EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
FLOWERS FOODS, INC.
ARTICLE 1.
OFFICES
Flowers Foods, Inc. (the "Corporation") shall maintain at all times a
registered office in the State of Georgia and a registered agent at that
address, but may have other offices located within or without the State of
Georgia as the Board of Directors may determine.
ARTICLE 2.
MEETINGS OF SHAREHOLDERS
2.1 Place and Time of Meetings. All meetings of the shareholders
shall be held at such time and at such place, within or without the State of
Georgia, as may be designated by the Board of Directors or, in the absence of a
designation by the Board of Directors, by the Chairman of the Board of
Directors, the President or the Secretary, and stated in the notice of the
meeting. The Chairman of the Board of Directors may postpone and reschedule any
previously scheduled annual or special meeting of the shareholders of the
Corporation.
2.2 Annual Meeting. An annual meeting of the shareholders shall be
held at such date, time and place as shall be designated from time to time by
the Board of Directors, at which meeting the shareholders shall elect by a
plurality vote the Directors to succeed those whose terms expire and shall
transact such other business as may be properly brought before the meeting in
accordance with Section 2.10 of these Bylaws.
2.3 Special Meetings. Special meetings of the shareholders may be
called only as provided in this Section 2.3. Special meetings may be called by
the Chairman of the Board of Directors, and shall be called by the Chairman of
the Board of Directors or the Secretary within 10 days after receipt of the
written request of a majority of the total number of Directors which the
Corporation would have if there were no vacancies (the "Whole Board") or upon
receipt of the written request of the holders of at least 75% of the voting
power of the then outstanding shares of Common Stock. Any such request by a
majority of the Whole Board or the holders of at least 75% of the voting power
of the then outstanding shares of Common Stock shall be sent to the Chairman of
the Board of Directors and the Secretary and shall state the purpose or purposes
of the proposed meeting. At a special meeting of shareholders, only such
business shall be conducted or considered as shall have been stated in the
notice of the meeting given by or at the direction of the Board of Directors.
2.4 Notice of Meeting. Written notice of every meeting of the
shareholders, stating the place, day, and hour of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not fewer than ten (10) nor more than sixty (60) days before the
date of the meeting to each shareholder of record entitled to vote at such
meeting. Written notice shall be given personally, by mail, by private courier,
by facsimile transmission, or by telegraph, teletype or other form of wire or
wireless communication. If mailed, notice shall be deemed to be delivered when
deposited in the United States mail with first-class postage thereon prepaid,
addressed to the shareholder at his address as it appears on the stock transfer
books of the Corporation. When a meeting of the shareholders is adjourned to
another place, date or time, by the holders of a majority of the voting power of
the voting shares represented at a meeting, whether or not a quorum is present,
notice need not be given of the
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adjourned meeting if the date, time, and place to which the meeting is adjourned
are announced at the meeting at which the adjournment is taken; provided,
however, if the Board is required to fix a new record date pursuant to Section
7.5(a) of these Bylaws, notice must be given to persons who are shareholders as
of the new record date entitled to vote as such meeting. At an adjourned meeting
at which a quorum is present or represented, any business that could have been
transacted at the meeting originally called may be transacted.
2.5 Waiver of Notice. Notice of a meeting need not be given to any
shareholder who signs a waiver of notice, in person or by proxy, either before
or after the date and time stated in the notice. Waiver must be in writing and
delivered to the Corporation for inclusion in the minutes or for filing with the
corporate records. Attendance of a shareholder at a meeting, either in person or
by proxy, shall of itself constitute waiver of notice and waiver of any and all
objections to: (1) lack of notice or defective notice of a meeting, unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting; and (2) consideration at the meeting of a
particular matter 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. Neither the business transacted nor the purpose of the meeting
need be specified in the waiver, except that any waiver by a shareholder of the
notice of a meeting of shareholders with respect to an amendment of the Articles
of Incorporation, a plan of merger or share exchange, a sale of assets, or any
other action which would entitle the shareholder to dissent and obtain payment
for his shares shall not be effective unless: (a) prior to execution of the
waiver, the shareholder is furnished with the same material required to be sent
to the shareholder in a notice of the meeting, including notice of any
applicable dissenters' rights; or (b) the waiver expressly waives the right to
receive the materials required to be furnished.
