EXHIBIT 3.10
BYLAWS
OF
ENCORE INDUSTRIES, INC.
AMENDED AND RESTATED AS OF FEBRUARY 28, 1997
BYLAWS
TABLE OF CONTENTS
ARTICLE ONE - OFFICES AND AGENT
Section 1.1 Registered Office and Agent.............................. 1
Section 1.2 Other Offices............................................ 1
ARTICLE TWO - SHAREHOLDERS' MEETINGS
Section 2.1 Place of Meetings........................................ 1
Section 2.2 Annual Meetings.......................................... 1
Section 2.3 Special Meetings......................................... 1
Section 2.4 Notice of Meetings....................................... 1
Section 2.5 Voting Group............................................. 2
Section 2.6 Quorum................................................... 2
Section 2.7 Vote Required for Action................................. 2
Section 2.8 Voting of Shares......................................... 2
Section 2.9 Proxies.................................................. 2
Section 2.10 Presiding Officer........................................ 3
Section 2.11 Adjournments............................................. 3
Section 2.12 Action of Shareholders Without a Meeting................. 3
ARTICLE THREE - THE BOARD OF DIRECTORS
Section 3.1 General Powers........................................... 3
Section 3.2 Number, Election and Term of Office...................... 4
Section 3.3 Removal.................................................. 4
Section 3.4 Vacancies................................................ 4
Section 3.5 Compensation............................................. 4
ARTICLE FOUR - MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Regular Meetings......................................... 4
Section 4.2 Special Meetings......................................... 5
Section 4.3 Place of Meetings........................................ 5
Section 4.4 Notice of Meetings....................................... 5
Section 4.5 Quorum................................................... 5
Section 4.6 Vote Required for Action................................. 5
Section 4.7 Participation by Conference Telephone.................... 5
Section 4.8 Action by Directors Without a Meeting.................... 6
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Section 4.9 Adjournments............................................. 6
Section 4.10 Committees of the Board of Directors..................... 6
ARTICLE FIVE - MANNER OF NOTICE AND WAIVER AS TO
SHAREHOLDERS AND DIRECTORS
Section 5.1 Procedure................................................ 6
Section 5.2 Waiver................................................... 7
ARTICLE SIX - OFFICERS
Section 6.1 Number................................................... 8
Section 6.2 Election and Term........................................ 8
Section 6.3 Compensation............................................. 8
Section 6.4 President................................................ 8
Section 6.5 Vice Presidents.......................................... 8
Section 6.6 Secretary................................................ 8
Section 6.7 Treasurer................................................ 8
Section 6.8 Bonds.................................................... 9
ARTICLE SEVEN - DISTRIBUTIONS AND SHARE DIVIDENDS
Section 7.1 Authorization or Declaration............................. 9
Section 7.2 Record Date With Regard to Distributions
and Share Dividends...................................... 9
ARTICLE EIGHT - SHARES
Section 8.1 Authorization and Issuance of Shares..................... 9
Section 8.2 Share Certificates....................................... 9
Section 8.3 Rights of Corporation With Respect
to Registered Owners..................................... 10
Section 8.4 Transfers of Shares...................................... 10
Section 8.5 Duty of Corporation to Register Transfer................. 10
Section 8.6 Lost, Stolen or Destroyed Certificates................... 10
Section 8.7 Fixing of Record Date With Regard
Shareholder Action....................................... 11
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ARTICLE NINE - INDEMNIFICATION
Section 9.1 Definitions.............................................. 11
Section 9.2 Basic Indemnification Arrangement........................ 12
Section 9.3 Advances for Expenses.................................... 12
Section 9.4 Authorization of and Determination of
Entitlement to Indemnification........................... 13
Section 9.5 Court-Ordered Indemnification and
Advances for Expenses.................................... 14
Section 9.6 Indemnification of Employees and Agents.................. 15
Section 9.7 Shareholder Approved Indemnification..................... 15
Section 9.8 Liability Insurance...................................... 15
Section 9.9 Witness Fees............................................. 16
Section 9.10 Report to Shareholders................................... 16
Section 9.11 Amendments; Severability................................. 16
ARTICLE TEN - MISCELLANEOUS
Section 10.1 Inspection of Books and Records.......................... 16
Section 10.2 Fiscal Year.............................................. 16
Section 10.3 Corporate Seal........................................... 16
Section 10.4 Annual Financial Statements.............................. 16
Section 10.5 Conflict With Articles of Incorporation.................. 17
ARTICLE ELEVEN - AMENDMENTS
Section 11.1 Power to Amend Bylaws.................................... 17
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ARTICLE ONE
OFFICES AND AGENT
Section 1.1 Registered Office and Agent. The corporation shall maintain
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a registered office in the State of Georgia and shall have a registered agent
whose business office is identical to the registered office.
