Exhibit 3.79
BYLAWS
OF
CHARLES T. MITCHELL, M.C., INC.
ARTICLE I
OFFICES
1.01. The registered agent and office of CHARLES T. MITCHELL, M.C., INC.
(the "Corporation") shall be such registered agent and office as shall from time
to time be established pursuant to the articles of incorporation, as amended
from time to time, of the Corporation (the "Charter") or by resolution of the
Board of Directors of the Corporation (the "Board").
1.02. The Corporation may also have offices at such other places both
within and without the State of Hawaii as the Board may from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.01. Meetings of Shareholders of the Corporation (the "Shareholders") for
any purpose may be held at such place, within or without the State of Hawaii, as
shall be fixed from time to time by the Board, or, if the Board has not so
specified, then at such place as may be fixed by the person or persons calling
the meeting.
2.02. An annual meeting of the Shareholders shall be held at such date and
time as shall be fixed from time to time by the Board, at which they shall elect
a Board, and transact such other business as may properly be brought before the
meeting.
2.03. At least ten days before each meeting of Shareholders, a complete
list of the Shareholders entitled to vote at said meeting arranged in
alphabetical order, with the residence of each and the number of voting shares
held by each, shall be prepared by the officer or agent having charge of the
stock transfer books. Such list, for a period of ten days prior to such meeting,
shall be kept on file at the registered office of the Corporation and shall be
subject to inspection by any Shareholder at any time during usual business
hours. Such list shall be produced and kept open at the time and place of the
meeting during the whole time thereof, and shall be subject to the inspection of
any Shareholder who may be present.
2.04. Special meetings of the Shareholders, for any purpose or purposes,
unless otherwise prescribed by statute, the Charter, or these bylaws, may be
called by the President, a majority of the Board, or the holders of not less
than ten percent of all the shares entitled to vote
at the meetings. Business transacted at all special meetings shall be confined
to the objects stated in the notice of the meeting.
2.05. Written or printed notice stating the place, day, and hour of the
meeting and, in case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than sixty days
before the date of the meeting, either personally or by mail, by or at the
direction of the President, the Secretary, or the officer or person calling the
meeting, to each Shareholder of record entitled to vote at the meeting.
2.06. The holders of a majority of the shares of the Corporation issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall be requisite and shall constitute a quorum at all meetings of the
Shareholders for the transaction of business except as otherwise provided by
statute, the Charter, or these bylaws. If, however, such quorum shall not be
present or represented at any meeting of the Shareholders, the Shareholders
entitled to vote thereat, present in person or represented by proxy, shall
nevertheless have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At an adjourned session at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
2.07. When a quorum is present at any meeting, the vote of the holders of a
majority of the shares of the Corporation having voting power present in person
or represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of any applicable
statute, the Charter, or these bylaws, a different vote is required, in which
case such express provision shall govern and control the decision of such
question. The Shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum.
2.08. Each outstanding share of the Corporation, regardless of class, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
Shareholders, unless otherwise provided by statute or the Charter. At any
meeting of the Shareholders, every Shareholder having the right to vote shall be
entitled to vote in person or by proxy appointed by an instrument in writing
subscribed by such Shareholder or by his or her duly authorized
attorney-in-fact, such writing bearing a date not more than eleven months prior
to said meeting, unless said instrument provides for a longer period. Such proxy
shall be filed with the Secretary of the Corporation prior to or at the time of
the meeting. Voting need not be by written ballot unless required by the Charter
or by vote of the Shareholders present at the meeting.
2.09. The Board may fix in advance a record date for the purpose of
determining Shareholders entitled to notice of or to vote at a meeting of
Shareholders, such record date to be not less than ten nor more than sixty days
prior to such meeting, or the Board may close the stock transfer books for such
purpose for a period of not less than ten nor more than sixty days prior to such
meeting. In the absence of any action by the Board, the date upon which the
notice of the meeting is mailed shall be the record date.
2
2.10. Any action required by statute to be taken at a meeting of the
Shareholders, or any action which may be taken at a meeting of the Shareholders,
may be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by all of the Shareholders entitled to vote with
respect to the subject matter thereof, and such consent shall have the same
force and effect as a unanimous vote of Shareholders.
2.11. Subject to the provisions required or permitted by statute or the
Charter for notice of meetings, Shareholders may participate in and hold a
meeting by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall constitute presence in
person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE III
DIRECTORS
3.01. The business and affairs of the Corporation shall be managed by the
Board who may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Charter or by these bylaws
directed or required to be exercised or done by the Shareholders.
3.02. The initial Board shall be as stated in the Charter. Thereafter, the
number of directors which shall constitute the full Board shall be as determined
from time to time by resolution of the Board or by the Shareholders at the
annual meeting or a special meeting called for that purpose, but no decrease
shall have the effect of shortening the term of an incumbent director. Directors
need not be Shareholders or residents of the State of Hawaii. The directors
shall be elected at the annual meeting of the Shareholders, except as
hereinafter provided, and each director elected shall hold office until his or
her successor shall be elected and shall qualify.