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2.6 Inspectors. The Board of Directors shall appoint one or more
inspectors of election to act as judges of the voting and to determine those
entitled to vote at any meeting of the shareholders, or any adjournment thereof,
in advance of such meeting, but if the Board of Directors fails to make such
appointment(s) or if an appointee fails to serve, the presiding officer of the
meeting of the shareholders may appoint one or more inspectors (or substitute
inspectors) to act at the meeting.
2.7 Quorum. Except as may be provided in the Articles of
Incorporation, a majority of the votes entitled to be cast on a matter by the
voting group, represented in person or by proxy, shall constitute a quorum of
that voting group for action on that matter. Once a share is represented at a
meeting for any purpose, other than solely to object to holding the meeting or
transacting business at the meeting, it is deemed present for quorum purposes
for the remainder of the meeting and for any adjournment of that meeting unless
a new record date is or must be set for the adjourned meeting.
2.8 Voting. Except as provided in the Articles of Incorporation or
as otherwise provided by law, each outstanding share shall be entitled to one
vote on each matter submitted to a vote at a meeting of the shareholders. The
vote upon any question brought before a meeting of the shareholders may be by
voice vote, unless otherwise required by the Articles of Incorporation or these
Bylaws or unless the presiding officer or the holders of a majority of the
voting power of the then outstanding shares of all classes of stock entitled to
vote thereon present in person or by proxy at such meeting shall determine
otherwise. Every vote taken by written ballot shall be counted by the
inspector(s) of election. Except as provided in these Bylaws, the Articles of
Incorporation or by law, 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
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action exceed the votes cast opposing the action. Directors shall be elected at
the annual meeting by a plurality of the votes cast by shares entitled to vote
in the election.
2.9 Proxies. A shareholder may vote his shares in person or by
proxy. A shareholder may appoint a proxy by executing a writing which authorizes
another person or persons to vote or otherwise act on the shareholder's behalf.
Execution may be accomplished by any reasonable means, including facsimile
transmission. A proxy is effective when received by the inspector of elections
and is valid for eleven (11) months from the date of its execution, unless a
longer period is expressly provided in the appointment form. An appointment of
proxy is revocable by a shareholder unless the appointment form conspicuously
states that it is irrevocable and the appointment is coupled with an interest.
2.10 Order of Business.
(a) The Chairman of the Board of Directors, or such
officer of the Corporation designated by a majority of the Whole Board (as such
term is defined in Section 2.3 of these Bylaws), shall call meetings of the
shareholders of the Corporation to order and shall act as presiding officer
thereof. Unless otherwise determined by the Board of Directors prior to the
meeting, the presiding officer of the meeting of the shareholders shall
determine the order of business and shall have the authority in his discretion
to regulate the conduct of any such meeting, including, without limitation, by
imposing restrictions on the persons (other than shareholders of the Corporation
or their duly appointed proxies) who may attend any such shareholders' meeting;
by excluding any shareholder or his proxy from any such meeting based upon the
determination by the presiding officer, in his sole discretion, that any such
person has unduly disrupted or is likely to disrupt the proceedings thereat; and
by determining the circumstances in which any person may make a statement or ask
questions at any such meeting.
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(b) At an annual meeting of the shareholders, only such
business shall be conducted or considered as shall have been properly brought
before the meeting. To be properly brought before an annual meeting, business
must be (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors, (ii) otherwise properly
brought before the meeting by or at the direction of a majority of the Whole
Board, or (iii) otherwise properly requested to be brought before the meeting by
a shareholder of the Corporation.