Section 1.2 Other Offices. In addition to its registered office, the
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corporation may have offices at any other place or places, within or without the
State of Georgia, as the Board of Directors may from time to time select or as
the business of the corporation may require or make desirable.
ARTICLE TWO
SHAREHOLDERS' MEETINGS
Section 2.1 Place of Meetings. Meetings of shareholders may be held at
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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, as set
forth in the waiver, or if no place is so specified, at the principal office of
the corporation.
Section 2.2 Annual Meetings. The annual meeting of shareholders shall
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be held on May 1 unless that day is a legal holiday, and in that event on the
next succeeding business day, or on such other day as may be determined from
time to time by the Board of Directors, for the purpose of electing directors
and transacting any and all business that may properly come before the meeting.
If an annual meeting of shareholders is not held as provided in this Section
2.2, any business, including the election of directors, that might properly have
been acted upon at that meeting may be acted upon at a special meeting in lieu
of the annual meeting held pursuant to these bylaws or held pursuant to a court
order.
Section 2.3 Special Meetings. Special meetings of shareholders or a
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special meeting in lieu of the annual meeting of shareholders may be called at
any time by the Board of Directors or the President. Special meetings of
shareholders or a special meeting in lieu of the annual meeting of shareholders
shall be called by the corporation upon the written request of the holders of
twenty-five percent (25%) of all the votes entitled to be cast on the issue or
issues proposed to be considered at the proposed special meeting.
Section 2.4 Notice of Meetings. Unless waived as contemplated in
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Section 5.2, a notice of each meeting of shareholders stating the date, time and
place of the meeting shall be given not less than ten (10) days nor more than
sixty (60) days before the date thereof, by or at the direction of the
President, the Secretary or the officer or persons calling the meeting, to each
shareholder entitled to vote at that meeting. In the case of an annual meeting,
the notice need not state the purpose or purposes of the meeting unless the
articles of incorporation or the Georgia Business Corporation Code (the "Code")
requires otherwise. In the case of a special meeting, including a special
meeting in lieu of an annual meeting, the notice of meeting shall
state the purpose or purposes for which the meeting is called.
Section 2.5 Voting Group. Voting group means all shares of one or more
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classes or series that are entitled to vote and be counted together collectively
on a matter at a meeting of shareholders. All shares entitled to vote generally
on the matter are for that purpose a single voting group.
Section 2.6 Quorum. With respect to shares entitled to vote as a
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separate voting group on a matter at a meeting of shareholders, the presence, in
person or by proxy, of a majority of the votes entitled to be cast on the matter
by the voting group shall constitute a quorum of that voting group for action on
that matter unless the articles of incorporation or the Code provides otherwise.
Once a share is represented for any purpose at a meeting, other than solely to
object to holding the meeting or to transacting business at the meeting, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of the meeting unless a new record date is or must be set for the
adjourned meeting pursuant to Section 8.7 of these bylaws.
Section 2.7 Vote Required for Action. If a quorum exists, action on a
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matter (other than the election of directors) by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the articles of incorporation, provisions of these
bylaws validly adopted by the shareholders or the Code requires a greater number
of affirmative votes. If the articles of incorporation or the Code provides for
voting by two or more voting groups on a matter, action on that matter is taken
only when voted upon by each of those voting groups counted separately. Action
may be taken by one voting group on a matter even though no action is taken by
another voting group entitled to vote on the matter. With regard to the
election of directors, unless otherwise provided in the articles of
incorporation, if a quorum exists, action on the election of directors is taken
by a plurality of the votes cast by the shares entitled to vote in the election.
Section 2.8 Voting of Shares. Unless the articles of incorporation or
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the Code provides otherwise, 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 the ballot be cast by proxy, it
shall also state the name of the proxy.
Section 2.9 Proxies. A shareholder entitled to vote pursuant to Section
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2. 8 may vote in person or by proxy pursuant to an appointment of proxy executed
in writing by the shareholder or by his attorney-in-fact. An appointment of
proxy shall be valid for only one meeting to be specified therein, and any
adjournments of such meeting, but shall not be valid for more than eleven months
unless expressly provided therein. Appointments of proxy shall be dated and
filed with the records of the meeting to which they relate. If the validity of
any appointment of proxy is questioned, it must be submitted to the secretary of
the meeting of shareholders for examination or to a proxy officer or committee
appointed by the person
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presiding at the meeting. The secretary of the meeting or, if appointed, the
proxy officer or committee, as the case may be, shall determine the validity or
invalidity of any appointment of proxy submitted and reference by the secretary
in the minutes of the meeting to the regularity of an appointment of proxy shall
be received as prima facie evidence of the facts stated for the purpose of
establishing the presence of a quorum at the meeting and for all other purposes.
