Exhibit 3.2
Amended as of
March 17, 1997
AMENDED AND RESTATED BYLAWS
OF
SUBURBAN LODGES OF AMERICA, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The corporation shall
maintain at all times a registered office in the State of Georgia
and a registered agent at that office.
Section 2. Other Offices. The corporation may also
have offices at such other places both within and without the
State of Georgia as the business of the corporation may require
or make desirable.
ARTICLE II
SHAREHOLDERS MEETINGS
Section 1. Regular Meetings. The regular meeting of
the shareholders of the corporation shall be held at the
principal office of the corporation or at such other place in the
United States as may be determined by the board of directors, at
11:00 a.m. on the third Tuesday of the fourth month following the
close of each fiscal year, or at such other date and time as
shall be determined by the board of directors, for the purpose of
electing directors and transacting such other business as may
properly be brought before the meeting.
Section 2. Special Meetings. (a) Special meetings of
shareholders of one or more classes or series of the
corporation's shares shall be called by the President or the
Secretary (i) when so directed by the Chairman or by a majority
of the entire board of directors; or (ii) upon the demand of
holders of at least forty percent (40%) of all votes entitled to
be cast on each issue to be considered at a proposed special
meeting of the shareholders. The business that may be transacted
at any special meeting of shareholders shall be limited to that
proposed in the notice of the special meeting given in accordance
with Section 3 (including related or incidental matters that may
be necessary or appropriate to effectuate the proposed business).
(b) Promptly after the date of receipt of written
shareholder demands (the "Demand Date") purporting to comply with
the provisions of the Georgia Business Corporation Code, as
amended from time to time (the "Code"), and these Bylaws, the
President or the Secretary of the corporation shall determine the
validity of the demand. If the demand is valid, the President or
the Secretary of the corporation shall call a special
shareholders meeting by mailing notice within 20 days of the
Demand Date.
(c) The time, date and place of any special
shareholders meeting shall be determined by the board of
directors and shall be set forth in the notice of meeting.
Section 3. Notice of Meetings. (a) Unless otherwise
required by law or specified in the Articles of Incorporation or
these Bylaws, written notice of every meeting of shareholders,
stating the place, date and hour of the meeting, shall be given,
in a manner permitted by applicable law, to each shareholder of
record entitled to vote at such meeting not less than 10 nor more
than 60 days prior to the date of the meeting.
(b) A shareholder may waive any notice required by the
Code, the Articles of Incorporation, or these Bylaws, before or
after the date and time of the matter to which the notice
relates, by delivering to the corporation a written waiver of
notice signed by the shareholder entitled to the notice. In
addition, a shareholder's attendance at a meeting shall be (i) a
waiver of objection to lack of notice or defective notice of the
meeting unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business at the
meeting; and (ii) a waiver of objection to consideration of a
particular matter at the meeting that is not within the purpose
stated in the meeting notice, unless the shareholder objects to
considering the matter when it is presented. Except as otherwise
required by the Code, neither the purpose of nor the business
transacted at the meeting need be specified in any waiver.
Section 4. Quorum. At all meetings of shareholders,
any Voting Group entitled to vote on a matter may take action on
the matter only if a quorum of that Voting Group exists at the
meeting, and if a quorum exists, the Voting Group may take action
on the matter notwithstanding the absence of a quorum of any
other Voting Group that may be entitled to vote separately on the
matter. Unless the Articles of Incorporation, these Bylaws or
the Code provides otherwise, the presence (in person or by proxy)
of shares representing a majority of votes entitled to be cast on
a matter by a Voting Group shall constitute a quorum of the
Voting Group with regard to that matter. Once a share is present
at any meeting other than solely to object to holding the meeting
or transacting business at the meeting, the share shall be deemed
present for quorum purposes for the remainder of the meeting and
for any adjournments of that meeting, unless a new record date
for the adjourned meeting is or must be set pursuant to Article
VI, Section 4(a) of these Bylaws. If a quorum is not present at
any meeting of the shareholders, the holders of a majority of the
shares present (in person or represented by proxy) and entitled
to vote thereat may 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 original meeting.
Section 5. Voting. Unless otherwise provided by law,
the Articles of Incorporation, or board resolutions setting forth
the preferences and other rights, restrictions or limitations of
any class or series of preferred stock, each outstanding share,
regardless of class or series, shall be entitled to one vote on
each matter voted on at a shareholders meeting, and each class or
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series of the corporation's shares entitled to vote generally on
a matter shall for that purpose be considered a single voting
group (a "Voting Group"). Unless the Articles of Incorporation,
these Bylaws, a resolution of the board of directors or
applicable law require a different vote, action on a matter
presented for consideration at a meeting where a quorum is
present, shall be approved as follows: (a) directors shall be
elected by a majority of the votes cast by the shares entitled to
vote in the election at a meeting at which a quorum is present;
and (b) all other matters shall be approved if the votes cast
within the applicable Voting Group favoring the action exceed the
votes cast opposing the action, unless the Articles of
Incorporation, a provision of these Bylaws that has been adopted
pursuant to Section 14-2-1021 of the Code (or any successor
provision), or applicable law requires a greater number of
affirmative votes. If either the Articles of Incorporation or
the Code requires separate voting by two or more Voting Groups on
a matter, action on that matter is taken only when voted upon by
each such Voting Group separately.