(c) For business to be properly requested to be brought
before an annual meeting by a shareholder of the Corporation, the shareholder
(i) must be a shareholder of record at the time of the giving of the notice for
such annual meeting provided for in the Bylaws of this Corporation, (ii) must be
entitled to vote at such meeting, and (iii) must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not fewer than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is changed by more than 30 days from such anniversary date, notice by
the shareholder to be timely must be so received not later than the close of
business on the 10th day following the day on which public announcement is first
made of the changed date of the meeting. A shareholder's notice to the Secretary
shall set forth as to each matter the shareholder proposes to bring before the
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as they appear on the Corporation's books,
of the shareholder proposing such business and the beneficial owner, if any, on
whose behalf the proposal is made, (iii) the class and number of
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shares of the Corporation that are owned beneficially and of record by the
shareholder proposing such business and by the beneficial owner, if any, on
whose behalf the proposal is made, and (iv) any material interest of such
shareholder proposing such business and the beneficial owner, if any, on whose
behalf the proposal is made, in such business. Notwithstanding anything in this
Section 2.10 to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 2.10.
The presiding officer of the annual meeting shall, if the facts warrant,
determine that business was not properly brought before the meeting in
accordance with the procedures prescribed in this Section 2.10 and, if he should
so determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted. Notwithstanding the
foregoing provisions of this Section 2.10, a shareholder shall also comply with
all applicable requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the matters set forth
in this Section 2.10. For purposes of this Section 2.10 and Section 3.5 of these
Bylaws, "public announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable national news
service, in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, or in shareholder correspondence or a
shareholder report. Nothing in this Bylaw shall be deemed to affect any rights
of shareholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as
amended, including, but not limited to, the time periods specified to exercise
such rights.
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ARTICLE 3.
DIRECTORS
3.1 Powers. The business and affairs of the Corporation shall be
managed under the direction of its Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things as are not
by law or by the Articles of Incorporation directed or required to be exercised
or done by the shareholders.
3.2 Number, Qualification and Term of Office. The authorized
number of Directors may be determined from time to time only by a vote of a
majority of the Whole Board (as defined in Section 2.3 of these Bylaws) or by
the affirmative vote of the holders of at least 66-2/3% of the voting power of
the then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of Directors, voting together as a single class, but
in no case shall the number of Directors be fewer than 3 or more than 16. The
Directors shall be natural persons of the age of eighteen (18) years or older,
but need not be residents of the State of Georgia or hold shares of stock in the
Corporation. The Directors shall be classified with respect to the time for
which they severally hold office into three classes, as nearly equal in number
as possible, designated Class I, Class II and Class III. The Directors first
appointed to Class I shall hold office for a term expiring at the annual meeting
of shareholders to be held in 2002; the Directors first appointed to Class II
shall hold office for a term expiring at the annual meeting of shareholders to
be held in 2003; and the Directors first appointed to Class III shall hold
office for a term expiring at the annual meeting of shareholders to be held in
2004, with the members of each class to hold office until their successors are
elected and qualified. At each succeeding annual meeting of the shareholders of
the Corporation, the successors of the class of Directors whose term expires at
that meeting shall be elected by plurality vote of all votes cast at such
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meeting to hold office for a term expiring at the annual meeting of shareholders
held in the third year following the year of their election.
3.3 Vacancies and Newly Created Directorships. Newly created
directorships resulting from any increase in the number of Directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely by the
affirmative vote of a majority of the remaining Directors then in office, even
though less than a quorum of the Board of Directors, or by a sole remaining
Director. Any Director elected to fill a vacancy shall be elected for the
unexpired term of the class of Directors in which the vacancy occurred. Any
Director elected by reason of an increase in the number of directors shall be
elected only for a term of office continuing until the next election of
directors by the shareholders and until the election and qualification of such
Director's successor. No decrease in the number of Directors constituting the
Board of Directors shall shorten the term of an incumbent Director. A vacancy
that will occur at a specific date (including but not limited to a resignation
that specifies a later date) may be filled before the vacancy occurs, but the
new Director may not take office until the vacancy occurs.