3.03. At any meeting of Shareholders called expressly for such purpose, any
director or the entire Board may be removed, with or without cause, by vote of
the holders of a majority of the shares of the Corporation then entitled to vote
at an election of directors. If any vacancies occur in the Board caused by
death, resignation, retirement, disqualification, or removal from office of any
director or otherwise, a majority of the directors then in office, though less
than a quorum, may choose a successor or successors or a successor or successors
may be chosen at a special meeting of Shareholders called for that purpose; and
each successor director so chosen shall be elected for the unexpired term of his
or her predecessor in office. Any directorship to be filled by reason of an
increase in the number of directors may be filled by election at an annual
meeting or special meeting of Shareholders called for that purpose or may be
filled by the Board for a term of office continuing only until the next election
of one or more directors by the Shareholders.
3.04. Whenever the holders of any class or series of shares of the
Corporation are entitled to elect one or more directors by the provisions of the
Charter, any vacancies in such directorships and any newly created directorships
of such class or series to be filled by reason of
3
an increase in the number of such directors may be filled by the affirmative
vote of a majority of the directors elected by such class or series then in
office or by a sole remaining director so elected, or by the vote of the holders
of the outstanding shares of such class or series, and such directorships shall
not in any case be filled by the vote of the remaining directors or the holders
of the outstanding shares as a whole unless otherwise provided in the Charter.
3.05. At each election for directors, every Shareholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the number of
shares owned by such Shareholder for as many persons as there are directors to
be elected and for whose election he has a right to vote, or to cumulate his
votes by giving one candidate as many votes as the number of such directors
multiplied by his shares shall equal, or by distributing such votes on the same
principle.
Executive and Other Committees
3.06. The Board, by resolution adopted by a majority of the Board, may
designate from among its members an executive committee and one or more other
committees, each of which shall be comprised of one or more members and, to the
extent provided in such resolution, shall have and may exercise all of the
authority of the Board, including the authority to declare dividends and to
authorize the issuance of shares of the Corporation, to the extent permitted by
law. Committees shall keep regular minutes of their proceedings and report the
same to the Board when required.
Meetings of Directors
3.07. The directors of the Corporation may hold their meetings, both
regular and special, either within or without the State of Hawaii.
3.08. The first meeting of each newly elected Board shall be held without
further notice immediately following the annual meeting of Shareholders, and at
the same place, unless by unanimous consent of the directors then elected and
serving such time or place shall be changed.
3.09. Regular meetings of the Board may be held without notice at such time
and place as shall from time to time be determined by the Board.
3.10. Special meetings of the Board may be called by the President on two
days' notice to each director, either personally or by mail, telecopy, or
overnight courier; special meetings shall be called by the President or
Secretary in like manner and on like notice on the written request of a majority
of the directors. Except as may be otherwise expressly provided by statute, the
Charter, or these bylaws, neither the business to be transacted at, nor the
purpose of, any special meeting needs to be specified in a notice or waiver of
notice.
3.11. At all meetings of the Board the presence of a majority of the full
Board shall be necessary and sufficient to constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board, except as
may be otherwise specifically provided by statute or by the Charter or by these
bylaws. If a quorum shall not be present at any meeting of directors, the
directors present thereat
4
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
3.12. Any action required or permitted to be taken at a meeting of the
Board or any committee may be taken without a meeting if a consent in writing,
setting forth the action so taken, is signed by all the members of the Board or
committee, as the case may be. Such consent shall have the same force and effect
as a unanimous vote at a meeting.
3.13. Subject to the provisions required or permitted by statute or the
Charter for notice of meetings, members of the Board, or members of any
committee designated by the Board, may participate in and hold a meeting of the
Board or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
Compensation of Directors
3.14. Directors, as such, shall not receive any stated salary for their
services, but, by resolution of the Board, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each regular or special
meeting of the Board; provided that nothing herein contained shall be construed
to preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE IV
NOTICES
4.01. Whenever under the provisions of any applicable statute, the Charter
or these bylaws, notice is required to be given to any director or Shareholder,
and no provision is made as to how such notice shall be given, it shall not be
construed to mean personal notice, but any such notice may be given by mail,
postage prepaid, addressed to such director or Shareholder at such address as
appears on the books of the Corporation. Any notice required or permitted to be
given by mail shall be deemed to be given at the time when the same shall be
thus deposited in the United States mails as aforesaid.
4.02. Whenever any notice is required to be given to any Shareholder or
director of the Corporation under the provisions of any applicable statute, the
Charter or these bylaws, a waiver thereof in writing signed by the person or
persons entitled to such notice, whether before or after the time stated in such
notice, shall be deemed equivalent to the giving of such notice.
ARTICLE V
OFFICERS
5.01. The officers of the Corporation shall be elected by the directors and
shall include a Chairman of the Board, a President, a Treasurer and a Secretary.
The Board may also, at its
5
discretion, elect a Vice Chairman of the Board, one or more Executive Vice
Presidents or Vice Presidents and a Treasurer. Such other officers, including
assistant officers, and agents as may be deemed necessary may be elected or
appointed by the Board. Any two or more offices may be held by the same person.
