EXHIBIT 3.48
PSYCHIATRIC SOLUTIONS HOSPITALS, INC.
(A DELAWARE CORPORATION)
AMENDED AND RESTATED BYLAWS
ARTICLE 1
OFFICES
Section 1.1. Registered Office. The registered office shall
be in the City of Dover, County of Kent, State of Delaware.
Section 1.2. Other Offices. The Corporation may also have offices
at such other places, either within or without the State of Delaware, as the
board of directors may from time to time to determine or as the business of the
Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. All meetings of the stockholders
shall be held at the office of the Corporation or at such other places as may be
fixed from time to time by the board of directors, either within or without the
State of Delaware, and stated in the notice of the meeting or in a duly executed
waiver of notice of the meeting, or the board of directors, may in its sole
discretion, determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication.
Section 2.2. Annual Meetings. Annual meetings of stockholders,
commencing with the year 2002, shall be held at the time and place, if any, to
be selected by the board of directors. If the day is a legal holiday, then the
meeting shall be held on the next following business day. At the meeting, the
stockholders shall elect a board of directors and transact such other business
as may properly be brought before the meeting. Each election of directors shall
be by written ballot, unless otherwise provided in the Certificate of
Incorporation. If authorized by the board of directors, such requirement of a
written ballot shall be satisfied by a ballot submitted by electronic
transmission, provided that any such electronic transmission must either set
forth or be submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder or proxyholder.
Section 2.3. Notice of Annual Meeting. Notice of the annual
meeting stating the place, if any, date, and hour of the meeting shall be given
in accordance with Section 2.4 of this Article to each stockholder entitled to
vote at such meeting not less than 10 nor more than 60 days before the date of
the meeting.
Section 2.4. Manner of Giving Notice; Affidavit of Notice. If
mailed, notice to stockholders shall be deemed given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his address
as it appears on the records of the Corporation. Without limiting the manner by
which notice may otherwise be given effectively to stockholders, any notice to
stockholders may be given by electronic
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transmission in the manner provided in Section 232 of the Delaware General
Corporation Law. An affidavit of the secretary or an assistant secretary or of
the transfer agent of the Corporation that the notice has been given shall, in
the absence of fraud, be prima facie evidence of the facts stated in such
affidavit.
Section 2.5. Voting List. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least 10 days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during the whole time of the meeting as in the manner
provided by law.
Section 2.6. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the chairman of
the board or the president and shall be called by the president or secretary at
the request in writing of a majority of the board of directors, or by the
holders of 10% or more of the outstanding shares of stock of the Corporation.
Such request shall state the purpose or purposes of the proposed meeting.
Section 2.7. Notice of Special Meetings. Notice of a special
meeting stating the place, if any, date, and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given in accordance with
Section 2.4 of this Article not less than 10 nor more than 60 days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Business transacted at any special meeting of the stockholders shall be limited
to the purposes stated in the notice.
Section 2.8. Quorum. The holders of a majority of the stock issued
and outstanding and entitled to vote at meetings of the stockholders, present in
person or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote at such meeting, present in person or represented
by proxy, shall 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 such adjourned meeting 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. If the adjournment is for more than 30 days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 2.9. Order of Business. At each meeting of the
stockholders, one of the following persons, in the order in which they are
listed (and in the absence of the first, the next, and so on), shall serve as
chairman of the meeting: president, chairman of the board, vice presidents (in
the order of their seniority if more than one), and secretary. The order of
business at each such meeting shall be as determined by the chairman of the
meeting. The chairman of the meeting shall have the right and authority to
prescribe such rules, regulations, and procedures and to do all such acts and
things as are necessary or desirable for the proper conduct of the meeting,
including, without limitation, the establishment of
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procedures for the maintenance of order and safety, limitations on the time
allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement of such meeting, and the opening and closing of the voting polls.
Section 2.10. Majority Vote. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock 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 the statutes or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 2.11. Method of Voting. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date, unless the proxy provides for a
longer period.
