EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
OF
ISOLYSER COMPANY, INC.
ARTICLE ONE
Offices
1.1 Registered Office and Agent. The Corporation shall maintain a
registered office and shall have a registered agent whose business office is
identical with such registered office.
1.2 Other Offices. The Corporation may have offices at such place or
places, within or without the State of Georgia, as the Board of Directors may
from time to time appoint or the business of the Corporation may require or make
desirable.
ARTICLE TWO
Shareholders Meetings
2.1 Place of Meetings. Meetings of the shareholders may be held on the call
of the President at any place within or without the State of Georgia as set
forth in the notice thereof or in the event of a meeting held pursuant to waiver
of notice, or if no place is so specified, at the principal office of the
Corporation.
2.2 Annual Meetings. The annual meeting of shareholders shall be held on
such date following the close of the Corporation's fiscal year as shall be
designated by the Board of Directors for the purpose of electing Directors and
transacting any and all business that may properly come before the meeting. At
the annual meetings of shareholders, the order of business shall be as
determined by the Chairman of the meeting.
2.3 Substitute Annual Meeting. In the event that such annual meeting is not
held on the day designated pursuant to Section 2.2, the Board of Directors shall
cause a meeting in lieu thereof to be held as soon as conveniently may be
thereafter, and any business transacted or elections held at such meeting shall
be as valid as if transacted or held at the annual meeting. Such subsequent
meeting shall be called in the same manner as provided for special shareholders'
meetings.
2.4 Special Meetings. Special meetings of the shareholders shall be held at
the principal office of the Corporation or at such other place as may designated
in the notice of said meetings upon call of the Board of Directors or of the
President, or of the Secretary or at the request in writing of two or more
Directors or of shareholders owning at least a majority of the issued and
outstanding capital stock of the Corporation entitled to vote thereat. Any such
request shall state the purpose for which the meeting is to be called.
2.5 Notice of Meetings. Unless waived as contemplated in Section 5.2 or by
attendance at the meeting, either in person or by proxy, for any purpose other
than to state, at the beginning of the meeting, an objection or objections to
the transaction of business, a written or printed notice of each shareholders'
meeting stating the place, day and hour of the meeting shall be delivered not
less than ten (10) days nor more than sixty (60) days before the date thereof
except as may otherwise be required by law, either personally or by mail, by or
at the, direction of the President or Secretary or other person calling the
meeting, to each shareholder of record entitled to vote at such meeting. In the
case of an annual or substitute annual meeting, the notice of the meeting need
not state the purpose or purposes of the meeting unless the purpose or purposes
constitute a matter which the Georgia Business Corporation Code requires to be
stated in the notice of the meeting. In the case of a special meeting, the
notice of meeting shall state the purpose or purposes for which the meeting is
called. When a meeting is adjourned to another time or place, unless after the
adjournment the Board fixes a new record date for the adjourned meeting (which
it must do if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting), it shall not be necessary to give any
notice of the adjourned meeting if the time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken and if
at the adjourned meeting business which might have been transacted on the
original date of the meeting is transacted.
2.6 Quorum. At all meetings of the shareholders, the presence, in person or
by proxy, of the holders of more than one half of the shares outstanding and
entitled to vote shall constitute a quorum. The shareholders at a meeting at
which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. If a quorum is not present to organize a meeting, the meeting may be
adjourned pursuant to Section 2.9.
2.7 Voting of Shares. Except as may otherwise be provided by the Articles
of Incorporation or by agreement of the shareholders pursuant to Section 2.12
hereof, each outstanding share having voting rights shall be entitled to one
vote on each matter submitted to a vote at a meeting of shareholders. Voting on
all matters shall be by voice vote or by show of hands unless any qualified
voter, prior to the voting on any matter, demands vote by ballot, in which case
each ballot shall state the name of the shareholder voting and the number of
shares voted by him, and if such ballot be cast by proxy, it shall also state
the name of such proxy. Cumulative voting shall not be permitted. If a quorum is
present, a majority of the shares outstanding and entitled to vote which are
represented at any meeting shall determine any matter coming before the meeting
unless a different vote is required by statute, by the Articles of
Incorporation, or by these Bylaws.