5.02. The Board at its first meeting after each annual meeting of
Shareholders shall choose a Chairman of the Board and, at its discretion, a Vice
Chairman of the Board, from its members; and a President, a Treasurer, a
Secretary, and such other officers, including assistant officers, and agents as
may be deemed necessary, none of whom need be a member of the Board.
5.03. The Board may appoint such other officers and agents as it shall deem
necessary, who shall be appointed for such terms and shall exercise such powers
and perform such duties as shall be determined from time to time by the Board.
5.04. The salaries of all officers and agents of the Corporation shall be
fixed by the Board. Unless so fixed by the Board each officer of the Corporation
shall serve without remuneration.
5.05. Each officer of the Corporation shall hold office until his successor
is chosen and qualified in his stead or until his death or until his resignation
or removal from office. Any officer or agent elected or appointed by the Board
may be removed at any time by the Board, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. If the
office of any officer becomes vacant for any reason, the vacancy may be filled
by the Board.
Chairman of the Board
5.06. The Chairman of the Board shall preside at all meetings of the
shareholders and the Board. He shall be ex-officio a member of all standing
committees. The Chairman shall have such other and further responsibility as may
from time-to-time be assigned by the Board.
Chief Executive Officer
5.07. The Board may by resolution designate one of the executive officers
enumerated in Section 5.01 to serve as Chief Executive Officer.
Vice-Chairman of the Board
5.08. The Vice-Chairman of the Board shall have duties assigned by the
Board and shall preside in the absence of the Chairman, at all meetings of the
Shareholders and the Board. He shall be ex-officio a member of all standing
committees.
The President
5.09. The President shall be the chief operating and executive officer of
the Corporation, shall have the general powers and duties of oversight,
supervision and management of the business and affairs of the Corporation and
shall see that all orders and resolutions of the Board
6
are carried into effect. He shall be an ex-officio member of all standing
committees of the Board.
The Secretary and Assistant Secretaries
5.10. The Secretary shall attend all sessions of the Board and all meetings
of the Shareholders and record all votes and the minutes of all proceedings in a
book to be kept for that purpose and shall perform like duties for any
committees when required. The Secretary shall give, or cause to be given, notice
of all meetings of the Shareholders and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall be.
5.11. Each Assistant Secretary shall have such powers and perform such
duties as the Board may from time to time prescribe or as the President may from
time to time delegate.
The Treasurer
5.12. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements of the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board.
5.13. The Treasurer shall disburse the funds of the corporation as may be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the directors, at the regular meetings of the Board, or whenever they
may require it, an account of all his or her transactions as Treasurer and of
the financial condition of the Corporation, and shall perform such other duties
as the Board may prescribe or as the President may from time to time delegate.
5.14. If required by the Board, the Treasurer shall give the Corporation a
bond in such form, in such sum, and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of the
office of Treasurer and for the restoration to the Corporation, in case of
death, resignation, retirement, or removal from office, of all books, papers,
vouchers, money, and other property of whatever kind in the Treasurer's
possession or under the Treasurer's control belonging to the Corporation.
5.15. Each Assistant Treasurer shall have such powers and perform such
duties as the Board may from time to time prescribe or as the President may from
time to time delegate.
Other Offices
5.16. Any Executive Vice President, Vice President, or other officer
elected by the Board shall have such powers and perform such duties as the Board
may from time to time prescribe or as the President may from time to time
delegate.
7
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
6.01. Certificates in such form as may be determined by the Board shall be
delivered representing all shares to which Shareholders are entitled. Such
certificates shall be consecutively numbered and shall be entered in the books
of the Corporation as they are issued. Each certificate shall state on the face
thereof the name of the Corporation, the name to whom the certificate is issued,
the number and class of shares and the designation of the series, if any, which
such certificate represents, the par value of such shares or a statement that
such shares are without par value, and that the Corporation is organized under
the laws of Hawaii. Each certificate shall be signed by either the President or
any Vice President then in office and by either the Secretary, an Assistant
Secretary, or any Treasurer then in office, and may be sealed with the seal of
the Corporation or a facsimile thereof. If any certificate is countersigned by a
transfer agent, or an assistant transfer agent or registered by a registrar,
other than the Corporation or an employee of the Corporation, the signature of
any such officer of the Corporation may be a facsimile. Whenever the Corporation
shall be authorized to issue more than one class of stock, there shall be (1)
set forth conspicuously upon the face or back of each certificate a full
statement of (a) all of the designations, preferences, limitations, and relative
rights of the shares of each class authorized to be issued and (b) if the
Corporation is authorized to issue any preferred or special class in series, the
variations in the relative rights and preferences of the shares of each series
so far as the same have been fixed and determined and the authority of the Board
to fix and determine the relative rights and preferences of subsequent series;
or (2) stated conspicuously on the face or back of the certificate that (a) such
a statement is set forth in the Charter on file in the office of the Secretary
of State of Hawaii and (b) the Corporation will furnish a copy of such statement
to the record holder of the certificate without charge upon request to the
Corporation at its principal place of business or registered office. Whenever
the Corporation by the Charter has limited or denied the preemptive rights of
Shareholders to acquire unissued or treasury shares of the Corporation, each
certificate (1) shall conspicuously set forth upon the face or back of such
certificate a full statement of the limitation or denial of preemptive rights
contained in the Charter, or (2) shall conspicuously state on the face or back
of the certificate that (a) such statement is set forth in the Charter on file
in the office of the Secretary of State of Hawaii and (b) the Corporation will
furnish a copy of such statement to the record holder of the certificate without
charge upon request to the Corporation at its principal place of business or
registered office. If any restriction on the transfer or the registration of the
transfer of shares shall be imposed or agreed to by the Corporation, as
permitted by law, each certificate representing shares so restricted (1) shall
conspicuously set forth a full or summary statement of the restriction on the
face of the certificate, or (2) shall set forth such statement on the back of
the certificate and conspicuously refer to the same on the face of the
certificate, or (3) shall conspicuously state on the face or back of the
certificate that such a restriction exists pursuant to a specified document and
(a) that the Corporation will furnish to the record holder of the certificate
without charge upon written request to the corporation at its principal place of
business or registered office a copy of the specified document, or (b) if such
document is one required or permitted to be and has been filed under the Hawaii
Business Corporation Act of 1988, that such document is on file in the office of
the Secretary of State of Hawaii and contains a full statement of such
restriction.
