referred to in Section 6.01(a) or in defense of any claim, issue or matter therein, such person shall be indemnified by the Corporation against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

(c)  Indemnification in Respect of Proceedings Instituted by Indemnitee.  Section 6.01(a) does not require the Corporation to indemnify a present or former director or officer of the Corporation in respect of a proceeding (or part thereof) instituted by such person on his or her own behalf, unless such proceeding (or part thereof) has been authorized by the Board or the indemnification requested is pursuant to the last sentence of Section 6.03 of these By-laws.

Section 6.02.  Advance of Expenses.  The Corporation shall advance all expenses (including reasonable attorneys’ fees) incurred by a present or former director

19

or officer in defending any proceeding prior to the final disposition of such proceeding upon written request of such person and delivery of an undertaking by such person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation.  The Corporation may authorize any counsel for the Corporation to represent (subject to applicable conflict of interest considerations) such present or former director or officer in any proceeding, whether or not the Corporation is a party to such proceeding.

Section 6.03.  Procedure for Indemnification.  Any indemnification under Section 6.01 of these By-laws or any advance of expenses under Section 6.02 of these By-laws shall be made only against a written request therefor (together with supporting documentation) submitted by or on behalf of the person seeking indemnification or advance.  Indemnification may be sought by a person under Section 6.01 of these By-laws in respect of a proceeding only to the extent that both the liabilities for which indemnification is sought and all portions of the proceeding relevant to the determination of whether the person has satisfied any appropriate standard of conduct have become final.  A person seeking indemnification or advance of expenses may seek to enforce such person’s rights to indemnification or advance of expenses (as the case may be) in the Delaware Court of Chancery to the extent all or any portion of a requested indemnification has not been granted within 90 days of, or to the extent all or any portion of a requested advance of expenses has not been granted within 20 days of, the submission of such request.  All expenses (including reasonable attorneys’ fees) incurred by such person in connection with successfully establishing such person’s right to indemnification or advancement of expenses under this Article, in whole or in part, shall also be indemnified by the Corporation.

Section 6.04.  Burden of Proof.

(a)  In any proceeding brought to enforce the right of a person to receive indemnification to which such person is entitled under Section 6.01 of these By-laws, the Corporation has the burden of demonstrating that the standard of conduct applicable under the DGCL or other applicable law was not met.  A prior determination by the Corporation (including its Board or any Committee thereof, its independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct does not itself constitute evidence that the claimant has not met the applicable standard of conduct.

(b)  In any proceeding brought to enforce a claim for advances to which a person is entitled under Section 6.02 of these By-laws, the person seeking an advance need only show that he or she has satisfied the requirements expressly set forth in Section 6.02 of these By-laws.

Section 6.05.  Contract Right; Non-Exclusivity; Survival.

(a)  The rights to indemnification and advancement of expenses provided by this Article VI shall be deemed to be separate contract rights between the Corporation and each director and officer who serves in any such capacity at any time while these

20

provisions as well as the relevant provisions of the DGCL are in effect, and no repeal or modification of any of these provisions or any relevant provisions of the DGCL shall adversely affect any right or obligation of such director or officer existing at the time of such repeal or modification with respect to any state of facts then or previously existing or any proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts.  Such “contract rights” may not be modified retroactively as to any present or former director or officer without the consent of such director or officer.

(b)  The rights to indemnification and advancement of expenses provided by this Article VI shall not be deemed exclusive of any other indemnification or advancement of expenses to which a present or former director or officer of the Corporation seeking indemnification or advancement of expenses may be entitled by any agreement, vote of stockholders or disinterested directors, or otherwise.

(c)  The rights to indemnification and advancement of expenses provided by this Article VI to any present or former director or officer of the Corporation shall inure to the benefit of the heirs, executors and administrators of such person.

Section 6.06.  Insurance.  The Corporation may purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another Corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person or on such person’s behalf in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article.

Section 6.07.  Employees and Agents.  The Board, or any officer authorized by the Board generally or in the specific case to make indemnification decisions, may cause the Corporation to indemnify any present or former employee or agent of the Corporation in such manner and for such liabilities as the Board may determine, up to the fullest extent permitted by the DGCL and other applicable law.

Section 6.08.  Interpretation; Severability.  Terms defined in Sections 145(h) or (i) of the DGCL have the meanings set forth in such sections when used in this Article VI.  If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director or officer of the Corporation as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article that shall not have been invalidated and to the fullest extent permitted by applicable law.

21

ARTICLE VII

OFFICES

Section 7.01.  Registered Office.  The registered office of the Corporation in the State of Delaware shall be located at the location provided in the Certificate of Incorporation.

Section 7.02.  Other Offices.  The Corporation may maintain offices or places of business at such other locations within or without the State of Delaware as the Board may from time to time determine or as the business of the Corporation may require.

ARTICLE VIII

GENERAL PROVISIONS

Section 8.01.  Dividends.

(a)  Subject to any applicable provisions of law and the Certificate of Incorporation, dividends upon the shares of the Corporation may be declared by the Board at any regular or special meeting of the Board and any such dividend may be paid in cash, property or shares of the Corporation’s stock.

(b)  A member of the Board, or a member of any Committee designated by the Board, shall be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or Committees of the Board, or by any other person as to matters the director reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, as to the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid.

