BYLAWS, AS AMENDED
OF
RUBY TUESDAY, INC.
As in effect June 30, 1998
[Revised to reflect (i) the change in name of Ruby Tuesday (Georgia), Inc.
to Ruby Tuesday, Inc. following and as a result of the merger of Ruby
Tuesday, Inc., a Delaware corporation, into Ruby Tuesday (Georgia), Inc.
effective March 9, 1996, (ii) the amendment to Section 7.1, to change the
Company's fiscal year end, approved by the Board of Directors on January
14, 1998, and (iii) the amendment to Section 2.2, to allow Shareholder
meetings to be held in either September or October, approved by the Board
of Directors on June 30, 1998.]
INDEX
Page
ARTICLE I OFFICES 1
ARTICLE II STOCKHOLDERS' MEETINGS 1
2.1 PLACE OF MEETINGS 1
2.2 ANNUAL MEETINGS 1
2.3 SPECIAL MEETINGS 1
2.4 MEETINGS WITHOUT NOTICE 1
2.5 VOTING 1
2.6 QUORUM 2
2.7 LIST OF STOCKHOLDERS 2
2.8 ACTION WITHOUT MEETING 2
ARTICLE III BOARD OF DIRECTORS 3
3.1 POWERS 3
3.2 NUMBER, QUALIFICATION AND TERM 3
3.3 COMPENSATION 3
3.4 MEETINGS AND QUORUM 4
3.5 EXECUTIVE COMMITTEE 4
3.6 OTHER COMMITTEES 4
3.7 CONFERENCE TELEPHONE MEETINGS 5
3.8 ACTION WITHOUT MEETING 5
ARTICLE IV OFFICERS 6
4.1 TITLES AND ELECTION 6
4.2 DUTIES 6
(a) Chairman of the Board of Directors 6
(b) Vice Chairman of the Board of Directors 6
(c) President 7
(d) Vice President 7
(e) Secretary 7
(f) Treasurer 7
4.3 Chief Executive Officer and Chief
Operating Officer 7
4.4 Chief Financial Officer and Chief
Accounting Officer 8
4.5 Delegation of Authority 8
4.6 Compensation 8
ARTICLE V RESIGNATIONS, VACANCIES AND REMOVALS 9
5.1 RESIGNATIONS 9
5.2 VACANCIES 9
(a) Directors 9
(b) Officers 8
5.3 REMOVALS 8
(a) Directors 8
(b) Officers 9
ARTICLE VI CAPITAL STOCK 10
6.1 CERTIFICATES OF STOCK 10
6.2 TRANSFER OF STOCK 10
6.3 STOCK TRANSFER RECORDS 9
6.4 RECORD DATES 9
6.5 LOST CERTIFICATES 11
ARTICLE VII FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC. 11
7.1 FISCAL YEAR 11
7.2 BANK DEPOSITS, CHECKS, ETC 11
ARTICLE VIII BOOKS AND RECORDS 10
8.1 PLACE OF KEEPING BOOKS 10
8.2 EXAMINATION OF BOOKS 10
ARTICLE IX NOTICES 12
9.1 REQUIREMENTS OF NOTICE 12
9.2 WAIVERS 12
ARTICLE X SEAL 11
ARTICLE XI POWERS OF ATTORNEY 11
ARTICLE XII INDEMNIFICATION OF DIRECTORS, OFFICERS,
AND OTHER PERSONS 13
12.1 INDEMNIFIED ACTIONS 13
12.2 INDEMNIFICATION AGAINST 13
12.3 ADVANCES OF EXPENSES 12
12.4 RIGHT OF AGENT TO INDEMNIFICATION UPON
APPLICATION; PROCEDURE UPON APPLICATION 12
12.5 OTHER RIGHTS AND REMEDIES 14
12.6 INSURANCE OF AGENTS 14
12.7 CERTAIN DEFINITIONS 14
12.8 INDEMNIFICATION AND INSURANCE OF OTHER
PERSONS 13
12.9 SURVIVAL OF INDEMNIFICATION 13
12.10 SAVINGS CLAUSE 13
ARTICLE XIII AMENDMENTS 15
RUBY TUESDAY, INC.
