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EXHIBIT 3.5
AMENDED BY-LAWS
OF
AMERICAN REALTY TRUST, INC.
December 11, 1991
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AMENDED BY-LAWS
OF
AMERICAN REALTY TRUST, INC.
TABLE OF CONTENTS
Page
ARTICLE ONE - OFFICES
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 Quorum 2
Section 2.6 Voting of Shares 2
Section 2.7 Vote Required 2
Section 2.8 Proxies 2
Section 2.9 Presiding Officer 3
Section 2.10 Adjournments 3
Section 2.11 Action of Shareholders 3
Without a Meeting
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
Section 3.6 Committees of the Board of Directors 4
Section 3.7 Classes of Directors 5
ARTICLE FOUR - MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Regular Meetings 5
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 6
Section 4.7 Participation by Conference Telephone 6
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Section 4.8 Action by Directors Without a Meeting 6
Section 4.9 Adjournments 6
ARTICLE FIVE - NOTICE AND WAIVER
Section 5.1 Procedure 6
Section 5.2 Waiver 7
ARTICLE SIX - OFFICERS
Section 6.1 Offices 7
Section 6.2 Election and Term 7
Section 6.3 Compensation 7
Section 6.4 Removal 7
Section 6.5 Chairman of the Board 8
Section 6.6 President 8
Section 6.7 Vice Presidents 8
Section 6.8 Secretary 8
Section 6.9 Treasurer 8
Section 6.10 Assistant Secretaries and Assistant
Treasurers 8
Section 6.11 Bonds 9
Section 6.12 Reimbursement by Officers 9
ARTICLE SEVEN - DIVIDENDS 9
ARTICLE EIGHT - SHARES
Section 8.1 Authorization and Issuance of Shares 9
Section 8.2 Share Certificates 10
Section 8.3 Rights of Corporation with Respect to
Register Transfer 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 11
Section 8.7 Fixing of Record Date 11
Section 8.8 Record Date if None Fixed 11
ARTICLE NINE - RELATED PARTY TRANSACTIONS
Section 9.1 Interested Directors and Officers 12
ARTICLE TEN - INDEMNIFICATION
Section 10.1 Indemnification of Directors 12
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Section 10.2 Indemnification of Officers and
Others 13
Section 10.3 Subsidiaries and Other
Organizations 13
Section 10.4 Determination 14
Section 10.5 Advances 14
Section 10.6 Non-Exclusivity 15
Section 10.7 Insurance 15
Section 10.8 Notice 15
Section 10.9 Security 15
Section 10.10 Amendment 16
Section 10.11 Agreements 16
Section 10.12 Continuing Benefits 16
Section 10.13 Successors 16
Section 10.14 Severability 17
Section 10.15 Additional Indemnification 17
ARTICLE ELEVEN - MISCELLANEOUS
Section 11.1 Inspection of Books and Records 17
Section 11.2 Fiscal Year 17
Section 11.3 Seal 17
ARTICLE TWELVE - AMENDMENTS
Section 12.1 Power to Amend by-laws 17
Section 12.2 Vote Required 18
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AMENDED BY-LAWS
OF
AMERICAN REALTY TRUST, INC.
ARTICLE ONE
Offices
1.1 Registered Office and Agent. The Corporation will maintain a
registered office and will have a registered agent whose business office is
identical with such registered office.
1.2 Other Offices. In addition to its registered office, the
Corporation may have offices at such other place or places, within or without
the State of Georgia, as the Board of Directors may from time to time appoint
or as the business of the Corporation may require or make desirable.
ARTICLE TWO
Shareholders' Meetings
2.1 Place of Meetings. Meetings of the shareholders may be held at any
place within or without the State of Georgia as set forth in the notice
thereof, or if no place is so specified, at the registered office of the
Corporation.
2.2 Annual Meetings. The annual meeting of the shareholders will be
held on a date and at a time following the end of the corporation's fiscal year
as may be determined by the Board of Directors, for the purpose of electing
directors and transacting any and all business that may properly come-before
the meeting. The annual meeting may be combined with any other meeting of
shareholders, whether annual or special.
2.3 Special Meetings. Special meetings of the shareholders may be
called at any time by the Chairman of the Board, the President or the Board of
Directors; and shall be called by the Corporation upon the written request of
the holders of twenty-five per cent (25%) or more of all the shares of capital
stock of the Corporation entitled to vote in an election of directors.
