Exhibit 3.2
BYLAWS
OF
EMS TECHNOLOGIES, INC.
As Amended Through
March 15, 1999
TABLE OF CONTENTS
PAGE
ARTICLE ONE - OFFICES
Section 1.1 Registered Office and Agent 1
Section 1.2 Principal Office 1
Section 1.3 Other Offices 1
ARTICLE TWO - SHAREHOLDERS' MEETINGS 1
Section 2.1 Place of Meetings 1
Section 2.2 Annual Meetings 1
Section 2.3 Special Meetings 2
Section 2.4 Notice of Meetings 2
Section 2.5 Waiver of Notice 2
Section 2.6 Quorum; Manager of Acting 2
Section 2.7 Voting of Shares 3
Section 2.8 Proxies 3
Section 2.9 Presiding Officer 3
Section 2.10 Adjournments 3
Section 2.11 Conduct of the Meeting 3
Section 2.12 Matters Considered at Annual Meetings 4
ARTICLE THREE - THE BOARD OF DIRECTORS 4
Section 3.1 General Powers 4
Section 3.2 Number, Election and Terms of Office 4
Section 3.3 Removal 4
Section 3.4 Vacancies 5
Section 3.5 Compensation 5
Section 3.6 Committees of the Board of Directors 5
Section 3.7 Certain Nomination Requirements 5
Section 3.8 Qualification of Directors 6
Section 3.9 Related-Party Transactions 6
(i)
ARTICLE FOUR - MEETINGS OF THE BOARD OF DIRECTORS 6
Section 4.1 Regular Meetings 6
Section 4.2 Special Meetings 6
Section 4.3 Place of Meetings 6
Section 4.4 Notice of Meetings 6
Section 4.5 Quorum 6
Section 4.6 Vote Required for Action 7
Section 4.7 Participation by Conference Telephone 7
Section 4.8 Action by Directors Without a Meeting 7
Section 4.9 Adjournments 7
Section 4.10 Waiver of Notice 7
ARTICLE FIVE - OFFICERS 7
Section 5.1 Offices 7
Section 5.2 Term 7
Section 5.3 Compensation 8
Section 5.4 Removal 8
Section 5.5 Chairman of the Board 8
Section 5.6 Chief Executive Officer 8
Section 5.7 President 8
Section 5.8 Vice Presidents 8
Section 5.9 Secretary 8
Section 5.10 Treasurer 8
Section 5.11 Assistant Secretaries and Assistant Treasurers 9
Section 5.12 Bonds 9
ARTICLE SIX - DIVIDENDS 9
ARTICLE SEVEN - SHARES 9
Section 7.1 Authorization and Issuance of Shares 9
Section 7.2 Share Certificates 9
Section 7.3 Rights of Corporation with Respect to Registered
Owner 10
Section 7.4 Transfers of Shares 10
Section 7.5 Duty of Corporation to Register Transfer 10
Section 7.6 Lost, Stolen or Destroyed Certificates 10
Section 7.7 Fixing of Record Date 10
Section 7.8 Record Date if None Fixed 11
ARTICLE EIGHT - INDEMNIFICATION 11
Section 8.1 Indemnification of Directors and Officers 11
Section 8.2 Indemnification of Directors and Officers for
Derivative Actions 11
Section 8.3 Indemnification of Employees and Agents 11
Section 8.4 Subsidiaries and Other Organizations 12
Section 8.5 Determination 12
Section 8.6 Advances 12
Section 8.7 Non-Exclusivity 13
Section 8.8 Insurance 13
Section 8.9 Notice 13
Section 8.10 Security 13
Section 8.11 Amendment 13
Section 8.12 Agreements 14
Section 8.13 Continuing Benefits 14
Section 8.14 Successors 14
Section 8.15 Severability
Section 8.16 Additional Indemnification 14
ARTICLE NINE - MISCELLANEOUS 14
Section 9.1 Inspection of Books and Records 14
Section 9.2 Fiscal Year 14
Section 9.3 Seal 15
Section 9.4 Election of "Fair Price" Statute 15
Section 9.5 Election of "Business Combination" Statute 15
Section 9.6 Notice 15
ARTICLE TEN - AMENDMENTS 15
(iii)
BYLAWS
OF
EMS TECHNOLOGIES, INC.