Section 2.12. Action by Stockholders Without Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at any annual or special meeting of the
stockholders may be taken without a meeting, without notice and without a prior
vote, if a consent or consents in writing or in accordance with Section 228 of
the Delaware General Corporation Law, setting forth the action so taken, shall
be signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote on such action were present and
voted and shall be delivered to the Corporation by delivery to its registered
office in Delaware, its principal place of business or an officer or agent of
the Corporation or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to a Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
Section 2.13. Presence at Meetings. If authorized by the Board of
Directors in its sole discretion, and subject to such guidelines and procedures
as the Board may adopt, stockholders and proxyholders not physically present at
the meeting of stockholders may by means of remote communication (1) participate
in a meeting of stockholders and (2) be deemed present in person and vote at a
meeting of stockholders whether such meeting is to be held at a designated place
or solely by means of remote communication, provided that (i) the Corporation
shall implement reasonable measures to verify that each person deemed present
and permitted to vote at the meeting by means of remote communication is a
stockholder or proxyholder, (ii) the Corporation shall implement reasonable
measures to provide such stockholders and proxyholders a reasonable opportunity
to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
stockholder or proxyholder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be
maintained by the Corporation.
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ARTICLE 3
DIRECTORS
Section 3.1. 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
lawful acts and things as are not by law or by the Certificate of Incorporation
of the Corporation or by these Bylaws directed or required to be exercised or
done by the stockholders.
Section 3.2. Number of Directors. The board of directors shall
have not less than one nor more than five directors. The number of directors
constituting the board shall be such number as shall be from time to time
specified by resolution of the board of directors; provided that no director's
term shall be shortened by reason of a resolution reducing the number of
directors; and further provided that the number of directors constituting the
initial board of directors shall be two and shall remain such number unless and
until changed by resolution of the board of directors aforesaid.
Section 3.3. Election, Qualification, and Term of Office of
Directors. Directors shall be elected at each annual meeting of stockholders to
hold office until the next annual meeting. Directors need not be stockholders
unless so required by the Certificate of Incorporation or these Bylaws, which
may prescribe other qualifications for directors. Each director, including a
director elected to fill a vacancy, shall hold office until his successor is
elected and qualified or until his earlier resignation or removal.
Section 3.4. Notification of Nominations. Subject to the rights of
the holders of any class or series of stock having a preference over the common
stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the board of directors or by any stockholder entitled
to vote for the election of directors.
Section 3.5. Regular Meetings. Regular meetings of the board of
directors may be held without notice at such times and at such places as shall
from time to time be determined by the board.
Section 3.6. Special Meetings. Special meetings of the board may
be called by the chairman of the board or the president, and shall be called by
the president or secretary on the written request of two directors.
Section 3.7. Quorum, Majority Vote. At all meetings of the board,
a majority of the entire board of directors shall 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 of
directors, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation. If a quorum shall not be present at any meeting of
the board of directors, the directors present at such meeting may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 3.8. Action Without Meeting. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the board of directors or of any
committee of the board of directors may be
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taken without a meeting, if all members of the board or committee, as the case
may be, consent to such action in writing, or by electronic transmission and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of the proceedings of the board or committee. Such filing shall be
in paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form. Such consent
shall have the same force and effect as a unanimous vote at a meeting, and may
be stated as such in any document or instrument filed with the Secretary of
State of Delaware.
Section 3.9. Telephone and Other Meetings. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, members of the
board of directors, or any committee designated by the board of directors, may
participate in a meeting of the board of directors, or any committee, by means
of conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at the meeting.
Section 3.10. Notice of Meetings. Notice of regular meetings of the
board of directors or of any adjourned meeting of the board of directors need
not be given. Notice of each special meeting of the board shall be mailed to
each director, addressed to such director at such director's residence or usual
place of business, at least two days before the day on which the meeting is to
be held or shall be sent to such director at such place by telegraph or be given
personally or by telephone, not later than the day before the meeting is to be
held, but notice need not be given to any director who shall, either before or
after the meeting, submit a signed waiver of such notice or who shall attend
such meeting without protesting, prior to or at its commencement, the lack of
notice to such director. Every such notice shall state the time and place but
need not state the purpose of the meeting.
Section 3.11. Rules and Regulations. The board of directors may
adopt such rules and regulations not inconsistent with the provisions of law,
the Certificate of Incorporation of the Corporation, or these Bylaws for the
conduct of its meetings and management of the affairs of the Corporation as the
board may deem proper.
Section 3.12. Resignations. Any director of the Corporation may at
any time resign by giving notice in writing or by electronic transmission to the
board of directors, the chairman of the board, the president, or the secretary
of the Corporation. Such resignation shall take effect at the time specified in
such notice or, if the time be not specified, upon receipt of such notice; and,
unless otherwise specified in such notice, the acceptance of such resignation
shall not be necessary to make it effective.
Section 3.13. Removal of Directors. Unless otherwise restricted by
statute, by the Certificate of Incorporation, or by these Bylaws, any director
or the entire board of directors may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election of
directors.
