Exhibit 3.108
BYLAWS
OF
U.S. HEALTH & RECREATION, INC.
Article I
Offices
The Corporation shall maintain a registered office in the State of Delaware
as required by law. The Corporation may also have offices in such other places
either within or without the State of Delaware as the Board of Directors may
from time to time designate or as the business of the Corporation may require.
Article II
Meetings of Stockholders
Section 1. Place. Meetings of the stockholders of the Corporation shall be held
at such place either within or without the State of Delaware as may from time to
time be designated by the Board of Directors and stated in the notice of
meeting.
"Section 2. Annual Meeting. Commencing in 1994, an annual meeting of the
stockholders of the Corporation shall be held in each year during the third week
of January at a date and time to be determined by the board of directors, or if
that be a legal holiday, then on the next business day for the election of
directors and for the transaction of such other business as may be brought
before the meeting."
Section 3. Notice. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given 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 4. List of Stockholders. 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 ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes may be called by the Chief Executive Officer or the
President, and shall be called by the Chief Executive Officer or the President
at the request in writing of a majority of the Board of Directors, or at the
request in writing of stockholders owning a majority in amount of the entire
capital stock of the Corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. Notice of Special Meeting. 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 10 nor more than 60
days before the date of the meeting, to each stockholder entitled to vote at
such meeting.
Section 7. Business at Special Meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 8. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, 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 thereat, 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 thirty 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 9. Voting Power. 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 10. Voting. At all meetings of the stockholders, every registered
owner of shares entitled to vote 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.
At all elections of Directors, the voting shall be by ballot.
Section 11. Consent. Any action required or permitted to be taken at any
annual or special meeting of stockholders of the Corporation may be taken
without a meeting, without prior notice and without a vote, if 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 thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 10. Consent. Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 11. Participation in Meetings. 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
similar 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 12. Manifestation of dissent. A director of the Corporation who is
present at a meeting of the Board of
consent in writing, 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 thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
Section 12. Chairman of Meeting. The Chairman of the Board or the President
shall preside at all meetings of the stockholders; and, in the absence of the
Chairman or the President, the Board of Directors may appoint any stockholder to
act as chairman of the meeting.
Section 13. Secretary of Meeting. The Secretary of the Corporation shall act
as Secretary of all meetings of the stockholders; and, in his absence, the
Chairman of the Board may appoint any person to act as secretary of the meeting.
Article III
Directors
"Section 1. Election. The number of directors shall be at least three (3)
but no more than twenty (20). The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 3 of this Article,
and each director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders."
Section 2. Number of Directors. The first Board shall consist of not less than
five and not more than fifteen directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
Board of Directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 3 of this Article, and each director elected shall hold office until
his successor is elected and qualified.
Section 3. Vacancies. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, through less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board, as constituted immediately prior to any such increase, the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 4. Business of Corporation. The business of the Corporation shall be
managed by or under the direction of its Board of Directors.
Meetings of the Board of Directors
Section 5. Place. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 6. First Meeting. The first meeting of each newly elected Board of
Directors shall be held immediately after and at the same place as the annual
meeting of stockholders,
no notice other than this by-law shall be necessary to the newly elected
directors in order legally to constitute the meeting, provided a quorum shall
be present.
Section 7. Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall from time to time
be determined by the Board.
Section 8. Special Meetings. Special meetings of the Board may be called by the
Chief Executive Officer or the President on one day's notice to each director,
either personally or by mail or by telegram; special meetings shall be called
by the Chief Executive Officer or the President in like manner and on like
notice on the written request of two directors unless the Board consists of
only one director; in which case special meetings shall be called by the Chief
Executive Officer or the President in like manner and on like notice on the
written request of the sole director.
Section 9. Quorum. At all meetings of the Board, a majority of the 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
Directors at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
Committees of Directors
Section 13. Designation. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one 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.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
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 have the power or
authority in reference to amending the Certificate of Incorporation, adopting
an agreement of merger or consolidation, recommending to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the By-laws of the
Corporation; and, unless the resolution so provides, no such committee shall
have the power or authority to declare a dividend or to authorize the issuance
of stock. 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.
Section 14. Minutes of Meetings. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
Section 15. Rules of Procedure. A majority of the members of any committee may
fix its rules of procedure. All action by any committee shall be reported to
the Board of Directors
at a meeting succeeding such action and shall be subject to revision,
alteration, and approval by the Board of Directors; provided that no rights or
acts of third parties shall be affected by any such revision or alteration.