2.4 Notice of Meetings. Unless waived as provided in Section 5.2,
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a written or printed notice of each shareholders' meeting stating the place,
date and time of the meeting will be- delivered either personally or by mail to
each shareholder of record entitled to vote at such meeting, by or at the
direction of the Chairman of the Board, the President, the Secretary, or the
officer or persons calling the meeting, not less than ten (10) days nor more
than fifty (50) days before the meeting date. In the case of an annual meeting,
the notice of the meeting need not state the purpose or purposes of the
meeting. In the case of a special meeting, the notice of meeting will state
the purpose or purposes for which the meeting is called.
2.5 Quorum. At all meetings of the shareholders the holders of more
than one-half of the shares outstanding and entitled to vote, present in person
or by proxy, will constitute a quorum. The shareholders at a meeting at
which a quorum is once present may continue to transact business at the meeting
or at any adjournment thereof, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
2.6 Voting of Shares. A holder of common stock will be entitled to one
vote for each share held on each matter submitted to a vote at a meeting of
shareholders. A holder of special stock will have such voting rights, if any,
specified in the articles of incorporation and the Board of Directors
resolution designating the applicable series of special stock, or by law.
Voting on all matters will 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 will state the name of the shareholder voting and the
number of shares voted by him, and if such ballot be cast by proxy, it will
also state the name of such proxy.
2.7 Vote Required. If a quorum is present, the vote of the holders
of the majority of the shares outstanding and entitled to vote that are
represented at the meeting will determine any matter coming before the meeting
unless a different vote is required by the Georgia Business Corporation
Code, by the articles of incorporation or by these by-laws.
2.8 Proxies. A shareholder entitled to vote pursuant to Section 2.6
may vote in person or by proxy executed in writing by the shareholder or by his
attorney-in-fact. A proxy will not be valid after eleven (11) months from the
date of its execution, unless a longer period is expressly stated herein. If
the validity of any
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proxy is questioned it must be submitted to the secretary of the shareholders'
meeting for examination or to a proxy officer or committee appointed by the
person presiding at the meeting. The secretary of the meeting or, if appointed,
the proxy officer or committee will determine the validity or invalidity of any
proxy submitted and reference by the secretary in the minutes of the meeting to
the regularity of a proxy will be received as prima facie evidence of the facts
stated for the purpose of establishing the presence of a quorum at such meeting
and for all other purposes.
2.9 Presiding Officer. The Chairman of the Board (or another director
or officer selected by the Board of Directors) will serve as the chairman of
every shareholders' meeting unless some other person is elected by the
shareholders to serve as chairman. The chairman of the meeting will appoint
such persons as he deems required to assist with the meeting.
2.10 Adjournments. The holders of the majority of the voting shares
represented at a meeting, whether or not a quorum is present, may adjourn any
meeting to reconvene at a specific time and place. It will not be necessary
to give any notice of the reconvened meeting or of the business to be
transacted if the time and place of the reconvened meeting are announced at the
meeting that was adjourned.
2.11 Action of Shareholders Without a Meeting. Any action required or
allowed by the Georgia Business Corporation Code to be taken at a meeting of
the shareholders (whether annual or special), may be taken without a meeting if
written consent, setting forth the action to be taken, is signed by all
shareholders entitled to vote with respect to the subject matter thereof. Such
action may be taken without a meeting by less than unanimous written consent if
and in the manner provided for in the articles of incorporation. If action is
taken without a meeting by less than unanimous written consent, notice shall be
given within ten (10) days of the taking of such action to those shareholders
on the record date whose shares were not represented on the written consent.
For purposes of written consent by the shareholders, the record date
shall be the date when the consent is first executed and action shall be deemed
taken when executed by the last necessary signature. A consent given as
provided in this Section 2.11 will have the same force and effect as a vote at
a meeting of the shares represented on the executed consent called for the
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purpose of considering the action authorized. No consent will be effective as
an approval of a plan of merger or consolidation unless in accordance with
applicable provisions of the Georgia Business Corporation Code.
ARTICLE THREE
The Board of Directors
3.1 General Powers. The business and affairs of the Corporation will
be managed by the Board of Directors. In addition to the powers and authority
expressly conferred upon it by these by-laws, the Board of Directors may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law, by any legal agreement among shareholders, by the
articles of incorporation or by these by-laws directed or required to be
exercised or done by the shareholders.
