EXHIBIT 3.2
SECOND AMENDED AND RESTATED BYLAWS
OF
PREMIERE GLOBAL SERVICES, INC.
Adopted as of March 15, 2006
TABLE OF CONTENTS
PAGE
ARTICLE ONE..................................................................1
Name and Office...........................................................1
1.1 Name..........................................................1
1.2 Registered Office and Agent...................................1
1.3 Principal Office..............................................1
1.4 Other Offices.................................................1
ARTICLE TWO..................................................................1
Shareholders' Meetings....................................................1
2.1 Place of Meetings.............................................1
2.2 Annual Meeting................................................1
2.3 Special Meetings..............................................2
2.4 Notice or Meetings............................................2
2.5 Waiver of Notice..............................................2
2.6 Voting Group; Quorum; Vote Required to Act....................2
2.7 Voting of Shares..............................................3
2.8 Proxies.......................................................3
2.9 Presiding Officer.............................................3
2.10 Adjournments..................................................4
2.11 Conduct of the Meeting........................................4
2.12 Action of Shareholders Without a Meeting......................4
2.13 Matters Considered At Annual Meetings.........................4
ARTICLE THREE................................................................5
Board of Directors........................................................5
3.1 General Powers................................................5
3.2 Number, Election and Term of Office...........................5
3.3 Removal of Directors..........................................6
3.4 Vacancies.....................................................6
3.5 Compensation..................................................6
3.6 Committees of the Board of Directors..........................6
3.7 Qualification of Directors....................................6
3.8 Certain Nomination Requirements...............................6
ARTICLE FOUR.................................................................7
Meetings of the Board of Directors........................................7
4.1 Regular Meetings..............................................7
4.2 Special Meetings..............................................8
4.3 Place of Meetings.............................................8
4.4 Notice of Meetings............................................8
4.5 Quorum........................................................8
4.6 Vote Required for Action......................................8
4.7 Participation by Conference Telephone.........................8
4.8 Action by Directors Without a Meeting.........................8
4.9 Adjournments..................................................8
4.10 Waiver of Notice..............................................9
ARTICLE FIVE.................................................................9
Officers..................................................................9
5.1 Offices.......................................................9
5.2 Term..........................................................9
5.3 Compensation..................................................9
5.4 Removal.......................................................9
5.5 Chairman of the Board........................................10
5.6 Chief Executive Officer......................................10
5.7 President....................................................10
5.8 Chief Operating Officer......................................10
5.9 Vice Presidents..............................................10
5.10 Secretary....................................................10
5.11 Treasurer....................................................11
5.12 Vice Chairmen................................................11
ARTICLE SIX.................................................................11
Distributions and Dividends..............................................11
ARTICLE SEVEN...............................................................11
Shares...................................................................11
7.1 Share Certificates...........................................11
7.2 Rights of Corporation With Respect to Registered Owners......11
7.3 Transfers of Shares..........................................12
7.4 Duty of Corporation to Register Transfer.....................12
7.5 Lost, Stolen, or Destroyed. Certificates.....................12
7.6 Fixing of Record Date........................................12
7.7 Record Date If None Fixed....................................12
ARTICLE EIGHT...............................................................13
Indemnification..........................................................13
8.1 Indemnification of Directors.................................13
8.2 Indemnification of Others....................................13
8.3 Other Organizations..........................................13
8.4 Advances.....................................................13
8.5 Non-exclusivity..............................................14
8.6 Insurance....................................................14
8.7 Notice.......................................................14
8.8 Security.....................................................14
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8.9 Amendment....................................................15
8.10 Agreements...................................................15
8.11 Continuing Benefits..........................................15
8.12 Successors...................................................15
8.13 Severability.................................................15
8.14 Additional Indemnification...................................15
ARTICLE NINE................................................................16
Miscellaneous............................................................16
9.1 Inspection of Books and Records..............................16
9.2 Fiscal Year..................................................16
9.3 Corporate Seal...............................................16
9.4 Annual Statements............................................16
9.5 Notice.......................................................16
9.6 Business Combination.........................................17
ARTICLE TEN.................................................................17
Amendments...............................................................17
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SECOND AMENDED AND RESTATED BYLAWS
OF
PREMIERE GLOBAL SERVICES, INC.
References in these Bylaws to "Articles of Incorporation" are to the
Articles of Incorporation, as amended and restated from time to time, of
Premiere Global Services, Inc.
All of these Bylaws are subject to contrary provisions, if any, of the
Articles of Incorporation (including provisions designating the preferences,
limitations, and relative rights of any class or series of shares), the Georgia
Business Corporation Code (the "Code"), and other applicable law, as in effect
on and after the effective date of these Bylaws. References in these Bylaws to
"Sections" shall refer to sections of the Bylaws, unless otherwise indicated.
ARTICLE ONE
Name and Office
1.1 NAME. The name of the Corporation is Premiere Global Services,
Inc.
1.2 REGISTERED OFFICE AND AGENT. The Corporation shall maintain a
registered office and shall have a registered agent whose business office is the
same as the registered office.
1.3 PRINCIPAL OFFICE. The principal office of the Corporation
shall be at the place designated in the Corporation's annual registration with
the Georgia Secretary of State.
1.4 OTHER OFFICES. In addition to its registered office and
principal office, the Corporation may have offices at other locations either in
or outside the State of Georgia.