8
Lost Certificates
6.02. The Board may direct a new certificate representing shares to be
issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate to be lost or destroyed. When authorizing
such issue of a new certificate, the Board, in its discretion and as a condition
precedent to the issuance thereof, may require the owner of such lost or
destroyed certificate, or his legal representative, to advertise the same in
such manner as it shall require and/or give the Corporation a bond in such form,
in such sum, and with such surety or sureties as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
Transfer of Shares
6.03. Upon presentation to the Corporation or the transfer agent of the
Corporation with a request to register the transfer of a certificate
representing shares duly endorsed and otherwise meeting the requirements for
transfer specified in the Hawaii Business and Commerce Code, it shall be the
duty of the Corporation or the transfer agent of the Corporation to register the
transfer as requested.
Registered Shareholders
6.04. Prior to due presentment for transfer, the Corporation may treat the
registered owner of any share or shares of stock as the person exclusively
entitled to vote, to receive notifications, and otherwise to exercise all rights
and powers of an owner.
ARTICLE VII
GENERAL PROVISIONS
Dividends
7.01. Dividends upon the outstanding shares of the Corporation, subject to
the provisions of the Charter, if any, may be declared by the Board at any
regular or special meeting of the Board or by any committee of the Board so
authorized. Dividends may be paid in cash, in property, or in shares of the
Corporation, subject to the provisions of any applicable statute or the Charter.
The Board may fix in advance a record date for the purpose of determining
Shareholders entitled to receive payment of any dividend, such record date to be
not more than fifty days prior to the payment date of such dividend, or the
Board may close the stock transfer books for such purpose for a period of not
more than fifty days prior to the payment date of such dividend. In the absence
of any action by the Board, the date upon which the Board adopts the resolution
declaring such dividend shall be the record date.
Reserves
7.02. There may be created by resolution of the Board out of the surplus of
the Corporation such reserve or reserves as the directors from time to time, in
their discretion, think proper to provide for contingencies, or to repair or
maintain any property of the Corporation, or
9
for such other purpose as the directors shall think beneficial to the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Checks
7.03. All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
may from time to time designate.
Execution of Contracts, Deeds, Etc.
7.04. The Board may authorize any officer or officers, agent or agents, in
the name and on behalf of the Corporation, to enter into or execute and deliver
any and all deeds, bonds, mortgages, contracts and other obligations or
instruments, and such authority may be general or confined to specific
instances.
Fiscal Year
7.05. The fiscal year of the Corporation shall be fixed by resolution of
the Board.
Voting of Securities
7.06. Unless otherwise directed by the Board, the President shall have full
power and authority on behalf of the Corporation to attend, vote and act, and to
execute and deliver in the name and on behalf of the Corporation a proxy
authorizing an agent or attorney-in-fact for the Corporation to attend, vote and
act, at any meeting of security holders of any corporation in which the
Corporation may hold securities and to execute and deliver in the name and on
behalf of the Corporation any written consent of security holders in lieu of any
such meeting, and at any such meeting he, or the agent or the attorney-in-fact
duly authorized by him, shall possess and may exercise any and all rights and
powers incident to the ownership of such securities which the Corporation as the
owner thereof might have possessed or exercised if present. The Board may by
resolution from time to time confer like power upon any other person or persons.