A shareholder may vote his shares in person or by
proxy. A shareholder may appoint a proxy to vote or otherwise
act for him by signing an appointment form. An appointment of a
proxy is valid for eleven months unless a shorter or longer
period is expressly provided in the appointment form.
Any proxy given pursuant to a solicitation with respect
to any meeting of the shareholders may be revoked by any
shareholder who attends the meeting and gives written notice of
his or her election to vote in person, without compliance with
any other formalities. In addition, any proxy given pursuant to
a solicitation with respect to any meeting of the shareholders
may be revoked prior to the meeting by delivering an instrument
revoking it or a duly executed proxy bearing a later date to the
Secretary of the Company.
Section 6. Shareholder Proposals. (a) No shareholder
proposal or resolution (each a "Shareholder Proposal"), whether
purporting to be binding or non-binding on the corporation or its
board of directors, shall be considered at any annual or special
meeting of the shareholders unless:
(i) If such Shareholder Proposal relates solely
to the nomination and election of directors, it
satisfies the requirements of Article III, Section
3; or
(ii) With respect to any Shareholder Proposal to
be considered at a special shareholders meeting
called pursuant to Article II, Section 2, subsection
(a)(i), the shareholder(s) proposing to make such
Shareholder Proposal provided the information set
forth in subsection (b) of this Section 6 to the
board of directors within 14 days after the date of
the notice calling such special shareholders meeting
(or if less than 21 days notice of the meeting is
given to shareholders, such information was
delivered to the President not later than the close
of the seventh day following the date on which the
notice of the shareholders' meeting was mailed); or
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(iii) With respect to any Shareholder Proposal to
be considered at a special shareholders meeting
called pursuant to Article II, Section 2, subsection
(a)(ii), the shareholder(s) proposing to make such
Shareholder Proposal provided the information set
forth in subsection (b) of this Section 6 to the
board of directors concurrently with the filing of
the initial demand by shareholders relating to such
special shareholders meeting; or
(iv) With respect to any Shareholder Proposal to
be considered at any regular meeting of
shareholders, other than as described in clause (i)
hereof, the shareholder(s) proposing to make such
Shareholder Proposal provided the information set
forth in subsection (b) of this Section 6 to the
board of directors between 90 to 120 days prior to
the regular meeting at which they wish the
Shareholder Proposal to be considered.
For the purposes of determining whether information was provided
at the times or within the specified periods, the date of the
applicable meeting shall be as set forth in the notice of meeting
given by the corporation, and such times and periods will be
determined without regard to any postponements, deferrals or
adjournments of such meeting to a later date.
(b) The following information must be provided to
the board of directors, within or at the times specified in
subsection (a) above, in order for the Shareholder Proposal to be
considered at the applicable shareholders meeting:
(i) The Shareholder Proposal, as it will be
proposed, in full text and in writing;
(ii) The purpose(s) for which the Shareholder
Proposal is desired and the specific meeting at
which such proposal is proposed to be considered;
(iii) The name(s), address(es), and number of
shares held of record by the shareholder(s) making
such Shareholder Proposal (or owned beneficially and
represented by a nominee certificate on file with
the corporation);
(iv) The number of shares that have been solicited
with regard to the Shareholder Proposal and the
number of shares the holders of which have agreed
(in writing or otherwise) to vote in any specific
fashion on said Shareholder Proposal; and
(v) A written statement by said shareholder(s)
that they intend to continue ownership of such
voting shares through the date of the meeting at
which said Shareholder Proposal is proposed to be
considered.
(c) Failure to fully comply with the provisions
of this Section 6 shall bar discussion of and voting on the
Shareholder Proposal at the applicable regular or special
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shareholders meeting. Any Shareholder Proposal that does not
comply with the requirements of this Section 6 shall be
disregarded by the chairman of the meeting, and any votes cast in
support of the Shareholder Proposal, unless the Shareholder
Proposal has been validly submitted by another shareholder, shall
be disregarded by the chairman of such meeting.
(d) The provisions of this Section 6 shall be
read in accordance with and so as not to conflict with the rules
and regulations promulgated by the Securities and Exchange
Commission and any stock exchange or quotation system upon which
the corporation's shares are traded. Nothing in these Bylaws
shall be deemed to require the consideration at any meeting of
shareholders of any Shareholder Proposal that, pursuant to law,
the corporation may refuse to permit consideration thereof.
