EXHIBIT 3.2.16
BY-LAWS
OF
[ ]
ARTICLE I.
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Certificate of Incorporation
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These by-laws, the powers of the corporation and of its directors and
stockholders, and all matters concerning the conduct and regulation of the
business of the corporation shall be subject to such provisions in regard
thereto as are set forth in the certificate of incorporation filed pursuant to
the General Corporation Law of Delaware which is hereby made a part of these by-
laws.
The term "certificate of incorporation" in these by-laws, unless the
context requires otherwise, includes not only the original certificate of
incorporation filed to create the corporation but also all other certificates,
agreements of merger or consolidation, plans of reorganization, or other
instruments, howsoever designated, filed pursuant to the General Corporation Law
of Delaware which have the effect of amending or supplementing in some respect
the corporation's original certificate of incorporation.
ARTICLE II.
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Annual Meeting
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An annual meeting of stockholders shall be held for the election of
directors and for the transaction of any other business for the transaction of
which the meeting shall have been properly convened in each year at such place,
within or without the State of Delaware, and at such time as shall be fixed by
the board of directors and specified in the notice of the meeting, if such date
is not a legal holiday and if a legal holiday, then at the same hour on the next
succeeding day not a legal holiday. Any other proper business may be transacted
at the annual meeting. If the annual meeting for election of directors shall
not be held on the date designated therefor, the directors shall cause the
meeting to be held as soon thereafter as convenient.
ARTICLE III.
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Special Meetings of Stockholders
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Special meetings of the stockholders may be held either within or without
the State of Delaware, at such time and place and for such purposes as shall be
specified in a call for such
meeting made by the board of directors or by a writing filed with the secretary
signed by the president or by a majority of the directors.
ARTICLE IV.
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Notice of Stockholders' Meetings
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Whenever stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, which notice shall be given
not less than ten nor more than fifty days before the date of the meeting,
except where longer notice is required by law, to each stockholder entitled to
vote at such meeting, by leaving such notice with him or by mailing it, postage
prepaid, directed to him at his address as it appears upon the records of the
corporation. In case of the death, absence, incapacity or refusal of the
secretary, such notice may be given by a person designated either by the
secretary or by the person or persons calling the meeting or by the board of
directors. When a meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
An affidavit of the secretary or an assistant secretary or of the transfer
agent of the corporation that the notice has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
ARTICLE V.
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Quorum of Stockholders; Stockholder List
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At any meeting of the stockholders, a majority of all shares issued and
outstanding and entitled to vote upon a question to be considered at the meeting
shall constitute a quorum for the consideration of such question when
represented at such meeting by the holders thereof in person or by their duly
constituted and authorized attorney or attorneys, but a lesser interest may
adjourn any meeting from time to time, and the meeting may be held as adjourned
without further notice. When a quorum is present at any meeting a majority of
the stock so represented thereat and entitled to vote shall, except where a
larger vote is required by law, by the certificate of incorporation or by these
by-laws, decide any question brought before such meeting.
The secretary or other officer having charge of the stock ledger shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to
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the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours for a period of at least ten days prior to the
meeting, either at a place within the city or town where the meeting is to be
held, which place shall have been specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held. Said list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list of stockholders required by this Article or
the books of the corporation, or the stockholders entitled to vote in person or
by proxy at any meeting of stockholders.
ARTICLE VI.
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Proxies And Voting
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Except as otherwise provided in the certificate of incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of the capital stock held by such stockholder. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or
persons to act for him by proxy but (except as otherwise expressly permitted by
law) no proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period or so long as it is coupled with
an interest sufficient in law to support an irrevocable power.
Unless otherwise provided in the certificate of incorporation, any action
required by law to be taken or which may be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of such action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE VII.
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Stockholders' Record Date
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In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the board of directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action.
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If no record date is fixed:
(1) The record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held.
(2) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be at the close of business on the
day on which the first written consent is expressed.
(3) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting,
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
ARTICLE VIII.
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Board of Directors
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Except as otherwise provided by law or by the certificate of incorporation,
the business and affairs of the corporation shall be managed by the board of
directors.
The number of directors shall be such number, not fewer than one nor more
than four, as may be fixed for any corporate year and elected by the
stockholders at the annual meeting. During any year the board of directors may
be enlarged and additional directors elected to complete the enlarged number, to
not more than the maximum number above specified, by the stockholders at any
meeting or by a vote of a majority of the directors then in office. The
stockholders may, at any meeting held for the purpose during such year,
decrease, to not fewer than the minimum number above specified, the number of
directors as thus fixed or enlarged and remove directors to the decreased
number. Each director shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. Any director may resign
at any time upon written notice to the corporation. No director need be a
stockholder.
ARTICLE IX.
