Exhibit 3.275
AMENDED AND RESTATED BYLAWS
OF
PACIFIC EMERGENCY SPECIALISTS MANAGEMENT, INC.
(A California Corporation)
ARTICLE I
OFFICES
Section 1. Principal Executive Offices. The principal executive office of the
corporation shall be as designated from time to time by the Board of Directors
of the corporation. The Board of Directors is hereby granted full power and
authority to change said principal executive office from one location to
another, within or without the State of California.
Section 2. Other Offices. Other business offices may from time to time be
established by the Board of Directors at any place or places where the
corporation is qualified to do business.
Section 3. Purposes and Powers. The corporation shall have such purposes as are
now or may hereafter be set forth in the Articles of Incorporation and shall
have and exercise such powers in furtherance of its purposes as are now or may
hereafter be set forth in the Articles of Incorporation.
ARTICLE II
SHAREHOLDERS' MEETINGS
Section 1. Time. An annual meeting of shareholders shall be held for the
election of directors on a date and at a time stated in or fixed in accordance
with the Bylaws and any other proper business may be transacted thereat. Any
special meeting shall be held on the date and at the time as the Board of
Directors shall from time to time fix.
Date of Meeting: February 28
Time of Meeting: 10:00 a.m.
Under no circumstances shall an annual meeting be held more than 60 days after
the date designated therefor or, if no date has been designated, for a period of
fifteen (15) months after the organization of the corporation or after its last
annual meeting.
Section 2. Place. Annual meetings of shareholders and any special meetings shall
be held at such place within or without this state as may be stated in or fixed
in accordance with the Bylaws or as the Board of Directors may from time to time
fix. If no other place is stated or so fixed, shareholder meetings shall be held
at the principal executive office of the corporation.
Section 3. Call. Annual meetings may be called by the Board, the President, the
Secretary, or by any officer instructed by the Board to call the meeting.
Section 3.1. Special meetings may be called in like manner or by the holders of
shares entitled to cast not less-than ten percent (10%) of the votes at the
meeting or by such other persons as may be provided in the Articles or Bylaws.
Section 4. Notice. Whenever shareholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given not less
than ten (10) nor more than sixty (60) days before the date of the meeting to
each shareholder entitled to vote thereat. Such notice shall state the place,
date, and hour of the meeting, and (1) in the case of a special meeting, the
general nature of the business to be transacted, and no other business may be
transacted, or (2) in the case of the annual meeting, those matters which the
Board, at the time of the mailing of the notice, intends to present for action
by the shareholders, but subject to the provisions of the General Corporation
Law. The notice of any meeting at which directors are to be elected shall
include the names of nominees intended at the time of the notice to be presented
by management for election.
Section 4.1. Notice of a shareholders' meeting or any report shall be given
either personally or by mail or other means of written communication, addressed
to the shareholder at the address of such shareholder appearing on the books of
the corporation or given by the shareholder to the corporation for the purpose
of notice; or if no such address appears or is given, at the place where the
principal executive office of the corporation is located or by publication at
least once in a newspaper of general circulation in the county in which the
principal executive office is located. The notice or report shall be deemed to
have been given at the time when delivered personally or deposited in the mail
or sent by other means of written communication. An affidavit of mailing of any
notice or report in accordance with the provisions of this subsection, executed
by the Secretary, Assistant Secretary, or any transfer agent, shall constitute
sufficient proof of the giving of the notice or report.
If any notice or report addressed to the shareholder at the address of such
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice or report to the
shareholder at such address, all future notices or reports shall be deemed to
have been duly given without further mailing if the same shall be available for
the shareholder upon written demand of the shareholder at the principal
executive office of the corporation for a period of one year from the date of
the giving of the notice or report to all other shareholders.
Section 4.2. Upon request in writing to the President, Vice President, or
Secretary by any person (other than the Board) entitled to call a special
meeting of shareholders, the officer forthwith shall cause notice to be given to
the shareholders entitled to vote that a meeting will be held at a time
requested by the person or persons calling the meeting, not less than 35 nor
more than 60 days after receipt of the request. If the notice is not given
within 20 days after receipt of the request, the persons entitled to call the
meeting may give the notice.
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Section 4.3. When a shareholders' 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 45 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 shareholder of
record entitled to vote at the meeting as provided in the bylaws or as the
General Corporation Law may require.
Section 4.4. The notice of any annual or special meeting shall also include, or
be accompanied by, any additional statements, information, or documents
prescribed by the General Corporation Law.
Section 5. Consent. The transactions of any meeting of shareholders, however
called and noticed, and wherever held, are as valid as though had at a meeting
duly held after regular call and notice, if a quorum is present either in person
or by proxy, and if, either before or after the meeting, each of the persons
entitled to vote, not present in person or by proxy, signs a written waiver of
notice of a consent to the holding of the meeting or an approval of the minutes
thereof.
Section 5.1. All such waivers, consents, and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 5.2. Attendance of a person at a meeting constitutes a waiver of notice
of such meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened and except that attendance at a meeting shall not constitute
a waiver of any right to object to the consideration of matters required by the
General Corporation Law to be included in the notice if such objection is
expressly made at the meeting.
Section 5.3. Except as otherwise provided in subdivision (f) of Section 601 of
the General Corporation Law, neither the business to be transacted at nor the
purpose of any regular or special meeting need be specified in any written
waiver of notice.
Section 6. Conduct of Meeting. Meetings of the shareholders shall be presided
over by one of the following officers in the following order of seniority and if
present and acting--the President, a Vice President, or, if none of the
foregoing is in office and present, and acting, by a chairman to be chosen by a
majority of the shares represented at the meeting and entitled to vote.