ARTICLE TWO
Shareholders' Meetings
2.1 PLACE OF MEETINGS. Meetings of the Corporation's shareholders
may be held at any location inside or outside the State of Georgia designated by
the Board of Directors or any other person or persons who properly call the
meeting, or if the Board of Directors or such other person or persons do not
specify a location, at the Corporation's principal office.
2.2 ANNUAL MEETING. The Corporation shall hold an annual meeting
of shareholders, at a time determined by the Board of Directors, to elect
directors and to transact any business that properly may come before the
meeting. The annual meeting may be combined with any other meeting of
shareholders, whether annual or special.
2.3 SPECIAL MEETINGS. Special meetings of shareholders of one or
more classes or series of the Corporation's shares may be called at any time by
the Board of Directors, the Chairman of the Board, or the Chief Executive
Officer, and shall be called by the Corporation upon the request in writing or
by electronic transmission (in compliance with applicable requirements of the
Code) of the holders of shares representing 25% or more of the votes entitled to
be cast on each issue proposed to be considered at the special meeting;
provided, however, that at any time the Corporation has more than 100
shareholders of record, such request must be made by the holders of shares
representing 75% or more of the votes entitled to be cast on each issue proposed
to be considered at the special meeting. 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 2.4 (including
related or incidental matters that may be necessary or appropriate to effectuate
the proposed business).
2.4 NOTICE OF MEETINGS. In accordance with Section 9.5 and subject
to waiver by a shareholder pursuant to Section 2.5, the Corporation shall give
written notice of the date, time, and place of each annual and special
shareholders' meeting no fewer than 10 days nor more than 60 days before the
meeting date to each shareholder of record entitled to vote at the meeting. The
notice of an annual meeting need not state the purpose of the meeting unless
these Bylaws require otherwise. The notice of a special meeting shall state the
purpose for which the meeting is called. If an annual or special shareholders'
meeting is adjourned to a different date, time or location, the Corporation
shall give shareholders notice of the new date, time or location of the
adjourned meeting, unless a quorum of shareholders was present at the meeting
and information regarding the adjournment was announced before the meeting was
adjourned; PROVIDED, HOWEVER, that if a new record date is or must be fixed in
accordance with Section 7.6, the Corporation must give notice of the adjourned
meeting to all shareholders of record as of the new record date who are entitled
to vote at the adjourned meeting.
2.5 WAIVER OF NOTICE. 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 waiver of notice in writing or by electronic transmission signed
by the shareholder entitled to the notice. In addition, a shareholder's
attendance at a meeting shall be (a) 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 (b) 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.
2.6 VOTING GROUP; QUORUM; VOTE REQUIRED TO ACT. (a) Unless
otherwise required by the Code or the Articles of Incorporation, all classes or
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"). 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. At all meetings of
shareholders, any Voting Group entitled
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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
that 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
Section 7.6 of these Bylaws.
(b) Except as provided in Section 3.2, if a quorum exists, action
on a matter by a Voting Group is approved by that Voting Group if the votes cast
within the 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 the Code requires a greater number of affirmative votes.
2.7 VOTING OF SHARES. Unless otherwise required by the Code or the
Articles of Incorporation, each outstanding share of any class or series having
voting rights shall be entitled to one vote on each matter that is submitted to
a vote of shareholders.
2.8 PROXIES. A shareholder entitled to vote on a matter may vote
in person or by proxy pursuant to an appointment executed in writing by the
shareholder or by his or her attorney-in-fact. Any copy, facsimile
telecommunication, or other reliable reproduction of such writing may be
substituted or used in lieu of the original writing, provided that such copy,
facsimile telecommunication, or other reproduction shall be a complete
reproduction of the entire original writing. An appointment of a proxy shall be
valid for 11 months from the date of its execution, unless a longer or shorter
period is expressly stated in the proxy.
2.9 PRESIDING OFFICER. Except as otherwise provided in this
Section 2.9, the Chairman of the Board, and in his or her absence or disability
the Chief Executive Officer, shall preside at every shareholders' meeting (and
any adjournment thereof) as its chairman, if either of them is present and
willing to serve. If neither the Chairman of the Board nor the Chief Executive
Officer is present and willing to serve as chairman of the meeting, and if the
Chairman of the Board has not designated another person who is present and
willing to serve, then a majority of the Corporation's directors present at the
meeting shall be entitled to designate a person to serve as chairman. If no
director of the Corporation is present at the meeting or if a majority of the
directors who are present cannot be established, then a chairman of the meeting
shall be selected by a majority vote of (a) the shares present at the meeting
that would be entitled to vote in an election of directors, or (b) if no such
shares are present at the meeting, then the shares present at the meeting
comprising the Voting Group with the largest number of shares present at the
meeting and entitled to vote on a matter properly proposed to be considered at
the meeting. The chairman of the meeting may designate other persons to assist
with the meeting.