2.8 Proxies. A shareholder entitled to vote pursuant to Section 2.7 may
vote in person or by proxy executed in writing by the shareholder or by his
attorney-in-fact. A proxy shall not be valid after eleven (11) months from the
date of its execution, unless a longer period is expressly stated therein. If
the validity of any proxy is questioned it must be submitted to the Secretary of
the shareholders meeting for examination or to a proxy officer or committee
appointed by the person presiding at the meeting. The Secretary of the meeting
or, if appointed, the proxy officer or committee, shall determine the validity
or invalidity of any proxy submitted, and reference by the Secretary in the
minutes of the meeting to the regularity of a proxy shall be
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received as prima facie evidence of the facts stated for the purpose of
establishing the presence of a quorum at such meeting and for all other
purposes.
2.9 Adjournments. Any meeting of the shareholders, whether or not a quorum
is present, may be adjourned by the holders of a majority of the voting shares
represented at the meeting to reconvene at a specific time and place. It shall
not be necessary to give any notice of the reconvened meeting or of the business
to be transacted, if the time and place of the reconvened meeting are announced
at the meeting which was adjourned, except as may otherwise be specified in
these Bylaws, including Section 2.5. At any such reconvened meeting at which a
quorum is represented or present, any business may be transacted which could
have been transacted at the meeting which was adjourned.
2.10 Action of Shareholders Without a Meeting. Subject to such further
conditions as may be required by law, any action which may be taken at a meeting
of the shareholders may be taken without a meeting if a written approval and
consent, setting forth the action authorized, shall be signed by each of the
shareholders entitled to vote on the date on which the last such shareholder
signs such approval and consent and upon the filing of such approval and consent
with the officer of the Corporation having custody of its books and records.
Such approval and consent so filed shall have the same effect as a unanimous
vote of the shareholders at a special meeting called for the purpose of
considering the action authorized.
2.11 List of Shareholders. A complete list of the shareholders entitled to
vote at an ensuing meeting of shareholders arranged in alphabetical order with
the address of, and the number and class and series, if any, of voting shares
held by each shall be prepared by the Secretary, or other officer of the
Corporation having charge of the stock ledger, and shall be produced and kept
open at the time and place of the meeting and during the whole time of said
meeting shall be open to the examination of any shareholder. If the requirements
of this section have not been substantially complied with, the meeting shall, on
the reasonable demand of any shareholder in person or by proxy, be adjourned
until the requirements are complied with. If no such demand is made, failure to
comply with the requirements of this section shall not affect the validity of
any action taken at such meeting.
2.12 Shareholder Agreements. In addition to those shareholder agreements
authorized by Official Code of Ga. Ann. ss. 14-2-627, the holders of all or any
portion of the outstanding and issued stock of the Corporation may enter into an
agreement or agreements among themselves, and the Corporation also, if it so
elects, or between a single shareholder and the Corporation if it so elects,
concerning the transferability of the stock of the Corporation, and such
agreement, where not otherwise contrary to law, shall be effective to establish
the conditions of and methods of transferability of the stock of the Corporation
to the extent attempted by said agreement.
2.13 Advance Notice of Shareholder Nominations and Proposals. Nominations
of persons for election to the Board of Directors and proposals of business to
be transacted by the shareholders may be made at an annual meeting of
shareholders (a) pursuant to the Corporation's notice with respect to such
meeting, (b) by or at the direction of the Board of Directors, or (c) by any
shareholder of record of the Corporation who was a shareholder of record at the
time of the
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giving of the notice provided for in the following paragraph, who is entitled to
vote at the meeting and who has complied with the notice procedures set forth in
this Section.