3.4 Removal of Directors. Any or all of the Directors of the
Corporation may be removed with cause by the affirmative vote of the holders of
at least 66-2/3% of the voting power of the then outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class. A Director may be removed by the
shareholders only at a meeting called for the purpose of removing him, and the
meeting notice must state that the purpose, or one of the purposes, of the
meeting is removal of the Director.
3.5 Nominations of Directors; Election. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as Directors of the Corporation. Nominations of persons for election as
Directors of the Corporation may be made
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by (i) the Board of Directors or a committee appointed by the Board of
Directors, or (ii) any person who is a shareholder of record at the time of
giving of notice for the meeting provided for in these Bylaws, who is entitled
to vote for the election of Directors and who complies with the procedures set
forth in this Section 3.5. All nominations by shareholders shall be made
pursuant to timely notice in proper written form to the Secretary of the
Corporation. To be timely, a shareholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation: (i)
in the case of an annual meeting, not fewer than 60 days nor more than 90 days
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is changed by
more than 30 days from such anniversary date, notice by the shareholder to be
timely must be so received not later than the close of business on the 10th day
following the day on which public announcement is first made of the changed date
of the meeting; and (ii) in the case of a special meeting at which Directors are
to be elected, not later than the close of business on the 10th day following
the day on which public announcement is first made of the changed date of the
meeting. To be in proper written form, such shareholder's notice shall set forth
or include (i) the name and address, as they appear on the Corporation's books,
of the shareholder giving the notice and of the beneficial owner, if any, on
whose behalf the nomination is made; (ii) a representation that the shareholder
giving the notice is a holder of record of stock of the Corporation entitled to
vote at such meeting and intends to appear in person or by proxy at the meeting
to nominate the person or persons specified in the notice; (iii) the class and
number of shares of stock of the Corporation owned beneficially and of record by
the shareholder giving the notice and by the beneficial owner, if any, on whose
behalf the nomination is made; (iv) a description of all arrangements or
understandings between or among any of (A) the shareholder giving the notice,
(B) the beneficial
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owner on whose behalf the notice is given, (C) each nominee, and (D) any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder giving the notice;
(v) such other information regarding each nominee proposed by the shareholder
giving the notice as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and (vi) the signed consent of each nominee to serve as a Director of the
Corporation if so elected. At the request of the Board of Directors, any person
nominated by the Board of Directors for election as a Director shall furnish to
the Secretary of the Corporation that information required to be set forth in a
shareholder's notice of nomination which pertains to the nominee. The presiding
officer of the meeting for election of Directors shall, if the facts warrant,
determine that a nomination was not made in accordance with the procedures
prescribed by this Section 3.5, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 3.5, a shareholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section 3.5.
3.6 Resignation. Any Director may resign at any time by giving
written notice of his resignation to the Board of Directors, the Chairman of the
Board of Directors or the Corporation.
3.7 Compensation. The Board of Directors may establish the
compensation for, and reimbursement of the expenses of, Directors for membership
on the Board of Directors and on committees of the Board of Directors,
attendance at meetings of the Board of Directors or committees of the Board of
Directors, and for other services by Directors to the Corporation.
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3.8 Interested Director Transactions. An interested Director is
one who is a party to a contract or transaction with the Corporation or who is
an officer or Director of, or has a financial interest in, another corporation,
partnership, association, or other entity which is a party to a contract or
transaction with the Corporation. Transactions involving such a Director shall
be governed by Section 14-2-860, et seq., of the Georgia Business Corporation
Code, as the same may hereinafter be amended.
ARTICLE 4.