Indemnification
7.07 (a) Subject to any limitation which may be contained in the Charter,
the Corporation shall to the full extent permitted by law, indemnify any person
who was, is, or is threatened to be made a named defendant or respondent to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, arbitral, administrative, or investigative, any appeal in such action,
suit, or proceeding, and any inquiry or investigation that could lead to such an
action, suit, or proceeding, because such person is or was a director or officer
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent, or
similar functionary of another corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, against
judgments, penalties (including excise and similar taxes), fines, settlements,
and reasonable expenses (including attorneys' fees) actually incurred by such
person in connection with such action, suit, or proceeding. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
10
presumption that an individual did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) Subject to any limitation which may be contained in the Charter, the
Corporation shall, to the full extent permitted by law, pay or reimburse on a
current basis the expenses incurred by any person described in subsection (a) of
this Section 7.07 in connection with any such action, suit, or proceeding in
advance of the final disposition thereof, if the Corporation has received (i) a
written affirmation by the recipient of his good faith belief that he has met
the standard of conduct necessary for indemnification under the Hawaii Business
Corporation Act and (ii) a written undertaking by or on behalf of the director
to repay the amount paid or reimbursed if it is ultimately determined that he
has not satisfied such standard of conduct or if indemnification is prohibited
by law.
(c) If required by law at the time such payment is made, any payment of
indemnification or advance of expenses to a director shall be reported in
writing to the shareholders with or before the notice or waiver of notice of the
next Shareholder's meeting or with or before the next submission to Shareholders
of a consent to action without a meeting pursuant to Section 415-145 of the
Hawaii Business Corporation Act, and, in any case, within the 12-month period
immediately following the date of the indemnification or advance.
(d) The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation
or who is or was serving at the request of the Corporation as a director,
officer, partner, venturer, proprietor, trustee, employee, agent, or similar
functionary of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan, or other enterprise,
against any liability asserted against him and incurred by him in such a
capacity or arising out of his status as such a person, whether or not the
corporation would have the power to indemnify him against that liability under
this article, subject to any restrictions imposed by law. The Corporation may
create a trust fund, establish any form of self-insurance, grant a security
interest or other lien on the assets of the Corporation, or use other means
(including, without limitation, a letter of credit, guarantee or surety
arrangement) to ensure the payment of such sums as may become necessary to
effect indemnification as provided herein.
(e) The rights provided under this Section 7.07 shall not be deemed
exclusive of any other rights permitted by law to which such person may be
entitled under any provision of the Charter, a resolution of Shareholders or
directors of the Corporation, an agreement or otherwise, and shall continue as
to a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of such a
person. The rights provided in this Section 7.07 shall be deemed to be provided
by a contract between the Corporation and the individuals who serve in the
capacities described in subsection (a) hereof at any time while these bylaws are
in effect, and no repeal or modification of this Section 7.07 by the
Shareholders shall adversely affect any right of any person otherwise entitled
to indemnification by virtue of this Section 7.07 at the time of such repeal or
modification.
11
ARTICLE VIII
AMENDMENTS
8.01. The Board may amend or repeal these bylaws or adopt new bylaws,
unless:
(1) the Charter or statute reserves the power exclusively to the
Shareholders in whole or part; or
(2) the Shareholders in amending, repealing or adopting a particular
bylaw expressly provide that the Board may not amend or repeal
such bylaw.
8.02. Unless the Charter or a bylaw adopted by the Shareholders provides
otherwise as to all or some portion of the Corporation's bylaws, the
Shareholders may amend, repeal, or adopt bylaws of the Corporation even though
such bylaws may also be amended, repealed or adopted by the Board.
12
CERTIFICATION
BY SECRETARY OF
CHARLES T. MITCHELL, M.D., INC.
I hereby certify that I am the duly elected, qualified and acting Secretary
of the above-named corporation and that the attached By-Laws were duly adopted
by said corporation and are currently effective.
Date: July 5, 1977 /s/ Charles T. Mitchell
----------------------------------------
Charles T. Mitchell, Secretary
BY-LAWS OF
Section 1. REGULAR ANNUAL BOARD OF DIRECTORS' MEETING.
The regular meeting of the Board of Directors shall be held on January 2,
at 7:00 o'clock P.M.
If said day shall fall upon a holiday, such meetings shall be held on the
next succeeding business day thereafter. No notice need be given of such regular
meeting.
Section 2. NUMBER OF DIRECTORS.
The authorized number of corporate directors shall be three until changed
by amendment of the Articles of Incorporation or by these By-Laws. At least one
third of all directors shall be residents of the State of Hawaii.
Section 3. STOCKHOLDERS' MEETING.
A. ANNUAL STOCKHOLDERS' MEETING. On January 2, at 8:00 P.M. of each year,
the annual meeting of the stockholders shall be held, if not a legal holiday,
and if a legal holiday, then on the next succeeding business day, at which time
the stockholders shall elect by plurality vote a Board of Directors, consider
reports of the affairs of the corporation, and transact such other business as
may properly be brought before the meeting.
B. PLACE OF MEETINGS. Special meetings of the stockholders shall be held at
the office of the corporation in the State of Hawaii, or such other place as may
be designated for stockholders meetings from time to time by the Board of
Directors.
C. SPECIAL MEETINGS. Special meetings of the stockholders, for any purpose
or purposes whatsoever, may be called at any time by the President, or by any
two or more members of the Board of Directors, or by one or more stockholders
holding not less than one-fifth (1/5) of the voting power of the corporation.