For nominations or other business to be properly brought before an annual
meeting by a shareholder pursuant to clause (c) of the foregoing paragraph, (1)
the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation, (2) such business must be a proper matter for
shareholder action under the Georgia Business Corporation Code, (3) if the
shareholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, indicates that such shareholder or beneficial owner has
solicited or intends to solicit proxies, such shareholder or beneficial owner
must, in the case of a proposal, have delivered a proxy statement and form of
proxy to holders of at least the percentage of the Corporation's voting shares
required under applicable law to carry any such proposal, or, in the case of a
nomination or nominations, have delivered a proxy statement and form of proxy to
holders of a percentage of the Corporation's voting shares reasonably believed
by such shareholder or beneficial holder to be sufficient to elect the nominee
or nominees proposed to be nominated by such shareholder, and must, in either
case, have included in such notice to the Company the proxy statement and form
of proxy utilized or to be utilized by such person, and (4) if such
shareholder's notice fails to indicate that such shareholder, or beneficial
owner on whose behalf any such proposal or nomination is made, has solicited or
intends to solicit proxies with respect to any proposal or nomination being made
by such shareholder or beneficial owner, the shareholder or beneficial owner
proposing such business or nomination must not have solicited, and must
represent that he, she or it will not solicit, proxies for such proposal or
nomination. To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the Corporation not less than
ninety (90) nor more than one hundred twenty (120) days prior to the first
anniversary (the "Anniversary") of the date on which the Corporation first
mailed its proxy materials for the preceding year's annual meeting of
shareholders; provided, however, that if the date of the annual meeting is
advanced more than thirty (30) days prior to or delayed by more than thirty (30)
days after the anniversary of the preceding year's annual meeting, notice by the
shareholder to be timely must be so delivered not later than the close of
business on the later of (i) the 90th day prior to such annual meeting or (ii)
the 10th day following the day on which public announcement of the date of such
meeting is first made. Such stockholder's notice shall set forth (a) as to each
person whom the shareholder proposes to nominate for election or reelection as a
director all information relating to such person as would be required to be
disclosed in solicitations of proxies for the election of such nominees as
directors pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and shall contain such person's written consent
to serve as a director if elected; (b) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of such
business, the reasons for conducting such business at the meeting and any
material interest in such business of such shareholder and the beneficial owner,
if any, on whose behalf the proposal is made; (c) as to the shareholder giving
the notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such shareholder, and of such
beneficial owner, as they appear on the Corporation's books, (ii) the class and
number of shares of the Corporation that are owned beneficially and of record by
such shareholder and such beneficial owner, and (iii) whether such shareholder
or beneficial owner has delivered or intends to deliver a proxy statement and
form of proxy to holders of, in the case of
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a proposal, at least the percentage of the Corporation's voting shares required
under applicable law to carry the proposal or, in the case of a nomination or
nominations, a sufficient number of holders of the Corporation's voting shares
to elect such nominee or nominees.
Only persons nominated in accordance with the procedures set forth in this
Section 2.13 shall be eligible to serve as directors and only such business
shall be conducted at an annual meeting of shareholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section. The chairman of the meeting shall have the power and the duty to
determine whether a nomination or any business proposed to be brought before the
meeting has been made in accordance with the procedures set forth in these
Bylaws and, if any proposed nomination or business is not in compliance with
these Bylaws, to declare that such defective proposed business or nomination
shall not be presented for shareholder action at the meeting and shall be
disregarded.
Only such business shall be conducted at a special meeting of shareholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting. Nominations of persons for election to the Board of Directors
may be made at a special meeting of shareholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board or (b) by any shareholder of record of the Corporation
who is a shareholder of record at the time of giving of notice provided for in
this paragraph, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 2.13. Nominations by
shareholders of persons for election to the Board may be made at such a special
meeting of shareholders if the stockholder's notice required by the second
paragraph of this Section 2.13 shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the later of the 90th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the Board to be elected at
such meeting.
For purposes of this Section, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 2.13, a
shareholder must also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 2.13. Nothing in this Section 2.13 shall be deemed to affect any
rights of shareholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE THREE
The Board of Directors
3.1 General Powers. The business and affairs of the Corporation shall be
managed by the Board of Directors. In addition to the powers and authority
expressly conferred upon it by these Bylaws, the Board of Directors may exercise
all such powers of the Corporation and do all
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such lawful acts and things as 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.
3.2 Number, Election and Term of Office. Unless Georgia law permits a
lesser number, the number of Directors of the Corporation shall be not less than
three (3) nor more than twenty (20), the precise number to be fixed by
resolution of the shareholders or the Board of Directors from time to time,
except that the initial number of the Board of Directors shall be fixed by the
Articles of Incorporation and remain effective until modified by resolution of
the shareholders or the Board of Directors. Except as provided in Section 3.4,
the Directors shall be elected by plurality vote of the shares represented at
the annual meeting. Each Director, except in the case of death, resignation,
retirement, disqualification or removal, shall serve until the next succeeding
annual meeting and until his successor shall have been elected and qualified.
3.3 Removal. Any Director may be removed from office with or without cause
by the affirmative vote of the holders of a majority of the issued and
outstanding shares entitled to vote at an election of Directors. Removal action
may be taken at any shareholders' meeting with respect to which notice of such
purpose has been given, and a removed Director's successor may be elected at the
same meeting to serve the unexpired term.
3.4 Vacancies. Vacancies, including vacancies resulting from any increase
in the number of Directors, but not including vacancies resulting from removal
from office by the shareholders, may be filled by a majority of the Directors
then in office, though less than a quorum, or by a sole remaining Director, 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. If there
are no Directors in office, then vacancies shall be filled through election by
the shareholders.
