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EXHIBIT 3.78
AMENDED AND RESTATED
BYLAWS
OF
VIRGINIA EMERGENCY PHYSICIANS, INC.
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TABLE OF CONTENTS
PAGE
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ARTICLE I OFFICES..........................................................
Section 1.1 Registered Office........................................
Section 1.2 Other Offices............................................
ARTICLE II SHAREHOLDERS' MEETINGS...........................................
Section 2.1 Place of Meetings........................................
Section 2.2 Annual meetings..........................................
Section 2.3 Notice of Meeting........................................
Section 2.4 Special Meetings.........................................
Section 2.5 Notice of Special Meetings...............................
Section 2.6 Closing of Transfer Books and Fixing of
Record Date..............................................
Section 2.7 Shareholders' List.......................................
Section 2.8 Quorum...................................................
Section 2.9 Voting...................................................
Section 2.10 Proxies..................................................
Section 2.11 Unanimous Consent........................................
Section 2.12 Voting Agreements........................................
ARTICLE III DIRECTORS........................................................
Section 3.1 General Powers...........................................
Section 3.2 Number, Election and Term of Office......................
Section 3.3 Vacancies................................................
Section 3.4 Place of Meetings........................................
Section 3.5 Committees of Directors..................................
Section 3.6 Annual Meeting...........................................
Section 3.7 Special Meeting..........................................
Section 3.8 Action Without Meeting...................................
Section 3.9 Quorum and Manner of Acting..............................
Section 3.10 Removal of Directors.....................................
Section 3.11 Resignation..............................................
ARTICLE IV OFFICERS.........................................................
Section 4.1 Executive Officers.......................................
Section 4.2 Election, Term of Office and
Eligibility..............................................
Section 4.3 Subordinate Officers.....................................
Section 4.4 Removal..................................................
Section 4.5 The President............................................
Section 4.6 The Vice Presidents......................................
Section 4.7 Treasurer................................................
Section 4.8 The Secretary............................................
Section 4.9 Assistant Treasurers.....................................
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Section 4.10 Assistant Secretaries.....................................
Section 4.11 Vacancies.................................................
Section 4.12 Salaries..................................................
Section 4.13 Bonds.....................................................
Section 4.14 Delegation of Duties......................................
ARTICLE V SHARES OF STOCK....................................................
Section 5.1 Regulation.................................................
Section 5.2 Stock Certificates.........................................
Section 5.3 Transfer of Shares.........................................
Section 5.4 Lost Certificate...........................................
Section 5.5 Transfer Restrictions......................................
Section 5.6 Miscellaneous..............................................
Section 5.7 Legend.....................................................
ARTICLE VI BOOKS AND RECORDS................................................
Section 6.1 Location...................................................
Section 6.2 Inspection.................................................
Section 6.3 Corporate Seal.............................................
ARTICLE VII DIVIDENDS AND RESERVES...........................................
Section 7.1 Dividends..................................................
Section 7.2 Reserves...................................................
ARTICLE VIII MISCELLANEOUS PROVISIONS.........................................
Section 8.1 Fiscal Year................................................
Section 8.2 Depositories...............................................
Section 8.3 Checks, Drafts and Notes...................................
Section 8.4 Contracts and Other Instruments............................
Section 8.5 Notices....................................................
Section 8.6 Waivers of Notice..........................................
Section 8.7 Stock in other Corporations................................
Section 8.8 Amendment of Bylaws........................................
ARTICLE IX INDEMNIFICATION..................................................
Section 9.2 Authority to Indemnify.....................................
Section 9.3 Mandatory Indemnification..................................
Section 9.4 Advance for Expenses.......................................
Section 9.5 Court Orders For Advances, Reimbursement
or Indemnification.........................................
Section 9.6 Determination and Authorization of
Indemnification............................................
Section 9.7 Indemnification of Officers, Employees
and Agents.................................................
Section 9.8 Insurance..................................................
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AMENDED AND RESTATED
BYLAWS
OF
VIRGINIA EMERGENCY PHYSICIANS, INC.
ARTICLE 1.
OFFICES
Section a. Registered Office. The registered office of
Virginia Emergency Physicians, Inc. (the "Corporation") shall be located in the
Commonwealth of Virginia, at a location that the Board of Directors shall from
time to time determine. The initial registered agent in charge thereof is Edward
R. Parker.
Section b. Other Offices. The Corporation may also have
offices at such other places as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE 2.
SHAREHOLDERS' MEETINGS
Section a. Place of Meetings. All meetings of the shareholders
for the election of directors shall be held at the offices of the Corporation or
elsewhere in the United States as the Board of Directors may designate. Meetings
of shareholders for any other purpose may be held at such place in the United
States as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section b. Annual meetings. An annual meeting of the
shareholders, commencing with the year 1995, shall be held on the first Tuesday
in April in each year, but if a legal holiday, then on the next secular day
following, at 12:00 p.m., at which they shall elect a Board of Directors, and
transact such other business as may properly be brought before the meeting.