Section 3.14. Vacancies. Subject to the rights of the holders of
any class or series of stock having a preference over the common stock of the
Corporation as to dividends or upon liquidation, any vacancies on the board of
directors resulting from death, resignation, removal, or other cause shall only
be filled by the affirmative vote of a majority of the remaining directors then
in office, even though less than a quorum of the board of directors,
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or by a sole remaining director, and newly created directorships resulting from
any increase in the number of directors shall be filled by the board of
directors, or if not so filled, by the stockholders at the next annual meeting
of the stockholders or at a special meeting called for that purpose in
accordance with Section 2.6 of Article 2 of these Bylaws. Any director elected
in accordance with the preceding sentence of this Section shall hold office for
the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such successor shall
have been elected and qualified.
Section 3.15. Compensation of Directors. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, the board of
directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation for such service. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
ARTICLE 4
EXECUTIVE AND OTHER COMMITTEES
Section 4.1. Executive Committee. The board of directors may, by
resolution adopted by a majority of the entire board, designate annually one or
more of its members to constitute members or alternate members of an executive
committee, which committee shall have and may exercise, between meetings of the
board, all the powers and authority of the board in the management of the
business and affairs of the Corporation, including, if such committee is so
empowered and authorized by resolution adopted by a majority of the entire
board, the power and authority to declare a dividend and to authorize the
issuance of stock, and may authorize the seal of the Corporation to be affixed
to all papers which may require it, except that the executive committee shall
not have such power or authority with reference to:
(a) amending the Certificate of Incorporation of the
Corporation;
(b) adopting an agreement of merger or consolidation
involving the Corporation;
(c) recommending to the stockholders the sale, lease or
exchange of all or substantially all of the property and assets of the
Corporation;
(d) recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution;
(e) adopting, amending, or repealing any Bylaw;
(f) filling vacancies on the board or on any committee of
the board, including the executive committee;
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(g) fixing the compensation of directors for serving on
the board or on any committee of the board, including the executive
committee; or
(h) amending or repealing any resolution of the board
which by its terms may be amended or repealed only by the board.
Section 4.2. Other Committees. The board of directors may, by
resolution adopted by a majority of the entire board, designate from among its
members one or more other committees, each of which shall, except as otherwise
prescribed by law, have such authority of the board as may be specified in the
resolution of the board designating such committee. A majority of all the
members of such committee may determine its action and fix the time and place of
its meetings, unless the board shall otherwise provide. The board shall have the
power at any time to change the membership of, to increase or decrease the
membership of, to fill all vacancies in, and to discharge any such committee, or
any member of any such committee, either with or without cause.
Section 4.3. Procedure; Meetings; Quorum. Regular meetings of the
executive committee or any other committee of the board of directors, of which
no notice shall be necessary, may be held at such times and places as shall be
fixed by resolution adopted by a majority of the members of such committee.
Special meetings of the executive committee or any other committee of the board
shall be called at the request of any member of such committee. Notice of each
special meeting of the executive committee or any other committee of the board
shall be sent by mail, telegraph, or telephone, or be delivered personally to
each member of such committee not later than the day before the day on which the
meeting is to be held, but notice need not be given to any member who shall,
either before or after the meeting, submit a signed waiver of such notice or who
shall attend such meeting without protesting, prior to or at its commencement,
the lack of such notice to such member. Any special meeting of the executive
committee or any other committee of the board shall be a legal meeting without
any notice of such meeting having been given, if all the members of such
committee shall be present at such meeting. Notice of any adjourned meeting of
any committee of the board need not be given. The executive committee or any
other committee of the board may adopt such rules and regulations not
inconsistent with the provisions of law, the Certificate of Incorporation of the
Corporation, or these Bylaws for the conduct of its meetings as the executive
committee or any other committee of the board may deem proper. A majority of the
executive committee or any other committee of the board shall constitute a
quorum for the transaction of business at any meeting, and the vote of a
majority of the members of such committee present at any meeting at which a
quorum is present shall be the act of such committee. In the absence or
disqualification of a member, the remaining members, whether or not a quorum,
may fill a vacancy. The executive committee or any other committee of the board
of directors shall keep written minutes of its proceedings, a copy of which is
to be filed with the secretary of the Corporation, and shall report on such
proceedings to the board.