3.5 Compensation. Directors may receive such compensation for their
services as Directors as may from time to time be fixed by vote of the Board of
Directors (or any duly constituted committee thereof) or the shareholders. A
Director may also serve the Corporation in a capacity other than that of
Director and receive compensation, as determined by the Board of Directors, for
services rendered in that other capacity.
3.6 Chairman. The Board of Directors may elect one of the Directors as
Chairman of the Board by majority vote. The term of the Chairman shall be the
same as the term of the Director. The Chairman shall preside at all meetings of
the Board of Directors and shall have such other duties as the Board may from
time to time prescribe.
ARTICLE FOUR
Meetings of the Board of Directors
4.1 Regular Meetings. A regular meeting of the Board of Directors shall be
held immediately after each annual meeting of the shareholders or any meeting
held in lieu thereof.
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In addition, the Board of Directors may schedule other
meetings to occur at regular intervals throughout the year.
4.2 Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the President, or in his absence by the Secretary
of the Corporation, or by any two Directors in office at that time.
4.3 Place of Meetings. Directors may hold their meetings at any place
within or without the State of Georgia as the Board of Directors may from time
to time establish for regular meetings or as is set forth in the notice of
special meetings or, in the event of a meeting held pursuant to waiver of
notice, as may be set forth in the waiver.
4.4 Notice of Meetings. No notice shall be required for any regularly
scheduled meeting of the Directors of the Corporation. Unless waived as
contemplated in Section 5.2, the President or Secretary of the Corporation or
any Director thereof shall give notice to each Director of each special meeting
stating the time and place of the meeting. Such notice shall be given by mailing
a notice of the meeting at least four (4) days before the date of the meeting,
or by telephone, telegram, cablegram, facsimile or personal delivery at least
twenty-four (24) hours before the date of the meeting. Notice shall be deemed to
have been given by telegram or cablegram at the time notice is filed with the
transmitting agency. Attendance by a Director at a meeting shall constitute
waiver of notice of such meeting, except where the Director states, at the
beginning of the meeting, his objection or objections to the transaction of
business at the meeting.
4.5 Quorum. At meetings of the Board of Directors, the presence of at least
one-half (1/2) of the Directors then in office (but not less than two (2)
Directors unless Georgia law otherwise permits) shall be necessary to constitute
a quorum for the transaction of business.
4.6 Vote Required for Action. Except as otherwise provided in this section
or by law, the act of a majority of the Directors present at a meeting at which
a quorum is present at the time shall be the act of the Board of Directors.
Adoption, amendment and repeal of a Bylaw is provided for in Article Eleven of
these Bylaws. Vacancies in the Board of Directors may be filled as provided in
Section 3.4 of these Bylaws.
4.7 Action by. Directors Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if a written consent thereto shall be signed by all the
Directors and such written consent is filed with the minutes of the proceedings
of the Board. Such consent shall have the same force and effect as a unanimous
vote of the Board of Directors.
4.8 Telephone Conference Calls. Unless otherwise prohibited by the Articles
of Incorporation, members of the Board of Directors, or any committee designated
by such Board, may participate in a meeting of such Board or committee by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this Section 4.8 shall constitute presence in person at
such meeting.
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4.9 Presumption of Assent. A Director who is present at a meeting of the
Board of Directors shall be presumed to have concurred in any action taken at
the meeting, unless he objects at the beginning of the meeting (or promptly upon
his arrival) to holding the meeting or transacting any business at it, his
dissent or abstention from the action is entered in the minutes of the meeting
or unless he submits his written dissent or abstention to the presiding officer
of the meeting before adjournment or to the corporation immediately after
adjournment of the meeting. Such right to dissent shall not apply to a Director
who, being present at the meeting, voted for such action.
4.10 Committees. The Board of Directors may by resolution passed by the
majority of the whole board, designate from among its members one or more
committees, each committee to consist of one or more Directors. 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 managements of the business and
affairs of the Corporation, except that it shall have no authority with respect
to (1) amending the Articles of Incorporation or these Bylaws; (2) adopting a
plan of merger or share exchange; (3) the sale, lease, exchange or other
disposition of all or substantially all of the property and assets of the
Corporation; and (4) a voluntary dissolution of the Corporation or a revocation
thereof. 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
place 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.
ARTICLE FIVE
Notice and Waiver
5.1 Procedure. Whenever these Bylaws require notice to be given to any
shareholder or Director, the notice shall be given as prescribed in Sections 2.5
or 4.4 for any shareholder or Director, respectively. Whenever notice is given
to a shareholder or Director by mail, the notice shall be sent first-class mail
(except that if this Corporation has more than 500 shareholders of record
entitled to vote at a meeting, notice may be given by a class of mail other than
first class mail provided that the notice of the meeting is mailed, with
adequate postage prepaid, not less than thirty (30) days before the date of the
meeting) by depositing the same in a post office or letter box in a postage
prepaid sealed envelope addressed to the shareholder or Director at his address
as it appears on the books of the Corporation, and such notice shall be deemed
to have been given at the time the same is deposited in the United States mail.