Section 6.1. The Secretary of the corporation, or in his absence, an assistant
secretary, shall act as secretary of every meeting, but, if neither the
Secretary nor an assistant secretary is present, the chairman of the meeting
shall appoint a secretary of the meeting.
Section 7. Proxy Representation. Every person entitled to vote shares may
authorize another person or persons to act by proxy with respect to such shares
either at a meeting or by written action. No proxy shall be valid after the
expiration of eleven months from the date of its execution unless otherwise
provided in the proxy. Every proxy shall continue in full force and
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effect until revoked by the person executing it prior to the vote or written
action pursuant thereto, except as otherwise provided in this section or by the
General Corporation law.
Section 7.1. As used herein, a "proxy" shall be deemed to mean a written
authorization signed by a shareholder or a shareholder's attorney in fact giving
another person or persons power to vote or consent in writing with respect to
the shares of such shareholder, and "Signed" as used herein shall be deemed to
mean the placing of such shareholder's name on the proxy (whether by manual
signature, typewriting, telegraphic transmission or otherwise) by such
shareholder or shareholder's attorney in fact.
Section 7.2. Where applicable, the form of any proxy shall comply with the
provisions of Section 604 of the General Corporation Law.
Section 8. Inspectors - Appointment. In advance of any meeting of shareholders,
the Board of Directors may appoint inspectors of election to act at the meeting
and any adjournment thereof. If inspectors of election are not so appointed, or,
if any persons so appointed fail to appear or refuse to act, the chairman of any
meeting of shareholders may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election (or persons to replace
any of those who so fail or refuse) at the meeting. The number of inspectors
shall be either one or three. If appointed at a meeting on the request of one or
more shareholders or proxies, the majority of shares represented shall determine
whether one or three inspectors are to be appointed.
Section 8.1. The inspectors of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the authenticity, validity, and effect of proxies,
receive votes, ballots, if any, or consents, hear and determine all challenges
and questions in any way arising in connection with the right to vote, count and
tabulate all votes or consents, determine when the polls shall close, determine
the result, and do such acts as may be proper to conduct the election or vote
with fairness to all shareholders.
Section 8.2. If there are three inspectors of election, the decision, act, or
certificate of a majority shall be effective in all respects as the decision,
act, or certificate of all.
Section 9. Subsidiary Corporations. Shares of this corporation owned by a
subsidiary shall not be entitled to vote on any matter. For purposes of this
section, a "subsidiary" of this corporation means a corporation of whose shares
those possessing more than fifty percent (50%) of the total combined voting
power of all classes of shares entitled to vote are owned directly or indirectly
through one or more subsidiaries by this corporation.
Section 10. Quorum: Vote; Written Consent.
A. A majority of the shares entitled to vote, represented in person or by proxy,
shall constitute a quorum for the transaction of business at a meeting of
shareholders.
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B. The shareholders present at a duly called or held meeting at which a quorum
is present may continue to do business until adjournment notwithstanding the
withdrawal of enough shareholders to leave less than a quorum if any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
C. In the absence of a quorum, any meeting of shareholders may be adjourned from
time to time by the vote of a majority of the shares represented thereat either
in person or by proxy, but no other business may be transacted except as
hereinbefore provided.
Section 10.1. Unless a record date for voting purposes be fixed, as provided in
Section 4 of Article V of these Bylaws, then, subject to the provisions of
Chapter 7 of the General Corporation Law of California (relating to voting of
shares), only persons in whose names shares entitled to vote stand on the stock
records of the corporation at the close of business on the business day next
preceding the date on which notice of the meeting is given or, if notice is
waived, at the close of business on the business day next preceding the day on
which the meeting is held, shall be entitled to vote at such meeting, and such
day shall be the record date for such meeting.
Section 10.2. In the election of directors, a plurality of the votes cast shall
elect. No shareholder shall be entitled to cumulate votes for any one or more
candidates at a meeting for the election of directors unless such candidate or
candidates' names have been placed in nomination prior to the voting and the
shareholder has given notice at the meeting prior to the voting of the
shareholder's intention to cumulate the shareholder's votes. If any one
shareholder has given such notice, all shareholders may cumulate their votes for
such candidates in nomination.
Section 10.3. Except as otherwise provided by the General Corporation Law, the
Articles of Incorporation or these Bylaws, any action required or permitted to
be taken at a meeting at which a quorum is present shall be authorized by the
affirmative vote of a majority of the shares represented at the meeting and
entitled to vote, and shall thereby constitute an act of the shareholders.
Section 10.4. Except in the election of directors by written consent in lieu of
a meeting, and except as may otherwise be provided by the General Corporation
Law, the Articles of Incorporation or these Bylaws, any action which may be
taken at any annual or special meeting of shareholders may be taken without a
meeting and without prior notice, if a consent in writing, setting forth the
action so taken, shall be signed by holders of outstanding shares 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.
A. Directors may not be elected by written consent except by unanimous written
consent of all shares entitled to vote for the election of directors.
B. Notice of any shareholder approval pursuant to Section 310, 317, 1201 or 2007
without a meeting by less than unanimous written consent shall be given at least
ten (10) days before the consummation of the action authorized by such approval,
and prompt notice shall be given of the taking of any other corporate action
approved by shareholders without a meeting by less than
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unanimous written consent to those shareholders entitled to vote who have not
consented in writing.
Section 11. Ballot. Elections of directors at a meeting need not be by ballot
unless a shareholder demands election by ballot at the election and before the
voting begins. In all other matters, voting need not be by ballot.
Section 12. Shareholders' Agreements. Notwithstanding the above provisions, in
the event this corporation elects to become a "close corporation," an agreement
between two or more shareholders thereof, if in writing and signed by the
parties thereto, may provide that in exercising any voting rights the shares
held by them shall be voted as provided by the agreement, or as the parties may
agree or as determined in accordance with a procedure agreed upon by them, or as
otherwise provided in Section 706, or may modify the above provisions as to
shareholders' meetings and actions.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Functions. The business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
its Board of Directors. The Board of Directors may delegate the management of
the day-to-day operation of the business of the corporation to a management
company or other person, provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board of Directors.