Section 7. List of Shareholders; Inspection of
Records. (a) The corporation shall keep at its registered office
or principal place of business, or at the office of its transfer
agent or registrar, a record of its shareholders, giving their
names and addresses and the number, class and series, if any, of
the shares held by each.
(b) Shareholders are entitled to inspect the
corporate records as and to the extent provided by the Code;
provided, however, that only shareholders owning more than two
percent (2%) of the outstanding shares of any class of the
corporation's stock shall be entitled to inspect (1) the minutes
from any board, board committee or shareholders meeting
(including any records of action taken thereby without a
meeting); (2) the accounting records of the corporation; or (3)
any record of the shareholders of the corporation.
ARTICLE III
DIRECTORS
Section 1. Powers. Except as otherwise provided by
any legal agreement among shareholders, the property, affairs and
business of the corporation shall be managed and directed by its
board of directors, which may exercise all powers of the
corporation and do all lawful acts and things which are not (by
law, by any legal agreement among shareholders, by the Articles
of Incorporation or by these Bylaws) directed or required to be
exercised or done by the shareholders.
Section 2. Number, Election and Term. (a) The number
of directors which shall constitute the whole board shall be not
less than two nor more than nine, the number thereof to be
determined from time to time by resolution of the board of
directors or the shareholders; provided, however, that no
decrease in the number of directors shall have the effect of
shortening the term of an incumbent director. Upon the closing of
the corporation's initial public offering of shares of its common
stock and the election of three additional directors concurrent
with such closing, the directors shall be classified with respect
to the time during which they shall severally hold office by
dividing them into three classes, as nearly equal in number as
possible, and Class 1 shall consist of one director; Class 2
shall consist of two directors; and Class 3 shall consist of two
directors, and with respect to the initial five person board,
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their terms shall be as follows: Class 1, one year; Class 2, two
years; and Class 3, three years. At each annual meeting of the
shareholders held thereafter, the successors to the class of
directors whose terms shall expire that year shall be elected to
hold office for a term of three years, so that the term of office
of one class of directors shall expire in each year. Any
increase in the number of directors following the establishment
of the staggered board of directors shall be apportioned among
the classes so as to make all classes as nearly equal in number
as possible. Except as hereinafter provided with respect to
filling vacancies on the board, the directors shall be elected by
the shareholders as provided in Article II hereof, and each
director elected shall hold office until his successor is elected
and qualified or until his earlier resignation, removal from
office, or death. Directors shall be natural persons who have
attained the age of 21 years, but need not be residents of the
State of Georgia or shareholders of the corporation. The board,
from time to time, may designate persons to act as advisory
directors.
(b) As long as any shares of the corporation's Common Stock
shall be quoted on the NASDAQ National Market, the board of
directors of the corporation shall ensure, and shall have all
powers necessary to ensure, that the membership of the board of
directors shall at all times include such number of "independent"
directors (as such term is defined in Part III, Paragraph 6(c) of
Schedule D to the Bylaws of the National Association of Security
Dealers, Inc. (the "NASD"), as the same may be amended from time
to time) as shall be required by the Bylaws of the NASD in order
for shares of the corporation's Common Stock to be eligible for
quotation on the NASDAQ National Market. In the event that the
shares of the corporation's Common Stock shall cease to be quoted
on the NASDAQ National Market and subsequently such shares are
listed or quoted on a national securities exchange or other
trading system, the board of directors of the corporation shall
ensure, and shall have all powers necessary to ensure, that the
membership of the board of directors shall at all times be
consistent with the applicable rules and regulations, if any, for
the corporation's Common Stock to be eligible for listing and
quotation on such exchange or other trading system.