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2.10 ADJOURNMENTS. At any meeting of shareholders (including an
adjourned meeting), a majority of shares of any Voting Group present and
entitled to vote at the meeting (whether or not those shares constitute a
quorum) may adjourn the meeting, but only with respect to that Voting Group, to
reconvene at a specific time and place. If more than one Voting Group is present
and entitled to vote on a matter at the meeting, then the meeting may be
continued with respect to any such Voting Group that does not vote to adjourn as
provided above, and such Voting Group may proceed to vote on any matter to which
it is otherwise entitled to do so; PROVIDED, HOWEVER, that if (a) more than one
Voting Group is required to take action on a matter at the meeting and (b) any
one of those Voting Groups votes to adjourn the meeting (in accordance with the
preceding sentence), then the action shall not be deemed to have been taken
until the requisite vote of any adjourned Voting Group is obtained at its
reconvened meeting. The only business that may be transacted at any reconvened
meeting is business that could have been transacted at the meeting that was
adjourned, unless further notice of the adjourned meeting has been given in
compliance with the requirements for a special meeting that specifies the
additional purpose or purposes for which the meeting is called. Nothing
contained in this Section 2.10 shall be deemed or otherwise construed to limit
any lawful authority of the chairman of a meeting to adjourn the meeting.
2.11 CONDUCT OF THE MEETING. At any meeting of shareholders, the
chairman of the meeting shall be entitled to establish the rules of order
governing the conduct of business at the meeting.
2.12 ACTION OF SHAREHOLDERS WITHOUT A MEETING. Action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting if the action is taken by all shareholders entitled to vote on the
action or, if permitted by the Articles of Incorporation, by persons who would
be entitled to vote at a meeting shares having voting power to cast the
requisite number of votes (or numbers, in the case of voting by groups) that
would be necessary to authorize or take the action at a meeting at which all
shareholders entitled to vote were present and voted. The action must be
evidenced by one or more written consents describing the action taken, signed by
shareholders entitled to take action without a meeting, and delivered to the
Corporation for inclusion in the minutes or filing with the corporate records.
Where required by Section 14-2-704 or other applicable provision of the Code,
the Corporation shall provide shareholders with written notice of actions taken
without a meeting.
2.13 MATTERS CONSIDERED AT ANNUAL MEETINGS. Notwithstanding
anything to the contrary in these Bylaws, the only business that may be
conducted at an annual meeting of shareholders shall be business brought before
the meeting (a) by or at the direction of the Board of Directors prior to the
meeting, (b) by or at the direction of the Chairman of the Board or the Chief
Executive Officer, or (c) by a shareholder of the Corporation who is entitled to
vote with respect to the business and who complies with the notice procedures
set forth in this Section 2.13. For business to be brought properly before an
annual meeting by a shareholder, the shareholder must have given timely notice
of the business in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered or mailed to and received at the
principal offices of the Corporation not less than 120 nor more than 150
calendar days before the first anniversary of the date of the Corporation's
notice of annual meeting sent to shareholders in connection with the previous
year's annual meeting; provided, that if no annual
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meeting was held in the previous year or the date of the annual meeting has been
established to be more than 30 calendar days earlier than or 60 calendar days
after the anniversary of the previous year's annual meeting, notice by the
shareholder, to be timely, must be so received not later than the later of (i)
60 days prior to the annual meeting or (ii) the close of business on the 10th
day following the day on which such notice of the date of the annual meeting was
mailed, whichever first occurs. A shareholder's notice to the Secretary shall
set forth a brief description of each matter of business the shareholder
proposed to bring before the meeting and the reasons for conducting that
business at the meeting; the name, as it appears on the Corporation's books, and
address of the shareholder proposing the business; the series or class and
number of shares of the Corporation's capital stock that are beneficially owned
by the shareholder; and any material interest of the shareholder in the proposed
business. The chairman of the meeting shall have the discretion to declare to
the meeting that any business proposed by a shareholder to be considered at the
meeting is out of order and that such business shall not be transacted at the
meeting if (i) the chairman concludes that the matter has been proposed in a
manner inconsistent with this Section 2.13 or (ii) the chairman concludes that
the subject matter of the proposed business is inappropriate for consideration
by the shareholders at the meeting.
ARTICLE THREE
Board of Directors
3.1 GENERAL POWERS. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
managed by, the Board of Directors, subject to any limitation set forth in the
Articles of Incorporation, in bylaws approved by the shareholders, or in
agreements among all the shareholders that are otherwise lawful.
3.2 NUMBER, ELECTION AND TERM OF OFFICE. The number of directors
of the Corporation shall be fixed by resolution of the Board of Directors from
time to time and, until otherwise determined, shall be between three and ten;
PROVIDED, HOWEVER, that no decrease in the number of directors shall have the
effect of shortening the term of an incumbent director. Except as provided in
Section 3.4, the directors shall be elected at each annual meeting of
shareholders, or at a special meeting of shareholders called for purposes that
include the election of directors, by a plurality of the votes cast by the
shares entitled to vote and present at the meeting. The terms of office of
directors will be staggered by dividing the total number of directors into three
classes, with each class accounting for one-third, as near as may be, of the
total, with the actual number of directors within each of the three classes to
be determined by vote of a majority of the entire Board of Directors. The terms
of directors in the first class expire at the first annual shareholders' meeting
after their election. The terms of the second class expire at the second annual
shareholders' meeting after their election, and the terms of the third class
expire at the third annual shareholders' meeting after their election. At each
annual shareholders' meeting held thereafter, directors shall be chosen for a
term of three years to succeed those whose terms expire. If the number of
directors is changed, any increase or decrease shall be so apportioned among the
classes as to make all classes as nearly equal in number as possible, and when
the number of directors is increased and any newly created directorships are
filled by the board, the terms of the additional directors shall expire at the
next election of directors by the shareholders. Each director, except in the
case of his earlier death, written resignation, retirement,
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disqualification or removal, shall serve for the duration of his term, as
staggered, and thereafter until his successor shall have been elected and
qualified.