All of these Bylaws are subject to contrary provisions, if any, of the
Corporation's Articles of Incorporation, of the Georgia Business Corporation
Code (the "Code") and of other applicable law.
References herein to "Articles of Incorporation" are to the articles of
incorporation of EMS Technologies, Inc., a Georgia corporation (the
"Corporation"), as the same may be amended and restated from time to time.
ARTICLE ONE
Offices
1.1 Registered Office and Agent. The Corporation shall maintain a registered
office and shall have a registered agent whose business office is identical with
such registered office.
1.2 Principal Office. The principal office of the Corporation shall be at 660
Engineering Drive, Norcross, Georgia, or at such other place, within or without
the State of Georgia, as the Board of Directors may from time to time determine
or as the business of the Corporation may require or make desirable.
1.3 Other Offices. In addition to its registered office and principal 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 designated by the Board of Directors and,
if required, as set forth in the notice thereof, or if no place is so specified,
at the principal office of the Corporation.
2.2 Annual Meetings. Annual meetings of shareholders of such classes or series
of shares as are entitled to notice thereof and to vote thereat shall be held on
such dates as may be determined by the Board of Directors, for the purpose of
electing directors and transacting any and all other 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 of any class or
series or of all classes or series of the Corporation's shares may be called at
any time by the Chairman of the Board or the Board of Directors; and shall be
called by the Corporation upon the written request as required by law (stating
the purpose or purposes of such meeting) of the holders of two-thirds or more of
all the shares of capital stock of the Corporation entitled to vote on any issue
or issues proposed to be considered at such special meeting. The date, time and
place for the holding of any special meeting of shareholders shall be determined
by the Board of Directors. The business that may be transacted at any special
meeting of shareholders shall consist only of and be limited to the purpose or
purposes stated in the notice of such special meeting delivered to shareholders
in accordance with Section 2.4 of these Bylaws.
2.4 Notice of Meetings. The Corporation shall give written notice, delivered in
person or by mail, of the date, time and place of each annual and special
shareholders' meeting, no fewer than ten days nor more than 60 days before the
meeting date, to each shareholder of record entitled to vote at such meeting. In
the case of an annual meeting, the notice of the meeting need not state the
purpose or purposes of the meeting unless the purpose or purposes constitute a
matter which these Bylaws or the Code require to be so stated. In the case of a
special meeting, the notice of meeting shall state the purpose or purposes for
which the meeting is called. If an annual or special shareholders' meeting is
adjourned to a different date, time or place, the Corporation may but shall not
be required to give notice of the new date, time or place of such meeting if the
new date, time and place is announced at the meeting before adjournment thereof;
provided, however, that if a new record date is or must be fixed in accordance
with Section 7.7 of these Bylaws, notice of the adjourned meeting shall be given
by the Corporation to shareholders as of the new record date.
2.5 Waiver of Notice. A shareholder may waive any notice required by the Code,
the Corporation's Articles of Incorporation or these Bylaws, before or after the
date and time of the matter to which the notice relates, by delivery to the
Corporation of a waiver of such notice signed by the shareholder entitled to
such
notice. In addition, a shareholder's attendance at a meeting shall be (i) a
waiver of objection to lack of notice or defective notice of such meeting unless
such shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting, and (ii) a waiver of objection to
consideration of a particular matter at such meeting that is not within the
purpose or purposes stated in the meeting notice, unless the shareholder objects
to considering the matter when it is presented. Except as otherwise required by
the Code, none of the business transacted, the purpose of the meeting or any
other matter need be specified in any waiver.