Section c. Notice of Meeting. Written notice of the annual
meeting stating the place, date and hour of the meeting, shall be given not less
than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally, by mail,
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telegraph or private carrier, to each shareholder entitled to vote at such
meeting; except that notice of a shareholders' meeting to act on an amendment of
the Articles of Incorporation, a plan of merger or share exchange, a proposed
sale of assets other than in regular course of business, or dissolution of the
Corporation shall be given not less than twenty-five (25) nor more than sixty
(60) days before the meeting date. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the shareholder at his or
her address as it appears on the records of the Corporation.
If an annual meeting is adjourned to a different date, time or
place, notice need not be given if the new date, time or place is announced at
the meeting before adjournment. If a new record date is fixed for the adjourned
meeting, which is required if the adjournment is for more than one hundred
twenty (120) days, a notice of the adjourned meeting shall be given to each
shareholder of record as of the new record date.
Section d. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Articles of Incorporation, may be called by the Board of
Directors or the President and shall be called by the Secretary at the request
in writing of a majority of the Board of Directors, or in the case of the
Corporation having thirty-five (35) or fewer shareholders of record at the
demand in writing of shareholders owning at least twenty percent (20%) of the
number of shares of the Corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section e. Notice of Special Meetings. Written notice of a
special meeting, stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting, either
personally, by mail, telegraph or private carrier, to each shareholder entitled
to vote at such meeting; except that notice of a shareholders' meeting to act on
an amendment of the Articles of Incorporation, a plan of merger or share
exchange, a proposed sale of assets not in the ordinary course of business, or
the dissolution of the Corporation shall be given not less than twenty-five (25)
nor more than sixty (60) days before the meeting date. The business transacted
at any special meeting of shareholders shall be limited to the purposes stated
in the notice.
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If a special meeting is adjourned to a different date, time or
place, notice need not be given if the new date, time or place is announced at
the meeting before adjournment; except that if a new record date is fixed for
the adjourned meeting, which is required if the adjournment is for more than one
hundred twenty (120) days, a notice of the adjourned meeting shall be given to
each shareholder of record as of the new record date.
Section f. Closing of Transfer Books and Fixing of Record
Date. The directors may fix in advance a time, which shall be not more than
seventy (70) days before the date of any meeting of shareholders or the date for
the payment of any dividend or the making of any distribution to shareholders or
the last day on which the consent or dissent of shareholders may be effectively
expressed for any purpose, as the record date for determining the shareholders
having the right to notice of and to vote at such meeting or the right to
receive such dividend or distribution or the right to give such consent or
dissent, and in such case only shareholders of record on such record date shall
have such right, notwithstanding any transfer of stock on the books of the
Corporation after the record date; or without fixing such record date the
directors may for any of such purposes close the transfer books for all or any
part of such period. If no record date is fixed and the transfer books are not
closed, the record date for determining shareholders having the right to notice
of or to vote at a meeting of shareholders shall be at the close of business on
the day next preceding the day on which notice 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 acts with respect thereto. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this Section, such determination shall apply to any
adjournment of the meeting unless the Board of Directors fixes a new record
date, which it shall do if the meeting is adjourned to a date more than one
hundred twenty (120) days after the date fixed for the original meeting.
Section g. Shareholders' List. At least ten (10) days before
every meeting of shareholders, a complete list of the shareholders entitled to
vote at said meeting, arranged in alphabetical order and showing the address of
each shareholder and the number of shares registered in the name of each
shareholder, shall be prepared by the Secretary. Such list shall be open to the
examination of any shareholder, during ordinary business hours, for a period of
at least ten (10) days prior to the meeting at the registered office of the
Corporation, at its principal office, or at the office of its transfer agent or
registrar. The list shall
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also be produced and kept at the time and place of the meeting and shall be
subject to inspection by any shareholder during the whole time of the meeting
for the purposes thereof. If the Corporation has shares registered under the
Securities and Exchange Act of 1934 as amended, a shareholder may inspect the
shareholder list prior to a shareholders' meeting only if the shareholder has
been a holder of record for at least six (6) months preceding the demand to
inspect or is the holder of record of at least five percent (5%) of all the
outstanding shares and if the demand is made in good faith and for a proper
purpose, which is described with particularity and is germane to the meeting.
Section h. Quorum. The holders of a majority of the shares
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, by the Articles of Incorporation or by 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 have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, of the place, date
and hour of the adjourned meeting, until a quorum shall again be present or
represented by proxy. At the adjourned meeting at which a quorum shall be
present or represented by proxy, the Corporation may transact any business which
might have been transacted at the original meeting.