Section 3. Nominations. (a) If any shareholder
intends to nominate or cause to be nominated any candidate for
election to the board of directors (other than any candidate to
be sponsored by and proposed at the instance of the management),
such shareholder shall notify the President by first class
registered mail sent not less than 14 nor more than 50 days
before the scheduled meeting of the shareholders at which
directors will be elected. However, if less than 21 days notice
of the meeting is given to shareholders, such nomination shall be
delivered or mailed to the President not later than the close of
the seventh day following the date on which the notice of the
shareholders' meeting was mailed. Such notification shall
contain the following information with respect to each nominee,
to the extent known to the shareholder giving such notification:
(1) Name, address and principal present
occupation;
(2) To the knowledge of the shareholder who
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proposed to make such nomination, the total number
of shares that may be voted for such proposed
nominee;
(3) The names and address of the shareholders who
propose to make such nomination, and the number of
shares of the corporation owned by each of such
shareholders; and
(4) The following additional information with
respect to each nominee: age, past employment,
education, beneficial ownership of shares in the
corporation, past and present financial standing,
criminal history (including any convictions,
indictments or settlements thereof), involvement in
any past or pending litigation or administrative
proceedings (including threatened involvement),
relationship to and agreements (whether or not in
writing) with the shareholder(s) (and their
relatives, subsidiaries and affiliates) intending to
make such nomination, past and present relationships
or dealings with the corporation or any of its
subsidiaries, affiliates, directors, officers or
agents, plans or ideas for managing the affairs of
the corporation (including, without limitation, any
termination of employees, any sales of corporate
assets, any proposed merger, business combination or
recapitalization involving the corporation, and any
proposed dissolution or liquidation of the
corporation), and all additional information
relating to such person that would be required to be
disclosed, or otherwise required, pursuant to
Sections 13 or 14 of the Securities Exchange Act of
1934, as amended, and the rules and regulations
promulgated thereunder (the "Exchange Act"), in
connection with any acquisition of shares by such
nominee or in connection with the solicitation of
proxies by such nominee for his election as a
director, regardless of the applicability of such
provisions of the Exchange Act.
(b) Any nominations not in accordance with the
provisions of this Section 3 may be disregarded by the chairman
of the meeting, and upon instruction by the chairman, votes cast
for each such nominee shall be disregarded. In the event,
however, that a person should be nominated by more than one
shareholder, and if one such nomination complies with the
provisions of this Section 3, such nomination shall be honored,
and all shares voted for such nominee shall be counted.
Section 4. Vacancies. (a) Subject to subsections 4(b)
and 4(c), vacancies, including vacancies resulting from any
increase in the number of directors and vacancies resulting from
removal from office by the shareholders, may be filled only by
the board of directors or by a majority of the directors then in
office (if the directors remaining in office constitute less than
a quorum), and a director so chosen shall hold office until the
next annual election and until his successor is duly elected and
qualified, unless sooner displaced; provided, however, that if
there are no directors in office, then vacancies shall be filled
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through election by the shareholders.
(b) If any vacant office described in subsection 4(a)
was held by a director elected by a particular Voting Group, only
the remaining directors elected by that Voting Group shall be
entitled to fill the vacancy; provided, however, that if the
vacant office was held by a director elected by a particular
Voting Group and there is no remaining director elected by that
Voting Group, the other remaining directors or director (elected
by another Voting Group or Groups) may fill the vacancy.
(c) If any vacant office described in subsection 4(a)
was held by an independent director (as such term is defined in
Part III, Paragraph 6(c) of Schedule D to the Bylaws of the
National Association of Security Dealers, Inc. (the "NASD"), as
the same may be amended from time to time), such vacancy shall be
filled by the affirmative vote of a majority of the remaining
independent directors.
Section 5. Meetings and Notice. (a) The board of
directors of the corporation may hold meetings, both regular and
special, either within or without the State of Georgia. 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. Special meetings of the board may be
called by the Chairman or by any two directors upon two day's
notice given in a manner permitted by law. Such notice shall
state a reasonable time, date and place of meeting, but the
purpose need not be stated therein. Unless otherwise provided by
law, the Articles of Incorporation or these Bylaws, directors may
participate in a meeting of the board, or any committee thereof,
by means of conference telephone or similar communications
equipment whereby all persons participating in the meeting can
hear each other. Participation in the meeting shall constitute
presence in person.
(b) A director may waive any notice required by the
Code, the Articles of Incorporation, or these Bylaws before or
after the date and time of the matter to which the notice
relates, by a written waiver signed by the director and delivered
to the corporation for inclusion in the minutes or filing with
the corporate records. Attendance by a director at a meeting
shall constitute waiver of notice of the meeting, except where a
director at the beginning of the meeting (or promptly upon his or
her arrival) objects to holding the meeting or to transacting
business at the meeting and does not thereafter vote for or
assent to action taken at the meeting.
Section 6. Quorum. At all meetings of the board a
majority of directors shall constitute a quorum for the action of
business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the
board, except as may be otherwise specifically provided by law,
by the Articles of Incorporation, by these Bylaws or by contract.
If a quorum shall not be present at any meeting of the board, 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.
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Section 7. Consent of Directors. Unless otherwise
restricted by the Articles of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the
board of directors or of any committee thereof may be taken
without a meeting if the action is evidenced by one or more
written consents describing the action taken and signed by each
director or committee member, and the writing or writings are
delivered to the corporation for inclusion in the minutes for
filing with the corporate records. Such consent shall have the
same force and effect as a unanimous vote of the board or
committee, as the case may be.