ARTICLE 5
NOTICES
Section 5.1. Method. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these Bylaws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be
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given in writing, by mail, electronic mail, overnight delivery, facsimile or any
other manner provided in Section 232 of the Delaware General Corporation Law,
addressed to such director or stockholder, at his mailing address, electronic
mail address, or facsimile number as it appears on the records of the
Corporation, with postage on such notice prepaid (as applicable), and such
notice shall be deemed to be given at the time when the same shall be deposited
in the United States mail if sent by mail or when received if sent by electronic
mail, overnight delivery, or facsimile. Notice to directors may also be given by
telegram.
Section 5.2. Waiver. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these Bylaws, a written waiver of such notice, signed by the person or
persons entitled to said notice or waiver by electronic transmission by such
person, whether before or after the time stated in such waiver, shall be deemed
equivalent to notice.
ARTICLE 6
OFFICERS
Section 6.1. Election, Qualification. The officers of the
Corporation shall be chosen by the board of directors and shall be a president
and a secretary. In addition, the board of directors may choose a chairman of
the board, one or more vice presidents, a secretary, a treasurer, one or more
assistant secretaries and assistant treasurers and such other officers and
agents as it shall deem necessary. Any number of offices may be held by the same
person, unless the Certificate of Incorporation or these Bylaws otherwise
provide.
Section 6.2. Salary. The salaries of all officers and agents of
the Corporation shall be fixed by the board of directors.
Section 6.3. Term, Removal. Each officer shall hold office until
such officer's successor is elected and qualified or until such officer's
earlier resignation or removal. Any officer elected or appointed by the board of
directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the Corporation
shall be filled by the board of directors.
Section 6.4. Resignation. Subject at all times to the right of
removal as provided in Section 6.3 of this Article, any officer may resign at
any time by giving notice to the board of directors, the president, or the
secretary of the Corporation. Any such resignation shall take effect at the date
of receipt of such notice or at any later date specified in such notice;
provided that the president or, in the event of the resignation of the
president, the board of directors may designate an effective date for such
resignation which is earlier than the date specified in such notice but which is
not earlier than the date of receipt of such notice; and, unless otherwise
specified in such notice, the acceptance of such resignation shall not be
necessary to make it effective.
Section 6.5. Vacancies. A vacancy in any office because of death,
resignation, removal, or any other cause may be filled for the unexpired portion
of the term in the manner prescribed in these Bylaws for election to such
office.
Section 6.6. Chairman of the Board. The chairman of the board
shall, if there be such an officer, preside at meetings of the board of
directors and, if present, and, in the
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absence of the president, preside at meetings of the stockholders. The chairman
of the board shall counsel with and advise the president and perform such other
duties as the president or the board or the executive committee may from time to
time determine. Except as otherwise provided by resolution of the board, the
chairman of the board shall be ex-officio a member of all committees of the
board. The chairman of the board may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts, or other instruments authorized
by the board or any committee of the board empowered to authorize the same. In
the absence of the president, the chairman of the board shall be the chief
executive officer of the Corporation.
Section 6.7. President. The president shall be the chief executive
officer of the Corporation, shall preside at all meetings of the stockholders
and the board of directors, shall have general and active management of the
business of the Corporation, and shall see that all orders and resolutions of
the board of directors are carried into effect. He shall execute bonds,
mortgages, and other contracts requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution of such bonds, mortgages
or other contracts shall be expressly delegated by the board of directors to
some other officer or agent of the Corporation.
Section 6.8. Vice Presidents. In the absence of the president and
the chairman of the board or, in the event of their inability or refusal to act,
the vice president, if there be such an officer (or in the event there be more
than one vice president, the vice presidents in the order designated by the
directors, or, in the absence of any designation, then in the order of their
election), shall perform the duties of the president and, when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
Section 6.9. Secretary. The secretary shall attend all meetings of
the board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the Corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
Section 6.10. Assistant Secretary. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined by the
board of directors (or if there be no such determination, then in the order of
their election) shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
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Section 6.11. Treasurer. The treasurer, if there be such an
officer, shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to 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 of directors. He shall disburse the funds of the
Corporation as may be ordered by the board of directors, taking proper vouchers
for such disbursements, and shall render to the president and the board of
directors, at its regular meetings, or when the board of directors so requires,
an account of all his transactions as treasurer and of the financial condition
of the Corporation. If required by the board of directors, he shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement, or removal from office, of all books, papers,
vouchers, money, and other property of whatever kind in his possession or under
his control belonging to the Corporation. If there is not a treasurer of the
Corporation, then the duties set forth above shall be discharged by the
President or such other officer as shall be designated by the board of
directors.