5.2 Waiver. Notice of a meeting need not be given to any shareholder or
Director who signs a waiver of such notice, in person or by proxy, either before
or after the meeting. Unless otherwise required by law or by these Bylaws,
neither the business transacted nor the purpose of the meeting need be specified
in the waiver. Attendance of a shareholder or Director at a meeting shall
constitute a waiver of notice of such meeting and waiver of any and all
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objections to the place of the meeting, the time of the meeting, or the manner
in which it has been called or convened, except when such shareholder or
Director attends such meeting solely for the purpose of stating, at the
beginning of the meeting, any such objection or objections to the transaction of
business.
ARTICLE SIX
Officers
6.1 Number. The Executive Officers of the Corporation shall consist of the
President, one or more Vice Presidents as determined or designated by the Board
of Directors, a Secretary and a Treasurer. The Board of Directors shall from
time to time create and establish the duties of such other officers and elect or
provide for the appointment of such other officers or assistant officers as it
deems necessary for the efficient management of the Corporation, but the
Corporation shall not be required to have at any time any officers other than a
President, Secretary and Treasurer. Any two or more offices may be held by the
same person, except the offices of President and Secretary.
6.2 Election and Term. All Executive Officers shall be elected by the Board
of Directors and shall serve at the will of the Board of Directors and until
their successors have been elected and have qualified or until their earlier
death, resignation, removal, retirement or disqualification.
6.3 Compensation. The compensation of all Executive Officers of the
Corporation shall be fixed by the Board of Directors.
6.4 Removal. Any officer elected by the Board of Directors may be removed
by the Board of Directors at any meeting with respect to which notice of such
purpose has been given to the members thereof.
6.5 Powers and Duties. The Executive Officers of the Corporation shall each
have such powers and duties as generally pertain to their respective offices, as
well as such powers and duties as from time to time may be conferred by the
Board of Directors. The Vice President or Vice Presidents, the Assistant
Secretary or Assistant Secretaries and the Assistant Treasurer or Assistant
Treasurers shall, in the order of their respective seniorities, in the absence
or disability of the President, Secretary or Treasurer, respectively, perform
the duties of such offices and shall generally assist the President, Secretary
or Treasurer, respectively.
Without limitation upon any of the foregoing:
(a) The President shall be the chief executive and operational officer
of the Corporation and shall have general supervision of the affairs of the
Corporation and full control of and responsibility for said affairs. He
shall preside at the meetings of shareholders and (unless a different
Chairman shall be elected by the Board of Directors) at the meetings of the
Board of Directors.
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(b) The Secretary shall issue notices for and keep minutes of all
corporate meetings and shall have charge of the corporate seal and of all
corporate books, stock books and other like records of the Corporation.
(c) The Treasurer shall have custody and control of all funds and of
all financial records of the Corporation.
6.6 Additional Powers and Duties. In addition to the foregoing especially
enumerated powers and duties, the several officers of the Corporation shall have
such other powers and duties as are provided for them in these Bylaws or as may,
from time to time, be prescribed by the Board of Directors or the Chairman of
the Board.
6.7 Bonds. The Board of Directors may by resolution require any or all of
the officers, agents or employees of the Corporation to give bonds to the
Corporation, with sufficient surety or sureties, conditioned on the faithful
performance of the duties of their respective offices or positions, and to
comply with such other conditions as may from time to time be required by the
Board of Directors.
6.8 Voting Securities of the Corporation. Unless otherwise ordered by the
Board of Directors, the President shall have full power and authority on behalf
of the Corporation to attend and to act and vote at a meeting of security
holders of corporations in which the Corporation may hold securities, and at
such meeting shall possess and may exercise any and all rights and powers
instant to the ownership of such securities which the Corporation might have
possessed and exercised if it had been present. The Board of Directors may by
resolution from time to time confer like powers upon any other person or
persons.
ARTICLE SEVEN
Dividends
7.1 Declaration and Payment of Dividends. Dividends upon the capital stock
of the Corporation, subject to the provisions, if any, of the Articles of
Incorporation, may be declared by the Board of Directors at any regular or
special meeting, pursuant to law and with due regard to the Official Code of Ga.
