Exhibit 3.98
BY-LAWS
OF
SPORTSLIFE GWINNETT, INC.
ARTICLE I
STOCKHOLDERS
Section 1. Place of Stockholder's Meetings. All meetings of the
stockholders of the Corporation shall be held at such place or places, within or
outside the State of Georgia, as may be fixed by the Board of Directors from
time to time or as shall be specified in the respective notices thereof.
Section 2. Date, Hour and Purpose of Annual Meetings of Stockholders.
Annual Meetings of Stockholders shall be held on such day and at such time as
the Directors may determine from time to time by resolution, at which meeting
the stockholders shall elect, by a plurality of the votes cast by the shares
entitled to vote in the election of a meeting at which a quorum is present, a
Board of Directors, and transact such other business as may properly be brought
before the meeting. If for any reason a Board of Directors shall not be elected
at the Annual Meeting of Stockholders, or if it appears that such Annual Meeting
is not held on such date as may be fixed by the Directors in accordance with the
provisions of the By-laws, then in either such event the Directors shall cause
the election to be held as soon thereafter as convenient.
Section 3. Special Meetings of Stockholders. Special meetings of the
stockholders entitled to vote may be called by the Chairman of the Board, if
any, the Vice Chairman of the Board, if any, the President or any Vice
President, the Secretary or by the Board of Directors, and shall be called by
any of the foregoing at the request in writing of stockholders owning a majority
of all the votes entitled to be cast on any issue proposed to be considered at
the proposed special meeting. Such request shall be signed, dated and delivered
to the Corporation and state the purpose or purposes of the meeting.
Section 4. Notice of Meetings of Stockholders. Except as otherwise
expressly required or permitted by the laws of Georgia, not less than ten days
nor more than sixty days before the date of every stockholders' meeting the
Secretary shall give to each stockholder of record entitled to vote at such
meeting written notice stating the place, day and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called. Such notice, if mailed, shall be deemed to be given when deposited in
the United States mail, with postage thereon prepaid, addressed to the
stockholder at the post office address for notices to such stockholder as it
appears on the records of the Corporation. If not otherwise fixed under the
Georgia Business Corporation Code (the "Code") Section 14-2-703 or 14-2-707, the
record date for determining shareholders
entitled to notice of and entitled to vote at an annual or special
shareholders' meeting is the close of business on the day before the first
notice is delivered to shareholders.
An Affidavit of the Secretary or an Assistant Secretary or of a 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 therein.
Section 5. Quorum of Stockholders.
(a) Unless otherwise provided by the laws of Georgia, at any
meeting of the stockholders the presence in person or by proxy of
stockholders entitled to cast a majority of the votes thereat shall
constitute a quorum.
(b) The holders of a majority of the voting shares represented
at a meeting may adjourn the meeting from time to time. This right to
adjourn exists whether or not a quorum is present at the meeting and
applies to annual as well as special meetings, including any meetings that
are adjourned and reconvened. Notice of any adjourned meeting other than
announcement at the meeting shall not be required to be given, except as
provided in paragraph (d) below and except where expressly required By-law.
(c) At any adjourned meeting at which a quorum shall be present,
any business may be transacted which might have been transacted at the
meeting originally called, but only those stockholders entitled to vote at
the meeting as originally noticed shall be entitled to vote at any
adjournment or adjournments thereof, unless a new record date is fixed by
the Board of Directors.
(d) The Board of Directors may fix a new record date if the Board
of Directors desires, but must fix a new record date if the meeting is
adjourned to a date more than 120 days after the date fixed for the
original meeting. If a new record date is not fixed, the determination of
shareholders entitled to notice of or to vote at a shareholders' meeting is
effective for any adjournment of the meeting.
Section 6. Chairman and Secretary of Meeting. The Chairman, or in his
absence, the Vice Chairman, or in his absence, the President, or in his
absence, any Vice President, shall preside at meetings of the stockholders. The
Secretary shall act as secretary of the meeting, or in his absence an Assistant
Secretary shall act, or if neither is present, then the presiding officer shall
appoint a person to act as secretary of the meeting.