D. NOTICE OF MEETINGS. Notices of meetings, regular or special, shall be
given in writing to stockholders entitled to vote by the Secretary or the
Assistant Secretary, or if there be no such officer, or in case of his neglect
or refusal, by any director or stockholder.
Such notices shall be mailed to the stockholder's address appearing on the
books of the corporation not less than five days before such meeting or such
stockholder may be informed in person at any time before such meeting.
Notice of any meeting of stockholders shall specify the place, the day and
the hour of meeting, and in case of special meeting, the general nature of the
business to be transacted.
When a meeting is adjourned for thirty days or more, notice of the
adjourned meeting shall be given as in case of an original meeting. Save, as
aforesaid, it shall not be necessary to
give any notice of the adjournment or of the business to be transacted at an
adjourned meeting other than by announcement at the meeting at which such
adjournment is taken.
E. CONSENT TO STOCKHOLDERS' MEETINGS. The transactions of any meeting of
meeting of stockholders, however called and noticed, shall be valid as though
had at a meeting duly held after regular call and notice if a quorum be present
either in person or by proxy, and if, either before or after the meeting, all of
the stockholders entitled to vote, not present in person or by proxy, sign a
written waiver of notice, or a consent to the holding of such meeting, or an
approval of the minutes thereof. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Any action which may be taken at a meeting of the stockholders, may be
taken without a meeting if authorized by a writing signed by all of the holders
of shares who would be entitled to vote at a meeting for such purpose, and filed
with the Secretary of the corporation.
F. QUORUM. The presence in person or through representation by proxy of
stockholders entitled to exercise a majority of the voting power of the
corporation shall be required and shall constitute a quorum at all meetings of
the stockholders for the transaction of business except as otherwise provided by
law, by the Articles of Incorporation, or by these By-Laws. If, however, such
majority shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person, or by proxy, shall
have power to adjourn the meeting from time to time, until the requisite amount
of voting shares shall be present. At such adjourned meeting at which the
requisite amount of voting shares shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
G. VOTING RIGHTS; CUMULATIVE VOTING. Only persons in whose names shares
entitled to vote stand on the stock records of the corporation on the day of any
meeting of stockholders, unless some other day be fixed by the Board of
Directors for the determination of stockholders of record, then on such other
day, shall be entitled to vote at such meeting.
Every stockholder entitled to vote shall be entitled to one vote for each
of said shares and shall have the right to cumulate his votes as provided by law
in effect at the time such votes are cast, (presently Hawaii Revised Statutes,
Section 416-74).
H. PROXIES. Every stockholder entitled to vote, or to execute consents, may
do so, either in person or by written proxy.
Section 4. DIRECTORS; MANAGEMENT.
A. POWERS. Subject to the limitation of the Articles of Incorporation, of
the By-Laws and of the Laws of the State of Hawaii as to action to be authorized
or approved by the stockholders, all corporate powers shall be exercised by or
under authority of, and the business and affairs of this corporation shall be
controlled by, a Board of Directors.
B. ELECTION AND TENURE OF OFFICE. The directors shall be elected by ballot
at the annual meeting of the stockholders, to serve for one year. Their term of
office shall begin immediately after election.
15
C. VACANCIES. Vacancies in the Board of Directors may be filled by a
majority of the remaining directors, though less than a quorum, or by a sole
remaining director, and each director so elected shall hold office until his
successor is elected at a regular meeting of stockholders or at a special
meeting called for that purpose.
The stockholders may at any time elect a director to fill any vacancy not
filled by the directors, and may elect the additional directors at the meeting
at which an amendment of the By-Laws is voted authorizing an increase in the
number of directors.
A vacancy or vacancies shall be deemed to exist in case of the death,
resignation or removal of any director, or if the stockholders shall increase
the authorized number of directors but shall fail at the meeting at which such
increase is authorized, or at an adjournment thereof, to elect the additional
director so provided for, or in case the stockholders fail at any time to elect
the full number of authorized directors.
If the Board of Directors accepts the resignation of a Director tendered to
take effect at a future time, the Board, or the stockholders, shall have power
to elect a successor to take office when the resignation shall became effective.
No reduction of the number of directors shall have the effect of removing
any director prior to the expiration of his term of office.
D. REMOVAL OF DIRECTORS. The entire Board of Directors or any individual
director may be removed from office by the stockholders with or without cause.
E. PLACE OF MEETINGS. Meetings of the Board of Directors shall be held at
the office of the corporation in the State of Hawaii, or such other place as
designated for meetings of the Board of Directors from time to time by
resolution of the Board of Directors or written consent of all of the members of
the Board. Any meeting shall be valid, wherever held, if held by written consent
of all of the Members of the Board of Directors, given either before or after
the meeting and filed with the Secretary of the corporation.
F. ORGANIZATION MEETINGS. The organization meetings of the Board of
Directors shall be held immediately following the adjournment of the regular
meetings of the stockholders at which directors are elected.