MEETINGS OF THE BOARD
4.1 Regular Meetings. Regular meetings of the Board of Directors
may be held without notice immediately after the annual meeting of the
shareholders and at such other time and place either within or without the State
of Georgia as shall from time to time be determined by the Board of Directors.
4.2 Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board of Directors or the President, on one
day's written notice to each Director by whom such notice is not waived. Notice
shall be given personally, by mail, by private courier, by facsimile
transmission, or by telegraph, teletype or other form of wire or wireless
communication, and need not describe the business to be transacted at, or the
purpose of, the special meeting. Special meetings of the Board of Directors may
be held at such time and place either within or without the State of Georgia as
is determined by the Board of Directors or specified in the notice of any such
meeting.
4.3 Waiver of Notice. A Director may waive any notice either
before or after the date and time stated in the notice. Such a waiver must be in
writing, signed by the Director and delivered to the Corporation for inclusion
in the minutes or filing with the corporate records.
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Attendance of a Director at a meeting shall constitute a waiver of notice of
that meeting unless the Director at the beginning of the meeting (or promptly
upon 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.
4.4 Quorum. A quorum of the Board of Directors consists of a
majority of the number of Directors then in office. If a quorum is present, the
acts of a majority of the Directors in attendance shall be the acts of the Board
of Directors. A Director who is present at a meeting of the Board of Directors
when corporate action is taken is deemed to have assented to the action taken
unless: (a) that Director objects at the beginning of the meeting (or promptly
upon arrival) to holding the meeting or to transacting business at the meeting;
(b) the dissent or abstention of that Director from the action taken is entered
into the minutes of the meeting; or (c) that Director delivers written notice of
dissent or abstention to the presiding officer of the meeting before, or to the
Corporation immediately after, adjournment of the meeting. The right of dissent
is not available to a Director who votes in favor of an action taken.
4.5 Adjournment. A meeting of the Board of Directors may be
adjourned by a majority of the Directors present, whether or not a quorum
exists. Notice of the time and the place of the adjourned meeting and of the
business to be transacted thereat, other than by announcement at the meeting at
which the adjournment is taken, shall not be necessary. At an adjourned meeting
at which a quorum is present, any business may be transacted which could have
been transacted at the meeting originally called.
4.6 Participation in Meetings Other Than in Person. Members of the
Board of Directors may participate in a meeting of the Board by any means of
communication by which
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all persons participating in the meeting can hear each other. Participation in a
meeting in such manner shall constitute presence in person at such meeting.
4.7 Rules. The Board of Directors may adopt rules and regulations
that are not inconsistent with law or these Bylaws for the conduct of their
meetings and the management of the affairs of the Corporation.
ARTICLE 5.
COMMITTEES
5.1 Formation and Powers. The Board of Directors, by resolution
passed by a majority of the Whole Board (as defined in Section 2.3 of these
Bylaws), may create one or more committees and appoint members of the Board of
Directors to serve thereon. Each committee shall have such lawfully delegable
powers and duties as the Board of Directors may confer. However, a committee
shall not have the power to: (i) approve or propose to shareholders action that
the Georgia Business Corporation Code requires to be approved by shareholders;
(ii) fill vacancies on the Board of Directors or on any of its committees; (iii)
amend the Articles of Incorporation pursuant to Section 14-2-1002 of the Georgia
Business Corporation Code, as it may hereafter be amended; (iv) adopt, amend or
repeal these Bylaws; or (v) approve a plan of merger not requiring shareholder
approval. Any committee or committees so designated by the Board of Directors
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. Unless otherwise prescribed by the
Board of Directors, a majority of the members of the committee shall constitute
a quorum for the transaction of business, and the act of a majority of the
members present at a meeting at which there is a quorum shall be the act of such
committee. Each committee shall prescribe its own rules for calling and holding
meetings and its method of procedure, subject to any rules
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prescribed by the Board of Directors or by applicable law, and shall keep a
written record of all actions taken by it.