BYLAWS, AS AMENDED
ARTICLE I
OFFICES
The Corporation shall at all times maintain a registered office in
the State of Georgia and a registered agent at that address but may have
other offices located in or outside of the State of Georgia as the Board
of Directors may from time to time determine.
ARTICLE II
STOCKHOLDERS' MEETINGS
II.1 Place of Meetings. All meetings of stockholders shall be
held at such place or places in or outside of the State of Georgia as the
Board of Directors may from time to time determine or as may be
designated in the notice of meeting or waiver of notice thereof, subject
to any provisions of the laws of the State of Georgia.
II.2 Annual Meetings. The annual meeting of Shareholders shall
be held on such date in the month of September or October each year and
at such time as shall be determined by the Board of Directors from time
to time or with respect to any particular annual meeting for the purpose
of electing directors and transacting such other business as may come
properly before the meeting. Written notice of the date, time and place
of the annual meeting shall be given by mail to each stockholder entitled
to vote at his address as it appears on the records of the Corporation
not less than ten (10) nor more than sixty (60) days prior to the
scheduled date thereof, unless such notice is waived as provided by
Article IX of these Bylaws.
II.3 Special Meetings. A special meeting of stockholders may be
called at any time by the Board of Directors, the Chairman of the Board
of Directors or the President. Written notice of the time, place and
specific purposes of such meeting shall be given by mail to each
stockholder entitled to vote thereat at his address as it appears on the
records of the Corporation not less than ten (10) nor more than sixty
(60) days prior to the scheduled date thereof, unless such notice is
waived as provided in Article IX of these Bylaws.
II.4 Meetings Without Notice. Meetings of the stockholders may
be held at any time without notice when all the stockholders entitled to
vote thereat are present in person or by proxy.
II.5 Voting. At all meetings of stockholders, each stockholder
entitled to vote on the record date as determined under Article VI,
Section 6.4 of these Bylaws, or if not so determined, as prescribed under
the laws of the State of Georgia, shall be entitled to one vote for each
share of common stock, or such other number of votes prescribed in the
Articles of Incorporation for each share of stock other than common
stock, standing of record in his name, subject to any restrictions or
qualifications set forth in the Articles of Incorporation, and may vote
either in person or by proxy.
II.6 Quorum. At any meeting of stockholders, a majority of the
number of shares of stock outstanding and entitled to vote thereat,
present in person or by proxy, shall constitute a quorum, but a smaller
interest may adjourn any meeting from time to time, and the meeting may
be held as adjourned without further notice, subject to such limitation
as may be imposed under the laws of the State of Georgia. At any such
adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the originally scheduled
meeting.
When a quorum is present at any meeting, a majority of the number of
shares of stock entitled to vote present thereat shall decide any question
brought before such meeting, unless the question is one upon which a
different vote is required by express provision of the laws of the State
of Georgia, or the Articles of Incorporation or these Bylaws, in which
case such express provision shall govern.
II.7 List of Stockholders. At least one (1) day before every
meeting, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of and
the number of shares registered in the name of each stockholder, shall be
prepared by the Secretary or the transfer agent in charge of the stock
ledger of the Corporation. Such list shall be open for examination by
any stockholder at the time and place of the meeting. The stock ledger
shall be the only evidence as to who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or
by proxy at such meeting.
II.8 Action Without Meeting. Any action required by the laws of
the State of Georgia or the Articles of Incorporation to be taken at any
annual or special meeting of stockholders, or any action which may be
taken at any annual or special meeting of such 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 the
holders of outstanding shares of stock entitled to vote on such action.
ARTICLE III
BOARD OF DIRECTORS
III.1 Powers. The business and affairs of the Corporation shall
be carried on by or under the direction of the Board of Directors, which
shall have all the powers authorized by the laws of the State of Georgia,
subject to such limitations as may be provided by the Articles of
Incorporation or these Bylaws.
III.2 Number, Qualification and Term. The initial number of
directors shall be such as may be determined by the incorporator(s) and
thereafter the number of directors shall be not less than three (3) and
not more than twelve (12), the exact number within such minimum and
maximum limits to be fixed and determined from time to time by resolution
of a majority of the Board of Directors or by the affirmative vote of the
holders of at least 80% of all outstanding shares of capital stock
entitled to vote in the election of directors, voting together as a
single class, as provided in the Articles of Incorporation.