Section 2.10 Presiding Officer. The President shall serve as the
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chairman of every meeting of shareholders unless another person is elected by
the shareholders to serve as chairman at the meeting. The chairman shall
appoint any persons he deems required to assist with the meeting.
Section 2.11 Adjournments. Whether or not a quorum is present to
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organize a meeting, any meeting of shareholders (including an adjourned meeting)
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, but no later than 120
days after the date fixed for the original meeting unless the requirements of
the Code concerning the selection of a new record date have been met. At any
reconvened meeting within that time period, any business may be transacted that
could have been transacted at the meeting that was adjourned. If notice of the
adjourned meeting was properly given, it shall not be necessary to give any
notice of the reconvened meeting or of the business to be transacted, if the
date, time and place of the reconvened meeting are announced at the meeting that
was adjourned and before adjournment; provided, however, that if a new record
date is or must be fixed, notice of the reconvened meeting must be given to
persons who are shareholders as of the new record date.
Section 2.12 Action of Shareholders Without a Meeting. Action required
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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 so provided in the articles of incorporation, by persons who would
be entitled to vote at a meeting shares having voting power to cast not less
than the minimum number (or numbers, in the case of voting by groups) of votes
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.
The corporation shall give written notice of actions taken as required by the
Code.
ARTICLE THREE
THE BOARD OF DIRECTORS
Section 3.1 General Powers. All corporate powers shall be exercised by
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or under the authority of, and the business and affairs of the corporation shall
be managed under the direction of, 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 powers of the corporation and do all lawful acts and
things that are not by law, by any legal agreement among shareholders, by the
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articles of incorporation or by these bylaws directed or required to be
exercised or done by the shareholders.
Section 3.2 Number, Election and Term of Office. The number of
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directors of the corporation shall be two (2). Except as provided in Section
3.4, the directors shall be elected by the vote of shareholders as set forth in
Section 2.7 at each annual meeting of shareholders or special meeting in lieu of
the annual meeting. Except in case of death, written resignation, retirement,
disqualification or removal, each director shall serve until the next succeeding
annual meeting and thereafter until his successor is elected and qualifies or
until the number of directors is decreased.
Section 3.3 Removal. One or more directors may be removed from office
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with or without cause by the shareholders by a majority of the votes entitled to
be cast. If the director was elected by a voting group, only the Shareholders
of that voting group may participate in the vote to remove him. Removal action
may be taken at any meeting of shareholders with respect to which the notice
stated that the purpose, or one of the purposes, of the meeting is removal of
the director, and a removed director's successor may be elected at the same
meeting.
Section 3.4 Vacancies. A vacancy occurring in the Board of Directors,
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other than by reason of an increase in the number of directors, shall be filled
for the unexpired term by the first to take action of (a) the shareholders or
(b) the Board of Directors, and if the directors remaining in office constitute
fewer than a quorum of the Board of Directors, they may fill the vacancy by the
affirmative vote of a majority of all the directors remaining in office. If the
vacant office was held by a director elected by a voting group, only the holders
of shares of that voting group or the remaining directors elected by that voting
group are entitled to vote to fill the vacancy. A vacancy occurring in the
Board of Directors by reason of an increase in the number of directors shall be
filled in like manner as any other vacancy but if filled by action of the Board
of Directors, shall only be for a term of office continuing until the next
election of directors by the shareholders and until the election and
qualification of a successor.
Section 3.5 Compensation. Unless the articles of incorporation provide
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otherwise, the Board of Directors may determine from time to time the
compensation, if any, directors may receive for their services as directors. 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 such other capacity.
ARTICLE FOUR
MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Regular Meeting. Regular meetings of the Board of Directors
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shall be held immediately after the annual meeting of shareholders or a special
meeting in lieu of the annual meeting. In addition, the Board of Directors may
schedule other meetings to occur at regular intervals throughout the year.
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Section 4.2 Special Meetings. Special meetings of the Board of
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Directors may be called by or at the request of the President or by any two
directors in office at that time.
Section 4.3 Place of Meetings. Directors may hold their meetings at any
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place within or without the State of Georgia as the Board of Directors may from
time to time establish for regular meetings or as set forth in the notice of
special meetings or, in the event of a meeting held pursuant to waiver of
notice, as set forth in the waiver.