2.6 Quorum; Manner of Acting. (a) All classes or series of the Corporation's
shares entitled to vote generally on a matter, shall for that purpose be
considered a single voting group (a "Voting Group"). At any meeting of
shareholders, action on a matter by a Voting Group may be taken only if a quorum
of such Voting Group exists at such meeting. Unless the Articles of
Incorporation, these Bylaws, or the Code otherwise provide, a majority of the
votes entitled to be cast on a matter by a Voting Group constitutes a quorum of
that Voting Group with regard to that matter once a share is represented at any
meeting other than solely to object to holding the meeting or transacting
business at the meeting, such share shall be deemed present for quorum purposes
for the remainder of the meeting and for any adjournments of that meeting,
unless a new record date is or must be set pursuant to Section 7.7 of these
Bylaws for such adjourned meeting. (b) If a quorum exists, action on a matter
(other than the election of directors) by a Voting Group is approved if the
votes cast within the Voting Group favoring the action exceed the votes cast
opposing the action, unless the Articles of Incorporation, a Bylaw adopted by
the shareholders under the Code, or the Code requires
a greater number of affirmative votes. If voting by two or more Voting Groups is
required on a matter, action on that matter is approved only when approved by
each of such Voting Groups, voting separately, as provided in the preceding
sentence.
2.7 Voting of Shares. Subject to the provisions of any Preferred Stock at the
time outstanding, each outstanding share of any class or series having voting
rights shall be entitled to one vote on each matter that such class or series is
entitled to vote on and that is submitted to a vote at a meeting of
shareholders.
2.8 Proxies. A shareholder entitled to vote pursuant on a matter may vote in
person or by a proxy appointed in writing by the shareholder or by his
attorney-in-fact. An appointment of a
proxy shall be valid for eleven months from the date of its receipt by the
Secretary or other officer or agent of the Corporation authorized to tabulate
votes, unless a longer period is expressly stated therein. If the validity of
any appointment of a 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 shall determine, consistent
with requirements of the Code, the validity or invalidity of any appointment of
a proxy submitted. Reference by the secretary in the minutes of the meeting to
the regularity of a proxy, or to the presence of shareholders or representation
of shares by proxy, shall 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. Except as otherwise provided in this Section 2.9, the
Chairman of the Board, and in his absence or disability the Chief Executive
Officer (if a different person, and if not, the President), shall serve as the
chairman of every shareholders' meeting, if either of them is present and
willing to so serve. If neither the Chairman of the Board nor the Chief
Executive Officer is present at and willing to serve as chairman of the meeting,
and if the Chairman of the Board has not designated another person who is
present and willing to so serve, then a majority of the Corporation's directors
present at the meeting shall be entitled to designate a person to serve as
chairman. If no directors of the Corporation are present at such meeting or no
majority of the directors can be established, a chairman of the meeting shall be
selected by a majority vote of the shares present at the meeting and entitled to
vote in an election of directors. The chairman of the meeting shall appoint such
persons as he deems appropriate to assist with the meeting.
2.10 Adjournments. Any meeting of the shareholders may be adjourned by an
affirmative vote of the holders of a majority of the shares represented,
entitled to vote and voting on the matter to reconvene at a specific time and
place, regardless of whether a quorum is then present. It shall not be necessary
to give any notice of the reconvened meeting if the date, time and place of the
reconvened meeting are announced at the meeting that was adjourned, unless
required by the Code or Section 7.7 of these Bylaws. At any such reconvened
meeting, only such business may be transacted that could have been transacted at
the meeting that was adjourned.
2.11 Conduct of the Meeting. At any meeting of the shareholders of the
Corporation, the chairman of such meeting, as determined in accordance with
Section 2.9, shall be entitled to establish
conclusively the rules of order that shall govern the conduct of business at the
meeting, which rules may include, without limitation, in the discretion of such
presiding officer a requirement that nominations of persons for election as
directors of the Corporation be made, seconded and voted upon one nominee at a
time.
2.12 Matters Considered at Annual Meetings. At any annual meeting of
shareholders, only matters shall be considered as shall have been (a) brought
before such meeting (i) by or at the direction of the Board of Directors or (ii)
by any shareholder of the Corporation who is entitled to vote with respect
thereto and who complies with the notice procedures set forth in this Section
2.12, and (b) seconded by any other shareholder of the Corporation who is
entitled to vote with respect thereto. For business to be properly brought
before an annual meeting by a shareholder, the shareholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a shareholder's notice must be delivered or mailed to and received at
the principal executive offices of the Corporation not less than 60 days prior
to the anniversary of the date on which the annual meeting of shareholders was
held in the prior year, except that if the actual date of the annual meeting at
issue is more than 30 days earlier or later than such anniversary, such
shareholder's notice must be so delivered or received not less than 60 days
before such actual date. A shareholder's notice to the Secretary shall set forth
as to each matter such shareholder proposes to bring before the meeting (i) a
brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (ii) the name and
address, as they appear on the Corporation's books, of the shareholder proposing
such business, (iii) the series or class and number of shares of the
Corporation's capital stock that are beneficially owned by such shareholder, and
(iv) any material interest of such shareholder in such business. Notwithstanding
anything in the Bylaws to the contrary, no business shall be brought before or
conducted at an annual meeting except in accordance with the provisions of this
Section 2.12. The person presiding over an annual meeting shall, if the facts so
warrant, determine and declare to such meeting that business proposed to be
considered at an annual meeting in a manner inconsistent with this Section 2.12
is out of order and that such business shall not be transacted at such meeting.