Existing Committees
Section 16. Executive Committee. The Executive Committee shall exercise all of
the powers of the Board of Directors, except the power to declare dividends, to
issue stock, to alter or amend these By-laws or to recommend to the
stockholders any action requiring the approval of the stockholders. The
Executive Committee shall meet at stated times or on notice to all members by
any one of their own number. A majority of the whole Committee shall constitute
a quorum but the affirmative vote of a majority of the whole Committee shall be
necessary in every case.
Section 17. Audit Committee. The Audit Committee shall review the financial
reporting and financial procedures and controls of the Corporation. The Audit
Committee shall recommend the independent auditor to the Board of Directors,
review the scope of the audit and review the work of the independent auditor.
The Audit Committee shall be composed of
two or more directors, none of whom shall be an officer or employee of the
Corporation. The Audit Committee shall meet at stated times or on notice to all
members by any one of their own number but in no case shall it meet less than
once during each fiscal year. A majority of the whole Committee shall constitute
a quorum. The Audit Committee shall keep regular minutes of its proceedings and
report the same to the Board of Directors.
Section 18. Executive Compensation Committee. The Executive Compensation
Committee shall review the compensation, including fringe benefits, of all
officers and executive employees and make recommendations to the Board of
Directors concerning such compensation. In making its review and
recommendations, the Executive Compensation Committee shall take into account
the compensation plans of comparable companies for comparable officers and
executive employees and such other information as it deems appropriate. The
Executive Compensation Committee shall be composed of three or more directors,
at least two of whom shall not be officers or employees of the Corporation. The
Executive Compensation Committee shall meet at stated times or on notice to all
members by any one of their own
number, but in no case shall it meet less than once during each fiscal year. A
majority of the whole Committee shall constitute a quorum. The Executive
Compensation Committee shall keep regular minutes of its proceedings and report
the same to the Board of Directors.
Compensation of Directors
Section 19. Payments. 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 therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
Removal of Directors
Section 20. Removal. Unless otherwise restricted by law, any director or
the entire Board of Directors may be removed, with or without cause, by the
holders of a majority of shares entitled to vote at an election of directors.
Article IV
Notices
Section 1. Requirements. Whenever, under the provisions of the statutes 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 given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
Section 2. Waiver. Whenever any notice is required to be given under the
provisions of the statutes 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 thereto.
Article V
Officers
Section 1. Officers. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a Chair-
or ratified by the Board, a committee thereof of the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board or of a committee which authorizes the
contract or transaction.
ARTICLE XI
Proxies in Respect of Securities
of Other Corporations
Unless otherwise provided by resolution adopted by the Board, the Chairman
of the Board or President may from time to time appoint an attorney or
attorneys or an agent or agents to exercise in the name and on behalf of the
Corporation the powers and rights which the Corporation may have as the holder
of stock or other securities in any other corporation to vote or to consent in
respect of such stock or other securities, and the Chairman of the Board or
President may instruct the person or persons so appointed as to the manner of
exercising such powers and rights, and the Chairman of the Board or President
may execute or cause to be executed in the name and on behalf of the
Corporation and under its corporate seal, or otherwise, all such written
proxies, powers of attorney or other written instruments as he may deem
necessary
man of the Board, a President, a Vice President, a Secretary and a Treasurer.
The Board of Directors may also choose additional Vice Presidents, and one or
more Assistant Secretaries and Assistant Treasurers. Any number of offices may
be held by the same person, unless the Certificate of Incorporation or these
By-laws otherwise provide.
Section 2. Appointment. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a Chairman of the Board, a
President, one or more Vice Presidents, a Secretary and a Treasurer.
Section 3. Other Officers and Agents. The Board of Directors may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board.
Section 4. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office. The officers of the Corporation shall hold office
until their successors are chosen
and qualify. 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. Duties of Officers. One or more such officers shall be
specifically designated to sign instruments and stock certificates. One of the
officers shall have the duty to record the proceedings of the meetings of
stockholders and directors in a book to be kept for that purpose. Any number of
offices may be held by the same person.
Section 7. Chairman of the Board and President. The Chairman of the Board
shall be the principal executive officer of the corporation. The President shall
be the principal administrative and financial officer of the corporation and
shall in general supervise and control all of the business and affairs of the
corporation. He shall preside at all meetings of the stockholders and of the
Board of Directors. The President shall be selected from among the directors.
The Chairman of the Board or the President may sign any deed, mortgage, bond,
contract or other instrument which the Board of Directors has authorized to be
executed, except in cases
where the execution thereof shall be expressly delegated by the Board of
Directors or by these By-laws to some other officer or agent of the corporation
or shall be required by law to be otherwise signed or executed; and in general
shall perform all duties incident to the office of the Chairman of the Board
and President, respectively, and such other duties as may be prescribed by the
Board of Directors from time to time. The President shall be ex officio a
member of all committees that may, from time to time, be constituted by the
Board of Directors, except the Audit Committee.