Section i. Voting. When a quorum is present at any meeting,
and subject to the provisions of statute, the Articles of Incorporation, or by
these Bylaws in respect of the vote that shall be required for a specified
action, the vote of the holders of a majority of the shares 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 statute, or of the Articles of Incorporation, or of these Bylaws, a different
vote is required in which case such express provision shall govern and control
the decision of such question. Each shareholder shall have one vote for each
share of Stock having voting power registered in the shareholder's name on the
books of the Corporation, except as otherwise provided in the Articles of
Incorporation.
Section j. Proxies. Each shareholder entitled to vote at a
meeting of shareholders or to express consent or dissent to corporate action in
writing without a meeting may authorize
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another person or persons to act for him or her by proxy, but no such proxy
shall be voted or acted upon after eleven (11) months from its date, unless the
proxy provides for a longer period. Notwithstanding the provisions of the prior
sentence, a proxy coupled with an interest sufficient in law to support an
irrevocable power, including, without limitation, an interest in the shares
relating to the proxy or in the Corporation generally, may be made irrevocable
if it so provides, need not specify the meeting to which it relates, and shall
be valid and enforceable until the interest terminates, or for such shorter
period as may be specified in the proxy. Proxies shall be filed with the
Secretary of the Corporation, or such other officer of agent authorized to
tabulate votes, before or at the time of the meeting. The death or incapacity of
a shareholder appointing a proxy does not affect the validity of such proxy
unless notice of such death or incapacity is received by the officer or agent
authorized to tabulate votes before the proxy votes.
Section k. Unanimous Consent. Whenever the vote of
shareholders at a meeting thereof is required or permitted to be taken for or in
connection with any corporate action by any provisions of statute, or of the
Articles of Incorporation, or these Bylaws, the meeting, notice of the meeting,
vote of shareholders and action by the Board of Directors may be dispensed with
if all the shareholders entitled to vote upon the action, if such meeting were
held, shall consent in writing to such corporate action being taken. Such
written consent shall be included in the minutes or filed with the corporate
records reflecting the action taken.
Section l. Voting Agreements. An agreement between two or more
shareholders, if in writing and signed by the parties thereto, whether or not
such parties include all of the shareholders of the Corporation, may provide
that the shares held by such shareholders shall be voted under procedures set
forth in said agreement.
ARTICLE 3.
DIRECTORS
Section a. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of Directors
which may exercise all such powers of the Corporation and do all such acts and
things as are not by statute, nor by the Articles of Incorporation, nor by these
Bylaws directed or required to be exercised or done by the shareholders.
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Section b. Number, Election and Term of Office. The Board of
Directors shall consist of the same number of members as there are shareholders
of the Corporation, but in no event, shall there be more than three directors at
any given time. The directors shall be elected at the annual meeting of the
shareholders by such shareholders as have the right to vote thereon. Each
director shall hold office until the next annual election of directors and until
his successor is chosen and qualified or until the director sooner dies,
resigns, is removed or becomes disqualified to serve as a director. Any election
of directors by shareholders shall be by ballot if so requested by any
shareholder entitled to vote thereon.
Section c. Vacancies. If the office of any director or
directors becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office, or otherwise, or a new directorship is
created, the holders of a plurality of shares issued and outstanding and
entitled to vote in elections of directors, or the Board of Directors or a
majority of the directors remaining in office if they constitute fewer than a
quorum of the Board, may choose a successor or successors, or a director to fill
the newly created directorship, who shall hold office for the unexpired term or
until the next election of directors.
Section d. Place of Meetings. The Board of Directors may hold
regular or special meetings in or outside of the Commonwealth of Virginia, at
the office of the Corporation or at such other places as they may from time to
time determine, or as shall be fixed in the respective notices or waivers of
notice of such meetings.
Section e. Committees of Directors. The Board of Directors
may, by resolution or resolutions passed by a majority of the whole Board,
designate one or more committees, including an executive committee, each
committee to consist of two (2) or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall approve or recommend to
shareholders action that Virginia law requires to be approved by shareholders;
fill vacancies on the Board or any of its committees; amend the Articles of
Incorporation; adopt, amend or
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repeal the Bylaws; approve a plan of merger not requiring shareholder approval;
authorize or approve a distribution; or authorize or approve the issuance or
sale or contract for sale of shares or determine the designation and relative
rights, preferences and limitations of a class or series of shares except within
limits specifically authorized by the Board of Directors. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors. The committees shall keep
regular minutes of their proceedings and report the same to the Board of
Directors when required.
Section f. Annual Meeting. The first meeting of each newly
elected Board of Directors shall be held either in or outside of the
Commonwealth of Virginia immediately after the annual meeting of the
shareholders in each year. No notice of any kind to either old or new members of
the Board of Directors for this annual meeting shall be necessary.