ARTICLE THREE
The Board of Directors
3.1 General Powers. The business and affairs of the Corporation shall be managed
under the direction of the Board of Directors. In addition to the power and
authority expressly conferred upon it by these Bylaws, 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 Bylaws directed or required to be
exercised or done by the shareholders.
3.2 Number, Election and Terms of Office. Subject to the provisions of any
Preferred Stock at the time outstanding, the number of directors of the
Corporation shall be fixed by resolution adopted from time to time by the Board
of Directors or the shareholders, but no decrease in the number of directors
shall have the effect of shortening the term of an incumbent director. Except as
provided in Section 3.4, and subject to the provisions of any Preferred Stock at
the time outstanding, election of directors at any annual or special meeting
shall be by a plurality of votes cast by the shares of common stock entitled to
vote and represented in person or by proxy at such meeting, if a quorum exists
therefor. Each director, except in case of death, resignation, retirement,
disqualification, or removal, shall serve until the next succeeding annual
meeting and thereafter until his successor, if there is to be any, shall have
been elected and qualified.
3.3 Removal. The entire Board of Directors or any individual director may be
removed from office for cause, but only by the affirmative vote of the holders
of a majority of all of the shares entitled to be cast by the Voting Group
entitled to elect any such director. Removal action may be taken only at a
shareholders' meeting called expressly for that purpose and 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 unexpired term.
3.4 Vacancies. Subject to the terms of any Preferred Stock at the time
outstanding, a vacancy occurring in the Board of Directors may be filled for the
unexpired term, unless and until the shareholders shall have elected a
successor, by the affirmative vote of a majority of the directors remaining in
office, though less than a quorum of the Board of Directors; provided, however,
that if the vacant office was held by a director elected by a Voting Group of
shareholders, only the holders of shares of that Voting Group shall be entitled
to vote to fill the vacancy, unless the Articles of Incorporation
otherwise provide. A vacancy or vacancies in the Board of Directors shall be
deemed to exist in case of the death, resignation, retirement or removal of any
director, or if the shareholders fail to elect the fully authorized number of
directors to be voted for at an annual or special meeting of shareholders at
which any director or directors are elected, or if there are newly created
directorships resulting from any increase in the authorized number of directors.
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. A
director may also serve the Corporation in a capacity other than that of
director and receive compensation 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 one or more directors who serve at the pleasure
of the Board of Directors. Except as prohibited by law, each committee shall
have the authority set forth in the resolution establishing such committee or in
any other resolution adopted by a majority of the full Board of Directors
specifying, enlarging or limiting the authority of the committee.