Section 4.4 Notice of Meetings. No notice shall be required for any
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regularly scheduled meeting of the directors. Unless waived as contemplated in
Section 5.2, each director shall be given at least one day's notice (as set
forth in Section 5.1) of each special meeting stating the date, time and place
of the meeting.
Section 4.5 Quorum. Unless a greater number is required by the articles
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of incorporation, these bylaws or the Code, a quorum of the Board of Directors
consists of a majority of the total number of directors that has been prescribed
by resolution of the shareholders or of the Board of Directors pursuant to
Section 3.2.
Section 4.6 Vote Required for Action.
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(a) If a quorum is present when a vote is taken, the affirmative vote of a
majority of directors present is the act of the Board of Directors unless the
Code, the articles of incorporation or these bylaws require the vote of a
greater number of directors.
(b) A director who is present at a meeting of the Board of Directors or a
committee of the Board of Directors when corporate action is taken is deemed to
have assented to the action taken unless:
(i) he objects at the beginning of the meeting (or promptly upon his
arrival) to holding it or transacting business at the meeting;
(ii) his dissent or abstention from the action taken is entered in
the minutes of the meeting; or
(iii) he delivers written notice of his 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.
Section 4.7 Participation by Conference Telephone. Any or all directors
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may participate in a meeting of the Board of Directors or of a committee of the
Board of Directors through the use of any means of communication by which all
directors participating may
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simultaneously hear each other during the meeting.
Section 4.8 Action by Directors Without a Meeting. Unless the articles
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of incorporation or these bylaws provide otherwise, any action required or
permitted to be taken at any meeting of the Board of Directors, or any action
that may be taken at a meeting of a committee of the Board of Directors, may be
taken without a meeting if the action is taken by all the members of the Board
of Directors (or of the committee, as the case may be). The action must be
evidenced by one or more written consents describing the action taken, signed by
each director (or each director serving on the committee, as the case may be),
and delivered to the corporation for inclusion in the minutes or filing with the
corporate records.
Section 4.9 Adjournments. Whether or not a quorum is present to
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organize a meeting, any meeting of directors (including an adjourned meeting)
may be adjourned by a majority of the directors present to reconvene at a
specific time and place. At any reconvened meeting, any business may be
transacted that could have been transacted at the meeting that was adjourned.
If notice of the adjourned meeting was properly given, it shall not be necessary
to give any notice of the reconvened meeting or of the business to be
transacted, if the date, time and place of the reconvened meeting are announced
at the meeting that was adjourned.
Section 4.10 Committees of the Board of Directors. The Board of
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Directors by resolution may designate from among its members an executive
committee and one or more other committees, each consisting of one or more
directors all of whom serve at the pleasure of the Board of Directors. Except
as limited by the Code, each committee shall have the authority set forth in the
resolution establishing the committee. The provisions of this Article Four as
to the Board of Directors and its deliberations shall be applicable to any
committee of the Board of Directors.
ARTICLE FIVE
MANNER OF NOTICE AND WAIVER AS TO SHAREHOLDERS AND DIRECTORS
Section 5.1 Procedure. Whenever these bylaws require notice to be given
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to any shareholder or director, the notice shall be given in accordance with
this Section 5.1. Notice under these bylaws shall be in writing unless oral
notice is reasonable under the circumstances. Any notice to directors may be
written or oral. Notice may be communicated in person; by telephone, telegraph,
teletype or other form of wire or wireless communication; or by mail or private
carrier. If these forms of personal notice are impracticable, notice may be
communicated by a newspaper of general circulation in the area where published,
or by radio, television or other form of public broadcast communication. Written
notice to the shareholders, if in a comprehensible form, is effective when
mailed, if mailed with first-class postage prepaid and correctly addressed to
the shareholder's address shown in the corporation's current record of
shareholders. Except as otherwise provided in this Section 5.1, written notice,
if in a comprehensible form, is effective at the earliest of the following:
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(a) when received or when delivered, properly addressed, to the
addressee's last known principal place of business or residence;
(b) five days after its deposit in the mail, as evidenced by the postmark,
if mailed with first-class postage prepaid and correctly addressed; or
(c) on the date shown on the return receipt, if sent by registered or
certified mail, return receipt requested, and the receipt is signed by or on
behalf of the addressee.
Oral notice is effective when communicated if communicated in a comprehensible
manner.
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.
Section 5.2 Waiver.
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(a) A shareholder may waive any notice before or after the date and time
stated in the notice. Except as provided in subsection 5.2(b), the waiver must
be in writing, be signed by the shareholder entitled to the notice, and be
delivered to the corporation for inclusion in the minutes or filing with the
corporate records.