Section 8.02.  Reserves.  There may be set apart out of any funds of the Corporation available for dividends such sum or sums as the Board from time to time may determine proper as a reserve or reserves for meeting contingencies, equalizing dividends, repairing or maintaining any property of the Corporation or for such other purpose or purposes as the Board may determine conducive to the interest of the Corporation, and the Board may similarly modify or abolish any such reserve.

Section 8.03.  Execution of Instruments.  Except as otherwise required by law or the Certificate of Incorporation, the Board or any officer of the Corporation authorized by the Board may authorize any other officer or agent of the Corporation to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation.  Any such authorization must be in writing or by electronic transmission and may be general or limited to specific contracts or instruments.

22

Section 8.04.  Voting as Stockholder.  Unless otherwise determined by resolution of the Board, the President or any Vice President shall have full power and authority on behalf of the Corporation to attend any meeting of stockholders of any Corporation in which the Corporation may hold stock, and to act, vote (or execute proxies to vote) and exercise in person or by proxy all other rights, powers and privileges incident to the ownership of such stock at any such meeting, or through action without a meeting.  The Board may by resolution from time to time confer such power and authority (in general or confined to specific instances) upon any other person or persons.

Section 8.05.  Fiscal Year.  The fiscal year of the Corporation shall commence on the first day of January of each year and shall terminate in each case on December 31.

Section 8.06.  Seal.  The seal of the Corporation shall be circular in form and shall contain the name of the Corporation, the year of its incorporation and the words “Corporate Seal” and “Delaware”.  The form of such seal shall be subject to alteration by the Board.  The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced or may be used in any other lawful manner.

Section 8.07.  Books and Records; Inspection.  Except to the extent otherwise required by law, the books and records of the Corporation shall be kept at such place or places within or without the State of Delaware as may be determined from time to time by the Board.

Section 8.08.  Electronic Transmission.  “Electronic transmission”, as used in these By-laws, means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

ARTICLE IX

AMENDMENT OF BY-LAWS

Section 9.01.  Amendment.  Subject to the provisions of the Certificate of Incorporation, these By-laws may be amended, altered or repealed:

(a)  by the affirmative vote of at least a majority of the directors then in office at any special or regular meeting of the Board if, in the case of such special meeting only, notice of such amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting, or

(b)  the affirmative vote of the holders of at least two-thirds (66 2/3%) of the outstanding shares of common stock entitled to vote at any annual or special meeting of stockholders if, in the case of such special meeting only, notice of such amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting.

23

Notwithstanding the foregoing, no amendment, alteration or repeal of Article VI of these By-laws shall adversely affect any right or protection existing under these By-laws immediately prior to such amendment, alteration or repeal, including any right or protection of a present or former director or officer thereunder in respect of any act or omission occurring prior to the time of such amendment.

ARTICLE X

CONSTRUCTION

Section 10.01.  Construction.  In the event of any conflict between the provisions of these By-laws as in effect from time to time and the provisions of the Certificate of Incorporation of the Corporation as in effect from time to time, the provisions of such Certificate of Incorporation shall be controlling.

24

EX-10.1

Exhibit 10.1

Form of
Employee Performance Share Agreement

This Employee Performance Share Agreement (the “Agreement”), by and between Envision Healthcare Holdings, Inc., a Delaware corporation (the “Company”), and the Employee whose name is set forth on Exhibit A, is being entered into pursuant to the Envision Healthcare Holdings, Inc. 2013 Omnibus Incentive Plan (as amended from time to time, the “Plan”) and is dated as of the date it is accepted and agreed to by the Employee in accordance with Section 6(r).  Capitalized terms that are used but not defined herein (including Exhibit A) shall have the respective meanings given to them in the Plan.

Section 1.              Grant of Performance Shares.  The Company hereby evidences and confirms its grant to the Employee, effective as of the date set forth on Exhibit A (the “Grant Date”), of the number of Performance Shares as shall be determined pursuant to Exhibit A and Section 2, subject to adjustment pursuant to the Plan.  Each Performance Share that becomes earned and vested in accordance with the terms of this Agreement (including Exhibit A) will entitle the Employee to receive from the Company one (1) share of Company Common Stock (or a cash equivalent) as provided under Section 3 and any dividend equivalents as provided under Section 6(b).  This Agreement is entered into pursuant to, and the Performance Shares granted hereunder are subject to, the terms and conditions of the Plan, which are incorporated by reference herein.

Section 2.              Vesting of Performance Shares.

(a)           Vesting.  Except as otherwise provided in this Section 2, the Performance Shares shall become vested, if at all, in accordance with the terms and conditions of this Agreement (including, but not limited to, the provisions relating to the earning, vesting and forfeiture of Performance Shares as set forth in Exhibit A) and the Plan, subject to the Employee’s continued employment through the last day of the Performance Cycle (as defined in Exhibit A).  Performance Shares that become earned and vested shall be settled as provided in Section 3.

(b)           Effect of Termination of Employment.

(i)            If the Employee’s employment is terminated by reason of the Employee’s death or Disability, (x) a pro rata amount of the Performance Shares shall immediately be earned and vested as of the effective date of such termination, with such number of Performance Shares to be calculated by applying the provisions of Exhibit A as if the date of such termination were the last day of the Performance Cycle and (y) any Performance Shares that do not vest pursuant to this Section 2(b)(i) shall automatically be forfeited and cancelled as of the effective date of such termination.