Directors shall be of full age, and no person shall be nominated for
the Board of Directors who shall have attained the age of seventy (70) on
or before the annual meeting of stockholders at which directors are
elected, provided, however, under special conditions in the best interests
of the Corporation, as determined by the Board of Directors or the
shareholders, a person may be nominated for the Board of Directors who has
attained the age of seventy (70) before such meeting. Directors need not
be residents of the State of Georgia.
The initial Board of Directors shall be elected by the incorporator.
Thereafter, Directors shall be elected at the annual meeting of
stockholders by a plurality of the votes cast at such election. Each
director shall serve until the election and qualification of his successor
or until his earlier death, resignation or removal as provided in the
Articles of Incorporation and these Bylaws. In case of an increase in the
number of directors between elections by the stockholders, the additional
directorships shall be considered vacancies and shall be filled in the
manner prescribed in Article V of these Bylaws.
The Board of Directors may, by majority vote, elect a Chairman of the
Board of Directors. The Chairman shall be a member of the Board and shall
preside at all meetings of the stockholders and of the Board of Directors
and shall have such other powers and perform such other duties as the
Board of Directors may prescribe from time to time.
III.3 Compensation. The Board of Directors, or a committee
thereof, may from time to time by resolution authorize the payment of
fees or other compensation to the directors for services as such to the
Corporation, including, but not limited to, fees for attendance at all
meetings of the Board of Directors or any committee thereof, and
determine the amount of such fees and compensation. Directors shall in
any event be paid their traveling expenses for attendance at all meetings
of the Board of Directors or any committee thereof. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor in
amounts authorized or otherwise approved from time to time by the Board
of Directors or a committee thereof.
III.4 Meetings and Quorum. Meetings of the Board of Directors
may be held either in or outside of the State of Georgia. A quorum shall
be one-third (1/3) of the number of directors then fixed in the manner
provided in Section 3.2 of this Article but not less than two (2)
directors. The act of a majority of the directors present at a meeting
at which there is a quorum shall be the act of the Board of Directors.
If a quorum is not present at any meeting, the Directors who are present
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is obtained, subject to such
limitation as may be imposed under the laws of the State of Georgia.
The Board of Directors shall, at the close of each annual meeting of
stockholders and without further notice other than these Bylaws, if a
quorum of directors is then present or as soon thereafter as may be
convenient, hold a regular meeting for the election of officers and the
transaction of any other business.
The Board of Directors may from time to time provide for the holding
of regular meetings with or without notice and may fix the times and
places at which such meetings are to be held. Meetings other than regular
meetings may be called at any time by the Chairman of the Board of
Directors or the President and must be called by the Chairman of the
Board, the President, the Secretary or an Assistant Secretary upon the
request of at least three (3) directors.
Notice of each meeting, other than a regular meeting (unless required
by the Board of Directors), shall be given to each director by mailing the
same to each director at his residence or business address at least two
(2) days before the meeting or by delivering the same to him personally or
by telephone, facsimile transmission or telegraph at least one (1) day
before the meeting unless, in case of exigency, the Chairman of the Board
of Directors, the President, the Secretary or an Assistant Secretary, as
the case may be, shall prescribe a shorter notice to be given personally
or by telephone, telegraph, cable or facsimile transmission to all or any
one or more of the directors at their respective residences or places of
business. Notice will be deemed to have been given at the time it is
mailed, postage-prepaid, or sent by telegraph, cable or facsimile
transmission, or given by telephone, as the case may be.
Notice of any meeting shall state the time and place of such meeting,
but need not state the purposes thereof unless otherwise required by the
laws of the State of Georgia, the Articles of Incorporation or the Board
of Directors.
III.5 Executive Committee. The Board of Directors, by
resolution adopted by a majority of the number of directors then fixed in
the manner provided in Section 3.2 of this Article, may provide for an
Executive Committee of three (3) or more directors and shall elect the
members thereof to serve during the pleasure of the Board of Directors.
The Executive Committee shall elect its own chairman, unless a chairman
has been designated by the Board of Directors. Special meetings of the
Executive Committee may be called by the chairman of the committee or by
the Board of Directors, and notice of meetings of the Executive Committee
shall be given by the chairman of the committee or by the Secretary, in
the manner provided in Section 3.4 of this Article for notice of meetings
of the Board of Directors.