(b) A shareholder's attendance at a meeting (i) waives objection to lack
of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting; and (ii) waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder objects to considering the matter
when it is presented.
(c) Unless required by the Code, neither the business transacted nor the
purpose of the meeting need be specified in the waiver.
(d) A director may waive any notice before or after the date and time
stated in the notice. Except as provided in subsection 5.2(e), the waiver must
be in writing, signed by the director entitled to the notice, and delivered to
the corporation for inclusion in the minutes or filing with the corporate
records.
(e) A director's attendance at or participation in a meeting waives any
required notice to him of the meeting unless the director at the beginning of
the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting.
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ARTICLE SIX
OFFICERS
Section 6.1 Number. The officers of the corporation shall consist of a
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Chairman of the Board, a President, a Secretary and a Treasurer and any other
officers as may be appointed by the Board of Directors or appointed by a duly
appointed officer pursuant to this Article Six. The Board of Directors shall
from time to time create and establish the duties of the other officers. Any two
or more offices may be held by the same person.
Section 6.2 Election and Term. All officers shall be appointed by the
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Board of Directors or by a duly appointed officer pursuant to this Article Six
and shall serve at the pleasure of the Board of Directors or the appointing
officers, as the case may be. All officers, however appointed, may be removed
with or without cause by the Board of Directors and any officer appointed by
another officer may also be removed by the appointing officer with or without
cause.
Section 6.3 Compensation. The compensation of all officers of the
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corporation appointed by the Board of Directors shall be fixed by the Board of
Directors.
Section 6.4 Chairman of the Board. The Chairman of the Board shall be
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the chief executive officer of the corporation and shall preside at all meetings
of the shareholders and the Board of Directors of the corporation. He shall
perform such other duties and have such other authority and power as the Board
of Directors may from time to time prescribe.
Section 6.5 President. In the absence or upon the disability of the
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Chairman of the Board, the President shall preside at meetings of the
shareholders and the Board of Directors. He shall be the chief operating
officer of the corporation and in connection therewith shall have general
supervision of the business of the corporation. The President shall see that
all orders and resolutions of the Board of Directors are carried into effect.
The President shall perform such other duties as may from time to time be
delegated by the Board of Directors.
Section 6.6 Vice Presidents. In the absence or disability of the
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President, or at the direction of the President, the Vice President, if any,
shall perform the duties and exercise the powers of the President. If the
corporation has more than one Vice President, the one designated by the Board of
Directors shall act in lieu of the President. Vice Presidents shall perform
whatever duties and have whatever powers the Board of Directors may from time to
time assign.
Section 6.7 Secretary. The Secretary shall be responsible for preparing
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minutes of the acts and proceedings of all meetings of the shareholders and of
the Board of Directors and any committees thereof. The Secretary shall have
authority to give all notices required by the Code or other applicable law or
these bylaws. The Secretary shall be responsible for the custody of the
corporate books, records, contracts and other documents. The Secretary may affix
the corporate seal to any lawfully executed documents and shall sign any
instruments as may require
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his or her signature. The Secretary shall authenticate records of the
corporation. The Secretary shall perform whatever additional duties and have
whatever additional powers the Board of Directors may from time to time assign.
In the absence or disability of the Secretary or at the direction of the
President, any assistant secretary may perform the duties and exercise the
powers of the Secretary.
Section 6.8 Treasurer. The Treasurer shall be responsible for the
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custody of all funds and securities belonging to the corporation and for the
receipt, deposit or disbursement of funds and securities under the direction of
the Board of Directors. The Treasurer shall cause to be maintained full and
true accounts of all receipts and disbursements and shall make reports of the
same to the Board of Directors and the President upon request. The Treasurer
shall perform all duties as may be assigned to him from time to time by the
Board of Directors.
Section 6.9 Bonds. The Board of Directors may by resolution require any
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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 any other conditions as from time to time may be required by the
Board of Directors.
ARTICLE SEVEN
DISTRIBUTIONS AND SHARE DIVIDENDS
Section 7.1 Authorization or Declaration. Unless the articles of
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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.
Section 7.2 Record Date With Regard to Distributions and Share
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Dividends. For the purpose of determining shareholders entitled to a
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distribution (other than one involving a purchase, redemption or other
reacquisition of the corporation's shares) or a share dividend, the Board of
Directors may fix a date as the record date. If no record date is fixed by the
Board of Directors, the record date shall be determined in accordance with the
provisions of the Code.