A. The Board of Directors shall have authority to fix the compensation of
directors for services in any lawful capacity.
Section 1.1. Each director shall exercise such powers and otherwise perform the
duties of a director in good faith, in the manner such director believes to be
in the best interests of the corporation, and with such care, including
reasonable inquiry, using ordinary prudence, as an ordinarily prudent person in
a like position would use under similar circumstances.
Section 2. Exception for Close Corporation. In the event that this corporation
shall elect to become a close corporation, as defined in Section 158, its
shareholders may enter into a Shareholders' Agreement as defined and provided in
Sections 186 and 300(b). Notwithstanding the provisions of Section 1 of this
Article, said agreement may provide for the exercise of corporate powers and the
management of the business and affairs of this corporation by the shareholders,
provided however such agreement shall, to the extent and so long as the
discretion or the powers of the Board in its management of corporate affairs is
controlled by such agreement, impose upon each shareholder who is a party
thereof, liability for managerial acts performed or omitted by such person
pursuant thereto that is otherwise imposed by Section 300 upon Directors, and
the directors shall be relieved to that extent from such liability.
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Section 3. Qualifications and Number. A director need not be a shareholder of
the corporation, a citizen of the United States, or a resident of the State of
California.
Section 3.1. The authorized number of directors constituting the Board of
Directors until further changed shall be three (3); provided, however, that
whenever the corporation shall have only two shareholders, the number of
directors may be at least two, and whenever the corporation shall have only one
shareholder, the number of directors may be at least one. Subject to the
foregoing provisions, the number of directors may be changed from time to time
by an amendment of these Bylaws adopted by approval of the outstanding shares.
Any such amendment reducing the number of directors to fewer than five cannot be
adopted if the votes cast against its adoption at a meeting or the shares not
consenting in writing in the case of action by written consent are equal to more
than sixteen and two-thirds percent of the outstanding shares or as provided by
Section 212(a). No decrease in the authorized number of directors shall have the
effect of shortening the term of any incumbent director.
Section 4. Election and Term. The initial Board of Directors shall consist of
the persons designated in the Articles as such or elected by the incorporators,
all of whom shall hold office until the first annual meeting of shareholders or
until the expiration of the term for which elected and until their successors
have been elected and qualified, or until their earlier resignation or removal
from office. Thereafter, at each annual meeting of shareholders, directors shall
be elected to hold office until the next annual meeting. Each director,
including directors who are elected to fill any vacancies, shall hold office
until the next annual meeting of shareholders and until their successors have
been elected and qualified, or until their earlier resignation, removal from
office, or death.
Section 4.1. An ex officio director serves on the Board by virtue of his
official position. He shall remain an ex officio director until he shall no
longer hold a designated position which is the basis for ex officio membership.
Section 4.2. If in the interim between annual meetings of shareholders or of
special meetings of shareholders called for the election of directors any
vacancies occur in the Board of Directors, including vacancies resulting from an
increase in the authorized number of directors which have not been filled by the
shareholders, including any other vacancies which the General Corporation Law
authorizes directors to fill, and including vacancies resulting from the removal
of directors which are not filled at the meeting of shareholders at which any
such removal has been effected, if the Articles of Incorporation or a Bylaw
adopted by the shareholders so provides, they may be filled by the vote of a
majority of the directors then in office or by a sole remaining director,
although less than a quorum exists.
Section 4.3. Any director may resign effective upon giving notice to the
Chairman of the Board, if any, the President, the Secretary, or the Board of
Directors, unless the notice specifies a later time for the effectiveness of
such resignation. If the resignation is effective at a future time, a successor
may be elected to the office when the resignation becomes effective.
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Section 4.4. The shareholders may elect a director at any time to fill any
vacancy which the directors are entitled to fill, but which they have not
filled. Any such election by written consent shall require the consent of a
majority of the shares.
Section 5. Meetings.
Section 5.1 Time. Meetings shall be held at such time as provided in the
Articles or as herein set forth in the Bylaws or as the Board shall fix by
resolution, except that the first meeting of a newly elected Board shall be held
as soon after its election as the directors may conveniently assemble. In the
event the newly elected Board meets immediately following the annual meeting of
shareholders wherein they were elected, then, for such meetings and
notwithstanding any other provision of this section, call and notice are hereby
waived and dispensed with.
Section 5.1.1. An annual meeting of the Board of Directors shall be held
immediately following the annual meeting of shareholders or such meetings may be
held at such time and place as may be designated by the Chairman of the Board,
if any, or the President in an appropriate notice of the meeting or as may be
fixed by these Bylaws or by resolution of the Board of Directors, for the
purpose of election of successor directors, election of officers, and the
transaction of any other proper business.
Section 5.1.2. The Board of Directors shall meet regularly at such times as may
be determined by the Board to be necessary to manage the business and affairs of
the corporation, which shall be not less than annually. The time and place of
such meeting shall be fixed as according to this section.
Section 5.2. Place. Meetings of the Board of Directors may be held at any place
within or without the State of California which has been designated in the
notice of the meeting or, if not stated in said notice or if there is no notice
given, at the place designated in these Bylaws or by resolution of the Board of
Directors. In the absence of such designation, meetings shall be held at the
principal executive office of the corporation.
Section 5.3. Special Meetings. Meetings of the Board of Directors may be called
at any time by the Chairman of the Board, if any, the President, or any Vice
President, or the Secretary, or any two directors.