Section 8. Vice Presidents. In the absence of the President or in the event of
a vacancy in such office, the Vice President (or in the event there be more than
one Vice President, the Vice Presidents in the order designated at the time of
their election, 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; and shall perform such other duties as from time to time may be
assigned to him by the President or by the Board of Directors.
Section 9. Secretary. The Secretary shall (a) keep the minutes of the
proceedings of the stockholders and Board of Directors in one or more books
provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these By-laws or as required by law; (c) be
custodian of the corporate records and of the seal of the corporation; (d) keep
a register of the post office address of each stockholder which shall be
furnished to the Secretary by such stockholder; (e) have general charge of the
stock transfer books of the corporation; and (f) in general perform all duties
as from time to time may be assigned to him by the President or by the Board
of Directors.
Section 10. Treasurer. The Treasurer 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 depositaries as may be designated by the Board of Directors.
He shall disburse the funds of the corporation as may be ordered by the
Board of Directors, taking proper
vouchers for such disbursements, and shall render to the President and Board of
Directors, at the regular meetings of the Board or whenever they may require
it, 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, all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to
the Corporation.
Article VI
Certificate of Stock
Section 1. Issuance of Stock. Every holder of stock in the corporation shall be
entitled to have a certificate signed by, or in the name of the corporation by,
an officer or officers designated to sign stock certificates by the Board of
Directors, certifying the number of shares owned by him in the Corporation.
Certificates may be issued for partly paid shares and in such case upon
the face or back of the certificates
issued to represent any such partly paid shares, the total amount of the
consideration to be paid therefor, and the amount paid thereon shall be
specified.
If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the corporation shall issue to represent such
class or series of stock, a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
Section 2. 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.
Lost Certificates
Section 3. Replacements. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore 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 thereof, 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.
Transfer of Stock
Section 4. Transfer. 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, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Fixing Record Date
Section 5. 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 thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled 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 sixty nor less than ten days before
the date of such meeting, nor more than sixty 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,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Registered Stockholders
Section 6. Owner of Shares. 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 thereof, except as otherwise provided by the laws of
Delaware.
Article VII
General Provisions
Section 1. Dividends. Dividends upon the capital stock of the Corporation 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 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 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 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 5. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 6. Seal. The corporate seal shall have inscribed thereon 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 thereof to be
impressed or affixed or reproduced or otherwise.
Article VIII
Amendments
Section 1. Amendment of Bylaws. These Bylaws may be altered, amended or
repealed or new Bylaws may be adopted by the stockholders or by the Board of
Directors, since such power is conferred upon the Board of Directors by the
Certificate of Incorporation, at any regular meeting of the stockholders or
of the Board of Directors or at any special meeting of the stockholders or of
the Board of Directors if notice of such alteration, amendment, repeal or
adoption of new By-laws be contained in the notice of such special meeting.
Even though the power to adopt, amend or repeal By-laws is conferred upon the
Board of Directors by the Certificate of Incorporation, it shall not divest or
limit the power of the stockholders to adopt, amend or repeal By-laws.
Article IX
Indemnification of Directors and Officers
(a) 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 he is or was a director or officer 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 expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his 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 he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall have the power to 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 he is or was a director or
officer 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 expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made
in respect of 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
his duty to the Corporation unless and only to the extent that the Court of
Chancery 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
of the circumstances of the case, such person is fairly and reasonably entitled
to indemnification for such expenses which the Court of Chancery or such other
Court shall deem proper.
(c) To the extent that a director or officer has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b), unless ordered by a
court, should be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in sub-sections
(a) and (b) of this section. Such determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of directors who are not
parties to such action, suit or proceeding, or (2) 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 (3) by the stockholders.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation 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 or
officer to repay such amount are unless it shall ultimately be determined that
he is entitled to be indemnified by the Corporation as authorized by this
section.
(f) The indemnification provided by this section shall not be deemed
exclusive of any other rights to which
those seeking indemnification may be entitled under any by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
his 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 or
officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) The Corporation shall have power to purchase and maintain insurance on
behalf of any person who 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 any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this section.
(h) For purposes of this section, 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 and officers so that any
person who is or was a director or officer of such constituent corporation, or
is or was serving at the request of such constituent corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) In addition to any indemnification permitted by these by-laws, the
Board of Directors shall, in its sole discretion, have the power to grant such
indemnification as it deems in the interest of the Corporation to those persons
serving the Corporation as an employee or agent to the full extent permitted by
law.
Article X
Interested Directors and Officers
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, associa-
tion, or other organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if
(a) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(b) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved
in order that the Corporation may exercise such powers and rights.