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Exhibit 3.16
BYLAWS
OF
CHICAGO EXPRESS AIRLINES, INC.
Adopted on February 12, 1993
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CHICAGO EXPRESS AIRLINES. INC.
BYLAWS
TABLE OF CONTENTS
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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 1
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 2
Section 2.11 Adjournments 2
Section 2.12 Action of Shareholders Without a Meeting 3
ARTICLE THREE - THE BOARD OF DIRECTORS
Section 3.1 Duties, Number, Election, Term and Qualification 3
Section 3.2 Removal 3
Section 3.3 Vacancies 3
Section 3.4 Compensation 4
Section 3.5 Committees of the Board of Directors 4
ARTICLE FOUR - MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Regular Meetings 4
Section 4.2 Special Meetings 4
Section 4.3 Place of Meetings 4
Section 4.4 Notice of Meetings 4
Section 4.5 Quorum 4
Section 4.6 Vote Required for Action 5
Section 4.7 Participation by Conference Telephone 5
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TABLE OF CONTENTS (Continued)
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Section 4.8 Action by Directors Without a Meeting 5
Section 4.9 Adjournments 5
ARTICLE FIVE - MANNER OF NOTICE AND WAIVER AS TO
SHAREHOLDERS AND DIRECTORS
Section 5.1 Procedure 5
Section 5.2 Waiver 6
ARTICLE SIX - OFFICERS
Section 6.1 Number 7
Section 6.2 Election and Term 7
Section 6.3 Compensation 7
Section 6.4 Chairman of the Board 7
Section 6.5 President 7
Section 6.6 Vice Presidents 7
Section 6.7 Chief Financial Officer 7
Section 6.8 Secretary 8
Section 6.9 Bonds 8
ARTICLE SEVEN - DISTRIBUTIONS AND SHARE DIVIDENDS
Section 7.1 Authorization or Declaration 8
Section 7.2 Record Date with Regard to Distributions
and Share Dividends 8
ARTICLE EIGHT - SHARES
Section 8.1 Authorization and Issuance of Shares 8
Section 8.2 Share Certificates 8
Section 8.3 Rights of Corporation with Respect to
Registered Owners 9
Section 8.4 Transfers of Shares 9
Section 8.5 Duty of Corporation to Register Transfer 9
Section 8.6 Lost, Stolen or Destroyed Certificates 9
Section 8.7 Fixing of Record Date with regard to
Shareholder Action 9
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TABLE OF CONTENTS (continued)
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ARTICLE NINE - INDEMNIFICATION
Section 9.1 Definitions 10
Section 9.2 Basic Indemnification Arrangement 11
Section 9.3 Advances for Expenses 11
Section 9.4 Authorization of and Determination of
Entitlement to Indemnification 12
Section 9.5 Court-Ordered Indemnification and
Advances for Expenses 13
Section 9.6 Indemnification of Employees and Agent 14
Section 9.7 Shareholder Approved Indemnification 14
Section 9.8 Liability Insurance 15
Section 9.9 Witness Fees 15
Section 9.10 Report to Shareholders 15
Section 9.11 Amendments; Severability 15
ARTICLE TEN - MISCELLANEOUS
Section 10.1 Inspection of Books and Records 15
Section 10.2 Fiscal Year 15
Section 10.3 Corporate Seal 15
Section 10.4 Annual Financial Statements 15
Section 10.5 Conflict with Articles of Incorporation 16
ARTICLE ELEVEN - AMENDMENTS
Section 11.1 Power to Amend Bylaws 16
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ARTICLE ONE
OFFICES AND AGENT
Section 1.1 Registered Office and Agent. The corporation shall
maintain 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
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
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
be held at such time as may be fixed 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 the annual meeting of shareholders is not held on
the day designated 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
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 percent (20%) 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
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 the purpose or purposes to be stated in the notice of the meeting. 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
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.
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Section 2.6 Quorum. With respect to shares entitled to vote as a
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
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
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 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 presiding at the meeting. The
secretary of the meeting or, if appointed, the proxy officer or committee, shall
determine the validity or invalidity of any 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 Chairman of the Board shall serve
as the 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
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
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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
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.
If action is taken by less than all of the shareholders entitled to vote on the
action, all shareholders who have not consented in writing, but were entitled to
vote on the matter shall be given written notice of the action not more than ten
(10) days after the taking of action without a meeting.