The Board of Directors may at any time change the membership of the
Executive Committee, fill vacancies in it, designate alternate members to
replace any absent or disqualified members at any meeting of the Executive
Committee, or dissolve it.
During the intervals between the meetings of the Board of Directors,
the Executive Committee shall possess and may exercise any or all of the
powers of the Board of Directors in the management or direction of the
business and affairs of the Corporation to the extent authorized by
resolution adopted by a majority of the number of directors then fixed in
the manner provided in Section 3.2 of this Article, subject to such
limitations as may be imposed by the laws of the State of Georgia.
Except as inconsistent with these Bylaws or the resolution of the
Board of Directors from time to time, the Executive Committee may
determine its rules of procedure and the notice to be given of its
meeting, and it may appoint such sub-committees as it shall from time to
time deem necessary. A majority of the members of the Executive Committee
shall constitute a quorum. The Executive Committee shall keep minutes of
its meetings and shall report the same to the Board of Directors.
III.6 Other Committees. The Board of Directors may by
resolution provide for such other committees as it deems desirable and
may discontinue the same at its pleasure. Each such committee shall have
the powers and perform such duties, not inconsistent with law, as may be
assigned to it by the Board of Directors.
Each such committee shall elect its own chairman, unless a chairman
has been designated by the Board of Directors.
Except as inconsistent with these Bylaws or the resolution of the
Board of Directors from time to time, each such committee may determine
its rules of procedure and the notice to be given of its meeting, and it
may appoint such committees as it shall from time to time deem necessary.
Special meetings of any such committee may be called by the chairman of
that committee or by the Board of Directors, and notice of any meeting of
any such committee shall be given by the chairman of that committee or by
the Secretary in the manner provided in Section 3.4 of this Article for
notice of meetings of the Board of Directors. A majority of the members
of any such committee then in office shall constitute a quorum. Each such
committee shall keep minutes of its meetings and report the same to the
Board of Directors.
III.7 Conference Telephone Meetings. Any one or more members of
the Board of Directors or any committee thereof may participate in a
meeting by means of a conference telephone or similar communication
equipment by means of which all persons participating in the meeting can
hear each other, and such participation shall constitute presence in
person at such meeting.
III.8 Action Without Meeting. To the extent authorized by
Georgia law, any action required or permitted to be taken at any meeting
of the Board of Directors or any committee thereof may be taken without a
meeting if all members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of the Board of Director or
committee.
ARTICLE IV
OFFICERS
IV.1 Titles and Election. The officers of the Corporation shall
be the Chairman of the Board of Directors, the Vice Chairman of the Board
of Directors, the President, one or more Vice Presidents, the Secretary
and the Treasurer, who shall have such authority and perform such duties
as may be prescribed by the Board of Directors or as otherwise provided
in these Bylaws.
The Board of Directors, in its discretion, may also at any time elect
or appoint such other officers as it may deem advisable, each of whom
shall have such authority and shall perform such duties as may be
prescribed or determined from time to time by the Board of Directors or,
if not prescribed or determined by the Board of Directors, as the Chairman
of the Board, the President or the then senior executive officer may
prescribe or determine.
The Board of Directors may assign such additional titles and duties
to one or more of the officers as it shall deem appropriate.
Any person may hold more than one office if the duties can be
consistently performed by the same person.
The officers of the Corporation shall initially be elected as soon as
convenient by the Board of Directors and thereafter, in the absence of
earlier deaths, resignations or removals, shall be elected at the first
meeting of the Board of Directors following each annual meeting of
stockholders. Each officer shall hold office at the pleasure of the Board
of Directors except as may otherwise be approved by the Board of
Directors, or until his earlier resignation, removal or other termination
of his employment.
The Board of Directors may require any officer or other employee or
agent to give bond for the faithful performance of his duties in such form
and with such sureties as the Board may require.
IV.2 Duties. Subject to such extension, limitations, and other
provisions as the Board of Directors may from time to time prescribe or
determine, the following officers shall have the following powers and
duties:
(a) Chairman of the Board of Directors. The Chairman of the
Board of Directors shall be a director and, when present, shall preside
at all meetings of the stockholders and of the Board of Directors and
shall have such other powers and perform such other duties as the Board
of Directors may prescribe from time to time.