Section 7. Voting by Stockholders. Except as may be otherwise provided
by the Articles of Incorporation or by these By-laws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
stock standing in his name on the books of the Corporation on the record date
for the meeting. All elections and questions shall be decided by the vote of a
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majority in interest of the stockholders present in person or represented by
proxy and entitled to vote at the meeting, except as otherwise permitted or
required by the laws of Georgia, the Articles of Incorporation or these By-laws.
Section 8. Proxies. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by his attorney-in-fact. Every proxy
shall be in writing, subscribed by the stockholder or his duly authorized
attorney-in-fact, but need not be dated, sealed, witnessed or acknowledged.
Section 9. Consents. The provision of these By-Laws covering notices
and meetings to the contrary notwithstanding, any action required or permitted
to be taken at any meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing setting forth
the action so taken shall be signed by all shareholders entitled to vote thereon
or, if so provided in the Articles of incorporation, by the holders of
outstanding stock having not less than the minimum number of votes that would
have been necessary to authorize or take such action at a meeting at which all
shares of stock entitled to vote thereon were present and voted. The Corporation
must also meet further requirements of the Code concerning these consents,
including giving written notice of the action taken when less than all
shareholders execute the written consent.
ARTICLE II
Section 1. Registered Office
(a) The Corporation shall continuously maintain in the State of
Georgia a registered office that may be the same as any of the
Corporation's places of business. In addition, the Corporation shall
continuously maintain a registered agent whose business office is identical
with the registered office. The registered agent may be an individual who
resides in the State of Georgia, a domestic corporation or nonprofit
domestic corporation, or a foreign corporation or nonprofit foreign
corporation authorized to transact business in the State of Georgia.
(b) In addition to its registered office in the State of
Georgia, the Corporation may have an office or offices in such other places
as the Board of Directors may from time to time designate or the business
of the Corporation may require.
ARTICLE III
DIRECTORS
Section 1. Powers of Directors. The property, business and affairs of
the Corporation shall be managed by its Board of Directors, which may exercise
all the powers of the Corporation
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except such as are by the laws of Georgia or the Articles of Incorporation or
these By-laws required to be exercised or done by the stockholders.
Section 2. Number, Method of Election, Terms of Office of Directors. The
number of Directors which shall constitute the whole Board of Directors shall be
such as from time to time shall be determined by resolution of the Board of
Directors, but the number shall not be less than one provided that the tenure of
a Director shall not be affected by any decrease in the number of Directors so
made by the Board. The term of all other directors shall expire at the next
annual shareholders' meeting following their election. Despite the expiration of
a director's term, the director shall continue to serve until a successor is
elected and qualifies or until there is a decrease in the number of directors.
Section 3. Vacancies on Board of Directors.
(a) Any Director may resign his office at any time by delivering his
resignation in writing to the Chairman or the President or the Secretary.
It will take effect at the time specified therein, or if no time is
specified, it will be effective at the time of its receipt by the
Corporation. The acceptance of a resignation shall not be necessary to make
it effective, unless expressly so provided in the resignation.
(b) Any vacancy or newly created Directorship resulting from any
increase in the authorized number of Directors may be filled by vote of a
majority of the Directors then in office, though less than a quorum, and
any Director so chosen shall hold office until the next annual election of
Directors by the stockholders and until his successor is duly elected and
qualified, or until his earlier resignation or removal.
Section 4. Meetings of the Board of Directors.
(a) The Board of Directors may hold their meetings, both regular and
special, either within or outside the State of Georgia.
(b) Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by
resolution of the Board of Directors.
(c) The first meeting of each newly elected Board of Directors, except
the initial Board of Directors, shall be held as soon as practicable after
the Annual Meeting of the stockholders for the election of officers and the
transaction of such other business as may come before it.
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(d) Special meetings of the Board of Directors shall be held whenever
called by direction of the Chairman or the President or at the request of
Directors constituting one-third of the number of Directors then in office,
but not less than two Directors.