(ii)           If the Employee terminates his or her employment after having (x) attained an age of 55 years or more and (y) completed at least 10 years of service as an Employee (a “Retirement”) before the last day of the Performance Cycle, (A) a pro rata amount of the Performance Shares that would have been earned and vested based on actual achievement of the Performance Goal (as defined in Exhibit A) had the Employee been continuously employed through the last day of the Performance Cycle shall vest, as of the last day of the Performance Cycle, with such amount prorated for the portion of the Performance Cycle that lapsed before the Employee’s Retirement and (B) any Performance Shares that do not vest pursuant to this Section 2(b)(ii) shall automatically be forfeited and cancelled as of the end of the Performance Cycle.

(iii)          Any Other Reason.  Except as provided in Section 2(c), upon termination of the Employee’s employment before the last day of the Performance Cycle for any reason other than the Employee’s death, Disability or Retirement, all Performance Shares shall be forfeited and cancelled as of the effective date of such termination.

(c)           Effect of a Change in Control.

(i)            Except as set forth in this Section 2(c) or as otherwise provided by the Administrator, and notwithstanding Section 14.2 of the Plan, a Change in Control that is consummated during the Performance Cycle shall not accelerate the vesting or settlement of the Performance Shares.

(ii)           Notwithstanding anything to the contrary in this Agreement, the Administrator may, in its discretion, adjust the Performance Goal to account for changes resulting from a Change in Control that is consummated during the Performance Cycle, including deeming the Performance Cycle to have concluded on the effective date of the Change in Control and certifying the TSR Percentile Rank at such time.

(iii)          In the event that during the Performance Cycle (x) a Change in Control is consummated and (y) within the 24-month period following the Change in Control the Employee’s employment is terminated by the Company or its Subsidiary without Cause or the Employee terminates his or her employment for Good Reason, (A) a number of Performance Shares equal to the Target Amount (as defined in Exhibit A) shall immediately be earned and vested as of the effective date of such termination of employment and (B) any Performance Shares that do not vest pursuant to this Section 2(c) shall automatically be forfeited and cancelled at such time.

As used herein, “Good Reason” means, unless otherwise specified in the Employee’s employment agreement with the Company or its Subsidiary, the

2

actual occurrence (as opposed to advance notice), without the Employee’s consent, of:  (1) a material adverse change in the reporting line of the Employee from that in effect immediately prior to such change; (2) a material reduction in the Employee’s base salary, unless the Company makes an across the board reduction that applies to all similarly-situated employees; or (3) a relocation of the Employee’s primary work location to a distance of more than 50 miles from its location as of immediately prior to such change; provided, however, in all cases, the Employee must (x) give the Company written notice of the occurrence of the Good Reason event within 30 days of becoming aware of such occurrence, (y) give the Company thirty 30 days to cure such occurrence and (z) terminate his or her employment within 30 days after the expiration of the Company’s cure period.

(iv)          Notwithstanding Section 2(b)(ii), in the event that a Change in Control occurs after the Employee’s Retirement during the Performance Cycle, in the Administrator’s sole discretion, the Company may satisfy its obligations under Section 2(b)(ii) in respect of the Performance Shares by vesting a pro rata amount of the Target Amount as of the effective date of the Change in Control, with such amount prorated for the portion of the Performance Cycle that lapsed before the Employee’s Retirement, and any Performance Shares that do not vest pursuant to this sentence shall automatically be forfeited and cancelled at such time.

(d)           Discretionary Acceleration.  Notwithstanding anything contained in this Agreement to the contrary, the Administrator, in its sole discretion, may accelerate the vesting with respect to any Performance Shares, at such times and upon such terms and conditions as the Administrator shall determine.

(e)           No Other Accelerated Vesting.  The vesting provisions set forth in this Section 2 shall be the exclusive vesting and exercisability provisions applicable to the Performance Shares and shall supersede any other provisions relating to vesting, unless such other such provision expressly refers to the Plan by name and this Agreement by name and date.

Section 3.              Settlement of Performance Shares.

(a)           Timing and Mechanics of Settlement.  Subject to Section 6(a), any Performance Shares that become vested shall be settled into an equal number of shares of Company Common Stock on a date selected by the Company that is within 30 days following the Administrator’s certification of achievement of the Performance Goal, but no later than March 15th of the calendar year immediately following the Performance Cycle (the “Settlement Date”); provided that, in the case of accelerated vesting of Performance Shares pursuant to Section 2(b)(i) or 2(c), the Settlement Date shall occur on a date selected by the Company that is within 30 days following the vesting of such Performance Shares.  On the Settlement Date, the Company shall electronically issue to the Employee one whole share of Company Common Stock for each Performance Share

3

that became earned and vested as of the Settlement Date, and, upon such issuance, the Employee’s rights in respect of each such Performance Share shall be extinguished.  On or before the Settlement Date, at the Company’s request, the Company and the Employee shall enter into a Subscription Agreement that establishes the rights and obligations of the Company and the Employee relating to any shares of Company Common Stock issued in respect of the Performance Shares, in the form then customarily used by the Company under the Plan for such purpose.  In the event that there are any fractional Performance Shares that became vested, such fractional Performance Shares shall be settled through a cash payment equal to such fraction multiplied by the Fair Market Value of one (1) share of Company Common Stock on the Settlement Date.  No fractional shares of Company Common Stock shall be issued in respect of the Performance Shares.