(b) Vice Chairman of the Board of Directors. The Vice Chairman
of the Board of Directors shall be a director and, in the absence of the
Chairman of the Board, shall preside at all meetings of the stockholders
and of the Board of Directors and shall have such other powers and
perform such other duties as the Board of Directors may prescribe from
time to time.
(c) President. The President shall exercise the powers and
authority and perform all of the duties commonly incident to his office
and shall perform such other duties as the Board of Directors shall
specify from time to time. In the absence or disability of the Chairman
of the Board, the President shall perform those duties of the Chairman of
the Board not assigned to the Vice-Chairman of the Board, unless
otherwise provided by the Board of Directors.
(d) Vice President. The Vice President or Vice Presidents shall
perform such duties and have such powers as may be assigned to them from
time to time by the Board of Directors, the Chairman of the Board or the
President. Any Vice President may have the title of Executive Vice
President, Senior Vice President, Assistant Vice President or such other
title deemed appropriate by the Board of Directors from time to time.
In the absence or disability of the President, the Vice Presidents in
order of seniority may, unless otherwise determined by the Board of
Directors or the Chairman of the Board, exercise the powers and perform
the duties pertaining to the office of the President.
(e) Secretary. The Secretary, or in his absence an Assistant
Secretary, shall keep the minutes of all meetings of stockholders and of
the Board of Directors and any committee thereof, cause all notices to be
duly given to and served on the stockholders and directors, attend to
such correspondence as may be assigned to him, keep or cause to be kept
in safe custody the seal and corporate records of the Corporation and
affix such seal to all such instruments properly executed as may require
it, have general charge of the stock transfer books of the Corporation
and shall in general perform all duties incident to his office, and shall
have such other duties and powers as may be prescribed or determined from
time to time by the Board of Directors, the Chairman of the Board or the
President.
In the absence or disability of the Secretary, the Assistant
Secretary, or if there he more than one, the Assistant Secretaries in the
order determined by the Board of Directors, or if no such determination
has been made, in the order of their election, shall perform the duties
and exercise the powers of the Secretary. Each Assistant Secretary also
shall perform such other duties and have such other powers as may be
assigned to him from time to time by the Board of Directors, the Chairman
of the Board or the President.
(f) Treasurer. The Treasurer shall have the care and custody of
and be responsible for the monies, funds, securities, financial records
and other valuable papers of the Corporation (other than his own bond, if
any, which shall be in the custody of the President); shall keep full and
accurate accounts of receipts and disbursements and shall render account
thereof whenever required by the Board of Directors, the Chairman of the
Board or the President; shall have and perform, under the supervision of
the Board of Directors, the Chairman of the Board and the President all
the powers and duties commonly incident to his office; shall deposit or
cause to be deposited all funds of the Corporation in such bank or banks,
trust company or trust companies, or with such firm or firms doing a
banking business as may be designated by the Board of Directors, the
Chairman of the Board or the President; may endorse for deposit or
collection all checks, notes, and similar instruments payable to the
Corporation or to its order; and shall have such other duties as may be
prescribed or determined from time to time by the Board of Directors, the
Chairman of the Board or the President.
In the absence or disability of the Treasurer, the Assistant
Treasurer, or if there be more than one, the Assistant Treasurers in the
order determined by the Board of Directors, or if no such determination
has been made, in the order of their election, shall perform the duties
and exercise the powers of the Treasurer and such other duties as may be
assigned to them from time to time by the Board of Directors, the Chairman
of the Board or the President.
IV.3 Chief Executive Officer and Chief Operating Officer. In
its discretion, the Board of Directors may designate either the Chairman
of the Board or the President to serve as the Chief Executive Officer or
the Chief Operating Officer, or both, of the Corporation.
The Chief Executive Officer shall, subject to the direction and
control of the Board of Directors, have general supervision, direction and
control of the business and officers of the Corporation and have the
powers and duties otherwise customary to the office.
The Chief Operating Officer shall, subject to the direction and
control of the Board of Directors, have general supervision, management
and control of the operations and personnel of the Corporation and the
powers and duties otherwise customary to the office.
