EXHIBIT 3.38
CERTIFICATE OF INCORPORATION
OF
PSI HOSPITALS, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "Delaware General Corporation Law"), hereby certifies that:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is PSI Hospitals, Inc.
SECOND: The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 9 East
Loockerman Street, Dover, Delaware 19901, County of Kent; and the name of the
registered agent of the Corporation in the State of Delaware at such address is
National Registered Agents, Inc.
THIRD: The nature of the business or purposes of the Corporation is to
engage in any lawful act or activity for which corporations may be organized
under the Delaware General Corporation Law.
FOURTH:
1. The maximum number of shares of stock which the Corporation
shall have the authority to issue is one thousand (1,000) shares of Common Stock
having a par value of $0.01 per share, which shares shall not be subject to any
preemptive rights.
2. Pursuant to Section 151 of the Delaware General Corporation
Law, a statement of the designations, powers, preferences and rights, and the
qualifications and restrictions thereof, in respect of each class of capital
stock is as follows:
A. COMMON STOCK
(i) Dividends and Distributions. Except as otherwise
provided by this Certificate of Incorporation, the holders of shares of Common
Stock shall be entitled to receive such dividends and distributions as may be
declared upon such shares of Common Stock, from time to time by a resolution or
resolutions adopted by the Board of Directors.
(ii) Voting Rights. All holders of Common Stock shall be
entitled to notice of any stockholders' meeting. Subject to the provisions of
any applicable law and except as otherwise provided in this Certificate of
Incorporation, all voting rights shall be vested solely in the Common Stock. The
holders of shares of Common Stock shall be entitled to vote upon the election of
directors and upon any other matter submitted to the stockholders for a vote.
Each share of Common Stock issued and outstanding shall be entitled to one
noncumulative vote. A fraction of a share of Common Stock shall not be entitled
to any voting rights whatsoever.
(iii) Liquidation, Dissolution or Winding Up. Except as
otherwise provided in this Certificate of Incorporation, in the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and liabilities
of the Corporation, all assets of the Corporation shall be shared pro rata among
the holders of the Common Stock.
3. Except as otherwise provided in this Certificate of
Incorporation or by applicable law, the Corporation's capital stock, regardless
of class, may be issued for such consideration and for such corporate purposes
as the Board of Directors may from time to time determine by a resolution or
resolutions adopted by a majority of the Board of Directors then in office.
FIFTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
J. Gregory Giffen, Esq. Harwell Howard Hyne
Gabbert & Manner, P.C.
315 Deaderick Street
Suite 1800
Nashville, Tennessee 37238-1800
SIXTH: The Corporation shall have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors, or any class of them, and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation, or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the court directs. If a majority and number
representing three-fourths (3/4) in value of the creditors or class of creditors
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which said application has been made, be binding on all the
creditors or class of creditors and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
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EIGHTH:
1. The management of the business and the conduct of the affairs
of the Corporation shall be vested in its Board of Directors.
2. The Board of Directors shall consist of not less than two (2)
nor more than fifteen (15) persons, the exact numbers to be fixed from time to
time by the Board of Directors pursuant to a resolution adopted by a majority of
directors then in office.
3. Whenever the Corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever the
Corporation shall be authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied voting power under the
provisions of this Certificate of Incorporation shall entitle the holder thereof
to the right to vote at any meeting of stockholders, except as otherwise
provided by applicable law; provided, that no share of any such class which is
otherwise denied voting power shall entitle the holder thereof to vote upon the
increase or decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of clause (b)
of Section 102 of the Delaware General Corporation Law, as the same may be
amended or supplemented. The provisions of this Article Ninth are not intended
to, and shall not, limit, supersede or modify any other defense available to a
director under applicable law. Any repeal or modification of this Article Ninth
by the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
TENTH:
1. The Corporation shall, to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law, as the same may be amended
or supplemented (but in the case of any such amendment or supplement, only to
the extent that such amendment or supplement permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment or supplement), indemnify any and all directors
and officers whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section, and the indemnification provided for herein shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such person.
The Corporation may, in its sole discretion and to the fullest extent permitted
by Section 145 of the Delaware General Corporation Law, as the same may be
amended or supplemented, indemnify any and all employees and agents whom it
shall have power to indemnify under said section from and against any and all of
the expenses, liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall continue as to a
person who has ceased to be an employee or agent and shall inure to the benefit
of the heirs, executors, and administrators of such person.
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2. The Corporation shall pay the expenses incurred in defending
any proceeding against a director or officer which is or may be subject to
indemnification pursuant to this Article Tenth in advance of final disposition
of such proceeding; provided, however, that the payment of such expenses
incurred by a director or officer shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer is not entitled to
be indemnified under this Article Tenth or otherwise. The Corporation may, in
its sole discretion, advance expenses incurred by its employees or agents to the
same extent as expenses may be advanced to its directors and officers hereunder.
3. The rights conferred on any person by this Article Tenth shall
be deemed contract rights and shall not be exclusive of any other rights which
such person may have or hereafter acquire under any statute, provision of this
Certificate of Incorporation or the Corporation's Bylaws, agreement, or vote of
stockholders or disinterested directors or otherwise.
4. The Corporation may purchase and maintain insurance to protect
itself and any other director, officer, employee or agent of the Corporation or
any corporation, partnership, joint venture, trust or other enterprise against
any liability, whether or not the Corporation would have the power to indemnify
such person under the Delaware General Corporation Law.
ELEVENTH:
1. From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed in accordance with the laws of
the State of Delaware.
2. The Corporation's Bylaws may be amended, added to or repealed
by an affirmative vote of at least a majority of either (i) the shares of the
Corporation's capital stock entitled to vote thereon, or (ii) the Board of
Directors.
The undersigned, being the incorporator, for the purpose of forming a
Corporation under the laws of the State of Delaware does make, file and record
this Certificate of Incorporation, does certify that the facts herein stated are
true, and, accordingly, has here to set my hand and seal this 29th day of
October, 2001.
/s/ J. Gregory Giffen
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J. Gregory Giffen, Incorporator
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