3.2 Number, Election and Term of Office. The number of directors of
the Corporation shall not be less than three (3) nor more than nine (9). The
number of directors may be decreased (if there is more than one director) or
increased from time to time by the Board of Directors by amendment of this
by-law, but no decrease will have the effect of shortening the term of an
incumbent director. Except as provided herein and in Section 3.4, the directors
whose terms have expired will be elected at each annual meeting of the
shareholders, or at a special meeting of shareholders called for purposes that
include the election of directors. Election of directors shall be by a
plurality of the shares voted at any meeting of the shareholders at which a
quorum is present and voting. Subject to the provisions of Section 3.7 of the
by-laws, each director, except in case of death, resignation, retirement,
disqualification, or removal, will serve for a term of three (3) years, until
the third succeeding meeting at which directors are elected and thereafter
until his successor has been elected and has qualified.
3.3 Removal. The entire Board of Directors or any individual director
may be removed from office with or without cause by the vote of the holders of
two-thirds of all of the shares of common stock entitled to vote at an election
of directors (unless applicable special stock provisions dictate otherwise).
Removal action may be taken at any shareholders' meeting with respect to which
notice of such purpose has been given, and a removed director's successor may
be elected at the same meeting to serve the un-expired term.
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3.4 Vacancies. A vacancy occurring in the Board of Directors,
including vacancies occurring by reason of an increase in the number of
directors or by the removal of a director, may be filled for the un-expired
term and thereafter until the shareholders shall have elected a successor, by
the vote of a majority of the directors remaining in office.
3.5 Compensation. Directors may receive such compensation for their
services as directors as may from time to time be fixed by vote of the Board of
Directors or of the shareholders. A director may also serve the Corporation in
a capacity other than that of director and receive compensation, as determined
by the Board of Directors, for services rendered in such other capacity.
3.6 Committees of the Board of Directors. The Board of Directors by
resolution adopted by a majority of the full Board of Directors may designate
from among its members an executive committee and one or more other standing or
ad hoc committees, each-consisting of two or more directors. Except as
prohibited by law, each committee will have the authority set forth in the
resolution establishing such committee.
3.7 Classes of Directors. The Board of Directors shall consist of
three classes of directors, each of which shall have as nearly equal a number
of directors as possible. One class of directors shall be elected in each year.
The initial Class I directors shall serve until the third succeeding annual
shareholders' meeting. The initial Class II directors shall serve until the
next annual shareholders' meeting. The initial Class III directors shall serve
until the second succeeding annual shareholders' meeting. Commencing with the
annual meeting to be held in 1990 and at each annual meeting thereafter, only
the class of directors whose term expires at that annual meeting will be
elected. Such directors will be elected for a term of three years and until
their successors are elected and qualified.
ARTICLE FOUR
Meetings of the Board of Directors
4.1. Regular Meetings. Regular meetings of the Board of Directors
shall be held immediately after each annual meeting of the shareholders or any
meeting held in lieu thereof. In addition, the Board of Directors may schedule
other meetings to be held at regular intervals throughout the year.
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4.2 Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board, the President, or
any two directors in office at that time.
4.3 Place of Meetings. Directors may hold their meetings at any place
within or without the State of Georgia as the Board of Directors may from time
to time establish for regular meetings, or as set forth in the notice of
special meetings or (if such notice does not set forth a meeting place) at the
registered office of the Corporation.
4.4 Notice of Meetings. No notice will be required for any scheduled
regular meeting of the Board of Directors. Unless waived as provided in Section
5.2, if a special meeting has been called pursuant to Section 4.2, any officer
or director will give notice to each director of the special meeting stating
the date, time and place of the meeting. Such notice will be given either (a)
by mailing a notice of the meeting not later than the fifth day immediately
preceding the date of the meeting, or (b) by telephone, telegram, cablegram,
telecommunication, teletype, facsimile transmission or personal delivery not
later than the second day immediately preceding the date of the meeting.
4.5 Quorum. At meetings of the Board of Directors, a majority of the
directors then in office will constitute a quorum for the transaction of
business. If a quorum is not present at any meeting of directors, the directors
present may adjourn the meeting from time to time until a quorum is present,
without notice of the time and place that the meeting will be reconvened other
than announcement at the adjourned meeting.
4.6 Vote Required for Action. The vote of a majority of the
directors present and voting at the time of the vote, if a quorum is present at
the time, will be the act of the Board of Directors, unless the vote of a
greater number is required by the Georgia Business Corporation Code, the
articles of incorporation or these by-laws.
4.7 Participation by Conference Telephone. Members of the Board of
Directors, or members of any committee designated by the Board of Directors,
may participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment through which all
persons participating in the meeting can
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hear each other. Participation in a meeting pursuant to this Section 4.7 will
constitute presence in person at such meeting.