5.2 Removal. The Board of Directors shall have power at any time
to remove any member of any committee, with or without cause, to fill vacancies
on any committee, and to dissolve any committee.
ARTICLE 6.
OFFICERS
6.1 Generally. The officers of the Company shall be elected by the
Board of Directors and shall consist of a Chief Executive Officer, a President,
a Secretary, and a Treasurer. The Board of Directors may also choose any or all
of the following: a Controller, one or more Vice Presidents (who may be given
particular designations with respect to authority, function, or seniority), and
such other officers as the Board of Directors may from time to time determine.
Notwithstanding the foregoing, by specific action the Board of Directors may
authorize the Chairman of the Board of Directors to appoint any person to any
office other than Chief Executive Officer, President, Secretary, or Treasurer.
Any number of offices may be held by the same person. Any of the offices may be
left vacant from time to time as the Board of Directors may determine. In the
case of the absence or disability of any officer of the Company or for any other
reason deemed sufficient by a majority of the Board of Directors, the Board of
Directors may delegate the absent or disabled officer's powers or duties to any
other officer or to any Director.
6.2 Compensation. The compensation of all officers and agents of
the Company who are also Directors of the Company shall be fixed by the Board of
Directors or by a committee of the Board of Directors. The Board of Directors
may fix the compensation of other officers and
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agents of the Company or delegate the power to fix such compensation to an
officer of the Company.
6.3 Succession. The officers of the Company will hold office until
their successors are elected and qualified. Any officer may be removed at any
time by the affirmative vote of a majority of the Whole Board. Any vacancy
occurring in any office of the Company may be filled by the Board of Directors
or by the Chairman of the Board of Directors as provided in Section 6.1 of these
Bylaws.
6.4 Authority and Duties. Each of the officers of the Corporation
shall have such authority and shall perform such duties as are customarily
incident to their respective offices, or as may be specified from time to time
by the Board of Directors.
6.5 Interested Officer Transactions. An interested officer is one
who is a party to a contract or transaction with the Corporation or who is an
officer or Director of, or has a financial interest in, another corporation,
partnership, association, or other entity which is a party to a contract or
transaction with the Corporation. Transactions involving such an officer shall
be governed by Section 14-2-864 of the Georgia Business Corporation Code, as the
same may hereinafter be amended.
ARTICLE 7.
CAPITAL STOCK
7.1 Certificates. The interest of each shareholder may be
evidenced by a certificate or certificates representing shares of stock of the
Corporation, which shall be in such form as the Board of Directors may from time
to time adopt, shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each share certificate shall state, on its face,
the name of the Corporation and that it is organized under the laws of Georgia,
the name of the
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person to whom it is issued, and the number and class of shares and the
designation of the series, if any, that the certificate represents. Also, each
certificate may bear the seal of the Corporation or a facsimile thereof and
shall be signed, either manually or in facsimile, by any one of the following:
the President, the Secretary or an Assistant Secretary, or other officer
designated by the Board of Directors for such purpose. If the certificate is
signed in facsimile, it must be countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or an employee of the
Corporation. The transfer agent or registrar may sign either manually or by
facsimile.
7.2 Transfers. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue, or to cause its
transfer agent to issue, a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
7.3 Lost, Stolen or Destroyed Certificates. The Secretary may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact, satisfactory to the Secretary, by the person claiming the certificate of
stock to be lost, stolen or destroyed. As a condition precedent to the issuance
of a new certificate or certificates, the Secretary may require the owners of
such lost, stolen or destroyed certificate or certificates to give the
Corporation a bond in such sum and with such surety or sureties as the Secretary
may direct as indemnity against any claims that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed or the issuance of the new certificate.
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7.4 Certificateless Shares. The Board of Directors of the
Corporation may authorize the issuance of some or all of the shares of stock, of
any or all of its classes or series, without certificates. Within a reasonable
time after the issue or transfer of the shares without certificates, the
Corporation shall send the shareholder to whom a share is to be issued a written
statement specifying the name of the Corporation, that the Corporation is
organized under the laws of Georgia, the name of the person to whom the shares
are issued or transferred, the number and class of shares and the designation of
the series, if any, that the certificate represents, and any applicable
restriction on the transfer of such shares.