(e) The Secretary shall give notice to each Director of any meeting of
the Board of Directors by mailing the same at least two days before the
meeting or by telegraphing or delivery via facsimile or delivering the same
not later than the day before the meeting. Such notice need not include a
statement of the business to be transacted at, or the purpose of, any such
meeting. Any and all business may be transacted at any meeting of the Board
of Directors. No notice of any adjourned meeting need be given. No notice
to or waiver by any Director shall be required with respect to any meeting
at which the Director is present.
Section 5. Quorum and Action. A majority of the entire Board of Directors
shall constitute a quorum for the transaction of business; but if there shall be
less than a quorum at any meeting of the Board, a majority of those present may
adjourn the meeting from time to time. Unless otherwise provided by the laws of
Georgia, the Articles of Incorporation or these By-laws, the act of a majority
of the Directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors.
Section 6. Presiding Officer and Secretary of Meeting. The Chairman or, in
his absence, a member of the Board of Directors selected by the members present,
shall preside at meetings of the Board. The Secretary shall act as secretary of
the meeting, but in his absence the presiding officers shall appoint a secretary
of the meeting.
Section 7. Action by Consent Without Meeting. 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 records of the Board or committee.
Section 8. Executive Committee. The Board of Directors may appoint from
among its members and from time to time may fill vacancies in an Executive
Committee to serve during the pleasure of the Board. The Executive Committee
shall consist of three members, or such greater number of members as the Board
of Directors may by resolution from time to time fix. One of such members shall
be the Chairman of the Board and another shall be the Vice Chairman of the
Board, who shall be the presiding officer of the Committee. During the intervals
between the meetings of the Board, the Executive Committee shall possess and may
exercise all of the powers of the Board in the management of the business and
affairs of the Corporation conferred by these By-laws or otherwise. The
Committee shall keep a record of all its proceedings and report the same to the
Board. A majority of the members of the Committee shall constitute a quorum. The
act of a majority of the members of the Committee present at any meeting at
which a quorum is present shall be the act of the Committee.
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Section 9. Other Committees. The Board of Directors may also appoint
from among its members such other committees of two or more Directors as it may
from time to time deem desirable, and may delegate to such committees such
powers of the Board as it may consider appropriate.
Section 10. Compensation of Directors. Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
ARTICLE IV
OFFICERS
Section 1. Executive Officers of the Corporation. The executive
officers of the Corporation shall be chosen by the Board of Directors and shall
consist of a Chairman, a President, a Vice President, a Secretary and a
Treasurer. The Board of Directors also may appoint a Vice Chairman of the
Board, and such additional Vice Presidents, Assistant Secretaries and Assistant
Treasurers as they shall deem necessary. Any two offices may be filled by the
same person. None of the officers need be a member of the Board except the
Chairman of the Board and the Vice Chairman of the Board. The officers will
have the authority and shall perform the duties as set forth in these By-laws.
The other officers that are appointed will have the authority and shall perform
the duties as established by the Board of Directors from time to time.
Section 2. Choosing of Executive Officers. The Board of Directors at
its first meeting after each Annual Meeting of Stockholders shall choose a
Chairman, a President, a Vice President, and a Secretary and a Treasurer.
Section 3. Additional Officers. 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 specially appointed by the Board shall be fixed by the Board of
Directors.
Section 5. Term, Removal and Vacancies. the officers of the
Corporation shall hold office until their respective successors are chosen and
qualify. Any officer elected or appointed by the Board of Directors may be
removed at any time with or without cause by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
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Section 6. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the Board of Directors and of the stockholders. In the
absence or disability of the Chairman of the Board: (a) the Vice Chairman of
the Board shall preside at all meetings of the Board of Directors and of the
stockholders, and (b) the powers and duties of the Chairman of the Board shall
be exercised jointly by the Vice Chairman of the Board and the President until
such authority is altered by action of the Board of Directors. The Chairman of
the Board shall present to the Annual Meeting of Stockholders a report of the
business of the preceding fiscal year.