(b)           Alternative Settlement in Cash.  In lieu of settlement of vested Performance Shares in shares of Company Common Stock, the Company may, in the Administrator’s sole discretion, elect to settle all or a portion of the vested Performance Shares by a cash payment equal to the Fair Market Value as of the Settlement Date of the shares of Company Common Stock that would otherwise have been issued under this Agreement.  Any such cash payment will be paid in accordance with the Company’s normal payroll practices or such other means acceptable to the Company.

Section 4.              Securities Law Compliance.  Notwithstanding any other provision of this Agreement, the Employee may not sell the shares of Company Common Stock acquired upon settlement of the Performance Shares unless such shares are registered under the Securities Act of 1933, as amended (the “Securities Act”), or, if such shares are not then so registered, such sale would be exempt from the registration requirements of the Securities Act.  The sale of such shares must also comply with other applicable laws and regulations governing the Company Common Stock, and the Employee may not sell the shares of Company Common Stock if the Company determines that such sale would not be in material compliance with such laws and regulations.

Section 5.              Restriction on Transfer; Non-Transferability of Performance Shares.  The Performance Shares are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise), other than by will or by the laws of descent and distribution to the estate of the Employee upon the Employee’s death or, with the prior approval of the Company’s General Counsel or the Administrator, estate planning transfers.  Any purported transfer in violation of this Section 5 shall be void ab initio.

Section 6.              Miscellaneous.

(a)           Tax Withholding.  In the event that the Company settles any Performance Shares using Company Common Stock, the Company or one of the Subsidiaries shall

4

require the Employee to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding obligations that may arise in connection with the vesting of the Performance Shares and the related issuance of shares of Company Common Stock.  Notwithstanding the preceding sentence, if the Employee elects not to remit cash in respect of such obligations, the Company shall retain a number of shares issued in respect of the Performance Shares then vesting that have an aggregate Fair Market Value as of the Settlement Date equal to the amount of such taxes required to be withheld (and in such a case the Employee shall thereupon be deemed to have satisfied his or her obligations under this Section 6(a)); provided that (x) the number of such shares retained shall not be in excess of the minimum amount required to satisfy the statutory withholding tax obligations (it being understood that the value of any fractional share of Company Common Stock shall be paid in cash) and (y) the number of shares of Company Common Stock to be issued in respect of Performance Shares shall thereupon be reduced by the number of shares of Company Common Stock so retained.  The method of withholding set forth in the immediately preceding sentence shall not be available if withholding in such manner would violate any financing instrument of the Company or any of the Subsidiaries.  In the event that the Company elects to settle any Performance Shares using cash, the Company shall withhold an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding obligations that may arise in connection with the vesting of the Performance Shares and the related cash payment.

(b)           Dividend Equivalents.  In the event that the Company pays any ordinary dividend in cash on a share of Company Common Stock following the Grant Date and prior to the settlement of the Performance Shares, there shall be credited to the account of the Employee in respect of each outstanding Performance Share an amount equal to the amount of such dividend.  The amount so credited shall be deferred (without interest, unless the Administrator determines otherwise) until the settlement of the Performance Shares and then paid in cash proportionate to the amount of the Performance Shares, if any, that have been earned and vested, but to the extent that any Performance Shares are cancelled a proportionate amount of such accumulated amounts shall be forfeited.

(c)           Authorization to Share Personal Data.  The Employee authorizes the Company or any Affiliate of the Company that has or lawfully obtains personal data relating to the Employee to divulge or transfer such personal data to the Company or to a third party, in each case in any jurisdiction, if and to the extent reasonably appropriate in connection with this Agreement or the administration of the Plan.

(d)           No Rights as Stockholder; No Voting Rights.  The Employee shall` have no rights as a stockholder of the Company with respect to any shares of Company Common Stock covered by the Performance Shares prior to the issuance of such shares of Company Common Stock, except for dividend equivalents provided under Section 6(b).

5

(e)           No Right to Awards.  The Employee acknowledges and agrees that the grant of any Performance Shares (i) is being made on an exceptional basis and is not intended to be renewed or repeated, (ii) is entirely voluntary on the part of the Company and the Subsidiaries and (iii) should not be construed as creating any obligation on the part of the Company or any of the Subsidiaries to offer any Performance Shares in the future.

(f)            No Right to Continued Employment. Nothing in this Agreement shall be deemed to confer on the Employee any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.

(g)           Nature of Award.  This award of Performance Shares and any delivery or payment in respect thereof constitutes a special incentive payment to the Employee and shall not be taken into account in computing the amount of salary or compensation of the Employee for the purpose of determining any retirement, death or other benefits under (x) any retirement, bonus, life insurance or other employee benefit plan of the Company, or (y) any agreement between the Company and the Employee, except as such plan or agreement shall otherwise expressly provide.

(h)           Interpretation.  The Administrator shall have full power and discretion to construe and interpret the Plan (and any rules and regulations issued thereunder) and this Award.  Any determination or interpretation by the Administrator under or pursuant to the Plan, this Agreement (including Exhibit A) or this Award shall be final and binding and conclusive on all persons affected hereby.