3.3 REMOVAL OF DIRECTORS. The entire Board of Directors or any
individual director may be removed with cause by the shareholders, provided that
directors elected by a particular Voting Group may be removed only by the
shareholders in that Voting Group. Removal action may be taken only at a
shareholders' meeting for which notice of the removal action has been duly
given, and a director may be removed only by the holders of 75% of the votes
entitled to be cast. A removed director's successor, if any, may be elected at
the same meeting to serve the unexpired term. Directors may not be removed
without cause.
3.4 VACANCIES. A vacancy occurring in the Board of Directors may
be filled for the unexpired term, unless the shareholders have elected a
successor, by the affirmative vote of a majority of the remaining directors,
whether or not the remaining directors constitute a quorum; PROVIDED, HOWEVER,
that if the vacant office was held by a director elected by a particular Voting
Group, only the holders of shares of that Voting Group or the remaining
directors elected by that Voting Group shall be entitled to fill the vacancy;
PROVIDED FURTHER, 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 during an interim period
before the shareholders of the vacated director's Voting Group act to fill the
vacancy. A vacancy or vacancies in the Board of Directors may result from the
death, resignation, disqualification, or removal of any director, or from an
increase in the number of directors.
3.5 COMPENSATION. Directors may receive such compensation for
their services as directors as may be fixed by the Board of Directors from time
to time. A director may also serve the Corporation in one or more capacities
other than that of director and receive compensation for services rendered in
those other capacities.
3.6 COMMITTEES OF THE BOARD OF DIRECTORS. The Board of Directors
may designate from among its members an executive committee or one or more other
standing or ad hoc committees, each consisting of one or more directors, who
serve at the pleasure of the Board of Directors. Subject to the limitations
imposed by the Code, each committee shall have the authority set forth in the
resolution establishing the committee or in any other resolution of the Board of
Directors specifying, enlarging, or limiting the authority of the committee.
3.7 QUALIFICATION OF DIRECTORS. No person elected to serve as a
director of the Corporation shall assume office and begin serving unless and
until duly qualified to serve, as determined by reference to the Code, the
Articles of Incorporation, and any further eligibility requirements established
in these Bylaws.
3.8 CERTAIN NOMINATION REQUIREMENTS. No person may be nominated
for election as a director at any annual or special meeting of shareholders
unless (a) the nomination has been or is being made pursuant to a recommendation
or approval of the Board of Directors of the Corporation or a properly
constituted committee of the Board of Directors previously delegated authority
to recommend or approve nominees for director; (b) the person is nominated by a
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shareholder of the Corporation who is entitled to vote for the election of the
nominee at the subject meeting, and the nominating shareholder has furnished
timely written notice to the Secretary of the Corporation, which, to be timely,
must be delivered or mailed to and received at the principal offices of the
Corporation not less than 120 nor more than 150 calendar days before the first
anniversary of the date of the Corporation's notice of annual meeting sent to
shareholders in connection with the previous year's annual meeting; provided,
that if no annual meeting was held in the previous year or the date of the
annual meeting has been established to be more than 30 calendar days earlier
than or 60 calendar days after the anniversary of the previous year's annual
meeting, notice by the shareholder, to be timely, must be so received not later
than the later of (i) 60 days prior to the annual meeting or (ii) the close of
business on the 10th day following the day on which such notice of the date the
annual meeting was mailed, whichever first occurs, and the notice (x) sets forth
with respect to the person to be nominated his or her name, age, business and
residence addresses, principal business or occupation during the past five
years, any affiliation with or material interest in the Corporation or any
transaction involving the Corporation, and any affiliation with or material
interest in any person or entity having an interest materially adverse to the
Corporation, and (y) is accompanied by the sworn or certified statement of the
shareholder that the nominee has consented to being nominated and that the
shareholder believes the nominee will stand for election and will serve if
elected, or (c) (i) the person is nominated to replace a person previously
identified as a proposed nominee (in accordance with the provisions of subpart
(b) of this Section 3.8) who has since become unable or unwilling to be
nominated or to serve if elected, (ii) the shareholder who furnished such
previous identification makes the replacement nomination and delivers to the
Secretary of the Corporation (at the time of or prior to making the replacement
nomination) an affidavit or other sworn statement affirming that the shareholder
had no reason to believe the original nominee would be so unable or unwilling,
and (iii) such shareholder also furnishes in writing to the Secretary of the
Corporation (at the time of or prior to making the replacement nomination) the
same type of information about the replacement nominee as required by subpart
(b) of this Section 3.8 to have been furnished about the original nominee. The
chairman of any meeting of shareholders at which one or more directors are to be
elected, for good cause shown and with proper regard for the orderly conduct of
business at the meeting, may waive in whole or in part the operation of this
Section 3.8. Additionally, the chairman of the meeting shall have the discretion
to declare to the meeting that any director nomination proposed by a shareholder
to be considered at the meeting is out of order and that such nominee(s) shall
not be voted on at the meeting if the chairman concludes that the matter has
been proposed in a manner inconsistent with this Section 3.8.