Section 5.4. Notice and Waiver Thereof. No notice shall be required for regular
meetings for which the time and place have been fixed by these Bylaws or by
resolution of the Board of Directors. Special meetings shall be held upon at
least four days' notice by mail or upon at least forty-eight hours' notice
delivered personally or by telephone or telegraph.
A. Notice of a meeting need not be given to any director who signs a waiver of
notice, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such
director.
B. A notice or waiver of notice need not specify the purpose of any regular or
special meeting of the Board of Directors.
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Section 6. Sole Director Provided by Articles of Incorporation. In the event
only one director is required by the Bylaws or Articles of Incorporation,
pursuant to Section 212(a), then any reference herein to notices, waivers,
consents, meetings, or other actions by a majority or quorum of the directors
shall be deemed to refer to such notice, waiver, etc.; by such sole director,
who shall have all rights and duties and shall be entitled to exercise all of
the powers and shall assume all the responsibilities otherwise herein described
as given to a Board of Directors.
Section 7. Quorum and Action. A majority of the authorized number of directors
shall constitute a quorum of the Board for the transaction of business except
when a vacancy or vacancies prevents such majority, whereupon a majority of the
directors in office shall constitute a quorum unless otherwise prohibited by the
General Corporation Law and, provided such majority shall constitute at least
either one-third of the authorized number of directors or at least two
directors, whichever is larger, unless the authorized number of directors is
only one.
Section 7.1. A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. If the meeting is
adjourned for more than twenty-four (24) hours, notice of any adjournment to
another time or place shall be given prior to the time of the adjourned meeting
to the directors, if any, who were not present at the time of adjournment.
Section 7.2. Except as the Articles of Incorporation, these Bylaws and the
General Corporation Law may otherwise provide, the act or decision done or made
by a majority of the directors present at a meeting duly held at which a quorum
is present is the act of the Board of Directors.
Section 7.3. Members of the Board of Directors may participate in a meeting
through use of conference telephone or similar communications equipment, so long
as all members participating in such meeting can hear one another, and
participation by such use shall be deemed to constitute presence in person at
any such meeting.
Section 7.4. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action is
approved by at least a majority of the required quorum for such meeting.
Section 8. Chairman of the Meeting. The chairman of any meeting of the Board of
Directors shall be the Chairman of the Board, if any and if present and acting,
or the President, in the absence of the Chairman of the Board and if present and
acting, or any director chosen by the Board or provided in the Bylaws, and who
shall preside at all such meetings.
Section 9. Removal of Directors. Any or all of the directors may be removed
without cause if such removal is approved by the affirmative vote of a majority
of the outstanding shares entitled to vote; provided, however, that unless the
entire Board is removed, an individual director shall not be removed when the
votes cast against such removal, or not consenting in writing to such removal,
would be sufficient to elect such director if voted cumulatively at an election
of directors at which the same total number of votes were cast or, if such
action is taken by written consent (in lieu of the meeting), all such shares
entitled to vote were voted, and the entire
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number of directors authorized at the time of the director's most recent
election were then being elected.
A. If it is deemed to be in the best interest of the corporation, the director
or directors subject to removal shall be notified of such a meeting held for
this purpose, and such notice must be mailed not less than one week prior to the
meeting, to the last known address of the director, stating that the question of
removal will be brought before such noticed meeting.
Section 9.1. If any or all directors are so removed, new directors may be
elected at the same meeting or by such written consent of the shareholders as
provided by Section 305(b), or such vacancies on the Board may be filled by a
majority of the directors then in office, whether or not less than a quorum, or
by a sole remaining director.
Section 9.2. The Board of Directors may declare vacant the office of any
director who has been declared of unsound mind by an order of court or convicted
of a felony.
Section 10. Committees. The Board of Directors may, by resolution adopted by a
majority of the authorized number of directors, designate one or more
committees, each consisting of two or more directors to serve at the pleasure of
the Board of Directors. The Board of Directors may designate one or more
directors as alternate members of any such committee, who may replace any absent
member at any meeting of such committee. Any such committee, to the extent
provided in the resolution of the Board of Directors or as set forth in these
Bylaws, shall have all the authority of the Board of Directors except such
authority as the General Corporation Law may specifically exclude as a proper
delegation of authority.
Section 11. Informal Action. The transactions of any meeting of the Board of
Directors, however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding the meeting or an
approval of the minutes thereof. All such waivers, consents, and/or approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 12. Written Action. Any action required or permitted to be taken by the
Board of Directors may be taken without a meeting, if all of the members of the
Board of Directors shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of the
proceedings of the Board. Such action by written consent shall have the same
force and effect as a unanimous vote of such directors.
Section 13. Indemnification of Directors, Officers, Employees and Agents.
Section 13.1. The following definitions apply for purposes of this Section 13:
(a) "Agent" means any person who:
(1) is or was the corporation's director, officer, employee or other agent;
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(2) is or was serving at the corporation's request as a director, officer,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise; or
(3) was a director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the corporation or another
enterprise at the predecessor corporation's request.
(b) "Proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative.
(c) "Expenses" include, without limit, attorneys' fees and expenses of
establishing an indemnification right under Section 13.2 or Section 13.3 of this
Section.
Section 13.2. This corporation shall indemnify any person who was or is a party
or is threatened to be made a party to a Proceeding because the person is or was
an Agent. This indemnification does not apply to an action by or in the right of
this corporation to procure a judgment in its favor. The corporation shall
indemnify an Agent against Expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with a Proceeding, if the
Agent acted in good faith and in a manner he, she or it reasonably believed to
be in the corporation's best interests. In the case of a criminal Proceeding,
the Agent must have had no reasonable cause to believe his, her or its conduct
was unlawful. Any Proceeding's termination by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall not alone
create a presumption the Agent did not act in good faith and in a manner which
he, she or it reasonably believed to be in the corporation's best interests, or
the Agent had reasonable cause to believe his, her or its conduct was unlawful.