7.5 Record Dates.
(a) In order that the Corporation may determine the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to take any other action, the Board of Directors
shall in advance fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 70 days before the date
of such meeting. If no record date is fixed, the record date for determining
shareholders entitled to notice of or to vote at any meeting of shareholders
shall be the close of business on the day before the first notice is delivered
to shareholders. A determination of shareholders of record entitled to notice of
or to vote at a meeting of the shareholders shall apply to any adjournment of
the meeting; provided, however, if the meeting is adjourned to a date more than
120 days after the date fixed for the original meeting, the Board of Directors
shall fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
shareholders entitled to receive payment of any dividend or other distribution,
the Board of Directors may fix a record
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date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date shall not be more than
70 days prior to such payment. If no record date is fixed, the record date for
determining shareholders for any such purpose shall be at the close of business
on the day on which the Board of Directors authorizes the distribution.
(c) The Corporation shall be entitled to treat the person
in whose name any share of its stock is registered as the owner thereof for all
purposes, and shall not be bound to recognize any equitable or other claim to,
or interest in, such share on the part of any other person, whether or not the
Corporation shall have notice thereof, except as expressly provided by
applicable law.
ARTICLE 8.
MISCELLANEOUS
8.1 Amendments. Notwithstanding anything contained in the
Corporation's Articles of Incorporation to the contrary, unless otherwise
required by applicable law, Sections 2.3 (Special Meetings), 2.10 (Order of
Business), 3.2 (Number, Qualification and Term of Office), 3.3 (Vacancies and
Newly Created Directorships), 3.4 (Removal of Directors), 3.5 (Nominations of
Directors; Election), 8.8 (Fair Price Requirements) and 8.9 (Business
Combinations with Interested Shareholders) of these Bylaws shall not be amended
or repealed by the shareholders, and no provision inconsistent therewith shall
be adopted by the shareholders, without the affirmative vote of the holders of
at least 66 2/3% of the voting power of the then outstanding shares of Common
Stock and outstanding shares of preferred stock voting together, to the extent
the outstanding shares of preferred stock are afforded voting rights and powers
generally equal to the voting rights and powers of shares of Common Stock.
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8.2 Inspection of Books.
(a) A shareholder may inspect and copy, during regular
business hours at the Corporation's principal office, the following if he gives
the Corporation written notice of his demand at least five (5) business days
prior to the requested date of inspection: (1) the Corporation's Articles of
Incorporation and all amendments to them currently in effect; (2) the
Corporation's Bylaws and all amendments to them currently in effect; (3)
resolutions adopted by either the shareholders or Board of Directors increasing
or decreasing the number of Directors, the classification of Directors, if any,
and the names and residence addresses of all members of the Board of Directors;
(4) resolutions adopted by the Board of Directors creating one or more classes
or series of shares, and fixing their relative rights, preferences, and
limitations, if shares issued pursuant to those resolutions are outstanding, and
any resolutions adopted by the Board of Directors that affect the size of the
board of Directors; (5) the minutes of all shareholders' meetings, executed
waivers of notice of meetings, and executed written consents evidencing all
action taken by shareholders without a meeting, for the previous three years;
(6) all written communications to shareholders generally within the previous
three years and the financial statements required to be made available to the
shareholders for the previous three years under Section 14-2-1620 of the Georgia
Business Corporation Code as it may hereinafter be amended; (7) a list of the
names and business addresses of its current Directors and officers; and (8) the
Corporation's most recent annual registration delivered to the Secretary of
State under Section 14-2-1622 of the Georgia Business Corporation Code.