Regular meetings of the Board of Directors may be held with or
without notice of the date, time, place or purpose of the meeting. Notice of
such meeting may be given personally, by mail, telegram or personal carrier, to
each elected director at his or her address as the same may appear on the
records of the Corporation, or in the absence of such address, at his or her
residence or usual place of business, at least three (3) days before the day on
which such meeting is to be held. The meeting may be held either in or outside
of the Commonwealth of Virginia at such place as the Board may fix from time to
time or as may be specified or fixed in such notice or waiver thereof.
Section g. Special Meeting. Special meetings of the Board of
Directors may be held at any time on the call of the President or by resolution
of the Board of Directors. Notice of any such meeting, shall be given
personally, by mail, telegram or personal carrier, to each director at his or
her address as the same appears on the records of the Corporation not less than
one (1) day prior to the day on which such meeting is to be held if such notice
is by telegram, and not less than two (2) days prior to the day on which the
meeting is to be held if such notice is by mail. The notice need not describe
the purpose of the meeting. If the Secretary shall fail or refuse to give such
notice, then the notice may be given by the officer or any one of the directors
making the call. Any such meeting may be held at such place in or out of the
Commonwealth of Virginia as the Board may fix from time to time or as may be
specified or fixed in such notice or waiver thereof. Any meeting of the Board of
Directors shall be a legal
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meeting without any notice thereof having been given, if all the directors shall
be present thereat, and no notice of a meeting shall be required to be given to
any director who shall attend such meeting.
Section h. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or any committee
thereof, may be taken without a meeting, if a written consent to such action is
signed by all members of the Board or of such committee, as the case may be, and
such written consent is included in the minutes of proceedings of the Board of
Directors or filed with the corporate records reflecting the action taken.
Members of the Board of Directors, or any committee designated
by the Board, may participate in a meeting of the Board or committee 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.
Section i. Quorum and Manner of Acting. Except as otherwise
provided in these Bylaws, a majority of the total number of directors as
specified by the Bylaws shall constitute a quorum at any regular or special
meeting of the Board of Directors. Except as otherwise provided by statute, by
the Articles of Incorporation, or by these Bylaws, the vote of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board of Directors. In the absence of a quorum, a majority of the
directors present may adjourn the meeting from time to time until a quorum shall
be present. Notice of any adjourned meeting need not be given, except that
notice shall be given to all directors if the adjournment is for more than one
hundred twenty (120) days.
Section j. Removal of Directors. Any director may be removed
from his office with or without cause if a majority of the shareholders vote in
favor of removal at a duly held special meeting of the shareholders with notice
thereof specifying the purpose of the meeting being at least in part to vote on
such director's removal; provided, however, that the director to be removed
shall be given reasonable notice of the reasons for the proposed removal and an
opportunity to be heard by the shareholders before a removal vote is taken.
Voting by the Shareholders with respect to removal of a director shall be by
closed ballot.
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Section k. Resignation. Any director of the corporation may
resign from office by delivering or causing to be delivered to any officer of
the Corporation, or to the Board of Directors, a written resignation, which
shall take effect upon receipt thereof or at such subsequent time as shall be
specified in the notice of resignation.
ARTICLE 4.
OFFICERS
Section a. Executive Officers. The executive officers of the
Corporation shall be a President, such number of Vice Presidents, if any, as the
Board of Directors may determine, a Treasurer and a Secretary. One person may
hold any number of said offices.
Section b. Election, Term of Office and Eligibility. The
executive officers of the Corporation shall be elected annually by the Board of
Directors at its regular meeting or at a special meeting held in lieu thereof.
Each officer, except such officers as may be appointed in accordance with the
provisions of Section 4.3, shall hold office until his or her successor shall
have been duly chosen and qualified or until his or her death, resignation or
removal. None of the officers need be members of the Board.
Section c. Subordinate Officers. The Board of Directors may
appoint such Assistant Treasurers, Assistant Secretaries and other officers,
and such agents as the Board may determine, to hold office for such period and
with such authority and to perform such duties as the Board may from time to
time determine. The Board may, by specific resolution, empower the chief
executive officer of the Corporation or Executive Committee to appoint any such
subordinate officers or agents.
Section d. Removal. The President, any Vice President, The
Treasurer and/or the Secretary may be removed at any time, either with or
without cause, but only by the affirmative vote of the majority of the total
number of directors as at the time specified by the Bylaws. Any subordinate
officer appointed pursuant to Section 4.3, may be removed at any time, either
with or without cause, by the majority vote of the directors present at any
meeting of the Board or by any committee or officer empowered to appoint such
subordinate officers.
Section e. The President. The President shall be the chief
executive officer of the Corporation. The President shall
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have executive authority to see that all orders and resolutions of the Board of
Directors are carried into effect, and, subject to the control vested in the
Board of Directors by statute, by the Articles of Incorporation, or by these
Bylaws, shall administer and be responsible for the management of the business
and affairs of the Corporation. The President shall preside at all meetings of
the shareholders and of the Board of Directors; and in general, shall perform
all duties incident to the office of the President and such other duties as from
time to time may be assigned by the Board of Directors.