ARTICLE EIGHT
SHARES
Section 8.1 Authorization and Issuance of Shares. In accordance with
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the Code, the Board of Directors may authorize shares of any class or series
provided for in the articles of incorporation to be issued for any consideration
valid under the provisions of the Code. To the extent provided in the articles
of incorporation, the Board of Directors shall determine the preferences,
limitations and relative rights of the shares.
Section 8.2 Share Certificates. The interest of each shareholder in
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the corporation
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shall be 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. Share certificates shall be numbered consecutively, shall be in
registered form, shall indicate the date of issuance, the name of the
corporation and that it is organized under the laws of the State of Georgia, the
name of the shareholder, and the number and class of shares and the designation
of the series, if any, represented by the certificate. Each certificate shall be
signed by any one of the President, a Vice President, the Secretary or the
Treasurer. The corporate seal need not be affixed.
Section 8.3 Rights of Corporation With Respect to Registered Owners.
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Prior to due presentation for transfer of registration of its shares, the
corporation may treat the registered owner of the shares as the person
exclusively entitled to vote the shares, to receive any share dividend or
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 shall
have express or other notice thereof, except as otherwise provided by law.
Section 8.4 Transfers of Shares. Transfers of shares shall be made
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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 requirements of Section 8.6 of these bylaws shall have been
met.
Section 8.5 Duty of Corporation to Register Transfer. Notwithstanding
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any of the provisions of Section 8.4 of these bylaws, the corporation is under a
duty to register the transfer of its shares only if:
(a) the certificate is endorsed by the appropriate person or persons;
(b) reasonable assurance is given that the endorsement or affidavit is
genuine and effective;
(c) the corporation either has no duty to inquire into adverse claims or
has discharged that duty;
(d) the requirements of any applicable law relating to the collection of
taxes have been met; and
(e) the transfer in fact is rightful or is to a bona fide purchaser.
Section 8.6 Lost, Stolen or Destroyed Certificates. Any person
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claiming a share certificate to be lost, stolen or destroyed shall make an
affidavit or affirmation of the fact in the manner required by the Board of
Directors and, if the Board of Directors requires, shall give
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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.
Section 8.7 Fixing of Record Date With Regard to Shareholder Action.
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For the purpose of determining shareholders entitled to notice of a
shareholders' meeting, to demand a special meeting, to vote or to take any other
action, the Board of Directors may fix a future date as the record date, which
date shall be not more than seventy (70) days prior to the date on which the
particular action requiring a determination of shareholders is to be taken. A
determination of shareholders entitled to notice of or to vote at a
shareholders' meeting is effective for any adjournment of the meeting unless the
Board of Directors fixes a new record date, which it must do if the meeting is
adjourned to a date more than 120 days after the date fixed for the original
meeting. If no record date is fixed by the Board of Directors, the record date
shall be determined in accordance with the provisions of the Code.
ARTICLE NINE
INDEMNIFICATION
Section 9.1 Definitions. As used in this Article, the term:
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(a) "Corporation" includes any domestic or foreign predecessor entity
of this corporation in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
(b) "Director" means an individual who is or was a director of the
corporation or an individual who, while a director of the corporation, is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. A director is
considered to be serving an employee benefit plan at the corporation's request
if his duties to the corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
(c) "Expenses" includes attorneys' fees.
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan) or reasonable expenses incurred with respect to a proceeding.
(e) "Officer" means an individual who is or was an officer of the
corporation or an individual who, while an officer of the corporation, is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee or agent of another foreign or domestic
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corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. An officer is considered to be serving an employee benefit plan at
the corporation's request if his duties to the corporation also impose duties
on, or otherwise involve services by, him to the plan or to participants in or
beneficiaries of the plan. "Officer" includes, unless the context requires
otherwise, the estate or personal representative of an officer.
(f) "Party" includes an individual who was, is, or is threatened to be
made, a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal.
Section 9.2 Basic Indemnification Arrangement.
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(a) Except as provided in subsections 9.2(d) and 9.2(e), the
corporation shall indemnify an individual who is made a party to a proceeding
because he is or was a director or officer against liability incurred by him in
the proceeding if he acted in a manner he believed in good faith to be in or not
opposed to the best interests of the corporation and, in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful.
(b) A person's conduct with respect to an employee benefit plan for a
purpose he believed in good faith to be in the interests of the participants in
and beneficiaries of the plan is conduct that satisfies the requirement of
subsection 9.2(a).
(c) The termination of a proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, be determinative that the proposed indemnitee did not meet the standard
of conduct set forth in subsection 9.2(a).