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Committees
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The board of directors may, by resolution passed by a majority of the whole
board, designate one or more committees, each committee to consist of one or
more of the directors of
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the corporation. The board may designate one or more directors as alternate
members of any committee who may replace any absent or disqualified member at
any meeting of the committee and may define the number and qualifications which
shall constitute a quorum of such committee. Except as otherwise limited by law,
any such committee, to the extent provided in the resolution appointing such
committee, shall have and may exercise the powers of the board of directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers which may require it. In
the absence or disqualification of a member of any committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in the place of any such absent or
disqualified member.
ARTICLE X.
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Meetings of the Board of Directors and of Committees
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Regular meetings of the board of directors may be held without call or
formal notice at such places either within or without the State of Delaware and
at such times as the board may by vote from time to time determine.
Special meetings of the board of directors may be held at any place either
within or without the State of Delaware at any time when called by the
president, treasurer, secretary or two or more directors, reasonable notice of
the time and place thereof being given to each director. A waiver of such
notice in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to
such notice. In any case it shall be deemed sufficient notice to a director to
send notice by mail at least forty-eight hours, or to deliver personally or to
send notice by telegram at least twenty-four hours, before the meeting,
addressed to him at his usual or last known business or residence address.
Unless otherwise restricted by the certificate of incorporation or by other
provisions of these by-laws, (a) any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting if all members of the board or of such committee, as the case
may be, consent thereto in writing and such writing or writings are filed with
the minutes of proceedings of the board or committee, and (b) members of the
board of directors or of any committee designated by the board may participate
in a meeting thereof by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation shall constitute presence in person at such
meeting.
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ARTICLE XI.
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Quorum of The Board of Directors
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Except as otherwise expressly provided in the certificate of incorporation
or in these by-laws, a majority of the total number of directors in office at
the time shall constitute a quorum for the transaction of business, but a lesser
number may adjourn any meeting from time to time. Except as otherwise so
expressly provided, the vote of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
provided, that the affirmative vote in good faith of a majority of the
disinterested directors, even though the disinterested directors shall be fewer
than a quorum, shall be sufficient to authorize a contract or transaction in
which one or more directors have interest if the material facts as to such
interest and the relation of the interested directors to the contract or
transaction have been disclosed or are known to the directors.
ARTICLE XII.
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Waiver of Notice of Meetings
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Whenever notice is required to be given under any provision of law or the
certificate of incorporation or by-laws, a written waiver thereof, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice unless
so required by the certificate of incorporation or the by-laws.
ARTICLE XIII.
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Officers and Agents
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The corporation shall have a president, secretary and treasurer, who shall
be chosen by the directors, each of whom shall hold his office until his
successor has been chosen and qualified or until his earlier resignation or
removal. The corporation may have such other officers and agents as are
desired, each of whom shall be chosen by the board of directors and shall hold
his office for such term and have such authority and duties as shall be
determined by the board of directors. The board of directors may secure the
fidelity of any or all of such officers or agents by bond or otherwise. Any
number of offices may be held by the same person. Each officer shall, subject
to these by-laws, have in addition to the duties and powers herein set forth,
such duties and powers as the board of directors shall from time to time
designate. In all cases where the duties of any officer, agent or employee are
not specifically prescribed by the by-laws, or by the board of directors, such
officer, agent or employee shall obey the orders and
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instructions of the president. Any officer may resign at any time upon written
notice to the corporation.
ARTICLE XIV.
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President
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The president shall, subject to the direction and under the supervision of
the board of directors, be the chief executive officer of the corporation and
shall have general and active control of its affairs and business and general
supervision over its officers, agents and employees. Except as otherwise voted
by the board he shall preside at all meetings of the stockholders and of the
board of directors at which he is present. The president shall have custody of
the treasurer's bond, if any.
ARTICLE XV.
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Secretary
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The secretary shall record all the proceedings of the meetings of the
stockholders and directors in a book, which shall be the property of the
corporation, to be kept for that purpose, and perform such other duties as shall
be assigned to him by the board of directors. In the absence of the secretary
from any such meeting, a temporary secretary shall be chosen, who shall record
the proceedings of such meeting in the aforesaid book.
ARTICLE XVI.
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Treasurer
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The treasurer shall, subject to the direction and under the supervision of
the board of directors, have the care and custody of the funds and valuable
papers of the corporation, except his own bond, and he shall, except as the
board of directors shall generally or in particular cases authorize the
endorsement thereof in some other manner, have power to endorse for deposit or
collection all notes, checks, drafts and other obligations for the payment of
money to the corporation or its order. He shall keep, or cause to be kept,
accurate books of account, which shall be the property of the corporation.
ARTICLE XVII.