IV.4 Chief Financial Officer and Chief Accounting Officer. In
its discretion, the Board of Directors may at any time designate any
officer as the Chief Financial Officer, the Chief Accounting Officer, or
both, of the Corporation.
IV.5 Delegation of Authority. The Board of Directors may at any
time delegate the powers and duties of any officer for the time being to
any other officer, director or employee.
IV.6 Compensation. The compensation of the officers shall be
fixed by the Board of Directors or a committee thereof and the fact that
any officer is a director shall not preclude him from receiving
compensation or from voting upon the resolution providing the same.
ARTICLE V
RESIGNATIONS, VACANCIES AND REMOVALS
V.1 Resignations. Any director or officer may resign at any
time by giving written notice thereof to the Board of Directors, the
Chairman of the Board, the President or the Secretary. Any such
resignation shall take effect at the time specified therein or, if the
time be not specified, upon receipt thereof; and unless otherwise
specified therein, the acceptance of any resignation shall not be
necessary to make it effective.
V.2 Vacancies.
(a) Directors. Any vacancy in the Board of Directors caused by
reason of death, incapacity, resignation, removal, increase in the
authorized number of directors or otherwise may be filled by a majority
vote of the remaining directors though less than a quorum, or by the sole
remaining director.
Any director so elected by the Board of Directors shall serve until
the next annual meeting of stockholders at which directors of the class in
which such director serves are to be elected and until the election and
qualification of his successor or until his earlier death, resignation or
removal as provided in the Articles of Incorporation or these Bylaws. The
Board of Directors also may reduce their authorized number by the number
of vacancies in the Board, provided such reduction does not reduce the
Board to less than the minimum authorized by the laws of the State of
Georgia or the Articles of Incorporation, or to less than the number of
directors then in office.
(b) Officers. The Board of Directors may at any time or from
time to time fill any vacancy among the officers of the Corporation.
V.3 Removals.
(a) Directors. The entire Board of Directors, or any individual
member thereof, may be removed only as provided in the Articles of
Incorporation.
(b) Officers. Subject to the provisions of any validly existing
agreement, the Board of Directors may at any meeting remove from office
any officer, with or without cause, and may elect or appoint a successor.
ARTICLE VI
CAPITAL STOCK
VI.1 Certificates of Stock. Every stockholder shall be entitled
to a certificate or certificates for shares of the capital stock of the
Corporation in such form as may be prescribed or authorized by the Board
of Directors, duly numbered and setting forth the number and kind of
shares represented thereby. Such certificates shall be signed by the
Chairman of the Board, the Vice-Chairman of the Board, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary. If and to the extent permitted by
Georgia law, any or all of such signatures may be in facsimile if the
certificate is countersigned by a transfer agent or registered by a
registrar other than the Corporation itself or an employee of the
Corporation. The transfer agent or registrar may sign either manually or
by facsimile.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on a certificate has ceased to
be such officer, transfer agent or registrar before the certificate has
been issued, such certificate may nevertheless be issued and delivered by
the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
VI.2 Transfer of Stock. Shares of the capital stock of the
Corporation shall be transferable only upon the books of the Corporation
upon the surrender of the certificate or certificates properly assigned
and endorsed for transfer.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar and one or more co-registrars and may
make or authorize such agents to make all such rules and regulations
deemed expedient concerning the issue, transfer and registration of shares
of stock. If the Corporation has a transfer agent or registrar acting on
its behalf, the signature of any officer or representative thereof may be
in facsimile.
VI.3 Stock Transfer Records. Unless the Corporation has a stock
transfer agent to keep such records, the Secretary shall keep a stock
book or books containing the names, alphabetically arranged, with the
address of every stockholder showing the number of shares of each kind,
class or series of stock held of record.
The person in whose name shares of stock stand on the books of the
Corporation shall be deemed by the Corporation to be the owner thereof for
all purposes.
VI.4 Record Dates. 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 shall fix in advance a record date which, in the case
of a meeting, shall not be less than ten (10) nor more than sixty (60)
days prior to the scheduled date of such meeting and which, in the case
of any other action, shall be not more than sixty (60) days prior to any
such action permitted by the laws of the State of Georgia.
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.
VI.5 Lost Certificates. In case of loss, mutilation or
destruction of a stock certificate, a duplicate certificate may be issued
upon such terms as may be determined or authorized by the Board of
Directors, the Chairman of the Board or the President.