Ann.ss.14-2-640. Dividends may be paid in cash, in property, or in shares of the
Corporation's capital stock, subject to the provisions of the Articles of
Incorporation.
7.2 Reserves. Before the payment of any dividend or the making of any
distribution of profit, there may be set aside out of any funds of the
Corporation such sums, if any, as the Board of Directors from time to time in
its absolute discretion deems proper as a reserve fund to meet contingencies, to
pay and discharge indebtedness, or to fulfill other purposes which the Board of
Directors shall deem to be in the best interest of the Corporation.
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ARTICLE EIGHT
Shares
8.1 Authorization and Issuance of Shares. The par value and the maximum
number of shares of any class of the Corporation which may be issued and
outstanding shall be as set forth from time to time in the Articles of
Incorporation of the Corporation. The Board of Directors may increase or
decrease the number of issued and outstanding shares of the Corporation within
the maximum authorized by the Articles of Incorporation and the minimum
requirements of the Articles or Georgia law.
8.2 Share Certificates. Interest of each shareholder shall be evidenced by
a certificate or certificates representing shares of the Corporation which shall
be in such form as the Board of Directors may from time to time adopt in
accordance with Georgia law. Share certificates shall be consecutively numbered,
shall be in registered form, and shall indicate the date of issue and all such
information shall be entered on the Corporation's books. Each certificate shall
be signed by the President, or other chief executive officer, or a Vice
President and the Secretary or an Assistant Secretary and may be sealed with the
seal of the Corporation or a facsimile thereof; provided, however, that where
such certificate is signed by a transfer agent, or registered by a registrar
other than the Corporation itself or an employee of the Corporation, the
signature of any such officer may be facsimile. In case any officer or officers
who shall have signed or whose facsimile signature shall have been placed upon
share certificate shall have ceased for any reason to be such officer or
officers of the Corporation before such certificate is issued, such certificate
may be issued by the Corporation with the same effect as if the person or
persons who signed such certificate or whose facsimile signature shall have been
used thereon had not ceased to be such officer or officers.
8.3 Rights of Corporation with Respect to Registered Owners. Prior to due
presentation for transfer or registration of its shares, the Corporation may
treat the registered owner of the shares as the person exclusively entitled to
vote such shares, to receive any dividend or other distribution with respect to
such shares, and for all other purposes and the Corporation shall not be bound
to recognize any equitable or other claim to or interest in such shares on the
part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
8.4 Transfers of Shares.
(a) Transfers of shares shall be made upon the transfer books of the
Corporation, kept at the office of the transfer agent designated to
transfer the shares, only upon direction of the person named in the
certificate, or by an attorney lawfully constituted in writing; and before
a new certificate is issued, the old certificate shall be surrendered for
cancellation or, in the case of a certificate alleged to have been lost,
stolen, or destroyed, the provisions of Section 8.5 of these Bylaws shall
have been complied with.
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(b) With respect to any securities of this Corporation issued in
reliance on the exemption from registration provided by Regulation S
("Regulation S ") of the Securities Act of 1933 (the "1933 Act"), the
Corporation shall refuse to register any transfer of such securities of the
Corporation not made in accordance with Regulation S; provided, however,
that if foreign law prevents the Corporation from refusing to register
securities transfers, the Corporation shall implement other reasonable
procedures, including, without limitation, placement of a legend on such
securities of the Corporation to the effect that transfer is prohibited
except in accordance with the provisions of Regulation S, to prevent any
transfer of such securities of the Corporation not made in accordance with
the provisions of Regulation S.
8.5 Lost, Stolen or Destroyed Certificates. Any person claiming a share
certificate to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in such manner as the Board of Directors may require and
shall, if the Board of Directors so requires, give the Corporation a bond of
indemnity in form and amount, and with one or more sureties satisfactory to the
Board of Directors, as the Board of Directors may require, whereupon an
appropriate new certificate may be issued in lieu of the one alleged to have
been lost, stolen or destroyed.
8.6 Fixing of Record Date. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any dividend, or in order
to make a determination of shareholders for any other proper purpose, the Board
of Directors may fix in advance a date as the record date, such date to be not
more than 70 days (and in the case of a shareholders meeting, not less than 10
days) prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken.
8.7 Record Date if None Fixed. If no record date is fixed, as provided in
Section 8.6 of these Bylaws, then the record date for any determination of
shareholders which may be proper or required by law, shall be the date on which
notice is mailed, in the case of a shareholders' meeting; the date on which the
Board of Directors approves a resolution declaring a dividend, in the case of a
payment of a dividend; and the date on which any other action, the consummation
of which requires a determination of shareholders, is to be taken.