ARTICLE FOUR
Meetings of the Board of Directors
4.1 REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held in conjunction with each annual meeting of shareholders. In
addition, the Board of Directors may, by prior resolution, hold regular meetings
at other times.
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4.2 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the Chairman of the Board, the Chief
Executive Officer or a majority of the directors in office at that time.
4.3 PLACE OF MEETINGS. Directors may hold their meetings at any
place in or outside the State of Georgia that the Board of Directors may
establish from time to time.
4.4 NOTICE OF MEETINGS. Directors need not be provided with notice
of any regular meeting of the Board of Directors. Unless waived in accordance
with Section 4.10, the Corporation shall give at least twenty-four hours' notice
to each director of the date, time, and place of each special meeting. Notice of
a meeting shall be deemed to have been given to any director in attendance at
any prior meeting at which the date, time, and place of the subsequent meeting
was announced.
4.5 QUORUM. At meetings of the Board of Directors, a majority of
the directors then in office shall constitute a quorum for the transaction of
business.
4.6 VOTE REQUIRED FOR ACTION. If a quorum is present when a vote
is taken, the vote of a majority of the directors present at the time of the
vote will be the act of the Board of Directors, unless the vote of a greater
number is required by the Code, the Articles of incorporation, or these Bylaws.
A director who is present at a meeting of the Board of Directors when corporate
action is taken is deemed to have assented to the action taken unless (a) he or
she objects at the beginning of the meeting (or promptly upon his or her
arrival) to holding the meeting or transacting business at it; (b) his or her
dissent or abstention from the action taken is entered in the minutes of the
meeting; or (c) he or she delivers written notice of dissent or abstention to
the presiding officer of the meeting before its adjournment or to the
Corporation immediately after adjournment of the meeting. The right of dissent
or abstention is not available to a director who votes in favor of the action
taken.
4.7 PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of
Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment through which all persons
participating may hear and speak to each other. Participation in a meeting
pursuant to this Section 4.7 shall constitute presence in person at the meeting.
4.8 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 consent in writing or by electronic transmission,
describing the action taken, is signed by each director and delivered to the
Corporation for inclusion in the minutes or filing with the corporate records.
The consent may be executed in counterpart, and shall have the same force and
effect as a unanimous vote of the Board of Directors at a duly convened meeting.
4.9 ADJOURNMENTS. A meeting of the Board of Directors, whether or
not a quorum is present, may be adjourned by a majority of the directors present
to reconvene at a specific time and place. It shall not be necessary to give
notice to the directors of the reconvened meeting or of the business to be
transacted, other than by announcement at the meeting that was adjourned,
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unless a quorum was not present at the meeting that was adjourned, in which case
notice shall be given to directors in the same manner as for a special meeting.
At any such reconvened meeting at which a quorum is present, any business may be
transacted that could have been transacted at the meeting that was adjourned.
4.10 WAIVER OF NOTICE. 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 waiver in writing
or by electronic transmission 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.
ARTICLE FIVE
Officers
5.1 OFFICES. The officers of the Corporation shall consist of a
Chairman of the Board, Chief Executive Officer, a President, a Chief Operating
Officer, and a Secretary, each of whom shall be elected or appointed by the
Board of Directors. The Board of Directors from time to time may create and
establish the duties of other offices and may elect or appoint, or authorize
specific senior officers to appoint the persons who shall hold such other
offices (including a Treasurer, one or more Vice Presidents, Assistant Vice
Presidents, and the like), one or more Vice Chairmen, one or more Assistant
Secretaries, and one or more Assistant Treasurers. Whether or not so provided by
the Board of Directors, the Chairman of the Board may appoint one or more
Assistant Secretaries and one or more Assistant Treasurers. Any two or more
offices may be held by the same person. Until a Treasurer is appointed by the
Board, the Secretary shall be responsible for the duties of the Treasurer
described in Section 5.11 below.
5.2 TERM. Each officer shall serve at the pleasure of the Board of
Directors (or, if appointed by a senior officer pursuant to this Article Five,
at the pleasure of the Board of Directors or any senior officer authorized to
have appointed the officer) until his or her death, resignation, or removal, or
until his or her replacement is elected or appointed in accordance with this
Article Five.
5.3 COMPENSATION. The compensation of all officers of the
Corporation shall be fixed by the Board of Directors or by a committee or
officer appointed by the Board of Directors. Officers may serve without
compensation.
5.4 REMOVAL. All officers (regardless of how elected or appointed)
may be removed, with or without cause, by the Board of Directors, and any
officer appointed by another officer may also be removed, with or without cause,
by any senior officer authorized to have appointed the officer to be removed.
Removal will be without prejudice to the contract rights, if any, of the person
removed, but shall be effective, notwithstanding any damage claim that may
result from infringement of such contract rights.
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5.5 CHAIRMAN OF THE BOARD. The Chairman of the Board (if there be
one) shall preside at and serve as chairman of meetings of the shareholders and
of the Board of Directors (unless another person is selected under Section 2.9
to act as chairman). The Chairman of the Board shall perform other duties and
have other authority as may from time to time be delegated by the Board of
Directors.
5.6 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be
charged with the general and active management of the business of the
Corporation, shall see that all orders and resolutions of the Board of Directors
are carried into effect, 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 Chief Executive Officer 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.