4.8 Action by Directors Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or any action
that may -be taken at a meeting of a committee of directors may be taken
without a meeting if a written consent, setting forth the action so taken, is
signed by all the directors, or all the members of the committee, as the case
may be, and filed with the minutes of the proceedings of the Board or the
committee. Such consent will have the same force and effect as a unanimous
vote of the Board of Directors or the committee.
4.9 Adjournments. A meeting of the Board of Directors, whether or not
a quorum is present, may be adjourned by a majority of the directors present to
reconvene at a specific time and place. It shall not be necessary to give
notice of the reconvened meeting or of the business to be transacted, other
than by announcement at the meeting that was adjourned. At any such reconvened
meeting at which a quorum is present, any business may be transacted that could
have been transacted at the meeting that was adjourned.
ARTICLE FIVE
Notice and Waiver
5.1 Procedure. Whenever these Bylaws require notice to be given to any
shareholder or director, the notice will be given as prescribed in Section 2.4
or 4.4, respectively. Whenever notice is given to a shareholder or director by
mail, the notice will be sent first class mail (or other United States mail in
the case of notices to shareholders if there are more than 500 shareholders
entitled to vote and if the notice is mailed not less than 30 days before the
meeting date) by depositing the notice in a post office or letter box in a
postage prepaid sealed envelope addressed to the shareholder or director at his
address as it appears on the books of the Corporation, and such notice will be
deemed to have been given at the time it is deposited in the mail. Notice will
be deemed to have been given by telegram or cablegram at the time notice is
filed with the transmitting agency.
5.2 Waiver. Notwithstanding Section 2.4 and 4.4, notice of a meeting
need not be given to any person who signs a waiver of notice either before or
after the meeting. Attendance at a meeting
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will constitute a waiver of notice of such meeting and a waiver of any and all
objections to the place of the meeting, the time of the meeting, or the manner
in which the meeting has been called or convened, except where the person
states, at the beginning of the meeting, any such objection or objections to
the transaction of business.
ARTICLE SIX
Officers
6.1 Offices. The officers of the Corporation will be a President, a
Secretary and a Treasurer, each of whom will be elected or appointed by the
Board of Directors. The Board of Directors may also elect or appoint a Chairman
of the Board from among its members. The Board of Directors or the President
may from time to time create-and establish the duties of other officers and
elect or appoint other officers as it or he deems necessary for the efficient
management of the Corporation, including one or more Vice Presidents, one or
more Assistant Secretaries and one or more Assistant Treasurers. Any two or
more offices may be held by the same person, except the offices of President
and Secretary.
6.2 Term. Each officer will serve at the will of the Board of
Directors (or the President, if the President appointed such officer) and until
his successor has been elected and has qualified or until his earlier death,
resignation, removal, retirement or disqualification.
6.3 Compensation. The compensation of all officers of the
Corporation will be fixed by the Board of Directors or by a committee or
officer appointed by the Board of Directors. Officers may serve without
compensation.
6.4 Removal. Any officer (regardless of how elected or appointed) may
be removed by the Board of Directors whenever in its judgment the best
interests of the Corporation will be served thereby; and any officer appointed
by the President may be removed by the President whenever in his judgment the
best interests of the Corporation will be served thereby. Removal will be
without prejudice to the contract rights, if any, of the person removed.
6.5 Chairman of the Board. The Chairman of the Board (if there be one)
will call to order meetings of the shareholders and of the Board of Directors,
and will act as chairman of such meetings
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(unless another person is selected under Section 2.9 to act as chairman). The
Chairman of the Board will perform such other duties and have such other
authority as may from time to time be delegated by the Board of Directors.
6.6 President. In the absence of the Chairman of the Board, the
President shall perform the duties and exercise the powers of the Chairman of
the Board, specified in these by-laws. The President shall perform such other
duties and have such other powers as the Board of Directors may determine from
time to time.
6.7 Vice Presidents. The Vice President (if there be one) will, in the
absence or disability of the President, or at the direction of the Chairman of
the Board or the President, perform the duties and exercise the powers, whether
such duties and powers are specified in these by-laws or otherwise, of the
President. If the Corporation has more than one Vice President, the one
designated by the Board of Directors, the Chairman of the Board, or the
President will act in lieu of the President. Vice Presidents will perform such
other duties and have such other authority as may from time to time be
delegated by the Board of Directors or the President.
6.8 Secretary. The Secretary will be responsible for keeping accurate
records on the acts and proceedings of all meetings of shareholders, directors
and committees of directors. The Secretary will have authority to give all
notices required by law or these Bylaws. The Secretary will 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
requiring it and will sign such instruments as may require the Secretary's
signature. The Secretary will perform such other duties and have such other
authority as may from time to time be delegated by the Board of Directors or
the President.