Section 13.3. This 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 by or in the right of this corporation to procure a judgment in its favor
because the person is or was an Agent. This indemnification applies to Expenses
actually and reasonably incurred by the person relating to the action's defense
or settlement. This indemnification shall be made only if the person acted in
good faith, and in a manner he, she or it believed to be in the corporation's
and its shareholders' best interests. No indemnification shall be made
regarding:
(a) Any claim, issue or matter as to which the person has been judged liable to
this corporation in performing the person's duty to this corporation and its
shareholders, unless and only to the extent the court, upon application,
determines the person is fairly and reasonably entitled to indemnity;
(b) Amounts paid in settling or otherwise disposing of a pending action without
court approval; or
(c) Expenses incurred in defending a pending action settled or otherwise
disposed of without court approval.
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Section 13.4. To the extent an Agent has been successful on the merits in
defending a Proceeding referred to in Section 13.2 or Section 13.3 or a related
claim, issue or matter, the Agent shall be indemnified against related Expenses
actually and reasonably incurred by the Agent.
Section 13.5. Except as provided in Section 13.4, the corporation shall
indemnify agents under this Section only upon a determination indemnification is
proper because the Agent met the applicable conduct standard in Section 13.2 or
Section 13.3, and only if authorized by any of the following:
(a) A majority vote of a quorum of the Board of Directors, consisting of
directors not parties to the Proceeding;
(b) If that quorum of directors is unobtainable, by written opinion of
independent legal counsel;
(c) Approval of the shareholders (as provided by California Corporations Code
Section 153), with any shares owned by the person to be indemnified not entitled
to vote;
(d) The court, upon application by this corporation, the Agent, or the attorney
or other person rendering services in connection with the defense, whether or
not the application is opposed by this corporation.
Section 13.6. The corporation may advance Expenses incurred in defending any
Proceeding before its final disposition upon receipt of a promise by or on
behalf of the Agent to repay the amount if it is ultimately determined the Agent
is not entitled to indemnification.
Section 13.7. The indemnification provided to Agents in this Section 13 shall
not exclude other rights to which Agents may be entitled under any bylaw,
agreement, shareholders' vote, disinterested directors' vote or otherwise, both
as to action in an official capacity and as to action in another capacity while
holding office, to the extent the additional indemnification rights are
authorized in this corporation's Articles of Incorporation. These indemnity
rights shall continue as to a person who ceased to be an Agent and inure to the
benefit of the person's heirs, executors, and administrators. This Section 13
shall not affect any indemnification rights to which an Agent may be entitled
under any contract or otherwise.
Section 13.8. No indemnification or advance shall be made under this Section
except as provided in Section 13.4 or Section 13.5(c) where such indemnification
or advance would be inconsistent with:
(a) The corporation's Articles of Incorporation, Bylaws, a resolution of its
shareholders, or an agreement effective as of the accrual of the alleged cause
of action asserted in the Proceeding in which Expenses were incurred or other
amounts were paid which prohibits or otherwise limits indemnification; or
(b) Any condition expressly imposed by a court in approving a settlement.
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Section 13.9. This corporation may purchase and maintain insurance on behalf of
any Agent against any liability asserted against or incurred by the Agent in
that capacity or arising out of his, her or its being an Agent. Insurance may be
purchased whether or not this corporation has the power to indemnify the Agent
under this Section 13. This corporation's ownership of all or a portion of the
shares of any company issuing an insurance policy shall not render this Section
inapplicable if either of the following is met:
(a) If authorized in the corporation's Articles of Incorporation, any policy
issued is limited to the extent provided by California Corporations Code Section
204(d); or
(b) (1) The issuing company is organized, licensed, and operated in compliance
with the insurance laws and regulations applicable to its jurisdiction of
organization,
(2) The issuing company's procedures for processing claims do not permit it to
be subject to the direct control of the corporation buying the policy, and
(3) The policy provides for risk sharing between the issuer and purchaser, on
the one hand and some unaffiliated person(s), on the other. This may be done by
providing for more than one unaffiliated owner of the issuing company, or a
portion of the coverage furnished will be obtained from some unaffiliated
insurer or re-insurer.
Section 13.10. This Section 13.10 does not apply to any Proceeding against any
trustee, investment manager or other employee benefit plan fiduciary in the
person's capacity as such, even though the person may also be an Agent. This
corporation may indemnify a trustee, investment manager or other fiduciary as
permitted by California Corporations Code Section 207(f).
Section 13.11. If not otherwise authorized by these Bylaws, this corporation may
also, if authorized by its Board of Directors, indemnify and advance Expenses to
an Agent to the fullest extent of this Section 13.
Section 13.12. The Board of Directors may authorize the corporation to enter
into agreements with its Agents providing for indemnification to the maximum
extent permitted under applicable law and the corporation's Articles of
Incorporation and Bylaws.
Section 13.13. (a) This subsection applies if (i) an indemnity claim arising out
of this Section 13 is not paid in full by the corporation within sixty (60) days
after a written claim has been received by the corporation; or (ii) a claim for
an Expense advance arising out of this Section 13 is not paid in full by the
corporation within twenty (20) days after a written claim has been received by
the corporation. In the event of (i) or (ii) above, the Agent may sue the
corporation to recover the claim's unpaid amount, including interest.
(b) This paragraph applies if the Agent is wholly or partly successful in the
suit or in a suit brought by the corporation to recover an Expense advance
pursuant to an under-taking. If the Agent is wholly or partly successful, the
Agent may be paid the expense of prosecuting or defending the suit.
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(c) It is a defense in any suit by the Agent to enforce indemnification, but not
in a suit brought by the Agent to enforce an Expense advance, that the Agent has
not met any applicable California Corporations Code conduct standard.