Section 7. Vice Chairman of the Board. The Vice Chairman of the Board, if
any, shall have such powers and perform such duties as are provided in these
By-laws or as may be delegated to him by the Chairman of the Board, and shall
perform such other duties as may from time to time be assigned to him by the
Board of Directors.
Section 8. President. The President shall have such powers and perform
such duties as are provided in these By-laws or as may be delegated to him by
the Board of Directors or the Chairman of the Board. The President shall be the
Chief Executive Officer of the Corporation and shall have all the duties and
responsibilities previously enumerated for the Chairman of the Board. In the
absence of the Chairman of the Board and the Vice Chairman of the Board, the
President shall preside at all meeting of the stockholders.
Section 9. Powers and Duties of the Chief Executive Officer. The Chief
Executive Officer shall have general charge and supervision of the business of
the Company and shall exercise and perform all the duties incident to the
office of the Chief Executive Officer. He shall have direct supervision of the
other officers and shall also exercise and perform such powers and duties as
may be assigned to him by the Board of Directors.
Section 10. Powers and Duties of Vice Presidents. Any Vice President
designated by the Board of Directors shall, in the absence, disability, or
inability to act of the President, perform all duties and exercise all the
powers of the President and shall perform such other duties as the Board may
from time to time prescribe. If the Corporation has more than one Vice
President, the one designated by the Board of Directors to act in lieu of the
President shall act in lieu of the President. Each Vice President shall have
such other powers and shall perform such other duties as may be assigned to him
by the Board.
Section 11. Powers and Duties of Treasurer and Assistant Treasurers.
(a) The Treasurer shall have the care and custody of all the funds
and securities of the Corporation except as may be otherwise ordered by
the Board of Directors, and shall cause such funds to be deposited to the
credit of the Corporation in such banks or depositories as may be
designated by the Board of Directors, the Chairman, the President or
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the Treasurer, and shall cause such securities to be placed in safekeeping
in such manner as may be designated by the Board of Directors, the
Chairman, the President or the Treasurer.
(b) The Treasurer, or an Assistant Treasurer, or such other
person or persons as may be designated for such purpose by the Board of
Directors, the Chairman, the President or the Treasurer, may endorse in the
name and on behalf of the Corporation all instruments for the payment of
money, bills of lading, warehouse receipts, insurance policies and other
commercial documents requiring such endorsement.
(c) The Treasurer, or an Assistant Treasurer, or such other
person or persons as may be designated for such purpose by the Board of
Directors, the Chairman, the President or the Treasurer, may sign all
receipts and vouchers for payments made to the Corporation; he shall render
a statement of the cash account of the Corporation to the Board of
Directors as often as it shall require the same; he shall enter regularly
in books to be kept by him for that purpose full and accurate accounts of
all moneys received and paid by him on account of the Corporation and of
all securities received and delivered by the Corporation.
(d) Each Assistant Treasurer shall perform such duties as may
from time to time be assigned to him by the Treasurer or by the Board of
Directors. In the event of the absence of the Treasurer or his incapacity
or inability to act, then any Assistant Treasurer may perform any of the
duties and may exercise any of the powers of the Treasurer.
Section 12. Powers and Duties of Secretary and Assistant Secretaries.
(a) The Secretary shall attend all meetings of the Board, all
meetings of the stockholders, and shall keep the minutes of all proceedings
of the stockholders and the Board of Directors in proper books provided for
that purpose. The Secretary shall attend to the giving and serving of all
notices of the Corporation in accordance with the provisions of the By-laws
and as required by the laws of Georgia. The Secretary may, with the
President, a Vice President or other authorized officer, sign all contracts
and other documents in the name of the Corporation. He shall perform such
other duties as may be prescribed in these By-laws or assigned to him and
all other acts incident to the position of Secretary.