G. SPECIAL MEETINGS--NOTICES. Special meetings of the Board of Directors
for any purpose or purposes shall be called at any time by the President or if
he is absent or unable or refuses to act, by any Vice-President, or by any
director.
Written notice of the time and place of special meetings shall be delivered
personally to the directors or sent to each director by letter or by telegram,
charges prepaid, addressed to him at his address as it is shown upon the records
of the corporation, or if it is not so shown on such records or is not readily
ascertainable, at the place in which the meetings of the directors are regularly
held. In case such notice is mailed or telegraphed, it shall be deposited in the
United States mail or delivered to the telegraph company in the place in which
the principal office of the corporation is located at least forty-eight (48)
hours prior to the time of the holding of the meeting. In case such notice is
delivered as above indicated, it shall be so delivered at least four
16
(4) hours prior to the time of the holding of the meeting. Such mailing,
telegraphing or delivery as above provided shall be due, legal and personal
notice to such director.
H. WAIVER OF NOTICE. When all the directors are present at any directors'
meeting, however called or noticed, and sign a written consent thereto on the
records of such meeting, or, if a majority of the directors are present, and if
those not present sign in writing a waiver of notice of such meeting, either
prior to or after the holding of such meeting which such waiver shall be filed
with the Secretary of the corporation, all transactions thereof are as valid as
if had at a meeting regularly called and noticed.
I. NOTICE OF ADJOURNMENT. Notice of the time and place of holding an
adjourned meeting need not be given to absent directors if the time and place be
fixed at the meeting adjourned.
J. QUORUM. A majority of the number of directors shall be necessary to
constitute a quorum for the transaction of business, but the action of a
majority of the directors present at any meeting at which there is a quorum,
when duly assembled, is valid as a corporate act; provided that a minority of
the directors; in the absence of a quorum, may adjourn from time to time, but
may not transact any business.
K. DIRECTORS ACTING WITHOUT MEETING. Notwithstanding anything to the
contrary contained in these By-Laws, any action required or permitted to be
taken by the Board of Directors may be taken without a meeting, if all 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 the unanimous vote of such directors.
Section 5. OFFICERS.
A. OFFICERS. The officers shall be a President, one or more
Vice-Presidents, a Secretary and a Treasurer, which officers shall be elected
by, and hold office at the pleasure of, the Board of Directors.
B. ELECTION. After their annual elections the directors shall meet and
organize by electing a President, one or more Vice-Presidents, a Secretary and a
Treasurer.
C. COMPENSATION AND TENURE OF OFFICE. The compensation and tenure of office
of all the officers of the corporation shall be fixed by the Board of Directors.
Salary payments made to an officer of the corporation that shall be disallowed
in whole or in part as a deductible expense for Federal Income Tax purposes
shall be reimbursed by such officer to the corporation to the full extent of the
disallowance. It shall be the duty of the Board of Directors to enforce payment
of each such amount disallowed.
D. REMOVAL AND RESIGNATION. Any officer may be removed, either with or
without cause, by a majority of the directors at the time in office, at any
regular or special meeting of the Board, or, except in case of any officer
chosen by the Board of Directors, by any officer upon whom such power of removal
may be conferred by the Board of Directors.
17
Any officer may resign at any time by giving written notice to the Board of
Directors 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.
E. VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or other cause shall be filled in the manner
prescribed in the By-Laws for regular appointments to such office.
F. PRESIDENT. 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 affairs of the
corporation. He shall preside at all meetings of the stockholders and of the
Board of Directors. He shall be ex-officio a member of all the 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 By-Laws.
G. VICE-PRESIDENTS. The Vice Presidents shall at the discretion of the
Board of Directors, in the absence or disability of the President, perform the
duties and exercise the powers of the President, and shall perform such other
duties as the Board of Directors shall prescribe.
H. 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 order, of all meetings of directors and stockholders, with the time and
place of holding, whether regular or special, and if special, how authorized,
the Notice thereof given, the names of those present at directors' meetings, the
number of shares of stock present or represented stockholders' meetings and the
proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal office or
at the office of the corporation's transfer agent, a stock register, or a
duplicate stock register, showing the names of the stockholders and their
addresses; the number and classes of shares of stock 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.
The Secretary shall give, or cause to be given, notice of all the meetings
of the stockholders and of the Board of Directors required by the By-Laws or by
law to be given; he shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors or by the By-Laws.
I. TREASURER. The Treasurer shall receive and keep all the funds of the
corporation, and pay than out only on the check of the corporation, signed in
the manner authorized by the Board of Directors.
J. ASSISTANTS. Any Assistant Secretary or Assistant Treasurer,
respectively, may exercise any of the powers of Secretary or Treasurer as
directed by the Board of Directors, and shall perform such other duties as the
Board of Directors may direct.
18
K. subordinate officers. The Board of Directors may from time to time
appoint such subordinate officers or agents as the business of the corporation
may require, fix their tenure of office and allow them suitable compensation.
Section 6. EXECUTIVE AND OTHER COMMITTEES.