(d) In any suit by the corporation to recover an Expense advance, the
corporation may recover the Expenses upon a final adjudication the Agent has not
met any applicable California Corporations Code conduct standard.
(e) Neither of the following shall be a defense to the suit or create a
presumption the Agent has not met the applicable conduct standard:
(1) the failure of the corporation (including its Board of Directors,
independent legal counsel, or shareholders) to determine prior to a suit's
beginning that indemnification of the Agent is proper because the Agent has met
any applicable California Corporations Code conduct standard; nor
(2) an actual determination by the person(s) that the Agent has not met the
applicable conduct standard. In any suit brought by the agent to enforce a right
under this Section 13.13 or by the corporation to recover an Expense advance,
the corporation has the burden of proving the Agent is not entitled to
indemnification or an Expense advance.
Section 14. Fees and Compensation. Directors and members of committees shall not
receive any salary for their services as directors or members, however, upon
resolution of the Board, a fixed fee, with or without expenses of attendance,
may be allowed for attendance at each meeting.
Section 14.1. Nothing herein contained shall be construed to preclude any
director or committee member from serving the corporation in any other capacity
and receiving compensation therefor.
Section 15. Transactions Between Corporation and Directors. No contract or other
transaction between the corporation and one or more of its directors, or between
the corporation and any corporation, firm or association in which one or more of
the Directors has a material financial interest, is either void or voidable
because such Director or Directors or such other corporation, firm or
association are parties or because such Director or Directors are present at the
meeting of the Board or a committee thereof which authorizes approves or
ratifies the contract or transaction, if done so according to the provisions set
forth in Section 310 and the General Corporation Law.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the corporation shall be a Chairman of the
Board or a President or both, a Secretary, a Chief Financial Officer, and such
other officers with such titles and duties as shall be stated in the Bylaws or
determined by the Board of Directors and as may
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be necessary to enable it to sign instruments and share certificates. Any number
of offices may be held by the same person.
Section 2. Election. The officers of the corporation, except such officers as
may be appointed in accordance with the provisions of Section 3 or Section 5 of
this Article, shall be chosen annually by the Board of Directors and each shall
hold his/her office until he/she shall resign or shall be removed or otherwise
disqualified to serve, or until his/her successor shall be elected and
qualified.
Section 3. Subordinate Officers, Etc. The Board of Directors may appoint such
other officers as the business of the corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in these Bylaws or as the Board of Directors may from time to
time determine.
Section 4. Removal and Resignation. Any officer may be removed, either with or
without cause, by a majority of the Directors then in office, at any regular or
special meeting of the Board, or, except in the case of an officer chosen by the
Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors (subject, in each case, to the rights, if
any, of an officer under any contract of employment).
Section 4.1. Any officer may resign at any time by giving written notice to the
Board of Directors, or to the Chairman of the Board, if any, or to the
President, or to the Secretary of the corporation. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 5. Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification, or any other cause shall be filled in the manner
prescribed in the Bylaws for regular appointments to such office.
Section 6. Chairman of the Board. The Chairman of the Board, if there shall be
such an officer, shall, if present, preside at all meetings of the Board of
Directors, and exercise and perform such other power and duties as may be from
time to time assigned to him by the Board of Directors or prescribed by the
bylaws.
Section 7. President. Subject to such supervisory powers, if any, as may be
given by the Board of Directors to the Chairman of the Board, if there be such
an officer, The President shall be the Chief Executive Officer of the
corporation, and shall, subject to the control of the Board of Directors, have
general supervision, direction, and control of the business and officers of the
corporation. He shall preside at all meetings of the shareholders and in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall be ex officio a member of all standing
committees, including the Executive Committee, if any, and shall have the
general powers and duties of management usually vested in the office of
President of a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or the Bylaws.
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Section 8. Vice President. In the absence or disability of the President, the
Vice Presidents, in order of their rank as fixed by the Board of Directors, or
if not ranked, the Vice President designated by the Board of Directors, shall
perform all the duties of the President, and when so acting shall have all the
powers of and be subject to all the restrictions otherwise placed upon the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors or the Bylaws.
Section 9. Secretary. The Secretary shall keep, or cause to be kept, a book of
minutes at the principal office or such other place as the Board of Directors
may designate, of all meetings of Directors and Shareholders, with the time and
place of holding, whether of a regular or special nature (how authorized, if
special), the notice thereof given, the names of those present at Directors'
meetings, the number of shares present or represented at Shareholders' meetings
and the proceedings thereof.
Section 9.1. The Secretary shall keep, or cause to be kept, at the principal
office or at the office of the corporation's transfer agent, a share register,
or duplicate share register, showing the names of the shareholders and their
addresses; the number and classes of shares held by each; the number and date of
certificates issued for the same; and the number and date of cancellation of
every certificate surrendered for cancellation.
Section 9.2. The Secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the Board of Directors required by the
Bylaws or by the General Corporation Law to be given, and he shall keep the seal
of the corporation in safe custody, and shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors or by the
Bylaws.
Section 10. Chief Financial Officer. This officer shall keep and maintain, or
cause to be kept and maintained in accordance with generally accepted accounting
principles, adequate and correct accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, earnings (or surplus) and
shares. Any surplus, including earned surplus, paid-in surplus, surplus arising
from a reduction of stated capital, shall be classified according to source and
shown in a separate account. The books of account shall at all reasonable times
be open to inspection by any director.
Section 10.1. Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the Board of Directors. He shall disburse
the funds of the corporation as may be ordered by the Board of Directors, shall
render to the President and directors, whenever they request it, an account of
all his transactions and of the financial condition of the corporation, and
shall have such other powers and perform such other duties as may be prescribed
by the Board of Directors or the Bylaws.