8.8 Transfer Agent and Registrar. The Board of Directors may appoint one or
more transfer agents and one or more transfer clerks and one or more registrars,
and may require all certificates of stock to bear the signature or signatures of
any of them.
8.9 Fair Price Requirements. In accordance with Official Code of Ga.
Ann.ss.14-21113, this Corporation has elected that all of the requirements of
Part 2 of Article 11 of the Georgia Business Corporation Code shall be
applicable to this Corporation.
8.10 Business Combinations with Interested Stockholders. In accordance with
Official Code of Ga. Ann.ss.14-2-1133, this Corporation has elected that all of
the requirements of Part 3 of Article 11 of the Georgia Business Corporation
Code shall be applicable to this Corporation.
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ARTICLE NINE
Indemnification and Interested Parties
9.1 Basis for Indemnification.
(a) Subject to the conditions set forth in Section 9.2 of this
Article, the Corporation shall indemnify and hold harmless any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation), by reason of the fact that he is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a Director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses
(including, without limitation, attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding.
(b) Subject to the conditions set forth in Section 9.2 of this
Article, the Corporation shall indemnify and hold harmless any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation
to procure a judgment in its favor by reason of the fact that he is or was
a Director, officer, employee or agent of the Corporation, or is or was a
Director, officer, partner, trustee, employee or agent of another
Corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including, without limitation,
attorneys' fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit; except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
Corporation, or subjected to injunctive relief in favor of the Corporation
(1) for any appropriation, in violation of his duties, of any business
opportunity of the Corporation, (2) for acts or omissions which involve
intentional misconduct or a knowing violation of law, (3) for the types of
liability set forth in the Official Code of Ga. Ann. ss. 14-2-832, or (4)
for any transaction from which he received an improper personal benefit,
unless and only to the extent that the court in which such action or suit
was brought shall determine upon application that, despite the adjudication
of liability, but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to such expenses which the court shall
deem proper.
9.2 Right to Indemnification. To the extent that a Director, officer,
employee or agent has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in Section 9.1 of this Article, or
in the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including, without limitation, attorneys' fees) actually and
reasonably incurred by him in connection therewith. Except as provided in the
preceding sentence and except as may be ordered by a court, any indemnification
under Section 9.1 of this Article in favor of any person other than a present or
former Director of the Corporation (indemnification of a present or former
Director of the Corporation not being subject to the
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conditions of this Section 9.2) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
such person is proper under the circumstances because such person acted 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. Determination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in a manner which he reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful. Such determination shall be made either by the
Board of Directors (or a duly constituted committee thereof) or in the manner
specified by the Official Code of Ga. Ann. ss. 14-2-855(b).
9.3 Expenses. Expenses (including, without limitation, reasonable
attorneys' fees) incurred in defending a civil or criminal action, suit or
proceeding may be paid (and, in the case of a present or former Director of the
Corporation, shall be paid) by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors generally or as to a specific case or as to a specific person or
persons (designated by name, title or class of persons), upon receipt by the
Corporation of (a) a written undertaking executed by or on behalf of the
Director, officer, partner, trustee, employee or agent to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized by this Article 9, and (b) such person furnishes
to the Corporation a written affirmation of his good faith belief that his
conduct does not constitute behavior of the kind described in causes (1) through
(4) of Section 9.2(b) of this Article.
9.4 Non-exclusivity. The provisions for indemnification and advancement of
expenses provided by this Article 9 shall not be deemed exclusive of any other
rights, in respect of indemnification or otherwise, to which those seeking
indemnification may be entitled under any bylaw, resolution, agreement or
contract, either specifically or in general terms approved by the affirmative
vote of the holders of a majority of the shares entitled to vote thereon taken
at a meeting the notice of which specified that such bylaw, resolution,
agreement or contract would be placed before the shareholders, both as to action
by a Director, officer, employee or agent in his official capacity and as to
action in another capacity while holding such office or position, except that no
such other rights, with respect to indemnification or otherwise, may be provided
or granted with respect to the liability of any Director, officer, employee or
agent in respect of any claim, issue or matter as to which such person is
adjudged to be liable to the Corporation, or subjected to injunctive relief in
favor of the Corporation, for (a) 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 the types
of liability set forth in the Official Code of Ga. Ann. ss. 14-2-832, or (d) for
any transaction from which he received an improper personal benefit.
9.5 Insurance.
(a) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a Director, officer, employee or agent of the
Corporation, or is or
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was serving at the request of the Corporation as a Director, officer,
partner, trustee, employee or agent of another Corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under the provisions of this Article 9.