(b) Each Assistant Secretary shall perform such duties as may
from time to time be assigned to him by the Secretary or by the Board of
Directors. In the event of the absence of the Secretary or his incapacity
or inability to act, then any Assistant Secretary may perform any of the
duties and may exercise any of the powers of the Secretary.
(c) In no case shall the Secretary or any Assistant Secretary,
without the express authorization and direction of the Board of Directors,
have any responsibility for, or any duty or authority with respect to, the
withholding or payment of any federal, state or local taxes of the
Corporation, or the preparation or filing of any tax return.
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ARTICLE V
CAPITAL STOCK
Section 1. Stock Certificates.
(a) Every holder of stock in the Corporation shall be entitled
to have a certificate signed in the name of the Corporation by the Chairman
or the President or the Vice Chairman or a Vice President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, certifying the number of shares owned by him.
(b) If such a certificate is countersigned by a transfer agent
other than the Corporation or its employee, or by a registrar other than
the Corporation or its employee, the signatures of the officers of the
Corporation may be facsimiles and, if permitted by Georgia law, any other
signature on the certificate may be a facsimile.
(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issue.
(d) Certificates of stock shall be issued in such form, not
inconsistent with the Articles of Incorporation and the Code, as shall be
approved by the Board of Directors. They shall be numbered and registered
in the order in which they are issued. No certificate shall be issued until
fully paid.
Section 2. Record Ownership. A record of the name and address of the
holder of each certificate, the number of shares represented thereby, and the
date of issue thereof shall be made on the Corporation's books. The Corporation
shall be entitled to treat the holder of record of any share of stock as the
holder in fact thereof, and accordingly shall not be bound to recognize any
equitable or other claim to or interest in any share on the part of any other
person, whether or not it shall have express or other notice thereof, except as
required by the laws of Georgia.
Section 3. Transfer of Record Ownership. Transfers of stock shall be
made on the books of the Corporation only by direction of the person named in
the certificate or his attorney, lawfully constituted in writing, and only upon
the surrender of the certificate therefor and a written assignment of the
shares evidenced thereby. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and transferee request the Corporation to do so.
Notwithstanding the foregoing, the Corporation has no duty to register the
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transfer of a share unless: (a) the certificate representing that share has been
endorsed by the appropriate person or persons; (b) reasonable assurance has been
given that the endorsement or affidavit (in the case of a lost, stolen, or
destroyed certificate) is genuine and effective; (c) the Corporation either has
no duty to inquire into adverse claims or has discharged that duty; (d) the
requirements of any applicable law relating to the collection of taxes for the
proposed transfer have been met; and (e) the transfer is in fact rightful or is
to a bona fide purchaser.
Section 4. Lost, Stolen or Destroyed Certificates. Certificates
representing shares of the stock of the Corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time may
authorize.
Section 5. Transfer Agent, Registrar, Rules Respecting Certificates. The
Corporation shall maintain one or more transfer offices or agencies where stock
of the Corporation shall be transferable. The Corporation shall also maintain
one or more registry offices where such stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
Section 6. Fixing Record Date for Determination of Stockholders of Record.
The Board of Directors may fix in advance a date as the record date for the
purpose of determining the stockholders entitled to notice of, or to vote at,
any meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of the
stockholders for the purpose of any other lawful action. Such record date in any
case shall not be more than seventy days before the date of a meeting of the
stockholders, or any other action requiring such determination of the
stockholders. 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 unless the Board of Directors fixes a new record date, which it must do
if the meeting is adjourned to a date more than 120 days after the date fixed
for the original meeting. If the Board of Directors does not fix a future date
as a record date, the Corporation shall determine the record date in accordance
with the Code.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
Section 1. Voting. Unless the Board of Directors shall otherwise order, the
Chairman, the Vice Chairman, the President, any Vice President or the Treasurer
shall have full power and authority on behalf of the Corporation to attend, act
and vote at any meeting of the stockholders of any corporation in which the
Corporation may hold stock and at such meeting to exercise any or all
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rights and powers incident to the ownership of such stock, and to execute on
behalf of the Corporation a proxy or proxies empowering another or others to act
as aforesaid. The Board of Directors from time to time may confer like powers
upon any other person or persons.