6.9 Treasurer. The Treasurer will be responsible for the custody of
all funds and securities belonging to the Corporation and for the receipt,
deposit or disbursement of such funds and securities under the direction of the
Board of Directors. The Treasurer will cause full and true accounts of all
receipts and disbursements to be maintained and will make such reports of the
same to the Board of Directors and President upon request. The Treasurer will
perform such other duties and have such other authority as may from time to
time be delegated by the Board of Directors or the President.
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6.10 Assistant Secretaries and Assistant Treasurers. The Board of
Directors and the President each may appoint one or more persons to serve as
Assistant Secretary or Assistant Treasurer, or both. The Assistant Secretary
and Assistant Treasurer (or if there be more than one of either such officer,
the one so designated by the Board of Directors or the President) will, in the
absence or disability, or at the direction, of the Secretary or the Treasurer,
respectively, perform the duties and exercise the authority of those offices.
Each Assistant Secretary may affix the corporate seal to all necessary
documents and attest the signature of any officer of the Corporation. Each
Assistant Secretary and Assistant Treasurer will perform such other duties and
have such other authority as may from time to time be delegated by the Board of
Directors or the President.
6.11 Bonds. The Board of Directors may by resolution require any or
all of the officers, agents or employees of the Corporation to give bonds to
the Corporation, with sufficient surety or sureties, conditioned on the
faithful performance of the duties of their respective offices or positions,
and to comply with such other conditions as may from time to time be required
by the Board of Directors.
6.11 Reimbursement by Officers. Any payment made to an officer of the
Corporation, such as salary, commission, bonus, interest, rent or reimbursement
of expenses incurred by him, that is disallowed in whole or in part as a
deductible expense by the Internal Revenue Service, will be reimbursed by such
officer to the Corporation to the full extent of such disallowance. It will be
the duty of the Board of Directors to enforce payment of each such amount
disallowed. In lieu of payment by the officer, subject to the determination
of the Board of Directors, proportionate amounts may be withheld from such
officer's future compensation payments until the amount owed to the Corporation
has been recovered.
ARTICLE SEVEN
Dividends
Dividends upon the capital stock of the Corporation may be declared
by the Board of Directors, payable in cash, in property or in shares of the
corporation.
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ARTICLE EIGHT
Shares
8.1 Authorization and Issuance of Shares. The par value and the
maximum number of shares of any class of the Corporation that may be issued and
outstanding will be set forth from time to time in the articles of
incorporation of the Corporation. The Board of Directors may increase or
decrease the number of issued and outstanding shares of any class of the
Corporation's stock within the maximum authorized by the articles of
incorporation and the minimum requirements of the articles of incorporation or
Georgia law.
8.2 Share Certificates. The interest of each shareholder in the
Corporation will be evidenced by a certificate or certificates representing
shares of the Corporation which will be in such form as the Board of Directors
may from time to time adopt. Share certificates will be consecutively
numbered, will be in registered form, and will indicate the date of issue, and
all such information will be entered on the Corporation's books. Each
certificate will be signed by the Chairman of the Board, the President, or Vice
President and the Secretary or an Assistant Secretary and will be sealed with
the seal of the Corporation or a facsimile thereof; provided, however, that
where such certificate is signed by a transfer agent, or registered by a
registrar, the signatures of such officers may be facsimiles. In case any
officer or officers who has signed or whose facsimile signatures has been
placed upon a share certificate has ceased for any reason to be such officer or
officers of the Corporation before such certificate is issued, such certificate
may be issued by the Corporation with the same effect as if the person or
persons who signed such certificate or whose facsimile signatures has been used
thereon had not ceased to be such officer or officers.
8.3 Rights of Corporation with Respect to Registered Owners. Prior to
due presentation for transfer of registration of its shares, the Corporation
may treat the registered owner of the shares as the person exclusively entitled
to vote such shares, to receive any dividend or other distribution with respect
to such shares, and for all other purposes; and the Corporation will not be
bound to recognize any equitable or other claim to or interest in such shares
on the part of any other person, whether or not it has express or other notice
thereof, except as otherwise provided by law.
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8.4 Transfers of Shares. Transfers of shares of the Corporation will
be made in the share records of the Corporation only by the written direction
of the person named in the certificate or by his attorney (authorized by duly
executed power of attorney filed with the Secretary of the Corporation) or his
legal representative (who will furnish proper evidence of authority to transfer
such shares), and upon surrender of the certificate or certificates for such
shares properly endorsed (or accompanied by a properly endorsed instrument of
transfer) and subject to such other reasonable conditions and requirements as
may be required by the Corporation. The Corporation shall maintain at its
principal place of business or registered office a record of the names and
addresses of its shareholders and the number of shares held by each.