(d) The corporation shall not indemnify a person under this Article in
connection with (i) a proceeding by or in the right of the corporation in which
such person was adjudged liable to the corporation or (ii) any proceeding in
which such person was adjudged liable on the basis that he improperly received a
personal benefit unless, and then only to the extent that, a court of competent
jurisdiction determines pursuant to Section 14-2-854 of the Code that in view of
the circumstances of the case, such person is fairly and reasonably entitled to
indemnification.
(e) Indemnification permitted under this Article in connection with a
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
Section 9.3 Advances for Expenses.
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(a) The corporation shall pay for or reimburse the reasonable expenses
incurred by a director or officer as a party to a proceeding in advance of final
disposition of the proceeding
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if:
(i) such person furnishes the corporation a written affirmation of
his good faith belief that he has met the standard of conduct set forth in
subsection 9.2(a); and
(ii) such person furnishes the corporation a written undertaking
(meeting the qualifications set forth in subsection 9.3(b)), executed
personally or on his behalf, to repay any advances if it is ultimately
determined that he is not entitled to indemnification under this Article or
otherwise.
(b) The undertaking required by subsection 9.3(a)(ii) must be an unlimited
general obligation of the proposed indemnitee but need not be secured and may be
accepted without reference to financial ability to make repayment.
Section 9.4 Authorization of and Determination of Entitlement to
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Indemnification.
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(a) The corporation acknowledges that indemnification of a director or
officer under Section 9.2 has been pre-authorized by the corporation in the
manner described in subsection 9.4(b). Nevertheless, the corporation shall not
indemnify a director or officer under Section 9.2 unless a separate
determination has been made in the specific case that indemnification of such
person is permissible in the circumstances because he has met the standard of
conduct set forth in subsection 9.2(a); provided, however, that regardless of
the result or absence of any such determination, and unless limited by the
articles of incorporation, to the extent that a director or officer has been
successful, on the merits or otherwise, in the defense of any proceeding to
which he was a party, or in defense of any claim, issue or matter therein,
because he is or was a director or officer, the corporation shall indemnify such
person against reasonable expenses incurred by him in connection therewith.
(b) The determination referred to in subsection 9.4(a) shall be made, at
the election of the Board of Directors:
(i) by the Board of Directors by majority vote of a quorum
consisting of directors not at the time parties to the proceeding;
(ii) if a quorum cannot be obtained under subdivision (i), by
majority vote of a committee duly designated by the Board of Directors (in
which designation directors who are parties may participate), consisting
solely of two or more directors not at the time parties to the proceeding;
(iii) by special legal counsel:
(1) selected by the Board of Directors or its committee in the
manner prescribed in subdivision (i) or (ii); or
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(2) if a quorum of the Board of Directors cannot be obtained
under subdivision (i) and a committee cannot be designated under
subdivision (ii), selected by a majority vote of the full Board of
Directors (in which selection directors who are parties may
participate); or
(iv) by the shareholders; provided that shares owned by or voted
under the control of directors or officers who are at the time parties to
the proceeding may not be voted on the determination.
(c) As acknowledged in this Section 9.4, the corporation has pre-authorized
the indemnification of directors and officers hereunder, subject to a case-by-
case determination that the proposed indemnitee met the applicable standard of
conduct under subsection 9.2(a). Consequently, no further decision need or shall
be made on a case-by-case basis as to the authorization of the corporation's
indemnification of directors or officers hereunder. Nevertheless, evaluation as
to reasonableness of expenses of a director or officer in the specific case
shall be made in the same manner as the determination that indemnification is
permissible, as described in subsection 9.4(b), except that if the determination
is made by special legal counsel, evaluation as to reasonableness of expenses
shall be made by those entitled under subsection 9.4(b)(iii) to select counsel.
Section 9.5 Court-Ordered Indemnification and Advances for Expenses.
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Unless the articles of incorporation provide otherwise, a director or officer
who is a party to a proceeding may apply for indemnification or advances for
expenses to the court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court, after giving any notice
the court considers necessary, may order indemnification or advances for
expenses if it determines that:
(a) the applicant is entitled to mandatory indemnification under the final
clause of subsection 9.4(a) (in which case the corporation shall pay the
indemnitee's reasonable expenses incurred to obtain court-ordered
indemnification);
(b) the applicant is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not he met the standard of
conduct set forth in subsection 9.2(a) or was adjudged liable as described in
subsection 9.2(d) (but if he was adjudged so liable, any court-ordered
indemnification shall be limited to reasonable expenses incurred by the
indemnitee unless the articles of incorporation or a bylaw, contract or
resolution approved or ratified by the shareholders pursuant to Section 9.7
provides otherwise); or
(c) in the case of advances for expenses, the applicant is entitled
pursuant to the articles of incorporation, bylaws or any applicable resolution
or agreement, to payment for or reimbursement of his reasonable expenses
incurred as a party to a proceeding in advance of final disposition of the
proceeding.