Section 2. General Authorization to Transfer Securities Held by the
Corporation.
(a) Any of the following officers, to-wit: the Chairman, the
President, any Vice President, the Treasurer or the Secretary of the
Corporation shall be and are hereby authorized and empowered to transfer,
convert, endorse, sell, assign, set over and deliver any and all shares of
stock, bonds, debentures, notes, subscription warrants, stock purchase
warrants, evidences of indebtedness, or other securities now or hereafter
standing in the name of or owned by the Corporation, and to make, execute
and deliver under the seal of the Corporation any and all written
instruments of assignment and transfer necessary or proper to effectuate
the authority hereby conferred.
(b) Whenever there shall be annexed to any instrument of assignment
and transfer executed, pursuant to and in accordance with the foregoing
paragraph (a), a certificate of the Secretary or an Assistant Secretary of
the Corporation in office at the date of such certificate setting forth the
provisions hereof and stating that they are in full force and effect and
setting forth the names of persons who are then officers of the
Corporation, then all persons to whom such instrument and annexed
certificate shall thereafter come shall be entitled, without further
inquiry or investigation and regardless of the date of such certificate, to
assume and to act in reliance upon the assumption that the shares of stock
or other securities named in such instrument were theretofore duly and
properly transferred, endorsed, sold, assigned, set over and delivered by
the Corporation, and that with respect to such securities the authority of
these provisions of the By-laws and of such officers is still in full force
and effect.
ARTICLE VII
DIVIDENDS
Section 1. Declaration of 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 Articles of
Incorporation and in accordance with the Code.
Section 2. Record Date. The Board of Directors may fix a future date as the
record date in order to determine shareholders entitled to a distribution (other
than one involving a purchase, redemption, or other reacquisition of the
Corporation's shares). If the Board of Directors does not fix a future date as
the record date, the Corporation shall determine the record date in accordance
with the Code
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ARTICLE VIII
INDEMNIFICATION
Section 1. Definitions and References. Terms used in this Article shall
have the meanings assigned such terms in Part 5 of Article 8 of the Code.
Whenever in this provision reference is made to a specific section of the Code,
such reference shall be deemed to refer to such section as amended from time to
time or any successor provision.
Section 2. Indemnification of and Advancement of Expenses to Directors.
The Corporation shall indemnify and advance expenses to its directors to the
full extent and under the conditions that a Georgia corporation is permitted,
without shareholder approval, to indemnify and advance expenses to its directors
under Part 5 of Article 8 of the Code, as amended from time to time, other than
the provisions of Section 14-2-856 thereof.
Section 3. Indemnification of and Advancement of Expenses to Officers,
Employees and Agents. The Corporation shall indemnify and advance expenses to
its board-elected officers who are not directors (and may, if authorized for a
specific proceeding, indemnify and advance expenses to its other employees and
agents who are not board-elected officers or directors) to the same extent and
under the same conditions as to directors. No advancement or reimbursement of
expenses to officers, employees or agents in accordance with the foregoing
sentence shall be made unless the proposed indemnitee furnishes the Corporation
a written affirmation of his or her good faith belief that he or she has met the
applicable standard of conduct set forth in Section 14-2-851(a), and he or she
furnishes the Corporation a written undertaking, executed personally or on his
or her behalf, to repay any advances if it is ultimately determined that he or
she is not entitled to indemnification under this Article or Part 5 of Article 8
of the Code.
Section 4. Insurance. The Corporation may purchase and maintain insurance
on behalf of an individual who is a director, officer, employee or agent of the
Corporation or who, while a director, officer, employee or agent of the
Corporation, serves at the Corporation's request as a director, officer,
partner, trustee, employee or agent of another domestic or foreign Corporation,
partnership, joint venture, trust, employee benefit plan, or other entity
against liability asserted against or incurred by him or her in that capacity or
arising from his or her status as a director, officer, employee, or agent,
whether or not the Corporation would have power to indemnify or advance expenses
to him or her against the same liability under this Article or under Part 5 of
Article 8 of the Code.