8.5 Duty of Corporation to Register Transfer. Notwithstanding any of
the provisions of Section 8.4 of these by-laws, the Corporation is under a duty
to register the transfer of its shares only if:
(a) the share certificate is endorsed by the appropriate person or persons;
(b) reasonable assurance is given that the endorsements are genuine and
effective;
(c) the Corporation has no duty to inquire into adverse claims or has
discharged any such duty;
(d) any applicable law relating to the collection of taxes has been complied
with;
(e) the transfer is in fact rightful or is to a bona fide purchaser; and
(f) the transfer is in compliance with applicable provisions of state and
federal securities laws and of any restrictive legends relating to such
laws that appear on the share certificate.
8.6 Lost, Stolen or Destroyed Certificates. Any person claiming a
share certificate to be lost, stolen or destroyed will make an affidavit or
affirmation of the fact in such manner as the Board of Directors may require
and will, if the Board of Directors so requires, give the corporation a bond of
indemnity in form and amount, and with one or more sureties satisfactory to the
Board of Directors, as the Board of Directors may require, whereupon an
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appropriate new certificate may be issued in lieu of the one alleged to have
been lost, stolen or destroyed.
8.7 Fixing of Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive payment of any dividend, or in
order to make a determination of shareholders for any other proper purpose, the
Board of Directors may fix in advance a date as the record date, such date to
be not more than 50 days (and, in the case of a shareholders' meeting, not less
than 10 days) prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken.
8.8 Record Date if None Fixed. Except as otherwise provided in these
Bylaws, if no record date is fixed as provided in Section 8.7, then the record
date for any determination of shareholders that may be proper or required by
law will be: the date on which notice is mailed, in the case of a shareholders'
meeting; the date on which the Board of Directors adopts a resolution declaring
a dividend, in the case of a payment of a dividend; and the date on which any
other action, the consummation of which requires a determination of
shareholders, is to be taken.
ARTICLE NINE
Related Party Transactions
9.1 Interested Directors and Officers. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association, or
other organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or void-able
solely for this reason, or solely because the director or officer is present at
or participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if:
(a) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the Board or the committee, and
the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors constitute less than
a quorum; or
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(b) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the shareholders entitled to
vote thereon, and the contract or transaction is specifically approved or
ratified in good faith by vote of such shareholders; or
(c) The contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified by the Board, a committee thereof,
or the shareholders.
Interested directors may be counted in determining the presence of a
quorum at a meeting of the Board or committee thereof which authorizes the
contract or transaction.
ARTICLE TEN
Indemnification
10.1 Indemnification of Directors. The Corporation shall indemnify and
hold harmless any person (an "Indemnified Person") who is or was a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including any action or suit by or in the right of the Corporation) by reason
of the fact that he is or was a director of the Corporation, against expenses
(including, but not limited to, attorneys' fees and disbursements, court costs
and expert witness fees), and against any judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding; provided, that no indemnification shall be made in
respect of expenses, judgments, fines and amounts paid in settlement
attributable to circumstances as to which under applicable provisions of the
Georgia Business Corporation Code as in effect from time to time, such
indemnification may not be authorized by action of the shareholders or
otherwise.
10.2 Indemnification of Officers and Others. The Board of Directors
shall have the power to cause the Corporation to provide to any person who is
or was an officer, employee, or agent of the Corporation all or any part of the
right to indemnification and other rights of the type provided under Sections
10.1, 10.5 and 10.11 of this Article Ten (subject to the conditions,
limitations and obligations specified therein), upon a resolution to that
effect identifying such officer, employee or agent (by position or name) and
specifying the particular rights provided, which may be
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different for each officer, employee or agent identified. Each officer,
employee or agent of the Corporation so identified shall be an "Indemnified
Person" for purposes of the provisions of this Article Ten.