ARTICLE THREE
THE BOARD OF DIRECTORS
Section 3.1 Duties, Number, Election, Term and Qualification. The
business and affairs of the Corporation shall be managed under the direction of
a Board of Directors consisting of not less than one nor more than six
directors, the precise number to be fixed by resolution of shareholders or the
Board of Directors from time to time. The members of the Board of Directors
shall be divided into three classes as nearly equal in number as possible. The
terms of directors in the first group expire at the first annual shareholders'
meeting after their election, the terms of the second group expire at the second
annual shareholders' meeting after their election, and the terms of the third
group expire at the third annual shareholders' meeting after their election. At
each annual shareholder's meeting or special meeting in lieu of the annual
meeting held thereafter, directors shall be chosen for a term of three (3) years
to succeed those whose term expires. Each director shall hold office until his
respective successor is elected and qualified. Directors may be removed by the
shareholders either with or without cause. Directors need not be shareholders of
the Corporation.
Section 3.2 Removal. One or more directors may be removed from office
with or without cause by shareholders by a majority of the votes entitled to be
cast. If the director was elected by a voting group, only 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 3.3 Vacancies. A vacancy occurring in the Board of Directors,
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) 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 directors remaining in office. If the
vacant office was held by a director elected by a
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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 shareholders and until the
election and qualification of a successor.
Section 3.4 Compensation. Unless the articles of incorporation provide
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 any other capacity.
Section 3.5 Committees of the Board of Directors. The Board of
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 form in the
resolution establishing the committee. The provisions of Article Four as to the
Board of Directors and its deliberations shall be applicable to any committee of
the Board of Directors.
ARTICLE FOUR
MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Regular Meetings. Regular meetings of the Board of
Directors 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.
Section 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
President or by any two directors in office at that time.
Section 4.3 Place of Meetings. Directors may hold their meetings at
any place within or without the State of Georgia as the Board of Directors may
from time to time establish for regular meetings or as 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
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 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 shareholders or of the Board of Directors pursuant
to Section 3.2.
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Section 4.6 Vote Required for Action. (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:
(1) He objects at the beginning of the meeting (or promptly upon his
arrival) to holding it or transacting business at the meeting;
(2) His dissent or abstention from the action taken is entered in the
minutes of the meeting; or
(3) 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 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 simultaneously hear each
other during the meeting.
Section 4.8 Action by Directors Without a Meeting. Unless the articles
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
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.
ARTICLE FIVE
MANNER OF NOTICE AND WAIVER AS TO SHAREHOLDERS AND DIRECTORS
Section 5.1 Procedure. Whenever these bylaws require notice to be
given 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,
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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 provided above, written notice, if in a comprehensible
form, is effective at the earliest of the following:
(1) When received or when delivered, properly addressed, to the
addressee's last known principal place of business or residence;
(2) Five days after its deposit in the mail, as evidenced by the
postmark, if mailed with first-class postage prepaid and
correctly addressed; or
(3) 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.
(a) A shareholder may waive any notice before or after the date and
time stated in the notice. Except as provided below in (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 below in (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
President and a Secretary and any other officers, including a Chairman of the
Board of Directors (who must be a director of the Corporation), a Chief
Financial Officer, and one or more Vice Presidents, 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
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
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 of
Directors, if there be one, shall preside at all meetings of the shareholders
and of the Board of Directors. During the absence or disability of the
President, the Chairman of the Board of Directors shall exercise all the powers
and discharge all the duties of the President. The Chairman of the Board of
Directors shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or the Board
of Directors.
Section 6.5 President. The President shall be the chief operating
officer of the corporation and shall have general supervision of, and
responsibility of the business of the corporation. He shall see that all orders
and resolutions of the Board of Directors are carried into effect. He shall be
responsible for setting policy and direction under the general guidance of the
Board of Directors in the absence or disability of the Chairman of the Board of
Directors or if there is no Chairman of the Board of Directors, and in such
event the President shall preside at all meetings of the Stockholders and the
Board of Directors. The President shall perform such other duties as may from
time to time be delegated to him by the Board of Directors.
Section 6.6 Vice Presidents. In the absence or disability of the
President, or at the direction of the President (and if there is no Chairman of
the Board of Directors), 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 Chief Financial Officer. The Chief Financial Officer shall
be responsible for the 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 Chief Financial Officer 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 Chief Financial Officer shall perform all duties as may be
assigned to him from time to time by the Board of Directors.