The Board of Directors may appoint an executive committee, and such other
committees as may be necessary from time to time, consisting of such number of
its members with such powers as it may designate, consistent with the Articles
of Incorporation and By-Laws and the Laws of the State of Hawaii. Such
committees shall hold office at the pleasure of the Board.
Section 7. CORPORATE RECORDS AND REPORTS--INSPECTION.
A. RECORDS. The corporation shall maintain adequate and correct accounts,
books and records of its business and properties. All of such books, records and
accounts shall be kept at its principal place of business in the State of
Hawaii, as fixed by the Board of Directors from time to time.
B. INSPECTION OF BOOKS AND RECORDS. As provided by law (presently Hawaii
Revised Statutes Section 416-34), a stock book shall be kept by the Secretary
and shall be open at all reasonable times for the inspection of the
stockholders.
The original or a copy of these By-Laws, as amended or otherwise altered to
date, certified by the Secretary, shall be open to inspection by the
stockholders of the company.
C. CHECKS, DRAFTS, ETC. 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.
D. CONTRACTS, ETC.--HOW EXECUTED. The Board of Directors, except as in the
By-Laws otherwise provided, 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 engagement, or to pledge its credit, or to render it liable for
any purpose or to any amount.
E. ANNUAL EXHIBITS. The Board of Directors shall cause annual exhibits to
be made to the Director of Regulatory Agencies as provided by law (presently
Hawaii Revised Statutes Section 416-95). Such annual exhibit shall be submitted
between January 1 and April 1 unless the corporation shall adopt a fiscal year
basis other than the calendar year basis in which case the annual exhibit shall
be made within ninety days immediately following the fiscal year date if allowed
by the Director of Regulatory Agencies.
19
Section 8. CERTIFICATES AND TRANSFER OF SHARES.
A. CERTIFICATES FOR SHARES. Certificates for shares shall be of such form
as the Board of Directors may designate and shall state the name of the record
holder of the shares represented thereby; its number; date of issuance; the
number of shares for which it is issued; the par value, if any, or a statement
that such shares are without par value; a statement of the rights, privileges,
preferences and restrictions, if any; a statement as to redemption or
conversion, if any; a statement of liens or restrictions upon transfer or
voting, if any; if the shares be assessable, or, if assessments are collectible
by personal action, a plain statement of such facts.
Every certificate for shares must be signed by the President or a
Vice-President and the Secretary or an Assistant Secretary.
B. TRANSFER ON THE BOOKS. Upon surrender to the Secretary or transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
C. LOST OR DESTROYED CERTIFICATES. Any person claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact and advertise the same in such manner as the Board of Directors may
require, and shall if the directors so require give the corporation a bond of
indemnity, in form and with one or more sureties satisfactory to the Board, in
at least double the market value of the stock represented by said certificate,
whereupon a new certificate may be issued of the same tenor and for the sane
number of shares as the one alleged to be lost or destroyed.
D. CLOSING STOCK TRANSFER BOOKS. The Board of Directors may close the
transfer books in their discretion for a period not exceeding thirty days
preceding any meeting, annual or special, of the shareholders, or the day
appointed for the payment of a dividend.
Section 9. AMENDMENTS TO BY-LAWS.
New By-Laws may be adopted or these By-Laws may be repealed or amended at
their annual meeting, or at any other meeting of the stockholders called for
that purpose, by a vote of stockholders entitled to exercise a majority of the
voting power of the corporation, or by written assent of such stockholders.
20
TABLE OF CONTENTS
Page No.
--------
Section 1 Board of Directors' Meetings 1
Section 2 Number of Directors 1
Section 3 Stockholders' Meeting 1
A. Annual Meeting 1
B. Place of Meetings 1
C. Special Meetings 1
D. Notice of Meetings 1
E. Consent to Stockholders' Meetings 2
F. Quorum 2
G. Voting Rights; Cumulative Voting 2
H. Proxies 2
Section 4 Directors, Management 3
A. Powers 3
B. Election and Tenure of Office 3
C. Vacancies 3
D. Removal of Directors 3
E. Place of Meetings 3
F. Organization Meetings 3
G. Special Meetings - Notices 3
H. Waiver of Notice 4
I. Notice of Adjournment 4
J. Quorum 4
K. Directors Acting without Meeting 4
Section 5 Officers 4
A. Officers 4
B. Election 4
C. Compensation and Tenure of Office 4
D. Removal and Resignation 5
E. Vacancies 5
F. President 5
G. Vice-President 5
H. Secretary 5
I. Treasurer 6
J. Assistants 6
K. Subordinate Officers 6
Section 6 Executive and other Committees 6
Section 7 Corporate Records and Reports - Inspection 6
A. Records 6
B. In section of Books and Records 6
C. Checks, Drafts, etc. 6
D. Contracts, etc., how executed 6
E. Annual Exhibits 7
Section 8 Certificates and Transfer of Shares 7
A. Certificates for Shares 7
B. Transfer on the books 7
C. Lost or destroyed certificates 7
D. Closing Stock Transfer Books 7
Section 9 Amendments to By-Laws 7
ii