(i)            Forfeiture of Awards.  The Performance Shares granted hereunder (and gains earned or accrued in connection therewith) shall be subject to such generally applicable policies as to forfeiture and recoupment (including, without limitation, upon the occurrence of material financial or accounting errors, financial or other misconduct or Competitive Activity) as may be adopted by the Administrator or the Board from time to time and communicated to the Employee, and is otherwise subject to forfeiture or disgorgement of profits as provided by the Plan.

(j)            Consent to Electronic Delivery.  By entering into this Agreement and accepting the Performance Shares evidenced hereby, the Employee hereby consents to the delivery of information (including, without limitation, information required to be delivered to the Employee pursuant to applicable securities laws) regarding the Company and the Subsidiaries, the Plan, this Agreement and the Performance Shares via a Company website or other electronic delivery.

(k)           Binding Effect; Benefits.  This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns.  No provision of this Agreement, express or implied, is intended or shall be construed to

6

give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.

(l)            Amendment.  This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Employee and the Company.

(m)          Assignability.  Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Employee without the prior written consent of the other party.

(n)           Applicable Law.  This Agreement shall be governed in all respects, including, but not limited to, as to validity, interpretation and effect, by the internal laws of the State of Delaware, without reference to principles of conflict of law that would require application of the law of another jurisdiction.

(o)           Waiver of Jury Trial.  Each party hereby waives, to the fullest extent permitted by applicable law, any right he, she or it may have to a trial by jury in respect of any suit, action or proceeding arising out of this Agreement or any transaction contemplated hereby.  Each party (i) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that he, she or it and the other party hereto have been induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this section.

(p)           Limitations of Actions. No lawsuit relating to this Agreement may be filed before a written claim is filed with the Administrator and is denied or deemed denied as provided in the Plan and any lawsuit must be filed within one year of such denial or deemed denial or be forever barred.

(q)           Section and Other Headings, etc.  The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.  Unless otherwise indicated, section and exhibit references in this Agreement refer to this Agreement.

(r)            Acceptance of Performance Shares and Agreement.  The Employee has indicated his or her consent and acknowledgement of the terms of this Agreement pursuant to the instructions provided to the Employee by or on behalf of the Company.  The Employee acknowledges receipt of the Plan, represents to the Company that he or she has read and understood this Agreement and the Plan, and, as an express condition to the grant of the Performance Shares under this Agreement, agrees to be bound by the terms of both this Agreement and the Plan.  The Employee and the Company each agrees and acknowledges that the use of electronic media (including, without limitation, a

7

clickthrough button or checkbox on a website of the Company or a third-party administrator) to indicate the Employee’s confirmation, consent, signature, agreement and delivery of this Agreement and the Performance Shares is legally valid and has the same legal force and effect as if the Employee and the Company signed and executed this Agreement in paper form.  The same use of electronic media may be used for any amendment or waiver of this Agreement.

8

Exhibit A to
Employee Performance Share Agreement

Employee:
Grant Date:	, 201

Target Amount of Performance Shares granted hereby
 (the “Target Amount”):                         

Performance Cycle: The three (3)-year period commencing January 1, 201  and ending December 31, 201

1.             Performance Shares.  The number of Performance Shares subject to this Award will be determined in a range of 0% to 150% of the Target Amount, as follows:

TSR Percentile Rank	TSR Multiplier (as a percentage of the Target Amount)
Less than the 25th percentile	0	%
25th percentile (i.e., threshold)	25	%
50th percentile (i.e., target)	100	%
75th percentile or more (i.e., maximum)	150	%

The TSR Multiplier for payout above the “threshold” level but below the “target” level of achievement, and above the “target” level but below the “maximum” level of achievement, will be calculated by the Administrator by straight-line interpolation by reference to the TSR Multipliers of the applicable levels.  For the avoidance of doubt, (x) in no event may the TSR Multiplier exceed 150% and (y) all of the Performance Shares will be forfeited if the Company’s performance for the Performance Cycle does not meet or exceed the “threshold” level of achievement.

2.             Performance Goal.

(a)           TSR-Based Performance Goal.  The Performance Shares shall be earned to the extent of the satisfaction of a performance vesting requirement (the “Performance Goal”) based on the Total Shareholder Return of the Company as compared to the

9

respective Total Shareholder Returns of the S&P 1500 Healthcare Companies over the Performance Cycle; provided that in no event shall the Administrator take any action that would constitute “positive discretion” with respect to awards of Performance Shares intended to qualify as “performance-based compensation” under Section 162(m) of the Code.

(b)           Certification of Achievement Relative to Performance Goal:  As soon as practicable after the end of the Performance Cycle but in any event within 45 days after end of the Performance Cycle, the Administrator shall certify in writing the extent to which the Performance Goal has been achieved.