Section f. The Vice Presidents. In the event of the absence or
disability of the President, each Vice President, if any, in the order
designated by the Board of Directors, or in the absence of any designation, then
in the order of their election, shall perform the duties of the President. The
Vice Presidents shall also perform such other duties as from time to time may be
assigned to them by the Board of Directors or by the chief executive officer of
the Corporation.
Section g. Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the corporation;
receive and give receipts for moneys due and payable to the Corporation from any
source whatsoever and deposit all such moneys in the name of the corporation in
such banks, trust companies or other depositories as shall be selected in
accordance with the provisions of Article V of these By-Laws; (b) sign checks or
drafts on the accounts of the Corporation up to amounts authorized from time to
time by the Board of Directors; (c) sign, with the President or a Vice
President, certificates for shares of the Corporation, the issue of which shall
have been authorized by resolution of the Board of Directors; (d) prepare or
cause to be prepared monthly unaudited financial statements; and (e) in general,
perform all duties incident to the office of Treasurer and all other duties as
from time to time may be assigned to him by the Board of Directors or the
President.
Section h. The Secretary. The Secretary shall:
i. Keep the minutes of the meetings of the shareholders and of
the Board of Directors;
ii. See that all notices are duly given in accordance with the provisions
of these Bylaws or as required by law;
iii. Be custodian of the records and of the seal of the Corporation and see
that the seal or a facsimile or equivalent thereof, is
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affixed to or reproduced on all documents, the execution of which on
behalf of the Corporation under its seal is duly authorized;
iv. Have charge of the stock record books of the Corporation; and
v. In general, perform all duties incident to the office of Secretary, and
such other duties as are provided by these Bylaws and as from time to
time are assigned to him or her by the Board of Directors or by the
chief executive officer of the Corporation.
Section i. Assistant Treasurers. If one or more Assistant
Treasurers shall be appointed pursuant to the provisions of Section 4.3
respecting subordinate officers, then, at the request of the Treasurer, or in
his or her absence or disability, the Assistant Treasurer designated by the
Treasurer (or in the absence of such designations, then any one of such
Assistant Treasurers) shall perform the duties of the Treasurer and when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the Treasurer. The Assistant Treasurers appointed pursuant to the
provisions of section 4.3 may sign with the President or a Vice President
certificates for shares of the Corporation, the issue of which shall have been
authorized by a resolution of the Board of Directors.
Section j. Assistant Secretaries. If one or more Assistant
Secretaries shall be appointed pursuant to the provisions of Section 4.3
respecting subordinate officers, then, at the request of the Secretary, or in
his or her absence or disability, the Assistant Secretary designated by the
Secretary (or in the absence of such designations, then any one of such
Assistant Secretaries) shall perform the duties of the Secretary and when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the Secretary.
Section k. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or other wise, may be filled by
the Board of Directors for the unexpired portion of the term. Vacancies or new
offices may be filled at any meeting of the Board of Directors.
Section l. Salaries. The salaries of the officers shall be
fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving such salary by being also a director of the
Corporation.
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Section m. Bonds. If the Board of Directors or the chief
executive officer shall so require, any officer or agent of the Corporation
shall give bond to the Corporation in such amount and with such surety as the
Board of Directors or the chief executive officer, as the case may be, may deem
sufficient, conditioned upon the faithful performance of their respective duties
and offices.
Section n. Delegation of Duties. In case of the absence of any
officer of the Corporation or for any other reason which may seem sufficient to
the Board of Directors, the Board of Directors may, for the time being, delegate
that officer's powers and duties, or any of them, to any other officer or to any
director.
ARTICLE 5.
SHARES OF STOCK
Section a. Regulation. Subject to the terms of any contract of
the Corporation, the Board of Directors may make such rules and regulations as
it may deem expedient concerning the issue, transfer, and registration of
certificates for shares of the Stock of the Corporation, including the issue of
new certificates for lost, stolen, or destroyed certificates, and including the
appointment of transfer agents and registrars.
Section b. Stock Certificates. The shares for the Corporation
shall be represented by certificates or shall be uncertificated. Certificates
for shares of the stock of the Corporation shall be respectively numbered
serially for each class of stock, or series thereof, as they are issued, and may
be impressed with the corporate seal or a facsimile thereof, and shall be signed
by two (2) officers (one of which shall be the President or a Vice President,
and the other of which shall be the Treasurer or an Assistant Treasurer). The
signatures of the officers upon a certificate may be facsimiles. In case any
officer who has signed or whose facsimile signature has been placed upon such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if he or she
were such officer at the date of its issue.
Each certificate shall exhibit the name of the Corporation,
and that it is organized under the laws of the Commonwealth of Virginia, the
class (or series of any class) and number of shares represented thereby, and the
name of the holder.