5.7 PRESIDENT. The President shall, subject to the authority of
the Chairman of the Board and the Chief Executive Officer, have day-to-day
general management responsibility of the business of the Corporation. The
President shall also have such powers and perform such duties and have any
authority as may be delegated from time to time by the Board of Directors, the
Chairman of the Board or the Chief Executive Officer, and shall be subject to
the limitations fixed from time to time by the Board of Directors, the Chairman
of the Board or the Chief Executive Officer. In the absence or disability of the
Chief Executive Officer, the President shall perform the duties and exercise the
powers of the Chief Executive Officer and, when specifically authorized by the
Board of Directors, the President shall have the powers and perform the duties
of the Chairman of the Board.
5.8 CHIEF OPERATING OFFICER. The Chief Operating Officer shall,
subject to the authority of the Chairman of the Board, the Chief Executive
Officer and the President, have direct superintendence of the Corporation's
operations, policies, properties and affairs. The Chief Operating Officer shall
also have such powers and perform such duties and have any authority as may be
delegated from time to time by the Board of Directors, the Chief Executive
Officer or the President, and shall be subject to the limitations fixed from
time to time by the Board of Directors, Chief Executive Officer or the
President. In the absence or disability of the President, the Chief Operating
Officer shall perform his duties and may exercise his powers.
5.9 VICE PRESIDENTS. 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, the Chief Executive Officer or the President.
5.10 SECRETARY. The Secretary shall be responsible for preparing
minutes of the meetings of shareholders, directors, and committees of directors
and for authenticating records of the Corporation. The Secretary or any
Assistant Secretary shall have authority to give all notices required by law or
these Bylaws. The Secretary shall be responsible for the custody of the
corporate books, records, contracts, and other documents. The Secretary or any
Assistant
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Secretary may affix the corporate seal to any lawfully executed documents
requiring it, may attest to the signature of any officer of the Corporation, and
shall sign any instrument that requires the Secretary's signature. The Secretary
or any Assistant Secretary shall perform any other duties and have any other
authority as from time to time may be delegated by the Board of Directors, the
Chief Executive Officer or the President.
5.11 TREASURER. Unless otherwise provided by the Board of
Directors, the Treasurer shall be responsible for the custody of all funds and
securities belonging to the Corporation and for the receipt, deposit, or
disbursement of these funds and securities under the direction of the Board of
Directors. The Treasurer shall cause full and true accounts of all receipts and
disbursements to be maintained and shall make reports of these receipts and
disbursements to the Board of Directors, Chief Executive Officer and President
upon request. The Treasurer or Assistant Treasurer shall perform any other
duties and have any other authority as from time to time may be delegated by the
Board of Directors, the Chief Executive Officer or the President.
5.12 VICE CHAIRMEN. Each Vice Chairman (if there be any) shall
perform such duties and have such authority as from time to time may be
delegated by the Board of Directors or the Chief Executive Officer.
ARTICLE SIX
Distributions and Dividends
Unless the Articles of Incorporation provide otherwise, the Board of
Directors, from time to time in its discretion, may authorize or declare
distributions or share dividends in accordance with the Code.
ARTICLE SEVEN
Shares
7.1 SHARE CERTIFICATES. The interest of each shareholder in the
Corporation shall be a evidenced by a certificate or certificates representing
shares of the Corporation, which shall be in such form as the Board of Directors
from time to time may adopt in accordance with the Code. Share certificates
shall be in registered form and shall indicate the date of issue, the name of
the Corporation, that the Corporation is organized under the laws of the State
of Georgia, the name of the shareholder, and the number and class of shares and
designation of the series, if any, represented by the certificate. Each
certificate shall be signed by the President or a Vice President (or in lieu
thereof, by the Chairman of the Board or Chief Executive Officer, if there be
one) and may be signed by the Secretary or an Assistant Secretary; PROVIDED,
HOWEVER, that where the certificate is signed (either manually or by facsimile)
by a transfer agent, or registered by a registrar, the signatures of those
officers may be facsimiles.
7.2 RIGHTS OF CORPORATION WITH RESPECT TO REGISTERED OWNERS. Prior
to due presentation for transfer of registration of its shares, the Corporation
may treat the registered owner of the shares (or the beneficial owner of the
shares to the extent of any rights granted by a
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nominee certificate on file with the Corporation pursuant to any procedure that
may be established by the Corporation in accordance with the Code) as the person
exclusively entitled to vote the shares, to receive any dividend or other
distribution with respect to the shares, and for all other purposes: and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in the shares on the part of any other person, whether or not it has
express or other notice of such a claim or interest, except as otherwise
provided by law.
7.3 TRANSFERS OF SHARES. Transfers of shares shall be made upon
the books of the corporation kept by the Corporation or by 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. 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 7.5 of these Bylaws shall have been
complied with.
7.4 DUTY OF CORPORATION TO REGISTER TRANSFER. Notwithstanding any
of the provisions of Section 7.3 of these Bylaws, the Corporation is under a
duty to register the transfer of its shares only if: (a) the share certificate
is endorsed by the appropriate person or persons: (b) reasonable assurance is
given that each required endorsement is genuine and effective; (c) the
Corporation has no duty to inquire into adverse claims or has discharged any
such duty; (d) any applicable law relating to the collection of taxes has been
complied with; (e) the transfer is in fact rightful or is to a bona fide
purchaser; and (f) the transfer is in compliance with applicable provisions of
any transfer restrictions of which the Corporation shall have notice.