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Section 9.6 Indemnification of Employees and Agents. Unless the
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articles of incorporation provide otherwise, the corporation may indemnify and
advance expenses under this Article to an employee or agent of the corporation
who is not a director or officer to the same extent as to a director or officer.
Section 9.7 Shareholder Approved Indemnification.
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(a) If authorized by the articles of incorporation or a bylaw, contract or
resolution approved or ratified by the shareholders of the corporation by a
majority of the votes entitled to be cast, the corporation may indemnify or
obligate itself to indemnify a person made a party to a proceeding, including a
proceeding brought by or in the right of the corporation, without regard to the
limitations in other sections of this Article. The corporation shall not
indemnify a person under this Section 9.7 for any liability incurred in a
proceeding in which the person is adjudged liable to the corporation or is
subjected to injunctive relief in favor of the corporation:
(i) for any appropriation, in violation of his duties, of any
business opportunity of the corporation;
(ii) for acts or omissions which involve intentional misconduct or a
knowing violation of law;
(iii) for the types of liability set forth in Section 14-2-832 of the
Code; or
(iv) for any transaction from which he received an improper personal
benefit.
(b) Where approved or authorized in the manner described in subsection
9.7(a), the corporation may advance or reimburse expenses incurred in advance of
final disposition of the proceeding only if:
(i) the proposed indemnitee furnishes the corporation a written
affirmation of his good faith belief that his conduct does not constitute
behavior of the kind described in subsection 9.7(a)(i) - (iv); and
(ii) the proposed indemnitee furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay any advances if
it is ultimately determined that he is not entitled to indemnification.
Section 9.8 Liability Insurance. The corporation may purchase and
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maintain insurance on behalf of a director or officer or an individual who is or
was an employee or agent of the corporation or who, while an employee or agent
of the corporation, is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise against liability asserted against or incurred by him in
that capacity or arising from his status as a director, officer, employee or
agent, whether or not the corporation would have
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the power to indemnify him against the same liability under this Article Nine.
Section 9.9 Witness Fees. Nothing in this Article shall limit the
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corporation's power to pay or reimburse expenses incurred by a person in
connection with his appearance as a witness in a proceeding at a time when he
has not been made a named defendant or respondent in the proceeding.
Section 9.10 Report to Shareholders. If the corporation indemnifies or
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advances expenses to a director in connection with a proceeding by or in the
right of the corporation, the corporation shall report the indemnification or
advance, in writing, to the shareholders with or before the notice of the next
shareholders' meeting.
Section 9.11 Amendments, Severability. No amendment, modification or
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rescission of this Article Nine, or any provision hereof, the effect of which
would diminish the rights to indemnification or advancement of expenses as set
forth herein shall be effective as to any person with respect to any action
taken or omitted by such person prior to such amendment, modification or
rescission. In the event that any of the provisions of this Article (including
any provision within a single section, subsection, division or sentence) is held
by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, the remaining provisions of this Article shall remain enforceable
to the fullest extent permitted by law.
ARTICLE TEN
MISCELLANEOUS
Section 10.1 Inspection of Books and Records. The Board of Directors
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shall have the power to determine which accounts, books and records of the
corporation shall be opened to the inspection of the shareholders, except those
as may by law specifically be made open to inspection, and shall have the 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. Without
the prior approval of the Board of Directors in their discretion, the right of
inspection set forth in Section 14-2-1602(c) of the Code shall not be available
to any shareholder owning two percent (2%) or less of the shares outstanding.
Section 10.2 Fiscal Year. The Board of Directors is authorized to fix
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the fiscal year of the corporation and to change the same from time to time as
it deems appropriate.
Section 10.3 Corporate Seal. If the Board of Directors determines that
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there should be a corporate seal for the corporation, it shall be in the form as
the Board of Directors may from time to time determine.
Section 10.4 Annual Financial Statements. In accordance with the Code,
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the corporation shall prepare and provide to the shareholders such financial
statements as may be
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required by the Code.
Section 10.5 Conflict With Articles of Incorporation. In the event that
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any provision of these bylaws conflicts with any provision of the articles of
incorporation, the articles of incorporation shall govern.
ARTICLE ELEVEN
AMENDMENTS
Section 11.1 Power to Amend Bylaws. The Board of Directors shall have
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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, by
expressing in the action they take in adopting or amending any bylaw or bylaws,
that the bylaw or bylaws so adopted or amended shall not be altered, amended or
repealed by the Board of Directors.
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