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Each certificate shall be otherwise in such form as may be prescribed by the
Board of Directors.
When the Corporation is authorized to issue different classes
of shares, or different series within a class, a full statement of the
designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued and a full statement of the variations in
rights, preferences, and limitations determined for each series within a class
(and the authority for the Board of Directors to determine variations for future
series) shall be set forth upon the face or back of each certificate, or each
certificate shall have a statement that this information will be furnished to
any shareholder upon written request and without charge.
Section c. Transfer of Shares. Shares of the capital stock of
the Corporation shall be transferable on the books of the Corporation by the
holder thereof in person or by his or her duly authorized attorney, upon the
surrender or cancellation of a certificate or certificates for a like number of
shares. As against the Corporation, a transfer of shares can be made only on the
books of the Corporation and in the manner hereinabove provided, and the
Corporation shall be entitled to treat the registered holder of any share as the
owner thereof and shall not be bound to recognize any equitable or other claim
to or interest in such share on the part of any other person, whether or not it
shall have express or other notice thereof, save as expressly provided by
statute.
Section d. Lost Certificate. Any shareholder claiming that a
certificate representing shares of stock has been lost, stolen or destroyed may
make an affidavit or affirmation of the fact and, if the Board of Directors so
requires, advertise the same in a manner designated by the Board, and give the
Corporation a bond of indemnity in form and with security for an amount
satisfactory to the Board (or an officer or officers designated by the Board),
whereupon a new certificate may be issued of the same tenor and representing the
same number, class and/or series of shares as were represented by the
certificate alleged to have been lost, stolen or destroyed.
Section e. Transfer Restrictions. No disposition, sale,
assignment, pledge, hypothecation or other transfer of all or any part of the
shares of the capital stock of the Corporation, whether voluntarily,
involuntarily, by operation of law or otherwise, shall be made by any
shareholder, or by any heir, executor, legal representative, devisee,
testamentary beneficiary,
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trustee in bankruptcy, successor or assign of any shareholder, other than in
accordance with any Shareholders Agreement then in effect among the shareholders
of the Corporation.
Section f. Miscellaneous. No person who transfers, holds, or
purports to exercise any rights or privileges with respect to any shares of
capital stock of the Corporation in violation of the rights, restrictions and
provisions set forth under this Article V, shall have the right to vote, to
receive dividends or to enjoy or exercise any other rights or privileges as a
holder of any shares of capital stock with respect to which any such violation
or default shall exist.
Section g. Legend. Each outstanding stock certificate of the
Corporation shall bear the following endorsement in bold print: "The shares of
stock represented by this certificate and the transfer thereof are subject to
certain restrictions imposed by the Articles of Incorporation and the Bylaws of
the Corporation and a certain Stock Transfer Restriction Agreement among the
Shareholders, copies of all of which shall be furnished by the Corporation
without charge upon written request of the holder hereof."
ARTICLE 6.
BOOKS AND RECORDS
Section a. Location. The books, accounts and records of the
Corporation may be kept at such place or places within or without the
Commonwealth of Virginia as the Board of Directors may from time to time
determine.
Section b. Inspection. The books, accounts, and records of the
Corporation shall be open to inspection by any member of the Board of Directors
at all times and open to inspection by the shareholders at such times, and
subject to such regulations as the Board of Directors may prescribe, except as
otherwise provided by statute.
Section c. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words "Corporate Seal, Virginia." The seal may be used by causing it, or a
facsimile thereof to be impressed or affixed in any manner reproduced.
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ARTICLE 7.
DIVIDENDS AND RESERVES
Section a. Dividends. Subject to the provisions of the
Articles of Incorporation relating thereto, if any, dividends may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property or in shares of the capital stock,
subject to any provisions of the Articles of Incorporation.
The Board of Directors of the Corporation, subject to any
restrictions contained in the Articles of Incorporation and other lawful
commitments of the Corporation, may not declare and pay dividends upon the
shares of its capital stock if after giving it effect the Corporation would not
be able to pay its debts as they become due in the usual course of business or
the Corporation's total assets would be less than the sum of its total
liabilities plus the amount that would be needed, if the Corporation were to be
dissolved at time of distribution, to satisfy the preferential rights upon
dissolution of shareholders whose preferential rights are superior to those
receiving the distribution.
Section b. Reserves. The Board of Directors of the Corporation
may set apart, out of any of the funds of the Corporation available for
dividends, a reserve or reserves for any proper purpose and may abolish any such
reserve.
ARTICLE 8.
MISCELLANEOUS PROVISIONS
Section a. Fiscal Year. The fiscal year of the Corporation
shall end on the 31st of December in each calendar year.
Section b. Depositories. The Board of Directors or an officer
designated by the Board shall appoint banks, trust companies, or other
depositories in which shall be deposited from time to time the money or
securities of the Corporation.