3.             Definitions.

“S&P 1500 Healthcare Companies” means all of the companies that are listed on the S&P Composite 1500 Health Care Index, including the Company, as of the date on which the Performance Cycle commences, and that remain continuously listed on the S&P Composite 1500 Health Care Index throughout the Performance Cycle; provided that, for the purposes of this Agreement, (i) if two companies in the S&P Composite 1500 Health Care Index merge, the surviving company shall remain in the S&P Composite 1500 Health Care Index, (ii) if a company in the S&P Composite 1500 Health Care Index merges with, or is acquired by, a company that is not in the S&P Composite 1500 Health Care Index, and the company in the S&P Composite 1500 Health Care Index is the surviving company, then the surviving company shall be included in the S&P Composite 1500 Health Care Index and (iii) if a company in the S&P Composite 1500 Health Care Index merges with, or is acquired by, a company that is not in the S&P 500 Healthcare Index, and the company in the S&P Composite 1500 Health Care Index is not the surviving company or the surviving company is no longer publicly traded, then the surviving company shall not be included in the S&P Composite 1500 Health Care Index.  Notwithstanding the foregoing, if a company in the S&P Composite 1500 Health Care Index ceases to be listed in the Healthcare Sector under the Standard & Poor’s Global Industry Classification Standard (GICS) at any time during the Performance Cycle (including after a merger, acquisition or other business transaction described above), then it shall not be included in the S&P Composite 1500 Health Care Index.

“Total Shareholder Return” means an amount equal to the average of the total return figures as reported on each of the last 30 trading days of the Performance Cycle, and as relating to the three (3)-year period ending on each such date on any such commonly used financial reporting service as the Administrator shall select (with the same such financial reporting service to be used for each of the 30 trading days) for:

(i)            the Company; or

(ii)           any other S&P 1500 Healthcare Company.

10

In determining Total Shareholder Return at the end of the Performance Cycle, the total return figures for the Company and each other S&P 1500 Healthcare Company shall be compared with the average of the total return figures as reported on each of the 30 trading days occurring immediately before the first day of the Performance Cycle.  The Total Shareholder Return for the Company and each other S&P 1500 Healthcare Company shall include any cash dividends paid on one (1) share of common stock during the Performance Cycle.

“TSR Percentile Rank” means, as determined by the Administrator, in its sole discretion, the percentile ranking (which shall be carried out to two decimal points), from highest to lowest, on the basis of the Total Shareholder Return figures reported by the financial reporting service selected by the Administrator in determining Total Shareholder Return for each of the S&P 1500 Healthcare Companies, including the Company.

11

EX-10.2

Exhibit 10.2

Employee Stock Option Agreement

This Employee Stock Option Agreement (the “Agreement”), by and between Envision Healthcare Holdings, Inc., a Delaware corporation (the “Company”), and the Employee whose name is set forth on Exhibit A hereto, is being entered into pursuant to the Envision Healthcare Holdings, Inc. 2013 Omnibus Incentive Plan (the “Plan”) and is dated as of the date it is accepted and agreed to by the Employee in accordance with Section 7(n).  Capitalized terms that are used but not defined herein shall have the respective meanings given to them in the Plan.

The Company and the Employee hereby agree as follows:

Section 1.Grant of Options

(a)Confirmation of Grant.  The Company hereby evidences and confirms, effective as of the date set forth on Exhibit A hereto (the “Grant Date”), its grant to the Employee of the number of options to purchase Shares as set forth on Exhibit A hereto (the “Options”), subject to adjustment pursuant to the Plan.  The Options are not intended to be incentive stock options under the Code.  This Agreement is entered into pursuant to, and the terms of the Options are subject to, the terms of the Plan.

(b)Option Price.  The Option Price for each Share covered by the Options is the price set forth on Exhibit A hereto.

Section 2.Vesting and Exercisability

(a)Vesting.  Except as otherwise provided in Section 5 or 2(b), the Options shall become vested, if at all, in the percentage(s), and on the vesting date(s) set forth on the Exhibit A hereto (each, a “Vesting Date”); provided that if the Employee’s employment with the Company is terminated by reason of the Employee’s death or Disability (either a “Special Termination”), any Options held by the Employee shall immediately vest as of the effective date of such Special Termination.

(b)Discretionary Acceleration.  The Administrator, in its sole discretion, may accelerate the vesting or exercisability of all or a portion of the Options, at any time and from time to time.

(c)Exercise.  Once vested in accordance with the provisions of this Agreement, the Options may be exercised at any

time and from time to time prior to the date such Options terminate pursuant to Section 3.  Options may only be exercised with respect to whole shares of Company Common Stock and must be exercised in accordance with Section 4.

(d)No Other Accelerated Vesting.  The vesting and exercisability provisions set forth in this Section 2 or in Section 5, or expressly set forth in the Plan, shall be the exclusive vesting and exercisability provisions applicable to the Options and shall supersede any other provisions relating to vesting and exercisability, unless such other such provision expressly refers to the Plan by name and this Agreement by name and date.

Section 3.Termination of Options

(a)Normal Termination Date.  Unless earlier terminated pursuant to Section 3(b) or Section 5, the Options shall terminate on the tenth anniversary of the Grant Date (the “Normal Termination Date”), if not exercised prior to such date.