ARTICLE VII
FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC.
VII.1 Fiscal Year. The fiscal year of the Corporation shall end
on the first Sunday following May 30 each year.
VII.2 Bank Deposits, Checks, Etc The funds of the Corporation
shall be deposited in the name of the Corporation or of any division
thereof in such banks or trust companies in the United States or
elsewhere as may be designated from time to time by the Board of
Directors, or by such officer or officers as the Board of Directors may
authorize to make such designations.
All checks, drafts or other orders for the withdrawal of funds from
any bank account shall be signed by such person or persons as may be
designated from time to time by the Board of Directors. The signatures on
checks, drafts or other orders for the withdrawal of funds may be in
facsimile if authorized in the designation.
ARTICLE VIII
BOOKS AND RECORDS
VIII.1 Place of Keeping Books. The books and records of the
Corporation may be kept in or outside of the State of Georgia, as the
Board of Directors may from time to time determine.
VIII.2 Examination of Books. Except as may otherwise be
provided by the laws of the State of Georgia, the Articles of
Incorporation or these Bylaws, the Board of Directors shall have power to
determine from time to time whether and to what extent and at what times
and places and under what conditions any of the accounts, records and
books of the Corporation are to be open to the inspection of any
stockholder. No stockholder shall have any right to inspect any account
or book or document of the Corporation except as prescribed by law or
authorized by express resolution of the stockholders or of the Board of
Directors.
ARTICLE IX
NOTICES
IX.1 Requirements of Notice. Whenever notice is required to be
given by statute, the Articles of Incorporation or these Bylaws, it shall
not mean personal notice unless so specified, but such notice may be
given in writing by depositing the same in a post office, letter box, or
mail chute postage prepaid and addressed to the person to whom such
notice is directed at the address of such person on the records of the
Corporation, and such notice shall be deemed given at the time when the
same shall be thus mailed.
IX.2 Waivers. Any stockholder, director or officer may, in
writing delivered via first class mail, hand-delivery or facsimile
transmission or by telegram or cable, at any time waive any notice or
other formality required by statute, the Articles of Incorporation or
these Bylaws. Such waiver of notice, whether given before or after any
meeting or action, shall be deemed equivalent to notice. Presence of a
stockholder either in person or by proxy at any meeting of stockholders
and presence of any director at any meeting of the Board of Directors
shall constitute a waiver of such notice as may be required by any
statute, the Articles of Incorporation or these Bylaws.
ARTICLE X
SEAL
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall determine from time to time and may consist of a
facsimile thereof or the words "Corporate Seal" or "Seal" enclosed in
parentheses.
In the absence of the Secretary, any other officer of the Corporation
may affix and attest the seal of the Corporation to any instrument
requiring it, unless otherwise provided by resolution of the Board of
Directors.
ARTICLE XI
POWERS OF ATTORNEY
The Board of Directors may authorize one or more of the officers of
the Corporation to execute powers of attorney delegating to named
representatives or agents power to represent or act on behalf of the
Corporation, with or without power of substitution.
In the absence of any action by the Board of Directors, any officer
of the Corporation may execute for and on behalf of the Corporation
waivers of notice of meetings of stockholders and proxies for such
meetings of any company in which the Corporation may hold voting
securities.
ARTICLE XII
INDEMNIFICATION OF DIRECTORS, OFFICERS, AND OTHER PERSONS
XII.1 Indemnified 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, and whether external or internal to the
Corporation (including a judicial action or suit brought by or in the
right of the Corporation), by reason of the fact that he 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 (all
such persons being referred to hereafter as an "Agent"), 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, except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person
shall have been adjudged liable to the Corporation or subjected to
injunctive relief in favor of the Corporation: (a) for any appropriation,
in violation of his duties, of any business opportunity of the
Corporation; (b) for acts or omissions which involve intentional
misconduct or a knowing violation of law; (c) for unlawful distributions
pursuant to Section 14-2-832 of the Georgia Business Corporation Code; or
(d) for any transaction from which he received an improper personal
benefit.
XII.2 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article XII, to the extent
that an Agent has been successful on the merits or otherwise in defense
of any proceeding or in defense of any claim, issue or matter therein,
such Agent shall be indemnified against all expenses incurred in
connection therewith.