10.3 Subsidiaries and Other Organizations. The Board of Directors shall
have the power to cause the Corporation to provide to any person who is or was
a director, officer, employee or agent of the Corporation who also is or was a
director, officer, trustee, general partner, employee or agent of a Subsidiary
(as defined below), or is or was serving at the Corporation's request in such a
position with any other organization, all or any part of the right to
indemnification and other rights of the type provided under Sections 10.1, 10.5
and 10.11 of this Article Ten (subject to the conditions, limitations and
obligations specified therein), with regard to amounts actually and reasonably
incurred by such person in connection with any threatened, pending or completed
action, suit, or proceeding by reason of the fact that he is or was a director,
officer, trustee, partner, employee or agent. The Board of Directors shall
exercise such power, if at all, through a resolution identifying the person or
persons to be indemnified (by position or name) and the Subsidiary or other
organization (by name or other classification), and specifying the particular
rights provided, which may be different for each of the directors, officers,
trustees, employees, partners and agents identified. Each person so identified
shall be an "Indemnified Person" for purposes of the provisions of this Article
Ten. As used in this Article Ten, "Subsidiary" shall mean (i) another
corporation, joint venture, trust, partnership or Un-incorporated business
association more than twenty percent (20%) of the voting capital stock or other
voting equity interest of which was, at or after the time the circumstances
giving rise to such action, suit or proceeding arose, owned, directly or
indirectly, by the Corporation, or (ii) a nonprofit corporation which receives
its principal financial support from the corporation or its subsidiaries.
10.4 Determination. Notwithstanding any judgment, order, settlement,
conviction or plea in any action, suit or proceeding of the kind referred to in
Section 10.1 of this Article Ten, an Indemnified Person shall be entitled to
indemnification as provided in such Section 10.1 unless a determination that
such Indemnified Person is not entitled to such indemnification shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of
directors who are not seeking the benefits of such indemnification; or (ii) if
such quorum is not obtainable, or, even if obtainable if
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a quorum of such disinterested directors so directs, in a written opinion by
independent legal counsel (which counsel may be the outside legal counsel
regularly employed or retained by the Corporation); or (iii) if a quorum cannot
be obtained under (i) above and in the absence of a written opinion by
independent legal counsel, by majority vote or consent of a committee duly
designated by the Board of Directors (in which designation interested
'directors may participate), consisting solely of one or more directors who are
not seeking the benefit of such indemnification. Provided, however, that
notwithstanding any determination pursuant to the preceding sentence, if such
determination shall have been made at a time that the members of the Board of
Directors, so serving when the events upon which such Indemnified Person's
liability has been based occurred, no longer constitute a majority of the
members of the Board of Directors, then such Indemnified Person shall
nonetheless be entitled to indemnification as set forth in such Section 10.1
unless the Corporation shall carry the burden of proving, in an action before
any court of competent jurisdiction, that such Indemnified Person is not
entitled to indemnification.
10.5 Advances. Expenses (including, but not limited to, attorneys'
fees and disbursements, court costs, and expert witness fees) incurred by the
Indemnified Person in defending any action, suit or proceeding of the kind
described in Section 10.1 hereof (or in Section 10.3 hereof if applicable to
such Indemnified Person) shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding as set forth herein.
The Corporation shall promptly pay the amount of such expenses to the
Indemnified Person, but in no event later than ten (10) days following the
Indemnified Person's delivery to the Corporation of a written request for an
advance pursuant to this Section 10.5, together with a reasonable accounting of
such expenses; provided, that the Indemnified Person shall undertake and agree
to repay to the Corporation any advances made pursuant to this Section 10.5 if
it shall be determined pursuant to Section 10.4 that the Indemnified Person
is not entitled to be indemnified by the Corporation for such amounts. The
Corporation shall make the advances contemplated by this Section 10.5
regardless of the Indemnified Person's financial ability to make repayment. Any
advances and undertakings to repay pursuant to this Section 10.5 shall be
unsecured and interest-free.
10.6 Non-Exclusivity. The indemnification and advancement of
expenses provided by or granted pursuant to this Article Ten shall
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not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any Bylaw,
resolution or agreement either specifically or in general terms approved by the
affirmative vote of holders of a majority of the shares entitled to vote
thereon, taken at a meeting, the notice of which specified that such by-law,
resolution, or agreement would be placed before the shareholders, both as to
action by a director, officer, employee, or agent in his official capacity and
as to action in another capacity while holding such office or position, except
that no such other rights, in respect to indemnification or otherwise, may be
provided or granted to a director, officer, employee, or agent pursuant to this
Section 10.6 by the Corporation with respect to circumstances as to which,
under applicable provisions of the Georgia Corporation Business Code as in
effect from time to time, indemnification may not be authorized by action of
the shareholders or otherwise.
10.7 Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or who is or was serving at the request
of the Corporation as a director, officer, trustee, partner, employee or agent
of a Subsidiary or of any other organization, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article Ten.