Section 11. Assistant Secretaries and Assistant Financial Officers. The
assistant secretaries and the assistant financial officers shall, in the absence
or disability of the Secretary or Chief
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Financial Officer, respectively, and in the order of election, or as set by the
Board, have the duties and powers of the Secretary or Chief Financial Officer
and shall have such other duties and powers as the Board from time to time
prescribes.
ARTICLE V
CERTIFICATES AND TRANSFERS OF SHARES
Section 1. Certificates for Shares. Each certificate for shares of the
corporation shall set forth therein the name of the record holder of the shares
represented thereby, the number of shares and the class or series of shares
owned by said holder, the par value, if any, of the shares represented thereby,
and such other statements, as applicable, as prescribed by Sections 416-419,
inclusive, and other relevant Sections of the General Corporation Law of the
State of California (the "General Corporation Law") and such other statements,
as applicable, which may be prescribed by the Corporate Securities Law of the
State of California and any other applicable provision of the law.
Section 1.1. Each such certificate issued shall be signed in the name of the
corporation by the Chairman of the Board of Directors, if any, of the Vice
Chairman of the Board of Directors, if any, the President, if any, or a Vice
President, if any, and by the Chief Financial Officer or an assistant financial
officer or the Secretary or an assistant secretary. Any or all of the signatures
on a certificate for shares may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate for shares shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if such person were an officer, transfer
agent or registrar at the date of issue.
Section 1.2. In the event that the corporation shall issue the whole or any part
of its shares as partly paid and subject to call for the remainder of the
consideration to be paid therefor, any such certificate for shares shall set
forth thereon the statements prescribed by Section 409 of the General
Corporation Law.
Section 2. Lost, Stolen or Destroyed Certificates for Shares. The corporation
may issue a new certificate for shares or for any other security in the place of
any other certificate theretofore issued by it, which is alleged to have been
lost, stolen or destroyed. As a condition to such issuance, the corporation may
require any such owner of the allegedly lost, stolen or destroyed certificate or
any such owner's legal representative to give the corporation a bond, or other
adequate security, sufficient to indemnify it against any claim that may be made
against it, including any expense or liability, on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
Section 3. Share Transfers. Upon compliance with any provision of the General
Corporation Law and/or the Corporate Securities Law of 1968 which may restrict
the transferability of shares, transfers of shares of the corporation shall be
made only on the record of shareholders of the corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the corporation or with a transfer
agent or
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a registrar, if any, and on surrender of the certificate or certificates for
such shares properly endorsed and the payment of all taxes, if any, due thereon.
Section 4. Record Date for Shareholders. In order that the corporation may
determine the shareholders entitled to notice of any meeting or to vote or be
entitled to receive payment of any dividend or other distribution or allotment
of any rights or entitled to exercise any rights in respect to any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty days or fewer than ten days prior to the date of such
meeting or more than sixty days prior to any other action.
Section 4.1. If the Board of Directors shall not have fixed a record date as
aforesaid, the record date for determining shareholders entitled to notice of or
to vote at a meeting of shareholders shall be at the close of business on the
business day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day next preceding the day on
which the meeting is held; the record date for determining shareholders,
entitled to give consent to corporate action in writing without a meeting, when
no prior action by the Board of Directors has been taken, shall be the day on
which the first written consent is given; and the record date for determining
shareholders 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, or the
sixtieth day prior to the day of such other action, whichever is later.
Section 4.2. A determination of shareholders of record entitled to notice of or
to vote at a meeting of shareholders shall apply to any adjournment of the
meeting unless the Board of Directors fixes a new record date for the adjourned
meeting, but the Board of Directors shall fix a new record date if the meeting
is adjourned for more than forty-five days from the date set for the original
meeting.
Section 4.3. Except as may be otherwise provided by the General Corporation Law,
shareholders on the record date shall be entitled to notice and to vote or to
receive any dividend, distribution or allotment of rights or to exercise the
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after the record date.
Section 5. Representation of Shares in Other Corporations. Shares of other
corporations standing in the name of this corporation may be voted or
represented and all incidents thereto may be exercised on behalf of the
corporation by the Chairman of the Board, the President or any Vice President or
any other person authorized by resolution of the Board of Directors.
Section 6. Meaning of Certain Terms. As used in these Bylaws with respect to the
right to notice of a meeting of shareholders or a waiver thereof or to
participate or vote thereat or to assent or consent or dissent in writing in
lieu of a meeting, as the case may be, the term "share" or "shares" or shares
and to a holder or holders of record or outstanding shares when the corporation
is authorized to issue only one class of shares, and said reference is also
intended to include any outstanding share or shares and any holder or holders of
outstanding shares of any class upon which or upon whom the Articles of
Incorporation confer such rights where there are two or more classes or series
of shares or upon which or upon whom the General Corporation Law confers such
rights notwithstanding that the Articles of Incorporation may provide for more
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than one class or series of shares, one or more of which are limited or denied
such rights thereunder.
Section 6.1. As used in these Bylaws, all references to specific sections
without further description, and all references to the "General Corporation Law"
are in reference to the General Corporation Law of the State of California.
Section 6.2. As used in these Bylaws, with respect to the qualification of
directors and officers to serve in such positions, such officer or director
shall be qualified, disqualified, or unqualified as determined by the General
Corporation Law, the Articles of Incorporation, these Bylaws, or by resolution
of the Board of Directors.
Section 7. Close Corporation Certificates. All certificates representing shares
of this corporation, in the event it shall elect to become a close corporation,
shall contain the legend required by Section 418(c).