XII.3 Advances of Expenses. Expenses incurred in defending or
investigating any action, suit, proceeding or investigation shall be paid
by the Corporation in advance of the final disposition of such matter, if
the Agent shall provide the Corporation with (i) a written affirmation of
his good faith belief that his conduct does not constitute behavior of
the kind described in any of the clauses (a) through (d) of Section 12.1,
and (ii) a written undertaking, executed personally or on his behalf, to
repay any advances if it is ultimately determined that he is not entitled
to indemnification under Section 12.1.
XII.4 Right of Agent to Indemnification Upon Application;
Procedure Upon Application. Any indemnification under Sections 12.1 and
12.2 hereof or advance under Section 12.3 hereof shall be made promptly
and in any event within forty-five (45) days after receipt of the written
request of the Agent, unless the Agent is not entitled to such
indemnification or advance pursuant to the terms of such sections. The
right to indemnification or advances as granted by this Article XIl shall
be enforceable by the Agent in any court of competent jurisdiction if the
Corporation denies the claim, in whole or in part, or if no disposition
of such claim is made within forty-five (45) days of the Agent's request.
The Agent's expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any
such proceeding shall also be indemnified by the Corporation.
XII.5 Other Rights and Remedies. The indemnification provided
by this Article XII shall not be deemed exclusive of any other rights to
which an Agent seeking indemnification may be entitled under any
agreement, vote of stockholders or disinterested directors, court order
or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. It is the policy of the
Corporation that indemnification of Agents shall be made to the fullest
extent permitted by law. All rights to indemnification under this
Article XII shall be deemed to be provided by a contract between the
Corporation and the Agent who serves in such capacity at any time while
these Bylaws and other relevant provisions of the Georgia Business
Corporation Code and other applicable law, if any, are in effect. Any
repeal or modification thereof shall not affect any rights or obligations
then existing.
XII.6 Insurance of Agents. To the extent permitted by Georgia
law, the Corporation may purchase and maintain insurance on behalf of any
person who is or was an Agent 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 Article XII.
XII.7 Certain Definitions. For purposes of this Article XII,
references to the "Corporation" shall include, in addition to the
resulting or surviving 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 to indemnify its directors, officers and 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 this Article XII with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued; references to "other enterprise" shall include employee
benefit plans; references to "fines" shall include any excise taxes
assessed a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include
any service as a director or officer of the Corporation which imposes
duties on, or involves services by, such director or officer with respect
to any employee benefit plan, its participants, or beneficiaries.
XII.8 Indemnification and Insurance of Other Persons. The
provisions of this Article XII shall not be deemed to preclude the
Corporation from either indemnifying or purchasing and maintaining
insurance on behalf of, or both, any person who is not an Agent but whom
the Corporation has the power or obligation to indemnify or insure under
the provisions of the Georgia Business Corporation Code or otherwise.
The Corporation may, in its sole discretion, indemnify or insure, or
both, an employee, trustee or other agent as permitted by the Georgia
Business Corporation Code. The Corporation shall indemnify or insure any
employee, trustee or other agent where required by law.
XII.9 Survival of Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Article XII shall continue as to a person who has ceased to be an Agent
and shall inure to the benefit of the heirs, executors and administrators
of such Agent.
XII.10 Savings Clause. If this Article XII or any portion
thereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each
Agent against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, and
whether internal or external, including a grand jury proceeding and an
action or suit brought by or in the right of the Corporation, to the full
extent permitted by any applicable portion of this Article XII that shall
not have been invalidated or by any other applicable law.
ARTICLE XIII
AMENDMENTS
Unless otherwise provided by law, the Articles of Incorporation or
another provision of these Bylaws, these Bylaws may be amended or repealed
either:
(a) at any meeting of stockholders at which a quorum is present
by vote of the holders of a majority of the number of shares of stock
entitled to vote present in person or by proxy at such meeting as provided
in Article II, Sections 2.4 and 2.5 of these Bylaws, or
(b) at any meeting of the Board of Directors by a majority vote
of the directors then in office; provided the notice of such meeting of
stockholders or directors or waiver of notice thereof contains a statement
of the substance of the proposed amendment or repeal.