(b)Early Termination.  If the Employee’s employment with the Company terminates for any reason, any Options held by the Employee that have not vested before the effective date of such termination of employment (determined without regard to any statutory or deemed or express contractual notice period) or that do not become vested on such date in accordance with Section 2 shall terminate immediately upon such termination of employment and, if the Employee’s employment is terminated for Cause, all Options (whether or not then vested or exercisable) shall automatically terminate immediately upon such termination.  All vested Options held by the Employee following the effective date of a termination of employment shall remain exercisable until the first to occur of (i) the 90th day following the effective date of the Employee’s termination of employment (or the 180th day in the case of a Special Termination or 12 months in the case of the Employee’s retirement after having attained an age of 55 years or more and completed at least 10 years of service as an Employee) (in each case, determined without regard to any statutory or deemed or express contractual notice period), (ii) the Normal Termination Date or (iii) the cancellation of the Options pursuant to Section 5, and if not exercised within such period the Options shall automatically terminate upon the expiration of such period.  If on the first date of the periods set forth in Section 3(b)(i) the Option is not exercisable solely due to any of the restrictions set

2

forth in Section 4(b)(A), (B) or (C), the Option will not expire until the earlier of the Normal Termination Date or 90 days following the first date on which exercise of the Option ceases to be barred by any such restriction.

Section 4.Manner of Exercise

(a)General.  Subject to such reasonable administrative regulations as the Administrator may adopt from time to time, the exercise of vested Options by the Employee shall be pursuant to procedures contained in the Plan and such other procedures established by the Administrator from time to time and shall include the Employee specifying in writing the proposed date on which the Employee desires to exercise a vested Option (the “Exercise Date”), the number of whole shares with respect to which the Options are being exercised (the “Exercise Shares”) and the aggregate Option Price for such Exercise Shares (the “Exercise Price”), or such other or different requirements as may be specified by the Administrator.  On or before any Exercise Date, at the Company’s request, the Company and the Employee shall enter into a Subscription Agreement that establishes the rights and obligations of the Company and the Employee relating to the Exercise Shares, in the form then customarily used by the Company under the Plan for such purpose.  Unless otherwise determined by the Administrator, (i) on or before the Exercise Date the Employee shall deliver to the Company full payment for the Exercise Shares in United States dollars in cash, or cash equivalents satisfactory to the Company, in an amount equal to the Exercise Price plus any required withholding taxes or other similar taxes, charges or fees, or, pursuant to a broker-assisted exercise program established by the Company, the Employee may exercise vested Options by an exercise and sell procedure (cashless exercise) in which the Exercise Price (together with any required withholding taxes or other similar taxes, charges or fees) is deducted from the proceeds of the exercise of an Option and (ii) the Company shall register the issuance of the Exercise Shares on its records (or direct such issuance to be registered by the Company’s transfer agent).  The Administrator may require the Employee to furnish or execute such other documents as the Administrator shall reasonably deem necessary (i) to evidence such exercise or (ii) to comply with or satisfy the requirements of the Securities Act, applicable state or non-U.S. securities laws or any other law.

3

(b)Restrictions on Exercise.  Notwithstanding any other provision of this Agreement, the Options may not be exercised in whole or in part, (A) unless all requisite approvals and consents of any governmental authority of any kind shall have been secured, (B) unless the purchase of the Exercise Shares shall be exempt from registration under applicable U.S. federal and state securities laws, and applicable non-U.S. securities laws, or the Exercise Shares shall have been registered under such laws, (C) at any time that exercise of the Option would violate the Company’s insider trading policy and unless, if applicable, the Employee has obtained pre-trading clearance for the exercise and (D) unless all applicable U.S. federal, state and local and non-U.S. tax withholding requirements shall have been satisfied.  The Company shall use its commercially reasonable efforts to obtain any consents or approvals referred to in clause (A) of the preceding sentence, but shall otherwise have no obligations to take any steps to prevent or remove any impediment to exercise described in such sentence.

Section 5.Change in Control.

(a)Except as set forth in this Section 5 or as otherwise provided by the Administrator, and notwithstanding Section 14.2 of the Plan, a Change in Control shall not accelerate the vesting or exercisability of the Options.

(b)In the event that (x) a Change in Control is consummated and (y) within the 24-month period following the Change in Control the Employee’s employment is terminated by the Company or its Subsidiary without Cause or the Employee terminates his or her employment for Good Reason, all then outstanding Options shall be vested as of the effective date of such termination of employment.

Section 6.Certain Definitions.  As used in this Agreement, capitalized terms that are not defined herein have the respective meaning given in the Plan, and the following additional terms shall have the following meanings:

“Agreement” means this Employee Stock Option Agreement, as amended from time to time in accordance with the terms hereof.

“Code” means the United States Internal Revenue Code of 1986, as amended, and any successor thereto.

4

“Company” means Envision Healthcare Holdings, Inc., provided that for purposes of determining the status of Employee’s employment with the “Company,” such term shall include the Company and/or any of its Subsidiaries that employ the Employee.

“Employee” means the grantee of the Options, whose name is set forth on Exhibit A hereto; provided that for purposes of Section 4 and Section 7, following such person’s death “Employee” shall be deemed to include such person’s beneficiary or estate and following such Person’s Disability, “Employee” shall be deemed to include such person’s legal representative.

“Exercise Date” has the meaning given in Section 4(a).

“Exercise Price” has the meaning given in Section 4(a).

“Exercise Shares” has the meaning given in Section 4(a).