Section 6.12. Assistant Treasurer. The assistant treasurer, or if
there shall be more than one, the assistant treasurers in the order determined
by the board of directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the treasurer or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the treasurer and shall perform such other duties and have such other powers
as the board of directors may from time to time prescribe.
ARTICLE 7
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES, AND AGENTS
Section 7.1. Third-Party Actions. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that 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 or officer of another corporation, partnership,
joint venture, trust, or other enterprise, against all expenses (including
attorney's fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit, or
proceeding if such person acted in good faith and in a manner such person
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 no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit, or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that such
person had reasonable cause to believe that his or her conduct was unlawful.
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The Corporation may indemnify any employee or agent of the Corporation,
or any employee or agent serving at the request of the Corporation as an
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise, in the manner and to the extent that it shall indemnify any
director or officer under this Section.
Section 7.2. Derivative Actions. The Corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee, or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise, against all expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made with respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of such person's duty to
the Corporation unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of Delaware or such
other court shall deem proper.
Section 7.3. Determination of Indemnification. Any indemnification
under Section 7.1 or Section 7.2 of this Article (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee, or agent
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 7.1 or Section 7.2 of this Article.
Such determination shall be made (i) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit, or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the stockholders.
Section 7.4. Right to Indemnification. Notwithstanding the other
provisions of this Article, to the extent that a director, officer, employee, or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to in Section 7.1 or Section
7.2 of this Article, or in defense of any claim, issue, or matter in any such
claim or issue, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with such defense.
Section 7.5. Advance of Expenses. Expenses incurred in defending a
civil or criminal action, suit, or proceeding may be paid by the Corporation on
behalf of a director, officer, employee, or agent in advance of the final
disposition of such action, suit, or proceeding as authorized by the board of
directors in the specific case upon receipt of an undertaking by or on behalf of
the director, officer, employee, or agent to repay such amount unless it shall
ultimately be determined that such person is entitled to be indemnified by the
Corporation as authorized in this Article.
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Section 7.6. Indemnification Not Exclusive. The indemnification
provided by this Article shall not be deemed exclusive of any other rights to
which any person seeking indemnification may be entitled under any law,
agreement, vote of stockholders or disinterested directors, or otherwise, both
as to action in such person's official capacity and as to action in another
capacity while holding such office, 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.
Section 7.7. Insurance. 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 is or was serving at the request of the
Corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against liability under the
provisions of this Article.
Section 7.8. Definitions of Certain Terms. For purposes of this
Article, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees, or agents, so that any person who is or was a
director, officer, employee, or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, shall stand in the same position under the
provisions of this Article with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; references
to "serving at the request of the Corporation" shall include any service as a
director, officer, employee, or agent of the Corporation which imposes duties
on, or involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article.
Section 7.9. Liability of Directors. Notwithstanding any provision
of the Certificate of Incorporation or any other provision in these Bylaws, no
director shall be personally liable to the Corporation or any stockholder for
monetary damages for breach of fiduciary duty as a director, except for any
matter in respect of which such director shall be liable under Section 174 of
Title 8 of the Delaware Code (relating to the Delaware General Corporation Law)
or any amendment or successor provision to such provision or shall be liable by
reason that, in addition to any and all other requirements for such liability,
he (i) shall have breached his duty of loyalty to the Corporation or its
stockholders, (ii) shall not have acted in good faith, (iii) shall have acted in
a manner involving intentional misconduct
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or a knowing violation of law or, in failing to act, shall have acted in a
manner involving intentional misconduct or a knowing violation of law or (iv)
shall have derived an improper personal benefit.
ARTICLE 8
CERTIFICATES OF STOCK
Section 8.1. Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the chairman or vice chairman of the board of directors,
or the president or a vice president and the treasurer or an assistant
treasurer, or the secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
Section 8.2. Facsimile Signatures. Any of or all the signatures on
the certificate may be facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent, or registrar at the date
of issue.
Section 8.3. Lost Certificates. The board of directors may direct
a new certificate or certificates to be issued in place of any certificate or
certificates previously issued by the Corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance of
such new certificate or certificates, require the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the Corporation a
bond in such sum 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, stolen, or destroyed.
Section 8.4. Transfers of Stock. Upon surrender to the Corporation
or the 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 to such certificate, cancel the old
certificate and record the transaction upon its books.