3.7 Certain Nomination Requirements. No person may be nominated for election as
a director at any annual or special meeting of the shareholders of the
Corporation unless (a) the nomination has been or is being made pursuant to a
recommendation or approval of the Board of Directors of the Corporation or a
properly constituted committee of the Board of Directors previously delegated
authority to recommend or approve nominees for director; (b) the person is
nominated by a shareholder of the Corporation who is entitled to vote for the
election of such nominee at the subject meeting, and such nominating shareholder
has furnished written notice to the Secretary of the Corporation, at the
Corporation's principal business address, not less than 60 days prior to the
anniversary of the date on which the annual meeting of shareholders was held in
the prior year, except that if the actual date of the annual meeting at issue is
more than 30 days earlier or later than such anniversary, such shareholder's
notice must be so furnished not less than 60 days before such actual date, which
notice must (i) set forth with respect to the person to be nominated his or her
name, age, business and residence addresses, principal business or occupation
during the past five years, any affiliation with or material interest in the
Corporation or any transaction involving the Corporation, and any affiliation
with or material interest in any person or entity having an interest materially
adverse to the Corporation, and
(ii) be accompanied by the sworn or certified statement of the shareholder that
the nominee has consented to being nominated and that the shareholder believes
the nominee will stand for election and will serve if elected; or (c) (i) the
person is nominated to replace a person previously identified as a proposed
nominee (in accordance with the provisions of subpart (b) of this Section 3.7)
who has since become unable or unwilling to be nominated or to serve if elected,
(ii) the shareholder who furnished such previous identification makes the
replacement nomination and delivers to the Secretary of the Corporation (at the
time of or prior to making the replacement nomination) an affidavit or other
sworn statement affirming that the shareholder had no reason to believe the
original nominee would be so unable or unwilling, and (iii) such shareholder
also furnishes in writing to the Secretary of the Corporation (at the time of or
prior to making the replacement nomination) the same type of information about
the replacement nominee as required by subpart (b) of this Section 3.7 to have
been furnished about the original nominee. The presiding officer of any meeting
of shareholders of the Corporation at which one or more directors are to be
elected, for good cause shown and with proper regard for the orderly conduct of
business at the meeting, may waive in whole or in part the operation of this
Section 3.7.
3.8 Qualification of Directors. No person elected to serve as a director of the
Corporation shall assume such office and commence such service unless and until
such persons shall be duly qualified therefor. Such a director-elect shall not
be deemed to be duly qualified to assume the office of and serve as a director
if such assumption or service by the person would violate, or would cause the
Corporation to be in violation of, any applicable federal or state law or
regulation.
3.9 Related-Party Transactions. All contracts or transactions between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, firm or association in which one or more
of its directors or officers are directors or officers, or have a material
financial interest, shall be reviewed by a committee of the Board of Directors
designated by the whole board as having such responsibility.
ARTICLE FOUR
Meetings of the Board of Directors
4.1 Regular Meetings. Unless the Chairman of the Board shall cause notice to be
given of a different date and time, a regular meeting of the Board of Directors
shall be held at 10:00 a.m. on
the date of each annual meeting of shareholders or any meeting held in lieu or
substitute thereof. In addition, the Board of Directors may schedule other
meetings to occur at regular intervals throughout the year.
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 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 Chairman of the Board may from time to time
establish. Unless the Chairman of the Board shall cause notice to be given of a
different place, each regular meeting held on the date of an annual meeting of
shareholders (or of a meeting in lieu or substitute thereof) shall be held at
the location of such annual meeting.
4.4 Notice of Meetings. No notice shall be required for any regular scheduled
meetings of the Board of Directors. Unless waived as contemplated in Section
4.10, the Corporation shall give not less than two days' notice to each director
of the date, time and place of each special meeting. Notice of a subsequent
meeting shall be deemed to have been given to any director in attendance at any
duly convened meeting at which the date, time and place of each subsequent
meeting is announced.
4.5 Quorum. At meetings of the Board of Directors, a majority of the directors
then in office shall be necessary to constitute a quorum for the transaction of
business. In no case shall less than one-third of the minimum number of
directors authorized at that time, nor less than two directors, constitute a
quorum.
4.6 Vote Required for Action. The act of a majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors.
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 such committee by means of conference telephone or
similar communications equipment through which all persons participating in the
meeting can simultaneously hear each other. Participation in a meeting pursuant
to this Section 4.7 shall 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
one or more written consents describing the action taken shall be signed by all
the
directors, or all the members of the committee, as the case may be, and
delivered to the Corporation for inclusion in the minutes or filing with the
corporate records. Such consent shall 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. 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.
4.10 Waiver of Notice. A director may waive any notice required by the Code, the
Corporation's Articles of Incorporation or these Bylaws before or after the date
and time of the matter to which the notice relates, by a written waiver signed
by such director and delivered to the Corporation for inclusion in the minutes
or filing with the corporate records. Attendance by a director at a meeting
shall constitute waiver of notice of such meeting, except where a director at
the beginning of the meeting (or promptly upon his or her arrival ) objects to
holding the meeting or to the transacting of business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
ARTICLE FIVE
Officers
5.1 Offices. The officers of the Corporation shall be as determined by the Board
of Directors, and may include a Chief Executive Officer, a President, a
Secretary and a Treasurer, each of whom shall 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 from time to time
may, or may authorize the Chief Executive Officer to, 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.