“Good Reason” means, unless otherwise specified in the Employee’s employment agreement with the Company or its Subsidiary, the actual occurrence (as opposed to advance notice), without the Employee’s consent, of:  (1) a material adverse change in the reporting line of the Employee from that in effect immediately prior to such change; (2) a material reduction in the Employee’s base salary, unless the Company makes an across the board reduction that applies to all similarly-situated employees; or (3) a relocation of the Employee’s primary work location to a distance of more than 50 miles from its location as of immediately prior to such change; provided, however, in all cases, the Employee must (x) give the Company written notice of the occurrence of the Good Reason event within 30 days of becoming aware of such occurrence, (y) give the Company thirty 30 days to cure such occurrence and (z) terminate his or her employment within 30 days after the expiration of the Company’s cure period.

“Grant Date” has the meaning given in Section 1(a), which is the date on which the Options are granted to the Employee.

“Normal Termination Date” has the meaning given in Section 3(a).

“Option” means the right granted to the Employee hereunder to purchase one share of Company Common Stock for a purchase price equal to the Option Price subject to the terms of this Agreement and the Plan.

“Option Price” means, with respect to each share of Company

5

Common Stock covered by an Option, the purchase price specified in Section 1(b) for which the Employee may purchase such share of Company Common Stock upon exercise of an Option.

“Plan” means the Envision Healthcare Holdings, Inc. 2013 Omnibus Incentive Plan, as amended from time to time.

“Special Termination” has the meaning given in Section 2(a).

Section 7.Miscellaneous.

(a)Withholding.  The Company or one of its Subsidiaries shall require the Employee to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding or other similar charges or fees that may arise in connection with the grant, vesting, exercise or purchase of the Options.

(b)No Rights as Stockholder; No Voting Rights.  The Employee shall have no rights as a stockholder of the Company with respect to any shares covered by the Options until the exercise of the Options and delivery of the shares.  No adjustment shall be made for dividends or other rights for which the record date is prior to the delivery of the shares.  Any shares delivered in respect of the Options shall be subject to any Subscription Agreement, which the Company may require the Employee to accept and agree to as a condition of the issuance and delivery of those shares.

(c)No Right to Continued Employment.  Nothing in this Agreement shall be deemed to confer on the Employee any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.

(d)Nature of Award.  This award of Options and any delivery or payment in respect thereof constitutes a special incentive payment to the Employee and shall not be taken into account in computing the amount of salary or compensation of the Employee for the purpose of determining any retirement, death or other benefits under (x) any retirement, bonus, life insurance or other employee benefit plan of the Company, or (y) any agreement between the Company and the Employee, except as such plan or agreement shall otherwise expressly provide.

(e)Non-Transferability of Options.  The Options may be

6

exercised only by the Employee, or, following the Employee’s death, by his designated beneficiary or by his estate in the absence of a designated beneficiary.  The Options are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise) other than by will or by the laws of descent and distribution to the estate of the Employee upon the Employee’s death or with the Company’s consent.

(f)Forfeiture of Awards.  The Options granted hereunder (and gains earned or accrued in connection therewith) shall be subject to such generally applicable policies as to forfeiture and recoupment (including, without limitation, upon the occurrence of material financial or accounting errors, financial or other misconduct or Competitive Activity) as may be adopted by the Administrator or the Board from time to time and communicated to the Employee, and are otherwise subject to forfeiture or disgorgement of profits as provided by the Plan.

(g)Consent to Electronic Delivery.  By entering into this Agreement and accepting the Options evidenced hereby, the Employee hereby consents to the delivery of information (including, without limitation, information required to be delivered to the Employee pursuant to applicable securities laws) regarding the Company and its Subsidiaries, the Plan, this Agreement and the Options via Company website or other electronic delivery.

(h)Binding Effect; Benefits.  This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns.  Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.

(i)Waiver; Amendment.

(i)Waiver.  Any party hereto or beneficiary hereof may by written notice to the other parties (A) extend the time for the performance of any of the obligations or other actions of the other

7

parties under this Agreement, (B) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and (C) waive or modify performance of any of the obligations of the other parties under this Agreement.  Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein.  The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder.

(ii)Amendment.  This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Employee and the Company.

(j)Assignability.  Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Employee without the prior written consent of the other party.

(k)Applicable Law.  This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction.

(l)Waiver of Jury Trial.  Each party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of this Agreement or any transaction contemplated hereby.  Each party (i) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties have been induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this section.

8

(m)Section and Other Headings, etc.  The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.  Unless otherwise indicated, section and exhibit references in this Agreement refer to this Agreement.

(n)Acceptance of Options and Agreement.  The Employee has indicated his or her consent and acknowledgement of the terms of this Agreement pursuant to the instructions provided to the Employee by or on behalf of the Company.  The Employee acknowledges receipt of the Plan, represents to the Company that he or she has read and understood this Agreement and the Plan, and, as an express condition to the grant of the Options under this Agreement, agrees to be bound by the terms of both this Agreement and the Plan.  The Employee and the Company each agrees and acknowledges that the use of electronic media (including, without limitation, a clickthrough button or checkbox on a website of the Company or a third-party administrator) to indicate the Employee’s confirmation, consent, signature, agreement and delivery of this Agreement and the Options is legally valid and has the same legal force and effect as if the Employee and the Company signed and executed this Agreement in paper form.  The same use of electronic media may be used for any amendment or waiver of this Agreement.

9

Exhibit A to
 Employee Stock Option Agreement

Employee:
Grant Date:	, 201
Options granted hereby:
Option Price:

Vesting Date Percentage
Vesting
on such Vesting
Date

10