Section 8.5. Fixing Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment of any meeting of stockholders, or to express
consent to corporate action in writing without a meeting, or to receive payment
of any dividend or other distribution or allotment of any rights, or to exercise
any rights in respect of any change, conversion, or exchange of stock or for the
purpose of any other lawful action, the board of directors may fix, in advance,
a record date, which shall not be more than 60 nor less than 10 days before the
date of such meeting, nor more than 60 days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided
that the board of directors may fix a new record date for the adjourned meeting.
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Section 8.6. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice of such claim or interest, except as
otherwise provided by the laws of Delaware.
ARTICLE 9
AFFILIATED TRANSACTIONS
Section 9.1. Validity. Except as otherwise provided for in the
Certificate of Incorporation and except as otherwise provided in these Bylaws,
if Section 9.2 is satisfied, no contract or transaction between the Corporation
and any of its directors, officers, or security holders, or any corporation,
partnership, association, or other organization in which any of such directors,
officers, or security holders are directly or indirectly financially interested,
shall be void or voidable solely because of this relationship, or solely because
of the presence of the director, officer, or security holder at the meeting
authorizing the contract or transaction, or solely because of his or their
participation in the authorization of such contract or transaction or vote at
the meeting for authorization of such contract or transaction, whether or not
such participation or vote was necessary for the authorization of such contract
or transaction.
Section 9.2. Disclosure, Approval, Fairness. Section 9.1 shall
apply only if:
(a) the material facts as to the relationship or interest
and as to the contract or transaction are disclosed or are known:
(i) to the board of directors (or committee of
the board of directors) and it nevertheless in good faith
authorizes or ratifies the contract or transaction by a
majority of the directors present, each such interested
director to be counted in determining whether a quorum is
present but not in calculating the majority necessary to carry
the vote; or
(ii) to the stockholders and they nevertheless
authorize or ratify the contract or transaction by a majority
of the shares present at a meeting considering such contract
or transaction, each such interested person (stockholder) to
be counted in determining whether a quorum is present and for
voting purposes; or
(b) the contract or transaction is fair to the
Corporation as of the time it is authorized or ratified by the board of
directors (or committee of the board of directors) or the stockholders.
Section 9.3. Nonexclusive. This provision shall not be construed
to invalidate a contract or transaction which would be valid in the absence of
this provision.
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ARTICLE 10
GENERAL PROVISIONS
Section 10.1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, 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 the provisions of the Certificate of
Incorporation.
Section 10.2. Reserves. Before payment of any dividend, there may
be set aside out of any funds of the Corporation available for dividends such
sum or sums as the directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 10.3. Annual Statement. The board of directors shall
present at each annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear statement of the
business and condition of the Corporation.
Section 10.4. Checks. 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 of directors may from time to time designate.
Section 10.5. Fiscal Year. The fiscal year of the Corporation shall
be fixed by resolution of the board of directors.
Section 10.6. Seal. The board of directors may adopt a corporate
seal having inscribed on such seal the name of the Corporation, the year of its
organization, and the words "Corporate Seal, Delaware." The seal may be used by
causing it or a facsimile of it to be impressed or affixed or reproduced or
otherwise.
ARTICLE 11
AMENDMENTS
Section 11.1. Amendments. These Bylaws may be altered, amended, or
repealed or new Bylaws may be adopted by a majority of the entire board of
directors, at any meeting of the board of directors if notice of such
alteration, amendment, repeal, or adoption of new Bylaws be contained in the
notice of such meeting. The stockholders of the Corporation shall have the power
to adopt, amend, or repeal any provisions of the Bylaws only to the extent and
in the manner provided in the Certificate of Incorporation of the Corporation.
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ARTICLE 12
ADVISORY COMMITTEES
Section 12.1. Advisory Committees. The board of directors may, in
its discretion, establish one or more technical, strategic or scientific
advisory committees and appoint one or more persons as members of such advisory
committees to serve in such capacity at the pleasure of the board. Each member
of an advisory committee shall be entitled to receive such amounts as may be
fixed from time to time by the board of directors as compensation for attending
committee meetings and may be reimbursed for all reasonable expenses in
attending and returning from any committee meeting. No advisory committee may
set policy or be part of the corporate governance of the Corporation, and no
advisory committee member may be responsible for the implementation of
strategies or, in his or her capacity as a member of such committee, be involved
in the management of the Corporation. Subject to the foregoing restrictions, the
board may adopt a charter or other governing documents of any advisory board.
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