5.2 Term. Each officer shall serve at the will of the Board of Directors (or, if
the Chief Executive Officer appointed such officer, at the will of the Board of
Directors and the Chief
Executive Officer) or until his death, resignation, retirement or
disqualification.
5.3 Compensation. The compensation of all officers of the Corporation shall be
fixed by the Board of Directors or by a committee or officer appointed by the
Board of Directors.
5.4 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 Chief
Executive Officer may be removed by the appointing officer whenever in his
judgment the best interests of the Corporation will be served thereby.
5.5 Chairman of the Board. The Chairman of the Board (if there be one) shall
call to order meetings of the shareholders and of the Board of Directors, and
shall act as chairman of such meetings (unless another person is selected under
Section 2.9 to act as chairman). The Chairman of the Board shall perform such
other duties and have such other authority as may from time to time be delegated
by the Board of Directors.
5.6 Chief Executive Officer. The Chief Executive Officer shall be charged with
the general and active management of the business of the Corporation, shall see
that all orders and resolutions of the Board of Directors are carried into
effect, shall have the authority to select and appoint employees and agents of
the Corporation, and shall, in the absence or disability of the Chairman of the
Board, perform the duties and exercise the powers of the Chairman of the Board.
The Chief Executive Officer shall perform such other duties and have such other
authority as shall be delegated from time to time by the Board of Directors.
5.7 President. The President shall have general supervision of the business of
the corporation. The President shall perform such other duties and have such
other authority as may from time to time be delegated by the Board of Directors
or the Chief Executive Officer.
5.8 Vice Presidents. The Vice President (if there be one) shall, in the absence
or disability of the President, or at the direction of the President, perform
the duties and exercise the powers, whether such duties and powers are specified
in these Bylaws or otherwise, of the President. If the Corporation has more than
one Vice President, the one designated by the Board of Directors or the Chief
Executive Officer shall act in lieu of the President. Vice Presidents shall
perform such other duties and have such other authority as may from time to time
be delegated by the Board of Directors, the Chief Executive Officer or the
President.
5.9 Secretary. The Secretary shall be responsible for preparing minutes of the
directors' and shareholders' meetings and for authenticating records of the
Corporation. The Secretary shall have authority to give all notices required by
law or these Bylaws. The Secretary shall be responsible for the custody of the
corporate books, records, contracts and other documents. The Secretary may affix
the corporate seal to any lawfully executed documents requiring it and shall
sign such instruments as may require the Secretary's signature. The Secretary
shall perform such other duties and have such other authority as may from time
to time be delegated by the Board of Directors or the Chief Executive Officer.
5.10 Treasurer. The Treasurer shall be responsible for the custody of all funds
and securities belonging to the Corporation and for the receipt, deposit or
disbursement of such funds and securities in a manner consistent with policies
established by the Board of Directors or Chief Executive Officer. The Treasurer
shall cause full and true accounts of all receipts and disbursements to be
maintained and shall make such reports of the same to the Board of Directors,
Chief Executive Officer and President upon request. The Treasurer shall perform
such other duties and have such other authority as may from time to time be
delegated by the Board of Directors or the Chief Executive Officer.
5.11 Assistant Secretaries and Assistant Treasurers. The Board of Directors and
Chief Executive officer 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 Chief Executive Officer) shall,
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 any corporate
document and attest the signature of any officer of the Corporation. Each
Assistant Secretary and Assistant Treasurer shall perform such other duties and
have such other authority as may from time to time be delegated by the Board of
Directors or the Chief Executive Officer.
5.12 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.
ARTICLE SIX
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.
ARTICLE SEVEN
Shares
7.1 Authorization and Issuance of Shares. The maximum number of shares of any
class of stock of the Corporation which may be issued and outstanding shall be
set forth from time to time in the Articles of Incorporation. The Board of
Directors may increase or decrease the number of issued and outstanding shares
of any class of stock of the Corporation within the maximum authorized by the
Articles of Incorporation and the minimum requirements of the Articles of
Incorporation or the Code.