10.8 Notice. If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the shareholders or
by an insurance carrier pursuant to insurance maintained by the Corporation,
the Corporation shall, not later than the next annual meeting of shareholders,
unless such meeting is held within three (3) months from the date of such
payment, and in any event, within fifteen (15) months from the date of such
payment, send by first class mail to its shareholders of record at the time
entitled to vote for the election of directors a statement specifying the
persons paid, the amount paid and the nature and status at the time of such
payment of the litigation or threatened litigation.
10.9 Security. The Corporation may designate certain of its assets as
collateral, provide self-insurance or otherwise secure its obligations under
this Article Ten, or under any indemnification agreement or plan of
indemnification adopted and entered into in
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accordance with the provisions of this Article Ten, as the Board of Directors
deems appropriate.
10.10 Amendment. Any amendment to this Article Ten which limits or
otherwise adversely affects the right of indemnification, advancement of
expenses, or other rights of any Indemnified Person hereunder shall, as to such
Indemnified Person, apply only to claims, actions, or proceedings based on
actions, events or omissions (collectively, "Post Amendment Events") occurring
after such amendment and after delivery of notice of such amendment to the
Indemnified Person so affected. Any Indemnified Person shall, as to any claim,
action, suit or proceeding based on actions, events or omissions occurring
prior to the date of receipt of such notice, be entitled to the right of
indemnification, advancement of expenses and other rights under this Article
Ten to the same extent as had such provisions continued as part of the by-laws
of the Corporation without such amendment. This Section 10.10 cannot be
altered, amended or repealed in a manner effective as to any Indemnified Person
(except as to Post Amendment Events) without the prior written consent of such
Indemnified Person. The Board of Directors may not alter, amend or repeal
any provision of this Article Ten in a manner that extends or enlarges the
right of any person to indemnification or advancement of expenses hereunder,
except with the approval of the holders of a majority of all the shares of
capital stock of the Corporation entitled to vote thereon at a meeting called
for such purpose.
10.11 Agreements. The provisions of this Article Ten shall be deemed
to constitute an agreement between the Corporation and each person entitled to
indemnification hereunder. In addition to the rights provided in this Article
Ten, the Corporation shall have the power, upon authorization by the Board of
Directors, to enter into an agreement or agreements providing to any person who
is or was a director, officer, employee or agent of the Corporation
indemnification rights substantially similar to those provided in this Article
Ten.
10.12 Continuing Benefits. The indemnification and advancement of
expenses provided by or granted pursuant to this Article Ten shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
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10.13 Successors. For purposes of this Article Ten, the terms "the
Corporation" or "this Corporation" shall include any Corporation, joint
venture, trust, partnership or un-incorporated business association which is
the successor to all or substantially all of the business or assets of this
corporation, as a result of merger, consolidation, sale, liquidation or
otherwise, and any such successor shall be liable to the persons indemnified
under this Article Ten on the same terms and conditions and to the same extent
as this Corporation.
10.14 Severability. Each of the Sections of this Article Ten, and
each of the clauses set forth therein, shall be deemed separate and
independent, and should any part of any such Section or clause be declared
invalid or unenforceable by any court of competent jurisdiction such invalidity
or un-enforceability shall in no way render invalid or unenforceable any other
part thereof or any other separate Section or clause of this Article Ten which
is not declared invalid or unenforceable.
10.15 Additional Indemnification. In addition to the specific
indemnification rights set forth herein, the Corporation shall indemnify each
of its directors and officers to the full extent permitted by action of the
Board of Directors without shareholder approval under the Georgia Business
Corporation Code or other laws of the State of Georgia as in effect from time
to time.
ARTICLE ELEVEN
Miscellaneous
11.1 Inspection of Books and Records. The Board of Directors will have
the power to determine which accounts, books and records of the Corporation
will be opened to the inspection of shareholders, except such as may by law be
specifically open to inspection, and will have power to fix reasonable rules
and regulations not in conflict with the applicable law for the inspection of
accounts, books and records that by law or by determination of the Board of
Directors will be open to inspection.
11.2 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.
11.3 Seal. The corporation seal will be in such form as the Board of
Directors may from time to time determine.
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ARTICLE TWELVE
Amendments
12.1 Power to Amend by-laws. The Board of Directors may amend or
repeal these by-laws or adopt new bylaws, but any bylaws adopted by the Board
of Directors may be amended or repealed, and new bylaws adopted, by the
shareholders. The shareholders may prescribe that any bylaw or bylaws adopted
by them will not be amended or repealed by the Board of Directors.
12.1 Vote Required. Action taken by the shareholders with respect to
bylaws will be taken by an affirmative vote of the holders of a majority of all
shares entitled to elect directors, and action by the Board of Directors with
respect to bylaws will be taken by an affirmative vote of a majority of all
directors then holding office.
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