Section 5. Contract Rights. The right to indemnification and advancement
of expenses conferred hereunder to directors and board-elected officers shall be
a contract right and shall not be affected adversely to any director or
board-elected officer by any amendment of these By-laws with respect to any
action or inaction occurring prior to such amendment; provided, however, that
this provision shall not confer upon any indemnitee or potential indemnitee (in
his
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or her capacity as such) the right to consent or object to any subsequent
amendment of these By-laws.
Section 6. Non-exclusivity, Etc. The rights of a director or officer
hereunder shall be in addition to any other rights with respect to
indemnification, advancement of expenses or otherwise that he or she may have
under contract or the Code or otherwise.
Section 7. Amendments. No amendment, modification or rescission of this
Article, or any provision hereof, the effect of which would diminish the rights
to indemnification or advancement of expenses as set forth herein shall be
effective as to any director or board-elected officer of the Corporation with
respect to any action taken or omitted by such person prior to such amendment,
modification or rescission.
Section 8. Conflicts with Code. To the extent that the provisions of
this Article are held to be inconsistent with the provisions of Part 5 of
Article 8 of the Code, such provisions of the Code shall govern.
Section 9. Severability. In the event that any of the provisions of
this Article (including any provision within a single section, subsection,
division or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, the remaining provisions of this
Article shall remain enforceable to the fullest extent permitted by law.
ARTICLE IX
GENERAL PROVISIONS
Section 1. Signatures of Officers. 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. The signature of any officer upon any of the foregoing instruments
may be a facsimile whenever authorized by the Board.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 3. Seal. Upon resolution of the Board of Directors, the
Corporation may elect to have a corporate seal. In such event, the corporate
seal shall have inscribed thereon the name of the Corporation, the year of its
incorporation and the words "Corporate Seal, Georgia". Said seal may be used for
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
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Section 4. Inspection of Records. The Board of Directors may determine
what corporate records, other than those specifically required by the Code to be
made open to inspection, will be made open to the right of inspection by the
shareholders. In addition, the Board of Directors may fix reasonable rules not
in conflict with the Code regarding the inspection of corporate records that are
required by the Code or are permitted by determination of the Board of Directors
to be made open to inspection. The right of inspection granted in Section
14-2-1602(c) of the Code is not available to any shareholder owning two percent
(2%) or less of the shares outstanding, unless the Board of Directors in its
discretion grants prior approval for the inspection to the shareholder.
Section 5. Conflict with Articles of Incorporation. In the event that
any provision of these By-laws conflicts with any provision of the Articles of
Incorporation, the provision in the Articles of Incorporation will govern.
ARTICLE X
WAIVER OF OR DISPENSING WITH NOTICE
Whenever any notice of the time, place or purpose of any meeting of the
stockholders, Directors or a committee is required to be given under the laws of
Georgia, the Articles of Incorporation or these By-laws, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the holding thereof, or actual attendance at the meeting in person, or
in the case of the stockholders, by his attorney-in-fact, shall be deemed
equivalent to the giving of such notice to such persons. No notice need be given
to any person with whom communication is made unlawful by any law of the United
States or any rule, regulation, proclamation or executive order issued under any
such law.
ARTICLE XI
AMENDMENT OF BY-LAWS
The Board of Directors may amend or repeal the By-laws or adopt new By-laws
unless the Articles of Incorporation or the Code reserves this power exclusively
to the shareholders or unless the shareholders in amending or repealing a
particular bylaw provide expressly that the Board of Directors may not amend or
repeal such bylaw. The shareholders may amend or repeal the By-laws or adopt new
By-laws even though the By-laws may also be amended or repealed by the Board of
Directors. In amending or repealing By-laws or adopting new By-laws, the Board
of Directors and the shareholders shall comply with any other applicable
provisions of the Code.
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