Section c. Checks, Drafts and Notes. All checks, drafts, or
other orders for the payment of money and all notes or other evidences of
indebtedness issued in the name of the Corporation shall be signed by such
officer or officers, or agent or agents as shall from time to time be designated
by resolution of the Board of Directors or by an officer appointed by the Board.
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Section d. Contracts and Other Instruments. The Board of
Directors may authorize any officer, agent or agents to enter into any contract
or execute and deliver any instrument in the name and on behalf of the
Corporation and such authority may be general or confined to specific instances.
Section e. Notices. Whenever under the provisions of statute,
or of the Articles of Incorporation, or of these Bylaws notice is required to be
given to any director or shareholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, by depositing the same
in a post office or letter box, in a postpaid sealed wrapper, or by delivery to
a telegraph company or to a private carrier, addressed to such director or
shareholder at such address as appears on the records of the Corporation, or, in
default of other address, to such director or shareholder at the General Post
Office in the City of Richmond, Virginia, and such notice shall be deemed to be
given at the time when the same shall be thus mailed or delivered to a telegraph
company or private carrier.
Section f. Waivers of Notice. Whenever any notice is required
to be given under the provisions of statute, or of the Articles of
Incorporation, or of these Bylaws, a waiver thereof in writing signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the shareholders, directors or
members of a committee of directors need be specified in any written waiver of
notice.
Section g. Stock in Other Corporations. Any shares of stock in
any other corporation which may from time to time be held by this Corporation
may be represented and voted at any meeting of shareholders of such corporation
by the President or a Vice President, or by any other person or persons
thereunto authorized by the Board of Directors, or by any proxy designated by
written instrument of appointment executed in the name of this Corporation by
its President or a Vice President. Shares of stock belonging to the Corporation
need not stand in the name of the Corporation, but may be held for the benefit
of the Corporation in the individual name of the President or of any other
nominee designated for the purpose by the Board of Directors. Certificates
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for shares so held for the benefit of the Corporation shall be endorsed in blank
or have proper stock powers attached so that said certificates are at all times
in due form for transfer, and shall be held for safekeeping in such manner as
shall be determined from time to time by the Board of Directors.
Section h. Amendment of Bylaws. The shareholders, at any
regular or special meeting (if notice of such alteration or amendment of the
Bylaws is contained in the notice of such meeting) may adopt, amend, or repeal
these Bylaws.
Except to the extent provided by the Articles of Incorporation
or by Virginia law, the Board of Directors may adopt, amend, or repeal these
Bylaws at any meeting except to the extent that the shareholders, in adopting or
amending particular Bylaws, have provided expressly that the Board of Directors
may not amend or repeal that Bylaw.
ARTICLE IX
INDEMNIFICATION
Section a. Definitions. In this Article IX:
i. "Corporation" includes any domestic or foreign predecessor entity of
the Corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
ii. "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation,
is or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise. A director is considered to be serving an employee
benefit plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve services by,
him to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate
or personal representative of a director.
iii. "Expenses" include counsel fees.
iv. "Liability" means the obligation to pay a judgment, settlement,
penalty, fine, including an excise tax assessed
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with respect to an employee benefit plan, or reasonable expenses
incurred with respect to a proceeding.
v. "Official capacity" means:
(1) when used with respect to a director, the office of
director in the Corporation; and
(2) when used with respect to an individual other than director,
as contemplated in Section 9.7, the office in the Corporation
held by the officer or the employment or agency relationship
undertaken by the employee or agent on behalf of the
Corporation. "Official capacity" does not include service for
any other foreign or domestic corporation or any partnership,
joint venture, trust, employee benefit plan, or other
enterprise.
vi. "Party" includes an individual who was, is, or is threatened to be made
a named defendant or respondent in a proceeding.
vii. "Proceeding" means any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
Section b. Authority to Indemnify.
i. Except as provided in subsection (d), the Corporation may indemnify an
individual made a party to a proceeding because he is or was a
director, against liability incurred in the proceeding if:
(1) he conducted himself in good faith; and
(2) he believed:
(a) in the case of conduct in his official capacity with
the Corporation, that his conduct was in its best
interests; and
(b) in all other cases, that his conduct was at least not
opposed to its best interests; and
(3) in the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful.
ii. A director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interests of
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the participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subparagraph (a)(2)(ii).
iii. The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not,
of itself, determinative that the director did not meet the standard of
conduct described in this section.
iv. The Corporation may not indemnify a director under this section:
(1) in connection with a proceeding by or in the right of the
Corporation in which the director was adjudged liable to
the Corporation; or
(2) in connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in
his official capacity, in which he was adjudged liable on the
basis that personal benefit was improperly received by him.
v. Indemnification permitted under this section in connection with a
proceeding by or in the right of the Corporation is limited to
reasonable expenses incurred in connection with the proceeding.