(b) If any expenses or other amounts are paid by way of
indemnification, otherwise than by 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,
report the indemnification to its shareholders of record at the time
entitled to vote for the election of Directors.
9.6 Right to Participate in Defense. As a condition to any such right of
indemnification, or to receive advancement of expenses, in any action by any
third party, the Corporation may require that it be permitted to participate in
the defense of any such action or proceeding through legal counsel designated by
the Corporation and at the expense of the Corporation.
9.7 Continuation of Right of Indemnification. The rights to indemnification
and advancement of expenses provided in this Article 9 shall continue
notwithstanding that a person who would otherwise have been entitled to
indemnification or advancement of expenses hereunder shall have ceased to be
Director, officer, employee or agent, and shall inure to the benefit of the
heirs, executors and administrators of such persons.
9.8 Severability. It is the intention of the Corporation that this Article
9 and the indemnification rights provided hereunder shall extend to the maximum
indemnification possible under the laws of the State of Georgia and if any one
or more words, phrases, clauses, sentences, or sections of this Article 9 should
be held unenforceable for any reason, the remaining portions of this Article 9
shall remain in full force and effect.
9.9 Interested Directors and Officers.
(a) No contract or transaction between the Corporation and one or more
of its Directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one
or more of its Directors or officers are Directors or officers, or have a
financial interest, shall be void or voidable solely for the reason, or
solely because the Director or officer is present at or participates in the
meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted
for such purpose, if:
(1) The material facts as to his interest and as to the contract
or transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested Directors, even though the disinterested Directors be
less than a quorum; or
(2) The material facts as to his interest and as to the contract
or transaction are disclosed or are
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known to the shareholders entitled to vote thereon, and the contract
or transaction is specifically approved or ratified in good faith by
vote of such shareholders; or
(3) The contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the Board, a committee
thereof, or the shareholders.
(b) Interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board or committee thereof
which authorizes the contract or transaction.
ARTICLE TEN
Miscellaneous
10.1 Inspection of Books and Records. The Board of Directors shall have
power to determine which accounts, books and records of the Corporation shall be
open to the inspection of shareholders, except such as may by law be
specifically open to inspection, and shall have power to fix reasonable rules
and regulations not in conflict with the applicable law for the inspection of
accounts, books and records which by law or by determination of the Board of
Directors shall be open to inspection.
10.2 Fiscal Year. The Board of Directors is authorized to fix the fiscal
year of the Corporation and to change the same from time to time as it deems
appropriate, but unless otherwise so determined shall begin on the first day of
January in each year and shall end on the last day of December in the same year.
10.3 Seal. The seal of the Corporation shall consist of an impression
bearing the name of the Corporation around the perimeter and the word "Seal" and
such other information, including the year of incorporation, in the center
thereof as is desired. In lieu thereof, the Corporation may use an impression or
writing bearing the words "CORPORATE SEAL" enclosed in parentheses or scroll,
which shall also be deemed the seal of the Corporation.
10.4 Annual Statements. Not later than four months after the close of each
fiscal year, and in any case prior to the next annual meeting of shareholders,
the Corporation shall prepare (a) a balance sheet showing in reasonable detail
the financial condition of the Corporation as of the close of its fiscal year,
and (b) an earnings statement showing the results of its operations during its
fiscal year. Upon receipt of written request, the Corporation promptly shall
mail to any shareholder of record a copy of the most recent such balance sheet
and profit and loss statement.
10.5 Execution of Documents. No attestation by the Secretary or an
Assistant Secretary shall be necessary to make any contract; conveyance or other
document valid and
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legally binding which has been executed by and on behalf of the Corporation by
an officer or officers thereunto duly authorized in the manner provided for in
these Bylaws.
ARTICLE ELEVEN
Amendments
11.1 Power to Amend Bylaws. The Board of Directors shall have the power to
alter, amend or repeal these Bylaws or adopt new Bylaws, but any Bylaws adopted
by the Board of Directors may be altered, amended or repealed, and new Bylaws
adopted, by the shareholders. The shareholders may prescribe that any Bylaw or
Bylaws adopted by them shall not be altered, amended or repealed by the Board of
Directors.
11.2 Conditions. Action taken by the shareholders with respect to Bylaws
shall be taken by an affirmative vote of a majority of all shares entitled to
elect Directors and present at a duly convened shareholders meeting, and action
by the Board of Directors with respect to Bylaws shall be taken by an
affirmative vote of a majority of all Directors then holding office.
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