Section 8. Committees. The board of directors may by
resolution create one or more committees and appoint one or more
members of the board of directors to serve on them. The board
may designate one or more directors as alternate members of any
committee, who may replace any absent member at any meeting of
such committee. Any such committee, to the extent provided in
the resolution, shall have and may exercise all of the authority
of the board of directors in the management of the business and
affairs of the corporation, subject to limitations imposed by law
or the Articles of Incorporation. 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. A majority
of each committee may determine its action and may fix the time
and places of its meetings, unless otherwise provided by the
board of directors. Each committee shall keep regular minutes of
its meetings and report the same to the board of directors when
required.
Section 9. Removal of Directors. At any shareholders
meeting, with respect to which notice of such purpose has been
given, any director may be removed from office only for cause, by
a majority of the shares outstanding; provided that directors
elected by a particular Voting Group may be removed only by the
shareholders in that Voting Group.
Section 10. Compensation of Directors. Directors
shall be entitled to such compensation for their services as
directors or members of any committee of the board as shall be
fixed from time to time by resolution adopted by the board, and
shall also be entitled to reimbursement for any reasonable
expenses incurred in attending any meeting of the board or any
such committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation
shall be chosen by the board of directors and shall be a
Chairman, a President and a Secretary. The board of directors
may also choose one or more Vice Presidents (including Executive
Vice Presidents, Senior Vice Presidents, Assistant Vice
Presidents, and the like), one or more Assistant Secretaries, a
Treasurer and one or more Assistant Treasurers. Any number of
offices may be held by the same person. The board of directors
may appoint such other officers and agents as it shall deem
necessary.
Section 2. Compensation. The salaries of all officers
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and agents of the corporation shall be fixed by the board of
directors or a committee or officer appointed by the board.
Section 3. Term of Office. Unless otherwise provided
by resolution of the board of directors, the principal officers
shall be chosen annually by the board of directors at the first
meeting of the board following the regular meeting of
shareholders of the corporation, or as soon thereafter as is
conveniently possible. Subordinate officers may be elected from
time to time. Each officer shall serve until his successor shall
have been chosen and qualified, or until his death, resignation
or removal.
Section 4. Removal. Any officer may be removed from
office at any time, with or without cause, by the board of
directors whenever in its judgment the best interests of the
corporation will be served thereby.
Section 5. Vacancies. Any vacancy in an office,
existing for any reason, may be filled by the board of directors.
Section 6. Powers and Duties. Except as otherwise
provided by law, the Articles of Incorporation or these Bylaws,
or as hereinafter provided, the officers of the corporation shall
each have such powers and duties as from time to time may be
conferred by the board of directors.
(a) Chairman. The Chairman shall preside as
chairman at all meetings of the board of directors and of the
shareholders, and shall have such other authority and duties as
the board of directors or these Bylaws shall provide.
(b) President. The President shall be the chief
executive officer of the corporation, shall in the absence of the
Chairman preside as chairman at all meetings of shareholders, and
shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the
board of directors are carried into effect. The President shall
have the authority to select and appoint employees and agents of
the corporation, and shall, in the absence or disability of the
Chairman of the Board, perform the duties and exercise the powers
of the Chairman of the Board. The President shall perform any
other duties and have any other authority as may be delegated
from time to time by the board of directors, and shall be subject
to the limitations fixed from time to time by the board of
directors. The President shall otherwise have such authority as
generally pertains to the office of president.
(c) Vice Presidents. The Vice President (if there be
one) shall, in the absence or disability of the President, or at
the direction of the President, perform the duties and exercise
the powers of the President, whether the duties and powers are
specified in these Bylaws or otherwise. If the corporation has
more than one Vice President, the one designated by the board of
directors or the President (in that order of precedence) shall
act in the event of the absence or disability of the President.
Vice Presidents shall perform any other duties and have any other
authority as from time to time may be delegated by the board of
directors or the President.
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(d) Secretary. The Secretary shall attend all
meetings of the board of directors and all meetings of the
shareholders and record all the proceedings of such meetings in a
book to be kept for that purpose and shall perform like duties
for the standing committees of the board when required. He or a
designee shall give, or cause to be given, notice of all meetings
of the shareholders, and shall perform such other duties as may
be prescribed by the board of directors or President, under whose
supervision he shall be. He shall have custody of the corporate
seal of the corporation and he, or an assistant secretary, shall
have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by
the signature of such assistant secretary. The board of
directors may give general authority to any other officer to
affix the seal of the corporation and to attest to affixing by
his signature.
(e) Bonds and Sureties. If required by the board
of directors, any officer or employee shall give the corporation
a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration
to the corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his
control belonging to the corporation.
(f) Signatures. The signature of any officer,
employee or agent upon any document of the corporation may be
made by facsimile or machine signature under such limitations and
circumstances as the board of directors or any appropriate
committee of the board of directors may provide from time to
time.