Section c. Mandatory Indemnification. Unless limited by its
Articles of Incorporation, the Corporation shall indemnify a director who was
wholly successful, on the merits or otherwise, in the defense of any proceeding
to which he was a party because he is or was a director of the Corporation
against reasonable expenses incurred by him in connection with the proceeding.
Section d. Advance for Expenses.
i. The Corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding if:
(1) the director furnishes the Corporation a written affirmation
of his good faith belief that he has met the standard of
conduct described in Section 9.2;
(2) the director furnishes the Corporation a written undertaking,
executed personally or on his behalf, to
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repay the advance if it is ultimately determined that he did
not meet the standard of conduct; and
(3) a determination is made that the facts then known to those
making the determination would not preclude indemnification
under this subdivision.
ii. The undertaking required by subparagraph (a)(2) must be an unlimited
general obligation of the director but need not be secured and may be
accepted without reference to financial ability to make repayment.
iii. Determinations and authorizations of payments under this section shall
be made in the manner specified in Section 9.6.
Section e. Court Orders For Advances, Reimbursement or
Indemnification.
i. An individual who is made a party to a proceeding because he is or was
a director of the Corporation may apply to a court for an order
directing the Corporation to make advances or reimbursement for
expenses or to provide indemnification. Such application may be made to
the court conducting the proceeding or to another court of competent
jurisdiction.
ii. The court shall order the Corporation to make advances and/or
reimbursement for expenses or to provide indemnification if it
determines that the director is entitled to such advances,
reimbursement or indemnification and shall also order the corporation
to pay the director's reasonable expenses incurred to obtain the order.
iii. With respect to a proceeding by or in the right of the Corporation,
the court may (i) order indemnification of the director to the extent
of his reasonable expenses if it determines that, considering all the
relevant circumstances, the director is entitled to indemnification
even though he was adjudged liable to the Corporation and (ii) also
order the Corporation to pay the director's reasonable expenses
incurred to obtain the order of indemnification.
iv. Neither (i) the failure of the Corporation, including its board of
directors, its independent legal counsel and its shareholders, to have
made an independent determination prior to the commencement of any
action permitted by this section that the applying director is entitled
to receive advances and/or reimbursement nor (ii) the determination by
the
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Corporation including its board of directors, its independent legal
counsel and its shareholders, that the applying director is not
entitled to receive advances and/or reimbursement or indemnification
shall create a presumption to that effect or otherwise of itself be a
defense to that director's application for advances for expenses,
reimbursement or indemnification.
Section f. Determination and Authorization of Indem-
nification.
i. The Corporation may not indemnify a director under Section 9.2 unless
authorized in the specific case after a determination has been made
that indemnification of the director is permissible in the
circumstances because he has met the standard of conduct set forth in
Section 9.2.
ii. The determination shall be made:
(1) by the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(2) if a quorum cannot be obtained under subparagraph (b)(1) by
majority vote of a committee duly designated by the board of
directors, in which designation directors who are parties may
participate, consisting solely of 2 or more directors not at
the time parties to the proceeding;
(3) by special legal counsel:
(a) selected by the board of directors or its committee
in the manner prescribed in subparagraphs (1) or
(2); or
(b) if a quorum of the board of directors cannot be
obtained under subparagraph (b)(3)(i) and a committee
cannot be designated under subparagraph (b)(2),
selected by majority vote of the full board of
directors in which selection directors who are
parties may participate; or
(4) by the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination.
iii. Authorization of indemnification and evaluation as to reason ableness
of expenses shall be made in the same manner as the
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determination that indemnification is permissible, except that if the
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall
be made by those entitled under subparagraph (b)(3) to select counsel.
Section g. Indemnification of Officers, Employees and Agents.
Unless the Corporation's Articles of Incorporation provide otherwise:
i. an officer of the Corporation who is not a director is entitled to
mandatory indemnification under Section 9.3, and is entitled to apply
for court-ordered indemnification under Section 9.5, in each case to
the same extent as a director;
ii. the Corporation may indemnify and advance expenses under this
subdivision to an officer, employee or agent of the Corporation who is
not a director, to the same extent as to a director; and
iii. the Corporation may also indemnify and advance expenses to an officer,
employee, or agent who is not a director to the extent, consistent with
public policy, that may be provided by its Articles of Incorporation,
these By-laws, general or specific action of its Board of Directors, or
contract.
Section h. Insurance. The Corporation may purchase and
maintain insurance on behalf of an individual who is or was a director, officer,
employee, or agent of the Corporation, or who, while a director, officer,
employee, or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise, against liability asserted against
or incurred by him in that capacity or arising from his status as a director,
officer, employee, or agent, whether or not the Corporation would have power to
indemnify him against the same liability under Section 9.2 or Section 9.3.
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