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Section 6.8 Secretary. The Secretary shall be responsible for
preparing minutes of the acts and proceedings of all meetings of shareholders
and of the Board of Directors and any committees thereof. He shall have
authority to give all notices required by law or these bylaws. He 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 his 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 him. 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 6.9 Bonds. The Board of Directors by resolution may require
any or all of the officers, agents or employees of the corporation to give bonds
to the corporation, with sufficient surety or sureties, conditioned on the
faithful performance of the duties of their respective offices or positions, and
to comply with 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
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
Dividends. For the purpose of determining shareholders entitled to a
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
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
the corporation 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, if required, 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 Chairman of the Board President, a
Vice President, Chief Financial Officer, or the Secretary. The corporate seal
need not be affixed.
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Section 8.3 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 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 share 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
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 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
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;
(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;
(e) the transfer in fact is rightful or is to a bona fide purchaser;
and
(f) the transfer is not in violation of any agreement to which the
shareholder is a party.
Section 8.6 Lost Stolen or Destroyed Certificates. Any person claiming
a share certificate to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in the manner required by the Board of Directors and, if
the Board of Directors requires, shall give the corporation a bond or 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.
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 sixty (60) 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.
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ARTICLE NINE
INDEMNIFICATION
Section 9.1 Definitions. As used in this Article, the term:
(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 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.
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Section 9.2 Basic Indemnification Arrangement.
(a) Except as provided in subsections 9.2(d) and 9.2(e) below, 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.
(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 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)
above; and
(ii) such person furnishes the corporation a written
undertaking (meeting the qualifications set forth below
in subsection 9.3(b)), executed personally or on his
behalf, to repay any advances if it is ultimately
determined that
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he is not entitled to indemnification under this
Article or otherwise.
(b) The undertaking required by subsection 9.3(a)(ii) above 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
Indemnification.
(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) below.
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 of the corporation, 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 indemnity such
person against reasonable expenses incurred by him in connection
therewith.
(b) The determination referred to in subsection 9.4(a) above shall be
made, at the election of the board of directors:
(i) by the board of directors of the corporation 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 duty 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
(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
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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 above, 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) above, 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.
Unless this corporation's 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:
(i) The applicant is entitled to mandatory indemnification
under the final clause of subsection 9.4(a) above (in
which case the corporation shall pay the indemnitee's
reasonable expenses incurred to obtain court-ordered
indemnification);
(ii) 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) above or was
adjudged liable as described in subsection 9.2(d) above
(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 of this corporation or a bylaw, contract
or resolution approved or ratified by shareholders
pursuant to Section 9.7 provides otherwise); or
(iii) 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
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or reimbursement of his reasonable expenses incurred
as a party to a proceeding in advance of final
disposition of the proceeding.
Section 9.6 Indemnification of Employees and Agents. Unless this
corporation's 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.
(a) If authorized by the articles of incorporation or a bylaw,
contract or resolution approved or ratified by 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 be received an improper
personal benefit.
(b) Where approved or authorized in the manner described in
subsection 9.7(a) above, 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) above; 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.
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Section 9.8 Liability Insurance. The corporation may purchase and
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 power to indemnify him against
the same liability under Section 9.2, Section 9.3 or Section 9.4 above.
Section 9.9 Witness Fees. Nothing in this Article shall limit the
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
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
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
shall have power to determine which accounts, books and records of the
corporation shall be opened to the inspection of shareholders, except those as
may by law specifically be made open to inspection, and shall have power to fix
reasonable rules and regulations not in conflict with the applicable law for the
inspection of accounts, books and records which by law or by determination of
the Board of Directors shall be open to inspection. Without the prior approval
of the Board of Directors in their discretion, the right of inspection set forth
in Section 14-2-l602(c) of the Code shall not be available to any shareholder
owning two (2%) percent or less of the shares outstanding.
Section 10.2 Fiscal Year. The Board of Directors is authorized to fix
the fiscal year of the corporation and to change the same from time to time as
it deems appropriate.
Section 10.3 Corporate Seal. If the Board of Directors determines that
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, the corporation shall prepare and provide to shareholders such financial
statements as may be required by the Code.
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Section 10.5 Conflict with Articles of Incorporation. In the event
that 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
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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