7.5 LOST, STOLEN, OR DESTROYED. CERTIFICATES. Any person claiming
a share certificate to be lost, stolen, or destroyed shall make an affidavit or
affirmation of this claim in such a manner as the Corporation may require and
shall if the Corporation requires, give the Corporation a bond of indemnity in
form and amount, and with one or more sureties satisfactory to the Corporation,
as the Corporation may require, whereupon an appropriate new certificate may be
issued in lieu of the one alleged to have been lost, stolen or destroyed.
7.6 FIXING OF RECORD DATE. For the purpose of determining
shareholders (a) entitled to notice of or to vote at any meeting of shareholders
or, if necessary, any adjournment thereof, (b) entitled to receive payment of
any distribution or dividend, or (c) for any other proper purpose, the Board of
Directors may fix in advance a date as the record date. The record date may not
be more than 70 days (and, in the case of a notice to shareholders of a
shareholders' meeting, not less than 10 days) prior to the date on which the
particular action, requiring the determination of shareholders, is to be taken.
A separate record date may be established for each Voting Group entitled to vote
separately on a matter at a meeting. A determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders shall apply to any
adjournment of the meeting, unless the Board of Directors shall fix a new record
date for the reconvened 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.
7.7 RECORD DATE IF NONE FIXED. If no record date is fixed as
provided in Section 7.6, 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
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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.
ARTICLE EIGHT
Indemnification
8.1 INDEMNIFICATION OF DIRECTORS. The Corporation shall indemnify
and hold harmless any director of the Corporation (an "Indemnified 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, whether formal or informal, including any
action or suit by or in the right of the Corporation (for purposes of this
Article Eight, collectively, a "Proceeding") because he or she is or was a
director, officer, employee, or agent of the Corporation, against any judgment,
settlement, penalty, fine, or reasonable expenses (including, but not limited
to, attorneys' fees and disbursements, court costs, and expert witness fees)
incurred with respect to the Proceeding (for purposes of this Article Eight, a
"Liability"), provided, however, that no indemnification shall be made for: (a)
any appropriation by a director, in violation of the director's duties, of any
business opportunity of the Corporation; (b) any acts or omissions of a director
that involve intentional misconduct or a knowing violation of law; (c) the types
of liability set forth in Code Section 14-2-832; or (d) any transaction from
which the director received an improper personal benefit.
8.2 INDEMNIFICATION OF OTHERS. The Board of Directors shall have
the power to cause the Corporation to provide to officers, employees, and agents
of the Corporation all or any part of the right to indemnification permitted for
such persons by appropriate provisions of the Code. Persons to be indemnified
may be identified by position or name, and the right of indemnification may be
different for each of the persons identified. Each officer, employee, or agent
of the Corporation so identified shall be an "Indemnified Person" for purposes
of the provisions of this Article Eight.
8.3 OTHER ORGANIZATIONS. The Corporation shall provide to each
director, and the Board of Directors shall have the power to cause the
Corporation to provide to any officer, employee, or agent, of the Corporation
who is or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise all or any part of
the right to indemnification and other rights of the type provided under
Sections 8.1, 8.2, 8.4, and 8.10 of this Article Eight (subject to the
conditions, limitations, and obligations specified in those Sections) permitted
for such persons by appropriate provisions of the Code. Persons to be
indemnified may be identified by position or name, and the right of
indemnification may be different for each of the persons identified. Each person
so identified shall be an "Indemnified Person" for purposes of the provisions of
this Article Eight.
8.4 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 Proceeding of the kind described in Sections
8.1 or 8.3, as to an Indemnified Person who is a director of the Corporation, or
in Sections 8.2 or 8.3, as to other Indemnified
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Persons, if the Board of Directors has specified that advancement of expenses be
made available to any such Indemnified Person, shall be paid by the Corporation
in advance of the final disposition of such 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 10 days following the Indemnified Person's
delivery to the Corporation of a written request for an advance pursuant to this
Section 8.4, together with a reasonable accounting of such expenses; PROVIDED,
HOWEVER, that the Indemnified Person shall furnish the Corporation a written
affirmation of his or her good faith belief that he or she has met the
applicable standard of conduct and a written undertaking and agreement to repay
to the Corporation any advances made pursuant to this Section 8.4 if it shall be
determined that the Indemnified Person is not entitled to be indemnified by the
Corporation for such amounts. The Corporation may make the advances contemplated
by this Section 8.4 regardless of the Indemnified Person's financial ability to
make repayment. Any advances and undertakings to repay pursuant to this Section
8.4 may be unsecured and interest-free.
8.5 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 Eight
shall not be exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any provision
of the Articles of Incorporation, or 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 voted thereon.
8.6 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 serving in such a
capacity, is also or was also serving at the request of the Corporation as a
director, officer, trustee, partner, employee, or agent of any corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against any Liability that may be asserted against or incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not
the Corporation would have the power to indemnify him or her against such
liability under the provisions of this Article Eight.