ARTICLE VI
EFFECT OF SHAREHOLDERS' AGREEMENT - CLOSE CORPORATION
Any Shareholders' Agreement authorized by Section 300(b) shall only be effective
to modify the terms of these Bylaws if this corporation elects to become a close
corporation with appropriate filing of or amendment to its Articles as required
by Section 202 and shall terminate when this corporation ceases to be a close
corporation. Such an agreement cannot waive or alter Section 158 (defining close
corporations), 202 (requirements of Articles of Incorporation), 500 and 501
relative to distributions, 1111 (merger), 1201(e) (reorganization) or Chapters
15 (Records and Reports), 16 (Rights of Inspection), 18 (Involuntary
Dissolution) or 22 (Crimes and Penalties) or any other provision of the General
Corporation Law requiring the filing of any document with the Secretary of
State. All other provisions of the General Corporation Law or these Bylaws may
be altered or waived thereby, but to the extent they are not so altered or
waived, these Bylaws shall be applicable.
ARTICLE VII
CORPORATE CONTRACTS AND INSTRUMENTS - HOW EXECUTED
The Board of Directors, except as provided otherwise in the Bylaws, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the corporation. Such
authority may be general or confined to specific instances. Unless so authorized
by the Board of Directors, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or agreement, or to pledge its
credit, or to render it liable for any purposes or any amount, except as
provided in Section 313 of the General Corporation Law.
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ARTICLE VIII
CONTROL OVER BYLAWS
After the initial Bylaws of the corporation shall have been adopted by the
incorporator or incorporators of the corporation, the Bylaws may be amended or
repealed or new Bylaws may be adopted by the shareholders entitled to exercise a
majority of the voting power or by the Board of Directors; provided, however,
that the Board of Directors shall have no control over any bylaw which fixes or
changes the authorized number of directors of the corporation; provided,
further, that any control over the Bylaws herein vested in the Board of
Directors shall be subject to the authority of the aforesaid shareholders to
amend or repeal the Bylaws or to adopt new bylaws; and provided, further, that
no new bylaw, nor any amendment or repeal of an existing bylaw, having the
effect of reducing the number or minimum number of directors shall be adopted if
the votes cast against its adoption at a meeting or the shares not consenting in
the case of action by written consent would be sufficient to elect at least one
director if voted cumulatively at an election at which all of the outstanding
shares entitled to vote were voted and the entire number of previously
authorized directors were being elected.
ARTICLE IX
BOOKS AND RECORDS - STATUTORY AGENT
Section 1. Records: Storage and Inspection. The corporation shall keep at its
principal executive office in the State of California or, at the principal
business office in the State of California if its principal executive office is
not in the State, the original or a copy of the Bylaws as amended to date, which
shall be open to inspection by the shareholders at all reasonable times during
office hours. If the principal executive office of the corporation is outside
the State of California, and, if the corporation has no principal business
office in the State of California, it shall upon request of any shareholder
furnish a copy of the Bylaws as amended to date.
Section 1.1. The corporation shall keep adequate and correct books and records
of account and shall keep minutes of the proceedings of its shareholders, Board
of Directors and committees, if any. The corporation shall keep at its principal
executive office, or at the office of its transfer agent or registrar, a record
of its shareholders, giving the names and addresses of all shareholders and the
number and class of shares held by each. Such minutes shall be in written form.
Such other books and records shall be kept either in written form or in any
other form capable of being converted into written form.
Section 1.2. The accounting books and records, record of shareholders, and
minutes of proceedings of the shareholders and the Board and committees of the
Board of this corporation and any subsidiary of this corporation shall be open
to inspection upon written demand on the corporation of any shareholder or
holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holder's interest as a
shareholder or as a holder of such voting trust certificate. Such inspection by
a shareholder or holder of a voting trust certificate may be made in person or
by agent or attorney, and the right of inspection includes the right to copy and
make extracts.
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Section 1.3. Every director shall have the absolute right at any reasonable time
to inspect and copy all books, records, and documents of every kind and to
inspect the physical properties of the corporation and any of its subsidiaries.
Such inspection by a director may be made in person or by agent or attorney and
the right of inspection includes the right to copy and make extracts.
Section 2. Record of Payments. All checks, drafts or other orders for payment of
money, notes or other evidences of indebtedness, issued in the name of or
payable to the corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
Section 3. Annual Report. Whenever the corporation shall have fewer than one
hundred shareholders, the Board of Directors shall not be required to cause to
be sent to the shareholders of the corporation the annual report prescribed by
Section 1501 of the General Corporation Law unless it shall determine that a
useful purpose would be served by causing the same to be sent or unless the
Department of Corporations, pursuant to the provisions of the Corporate
Securities Law of 1968, shall direct the sending of the same. This section shall
not affect any other provision contained in these Bylaws otherwise controlling
annual reports.
Section 4. Construction of Terms. Unless the context otherwise requires, the
general provisions, Rules of Construction on Definitions contained in the
General Corporation Law of California shall govern the construction of these
Bylaws. Without limiting the generality of the foregoing, the masculine gender
includes the feminine and neuter. The singular number includes the plural and
the plural number includes the singular. The term "person" includes a
corporation as well as a natural person.
Section 5. Corporate Seal. The Board of Directors shall adopt, use, and at will
alter a corporate seal. Any corporate seal shall be circular in form and shall
have inscribed thereon the name of the corporation, the date of its
incorporation, and the word "California."
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CERTIFICATE OF ADOPTION OF AMENDED AND RESTATED BYLAWS
The undersigned hereby certifies:
1. That I am the duly elected, qualified and acting Secretary of PACIFIC
EMERGENCY SPECIALISTS MANAGEMENT, INC., a California corporation.
2. That the foregoing Amended and Restated Bylaws were adopted as the bylaws of
the corporation by the unanimous written consent of the shareholders without a
meeting effective as of December 1, 1999.
Dated: December 1, 1999
/s/ DANIEL G. VOGT, M.D.
- -------------------------------------
Secretary
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