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Indemnification of Officers and Others
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Section 1. The corporation shall indemnify 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 (other than an action by or in the right of
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the corporation) by reason of the fact that he or she is or was an officer of
the corporation, or is or was serving at the request of the corporation as
director or officer of another corporation, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interest of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
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contendere or its equivalent, shall not, of itself, create a presumption that
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the person did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interest of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
Section 2. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was an officer
of the corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, against expenses (including
attorneys' fees) actually and, reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Section 3. To the extent that an officer of the corporation or person
serving at the request of the corporation as a director or officer of another
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 or 2 of this Article XVII
or in defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
Section 4. Any indemnification under Sections 1 or 2 of this Article XVII
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the officer or
person serving at the request of the corporation as a director or officer of
another corporation is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Section of this Article XVII
under which indemnification is sought. Such determination shall be made (1) by
the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable, a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
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Section 5. Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the officer or person serving at the request of the corporation as a
director or officer of another corporation to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
corporation as authorized in this Article XVII.
Section 6. The indemnification and advancement of expenses provided by, or
granted pursuant to, the other Sections of this Article XVII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
Section 7. The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was an officer of the corporation or
is or was serving at the request of the corporation as a director or officer of
another corporation against any liability asserted against him or her and
incurred by him or her in, any such capacity, or arising out of his or her
status as such, whether or not the corporation would have the power to indemnify
him or her against such liability under the provisions of this Article XVII.
Section 8. For purposes of this Article XVII, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors and officers so that any
person who is or was a director or officer of such constituent corporation, or
is or was serving at the request of such constituent corporation as a director
or officer of another corporation, shall stand in the same position under the
provisions of this Article XVII with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent corporation
if its separate existence had continued.
Section 9. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article XVII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be an officer,
employee or person serving at the request of the corporation as a director or
officer of another corporation and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ARTICLE XVIII.
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Removals
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The stockholders may, at any meeting called for the purpose, by vote of a
majority of the capital stock issued and outstanding and entitled to vote
thereon, remove any director from office.
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The board of directors may, at any meeting called for, the purpose, by vote
of a majority of their entire number remove from office any officer or agent of
the corporation or any member of any committee appointed by the board of
directors or by any committee appointed by the board of directors or by any
officer or agent of the corporation.
ARTICLE XIX.
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Vacancies
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Any vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise and newly created directorships resulting from
any increase in the authorized number of directors, may be filled by a majority
of the directors then in office (though less than a quorum) or by a sole
remaining director and each of the incumbents so chosen shall hold office for
the unexpired term in respect of which the vacancy occurred and until his
successor shall have been duly elected and qualified or for such shorter period
as shall be specified in the filling of such vacancy or, if such vacancy shall
have occurred in the office of director, until such a successor shall have been
chosen by the stockholders.
ARTICLE XX.
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Certificates of Stock
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Every holder of stock in the corporation shall be entitled to have a
certificate signed by, or in the name of the corporation by the chairman or
vice-chairman of the board of directors (if one shall be incumbent) or the
president or a vice-president and by the treasurer or an assistant treasurer, or
the secretary or an assistant secretary, certifying the number of shares owned
by him in the corporation. If such certificate is countersigned (1) by a
transfer agent other than the corporation or its employee, or (2) by a registrar
other than the corporation or its employee, any other signatures on the
certificate may be facsimile. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of
issue.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificates which the corporation shall issue to represent such
class or series of stock or there shall be set forth on the face or back of the
certificates which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish, without charge to each
stockholder who so requests, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Any restriction
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imposed upon the transfer of shares or registration of transfer of shares shall
be noted conspicuously on the certificate representing the shares subject to
such restriction.
ARTICLE XXI.
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Loss of Certificate
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The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the directors may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate in its place and upon such other terms or
without any such bond which the board of directors shall prescribe.
ARTICLE XXII.
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Seal
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The corporate seal shall, subject to alteration by the board of directors,
consist of a flat-faced circular die with the word "Delaware" together with the
name of the corporation and the year of its organization cut or engraved
thereon. The corporate seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
ARTICLE XXIII.
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Execution of Papers
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Except as otherwise provided in these by-laws or as the board of directors
may generally or in particular cases authorize the execution thereof in some
other manner, all deeds, leases, transfers, contracts, bonds, notes, checks,
drafts and other obligations made, accepted or endorsed by the corporation,
shall be signed by the president or by the treasurer.
ARTICLE XXIV.
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Fiscal Year
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Except as from time to time otherwise provided by the board of directors,
the fiscal year of the corporation shall end on the last day of December of each
year.
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ARTICLE XXV.
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Amendments
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Except as otherwise provided by law or by the certificate of incorporation,
these by-laws, as from time to time altered or amended, may be made, altered or
amended at any annual or special meeting of the stockholders called for the
purpose, of which the notice shall specify the subject matter of the proposed
alteration or amendment or new by-law or the article or articles to be affected
thereby. If the certificate of incorporation so provides, these by-laws may
also be made, altered or amended by a majority of the whole number of directors.
Such action may be taken at any meeting of the board of directors, of which
notice shall have been given as for a meeting of stockholders.
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SCHEDULE TO EXHIBIT 3.2.13
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The following entities have the Form A of Bylaws included as Exhibit 3.2.13,
with any changes from the form noted:
1. Harborside Health I Corporation
2. KHI Corporation