Section 7. Voting Securities of Corporation. Unless
otherwise provided by the board of directors, the Chairman, and
in his absence, the President, shall have full power and
authority on behalf of the corporation to attend and to act and
vote at any meetings of security holders of corporations in which
the corporation may hold securities, and at such meetings shall
possess and may exercise any and all rights and powers incident
to the ownership of such securities which the corporation might
have possessed and exercised if it had been present. The board
of directors by resolution from time to time may confer like
powers upon any other person or persons.
ARTICLE V
INDEMNIFICATION
Section 1. Indemnification of Directors and Officers.
The corporation shall indemnify and hold harmless any person (an
"Indemnified Person") who is or was 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 or suit 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, against expenses
(including, but not limited to, attorneys' fees and
disbursements, court costs and expert witness fees), and against
any judgments, fines, and amounts paid in settlement actually and
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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; provided, in any case, that no indemnification shall be
made in respect of expenses, judgments, fines and amounts paid in
settlement attributable to circumstances as to which, under
applicable provisions of the Code as in effect from time to time,
such indemnification may not be authorized by action of the Board
of Directors, the shareholders or otherwise.
Section 2. Indemnification of Directors and Officers
for Derivative Actions. The corporation shall indemnify and hold
harmless any Indemnified Person who is or was 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, 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, against expenses (including, but
not limited to, attorneys' fees and disbursements, court costs
and expert witness fees) 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. No
indemnification shall be made pursuant to this Section 2 for any
claim, issue or matter as to which an Indemnified Person shall
have been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the
corporation, or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in
which such action or suit was brought or other court of competent
jurisdiction shall determine upon application that such person is
fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 3. Indemnification of Employees and Agents.
The Board of Directors shall have the power to cause the
corporation to provide to any person who is or was an employee or
agent of the corporation all or any part of the right to
indemnification and other rights of the type provided under
Sections 1, 2, 6 and 12 of this Article V (subject to the
conditions, limitations, obligations and other provisions
specified herein), upon a resolution to that effect identifying
such employee or agent (by position or name) and specifying the
particular rights provided, which may be different for each
employee or agent identified. Each employee or agent of the
corporation so identified shall be an "Indemnified Person" for
purposes of the provisions of this Article V.
Section 4. Subsidiaries and Other Organizations. The Board
of Directors shall have the power to cause the corporation to
provide to any person who is or was a director, officer, employee
or agent of the corporation who also is or was a director,
officer, trustee, partner, employee or agent of a Subsidiary (as
defined below), or is or was serving at the corporation's request
in such a position with any other organization, all or any part
of the right to indemnification and other rights of the type
provided under Sections 1, 2, 6 and 12 of this Article V (subject
to the conditions, limitations, obligations and other provisions
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specified herein), with respect to service by such person in such
position with a Subsidiary or other organization, upon a
resolution identifying such person, the Subsidiary or other
organization involved (by name or other classification), and the
particular rights provided, which may be different for each
person so identified. Each person so identified shall be an
"Indemnified Person" for purposes of the provisions of this
Article V. As used in this Article V, "Subsidiary" shall mean
(i) another corporation, joint venture, trust, partnership or
unincorporated business association more than 20% of the voting
capital stock or other voting equity interest of which was, at or
after the time of the circumstances giving rise to such action,
suit or proceeding, owned, directly or indirectly, by the
corporation; or (ii) a nonprofit corporation that receives its
principal financial support from the corporation or its
Subsidiaries.
Section 5. Determination. Notwithstanding any
judgment, order, settlement, conviction or plea in any action,
suit or proceeding of the kind referred to in Sections 1 and 2 of
this Article V, an Indemnified Person shall be entitled to
indemnification as provided in such Sections 1 and 2 if a
determination that such Indemnified Person is entitled to such
indemnification shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who are not at
the time parties to the proceeding; or (ii) if a quorum cannot be
obtained under (i) above, by majority vote of a committee duly
designated by the Board of Directors (in which designation
interested directors may participate), consisting solely of two
or more directors who are not at the time parties to the
proceeding; or (iii) in a written opinion by special legal
counsel selected as required by Section 14-2-855(b)(3) of the
Code or any successor provision. To the extent that an
Indemnified Person has been successful on the merits or otherwise
in defense of any action, suit or proceeding of the kind referred
to in Sections 1 and 2 of this Article V, 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.