(b) A shareholder may inspect and copy, during regular
business hours at a reasonable location specified by the Corporation (1)
excerpts from minutes of any meeting of the Board of Directors, records of any
action of a committee of the Board of Directors while acting in place of the
Board of Directors on behalf of the Corporation, minutes of any meeting of the
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shareholders, and records of action taken by the shareholders or Board of
Directors without a meeting, to the extent not subject to inspection under
Section 8.1(a); (2) accounting records of the Corporation; and (3) the record of
shareholders. A shareholder may inspect these records of the Corporation only
if: (i) his demand is made in good faith and for a proper purpose that is
reasonably relevant to his legitimate interest as a shareholder; (ii) he
describes with reasonable particularity his purpose and the records he desires
to inspect; (iii) the records are directly connected with his purpose; (iv) the
records are to be used only for the stated purpose; and (v) the shareholder owns
more than two percent (2%) of the outstanding shares of the Corporation at the
date of his request.
8.3 Seal. The corporate seal shall be in such form as the Board of
Directors may from time to time determine. In the event that it is inconvenient
at any time to use the corporate seal of the Corporation, the words "Seal" or
"Corporate Seal" enclosed in parentheses or scroll shall be deemed the corporate
seal of the Corporation.
8.4 Checks, Notes, Drafts, Etc. Checks, notes, drafts,
acceptances, bills of exchange, and other orders or obligations for the payment
of money shall be signed by such officer or officers or person or persons as the
Board of Directors by resolution shall from time to time designate.
8.5 Fiscal Year. The fiscal year of the Corporation shall be fixed
from time to time by the Board of Directors.
8.6 Reliance upon Books, Reports and Records. Each Director, each
member of a committee designated by the Board of Directors, and each officer of
the Corporation shall, in the performance of his or her duties, be fully
protected in relying in good faith upon such information, opinions, reports or
statements, including financial statements and other financial
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data, prepared or presented to the Corporation by: (i) any of the Corporation's
officers or employees who the Director reasonably believes to be reliable and
competent in the matters presented; (ii) legal counsel, public accountants,
investment bankers or other persons engaged by the Corporation as to matters the
Director reasonably believes are within the person's professional or expert
competence; or (iii) committees of the Board of Directors of which he is not a
member if the Director reasonably believes the committee merits confidence.
8.7 Time Periods. In applying any provision of these Bylaws that
requires that an act be done or not be done a specified number of days prior to
an event, or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
8.8 Fair Price Requirements. The Corporation shall be governed by
all of the requirements of Part 2 of Article 11 of the Georgia Business
Corporation Code, as amended.
8.9 Business Combinations with Interested Shareholders. The
Corporation shall be governed by all of the requirements of Part 3 of Article 11
of the Georgia Business Corporation Code, as amended.
8.10 Indemnification. Each person who is or was or had agreed to
become a Director or officer of the Corporation, or each such person who is or
was serving or who had agreed to serve at the request of the Board of Directors
or an officer of the Corporation as an employee or agent of the Corporation or
as a Director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person), shall be indemnified by the
Corporation to the fullest extent permitted by the Georgia Business Corporation
Code or any other applicable laws as presently or hereafter in effect. The right
to indemnification granted by this Section 8.10 shall include the right to be
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paid in advance expenses incurred in defending a proceeding. The Corporation
may, by action of the Board of Directors, provide indemnification to other
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of Directors and officers. The right of
indemnification provided in this Section 8.10 shall not be exclusive of any
other rights to which any person seeking indemnification may otherwise be
entitled, and shall be applicable to matters otherwise within its scope
irrespective of whether such matters arose or arise before or after the adoption
of this Section 8.10. Without limiting the generality or the effect of the
foregoing, the Corporation may enter into one or more agreements with any
person, which provide for indemnification greater or different than that
provided in this Section 8.10. No amendment, modification or repeal of this
Article shall adversely affect any right or protection of a Director, officer,
employee or agent that exists at the time of such amendment, modification or
repeal.
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