8.7 NOTICE. If the Corporation indemnifies or advances expenses to
a director under any of Sections 14-2-851 through 14-2-854 of the Code in
connection with a Proceeding by or in the right of the Corporation, the
Corporation shall, to the extent required by Section 14-2-1621 or any other
applicable provision of the Code, report the indemnification or advance in
writing to the shareholders with or before the notice of the next shareholders'
meeting.
8.8 SECURITY. The Corporation may designate certain of its assets
as collateral, provide self-insurance, establish one or more indemnification
trusts, or otherwise secure or facilitate its ability to meet its obligations
under this Article Eight, or under any indemnification agreement or plan of
indemnification adopted and entered into in accordance with the provisions of
this Article Eight, as the Board of Directors deems appropriate.
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8.9 AMENDMENT. Any amendment to this Article Eight 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 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 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 under this Article Eight to the same extent as if such provisions had
continued as part of the Bylaws of the Corporation without such amendment. This
Section 8.9 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.
8.10 AGREEMENTS. The provisions of this Article Eight shall be
deemed to constitute an agreement between the Corporation and each Indemnified
Person hereunder. In addition to the rights provided in this Article Eight, the
Corporation shall have the power, upon authorization by the Board of Directors,
to enter into an agreement or agreements providing to any Indemnified Person
indemnification rights substantially similar to those provided in this Article
Eight.
8.11 CONTINUING BENEFITS. The rights of indemnification and
advancement of expenses permitted or authorized by this Article Eight shall,
unless otherwise provided when such rights are granted or conferred, 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
person.
8.12 SUCCESSORS. For purposes of this Article Eight, the term
"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 Eight on the same
terms and conditions and to the same extent as this Corporation.
8.13 SEVERABILITY. Each of the Sections of this Article Eight, 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 separate Section or clause of this Article Eight that is not
declared invalid or unenforceable.
8.14 ADDITIONAL INDEMNIFICATION. In addition to the specific
indemnification rights set forth herein, the Corporation shall indemnify each of
its directors and such of its officers as have been designated by the Board of
Directors 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.
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ARTICLE NINE
Miscellaneous
9.1 INSPECTION OF BOOKS AND RECORDS. The Board of Directors shall
have the power to determine which accounts, books, and records of the
Corporation shall be available for shareholders to inspect or copy, except for
those books and records required by the Code to be made available upon
compliance by a shareholder with applicable requirements, and shall have the
power to fix reasonable rules and regulations (including confidentiality
restrictions and procedures) not in conflict with applicable law for the
inspection and copying of accounts, books, and records that by law or by
determination of the Board of Directors are made available. Unless required by
the Code or otherwise provided by the Board of Directors, a shareholder of the
Corporation holding less than two percent of the total shares of the Corporation
then outstanding shall have no right to inspect the books and records of the
Corporation.
9.2 FISCAL YEAR. The Board of Directors is authorized to fix the
fiscal year of the Corporation and to change the fiscal year from time to time
as it deems appropriate.
9.3 CORPORATE SEAL. The corporate seal will be in such form as the
Board of Directors may from time to time determine. The Board of Directors may
authorize the use of one or more facsimile forms of the corporate seal. The
corporate seal need not be used unless its use is required by law, by these
Bylaws, or by the Articles of Incorporation.
9.4 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) a profit and loss 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, in such form and with
such information as the Code may require.
9.5 NOTICE. (a) Whenever these Bylaws require notice to be given
to any shareholder, the notice may be given by mail, in person, by courier
delivery, or by overnight delivery service. Whenever these Bylaws require notice
to be given to any director, the notice may be given by mail, in person, by
courier delivery, by overnight delivery service, by telephone, by voice mail, by
facsimile, or by e-mail or similar electronic means. Whenever notice is given to
a shareholder or director by mail, the notice shall be sent by depositing the
notice in a post office or letter box in a postage-prepaid, scaled envelope
addressed to the shareholder or director at his or her address as it appears on
the records of the Corporation. Any such written notice given by mail shall be
effective, at the time the same is deposited in the United States mail. Whenever
notice is given to a shareholder or director by any means other than mail, the
notice shall be deemed given when delivered to the physical address, facsimile
transmission number, e-mail address, or voice mailbox address as it appears on
the records of the Corporation, or in the case of notice by telephone, to the
telephone number appearing on the records of the Corporation.
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(b) In calculating time periods for notice, when a period of time
measured in days, weeks, months, years or other measurement of time is
prescribed for the exercise of any privilege or the discharge of any duty, the
first day shall not be counted but the last day shall be counted.
9.6 BUSINESS COMBINATION. The Corporation hereby elects to be
governed by the provisions of Section 14-2-1132 of the Code, pertaining to
business combinations with interested shareholders. This Section 9.6 was adopted
by the Corporation as of December 18, 1995, pursuant to an amendment to the
Bylaws in accordance with Section 14-2-1133 of the Code.
ARTICLE TEN
Amendments
Except as otherwise provided under the Code, the Board of Directors
shall have the power to alter, amend, or repeal these Bylaws or adopt new
Bylaws. 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 in adopting any Bylaw or Bylaws that the Bylaw or Bylaws so adopted
shall not be altered, amended, or repealed by the Board of Directors. Except as
otherwise provided in the Articles of Incorporation, shareholders may alter,
amend or repeal any Bylaws or adopt new Bylaws only upon the affirmative vote of
the holders of 75% of the shares entitled to vote on the matter.
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