Section 6. Advances. Expenses (including, but not
limited to, attorneys' fees and disbursements, court costs, and
expert witness fees) incurred by an Indemnified Person in
defending any action, suit or proceeding of the kind described in
Sections 1 and 2 hereof (or in Section 4 hereof if applicable to
such Indemnified Person) shall be paid by the corporation in
advance of the final disposition of such action, suit or
proceeding as set forth herein. The corporation shall promptly
pay the amount of such expenses to the Indemnified Person, but in
no event later than ten days following the Indemnified Person's
delivery to the corporation of a written request for an advance
pursuant to this Section 6, together with a reasonable accounting
of such expenses; provided, however, that the Indemnified Person
shall furnish the corporation a written affirmation of his good
faith belief that he has met the standard of conduct set forth in
the Code and a written undertaking and agreement, executed
personally or on his behalf, to repay to the corporation any
advances made pursuant to this Section 6 if it shall be
ultimately determined that the Indemnified Person is not entitled
to be indemnified by the corporation for such amounts. The
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corporation shall make the advances contemplated by this Section
6 regardless of the Indemnified Person's financial ability to
make repayment. Any advances and undertakings to repay pursuant
to this Section 6 shall be unsecured and interest-free.
Section 7. Non-Exclusivity. Subject to any applicable
limitation imposed by the Code or the Articles of Incorporation,
the indemnification and advancement of expenses provided by or
granted pursuant to this Article V shall not be exclusive of any
other rights to which a person seeking indemnification or
advancement of expenses may be entitled under any bylaw,
resolution or agreement specifically or in general terms approved
or ratified by the affirmative vote of holders of a majority of
the shares entitled to be cast thereon.
Section 8. Insurance. The corporation shall have the
power to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the
corporation, or who, while a director, officer, employee, or
agent of the corporation, is or was serving as a director,
officer, trustee, general partner, employee or agent of a
Subsidiary or, at the request of the corporation, of any other
organization, 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 V.
Section 9. Notice. If any expenses or other amounts
are paid by way of indemnification, otherwise than by court order
or action by the shareholders or by an insurance carrier pursuant
to insurance maintained by the corporation, the corporation
shall, not later than the next annual meeting of shareholders,
unless such meeting is held within three months from the date of
such payment, and in any event within 15 months from the date of
such payment, send by first class mail to its shareholders of
record at the time entitled to vote for the election of directors
a statement specifying the persons paid, the amount paid and the
nature and status at the time of such payment of the litigation
or threatened litigation.
Section 10. Security. The corporation may designate
certain of its assets as collateral, provide self-insurance or
otherwise secure its obligations under this Article V, or under
any indemnification agreement or plan of indemnification adopted
and entered into in accordance with the provisions of this
Article V, as the Board of Directors deems appropriate.
Section 11. Amendment. Any amendment to this Article
V that limits or otherwise adversely affects the right of
indemnification, advancement of expenses, or other rights of any
Indemnified Person hereunder shall, as to such Indemnified
Person, apply only to claims, actions, suits or proceedings based
on actions, events or omissions (collectively, "Post Amendment
Events") occurring after such amendment and after delivery of
notice of such amendment to the Indemnified Person so affected.
Any Indemnified Person shall, as to any claim, action, suit or
proceeding based on actions, events or omissions occurring prior
to the date of receipt of such notice, be entitled to the right
of indemnification, advancement of expenses and other rights
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under this Article V to the same extent as if such provisions had
continued as part of the Bylaws of the corporation without such
amendment. This Section 11 cannot be altered, amended or
repealed in a manner effective as to any Indemnified Person
(except as to Post Amendment Events) without the prior written
consent of such Indemnified Person.
Section 12. Agreements. In addition to the rights
provided in this Article V, the corporation shall have the power,
upon authorization by the Board of Directors, to enter into an
agreement or agreements providing to any person who is or was a
director, officer, employee or agent of the corporation
indemnification rights substantially similar to, or greater than,
those provided in this Article V.
Section 13. Continuing Benefits. The indemnification
and advancement of expenses provided by or granted pursuant to
this Article V shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
Section 14. Successors. For purposes of this Article
V, the terms "the corporation" or "this corporation" shall
include any corporation, joint venture, trust, partnership or
unincorporated business association that is the successor to all
or substantially all of the business or assets of this
corporation, as a result of merger, consolidation, sale,
liquidation or otherwise, and any such successor shall be liable
to the persons indemnified under this Article V on the same terms
and conditions and to the same extent as this corporation.
Section 15. Severability. Each of the sections of
this Article V, and each of the clauses set forth herein, shall
be deemed separate and independent, and should any part of any
such section or clause be declared invalid or unenforceable by
any court of competent jurisdiction, such invalidity or
unenforceability shall in no way render invalid or unenforceable
any other part thereof or any other separate section or clause of
this Article V that is not declared invalid or unenforceable.
Section 16. Additional Indemnification. In
addition to the specific indemnification rights set forth herein,
the corporation shall indemnify each of its directors and
officers to the full extent permitted by action of the Board of
Directors without shareholder approval under the Code or other
laws of the State of Georgia as in effect from time to time.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Form of Certificate. Every holder of
record of fully-paid shares in the corporation shall be entitled
to have a certificate in such form as the board of directors may
from time to time prescribe.
Section 2. Lost Certificates. The corporation may
issue a new certificate in place of any certificate theretofore
issued by the corporation and alleged to have been lost, stolen
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or destroyed, upon the making of an affidavit, in form and
substance satisfactory to the corporation, of that fact by the
person claiming the certificate to be lost, stolen or destroyed.
The corporation may, in its discretion and as a condition
precedent to the issuance thereof, together with such other
conditions precedent that it may reasonably require, require the
owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it
may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 3. Transfers. (a) Transfers of capital shares
of the corporation shall be made only on the books of the
corporation by the registered holder thereof, or by his duly
authorized attorney, or with a transfer clerk or transfer agent
appointed as provided in Section 5 of this Article, and on
surrender of the certificate or certificates for such shares
properly endorsed and the payment of all taxes thereon.
(b) Except as otherwise provided by law or as
provided elsewhere herein, 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 for all other purposes, 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.
(c) Capital shares may be transferred by
delivery of the certificates thereof, accompanied either by an
assignment in writing on the back of the certificates or by
separate written power of attorney to sell, assign and transfer
the same, signed by the record holder thereof, or by his duly
authorized attorney-in-fact, and accompanied by such evidence
that all such signatures are genuine, as the corporation, at its
option, may request, but no transfer shall affect the right of
the corporation to pay any dividend upon the stock to the holder
of record as the holder in fact thereof for all purposes, and no
transfer shall be valid, except between the parties thereto,
until such transfer shall have been made upon the books of the
corporation as herein provided.
(d) The board may, from time to time, make such
additional rules and regulations as it may deem expedient, not
inconsistent with these Bylaws or the Articles of Incorporation
concerning the issue, transfer and registration of certificates
for shares of the corporation, and nothing contained herein shall
limit or waive any rights of the corporation with respect to such
matters under applicable law or any subscriptions or other
agreement by which the corporation is bound.
Section 4. Record Date. (a) In order that the
corporation may determine the shareholders entitled to notice of
or to vote at any meeting of shareholders or any adjournment
thereof, or to express any consent or demand with respect to any
corporate action, 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
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exchange of shares 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 70 days and, in case of a meeting of
shareholders, not less than 10 days prior to the date on which
the particular action requiring such determination of
shareholders is to be taken.
(b) If no record date is fixed as provided in Section
4(a), then the record date for any determination of shareholders
that may be proper or required by law shall be, as appropriate,
the date on which notice of a shareholders' meeting is mailed,
the date on which the board of directors adopts a resolution
declaring a dividend or authorizing a distribution, or the date
on which any other action is taken that requires a determination
of shareholders.
Section 5. Transfer Agent and Registrar. The board of
directors may appoint one or more transfer agents or one or more
transfer clerks and one or more registrars, and may require all
certificates of shares to bear the signature or signatures of any
of them.
ARTICLE VII
BUSINESS COMBINATIONS
Section 1. Business Combinations. All of the
requirements of Sections 14-2-1110 et seq. and 14-2-1131 et seq.
of the Georgia Business Corporation Code (and any successor
provisions) shall be applicable to the corporation.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Distribution. Distributions upon shares of
the corporation, subject to the provisions, if any, of the
Articles of Incorporation, or any lawful agreement among
shareholders, may be declared by the board of directors at any
regular or special meeting, pursuant to law. Distributions may
be paid in cash or in property, subject to applicable provisions
of the Articles of Incorporation. Before payment of any
distribution, there may be set aside out of any funds of the
corporation available for distribution such sum or sums as the
board from time to time, in its sole and absolute discretion,
deems proper as a reserve or reserves to meet contingencies, or
for equalizing distributions, or for repairing or maintaining any
property of the corporation, or for such other purpose as the
board shall deem conducive to the interest of the corporation,
and the board may modify or abolish any such reserve in its sole
and absolute discretion.
Section 2. Fiscal Year. The fiscal year of the
corporation shall be fixed by resolution of the board of
directors.
Section 3. Seal. The corporate seal shall have
inscribed thereon the name of the corporation, the year of its
organization and the words "Corporate Seal" and "Georgia." The
seal may be used by causing it or a facsimile thereof to be
impressed, affixed or reproduced.
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Section 4. Savings Clause. To the extent these Bylaws
conflict with any provision of any state or federal law as such
laws may be amended from time to time, these Bylaws shall be
construed so as not to conflict with said law, and any
discretionary actions made hereunder shall be made in accordance
with applicable law.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. The board of directors shall
have power to alter, amend or repeal these Bylaws or adopt new
bylaws by the affirmative vote of a majority of the members of
the board, but any bylaws adopted by the board of directors may
be altered, amended or repealed, and new bylaws may be adopted,
by the affirmative vote of a majority of the shares outstanding,
unless the Articles of Incorporation, these Bylaws or applicable
law require otherwise.
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