7.2 Share Certificates. The interest of each shareholder in the Corporation
shall be evidenced by a certificate or certificates representing shares of the
Corporation which shall be in such form as the Board of Directors may from time
to time adopt in accordance with the Code. Share certificates shall be
consecutively numbered, in registered form, and indicate the date of issue and
state such other information as may be required by the Code. Each certificate
shall be signed by the Chief Executive Officer, the President or a Vice
President and the Secretary or an Assistant Secretary and shall 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 shall have signed (or whose facsimile signature has been
placed upon) a share certificate has ceased for any reason to be such officer or
officers 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.
7.3 Rights of Corporation with Respect to Registered Owner: Prior to due
presentation for transfer of registration of its shares, the Corporation may
treat the registered owner of the shares (or the beneficial owner of the shares
to the extent of any rights granted by a nominee certificate on file with the
Corporation pursuant to any procedure that may be established by the Corporation
in accordance with the Code) as the person exclusively entitled to vote such
shares, to receive any dividend or other distribution with respect to such
shares, and for all other purposes, and the Corporation shall 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.
7.4 Transfers of Shares. Transfers of shares shall be made upon the books of the
Corporation kept at the office of the transfer agent designated to transfer the
shares, only upon direction of the person named in the certificate or by an
attorney lawfully constituted in writing, and before a new certificate is
issued, the old certificate shall be surrendered for cancellation or, in the
case of a certificate alleged to have been lost, stolen or destroyed, the
provisions of Section 7.6 of these Bylaws shall have been complied with.
7.5 Duty of Corporation to Register Transfer. Notwithstanding any of the
provisions of Section 7.4 of these Bylaws, the Corporation is under a duty to
register the transfer of its shares only if:
(a) the share certificate is endorsed by the appropriate person or
persons;
(b) reasonable assurance is given that 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; and
(e) the transfer is in compliance with applicable provisions of any
transfer restrictions of which the Corporation shall have notice.
7.6 Lost, Stolen or Destroyed Certificates. Any person claiming a share
certificate to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in such manner as the Board
of Directors may require and shall, 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 appropriate new certificate may be issued in lieu of the
one alleged to have been lost, stolen or destroyed.
7.7 Fixing of Record Date. For the purpose of determining shareholders (i)
entitled to notice of or to vote at any meeting of shareholders or, if
necessary, any adjournment thereof, or (ii) entitled to receive payment of any
dividend, and 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 70 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of such meeting, unless
the Board of Directors shall fix a new record date for the reconvened meeting;
provided, however, the Board of Directors shall set a new record date if such
meeting is adjourned to a date more than 120 days after the date fixed for the
original meeting.
7.8 Record Date if None Fixed. If no record date is fixed as provided in Section
7.7, then the record date for any determination of shareholders that may be
proper or required by law shall be: the close of business on the last business
day before notice is first delivered to shareholders, 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 is taken by the Corporation, in the case of such
other action requiring a determination of shareholders.
ARTICLE EIGHT
Indemnification
8.1 Indemnification of Directors and Officers. 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 (other than an action or suit by or in the right of the
Corporation) by reason of the fact that he is or was a director or officer 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, if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Corporation, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful; provided, in any case,
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 Code as in effect from time to time, such
indemnification may not be authorized by action of the Board of Directors, the
shareholders or otherwise.
8.2 Indemnification of Directors and Officers for Derivative Actions. The
Corporation shall indemnify and hold harmless any 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, by or in the right of the Corporation, by reason of the fact that
he is or was a director or officer of the Corporation, against expenses
(including, but not limited to, attorneys' fees and disbursements, court costs
and expert witness fees) actually and reasonably incurred by him in connection
with such action, suit or proceeding, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation. No indemnification shall be made pursuant to this Section 8.2 for
any claim, issue or matter as to which an Indemnified Person shall have been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Corporation, or for amounts paid in settlement to
the Corporation, unless and only to the extent that the court in which such
action or suit was brought or other court of competent jurisdiction shall
determine upon application that such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
8.3 Indemnification of Employees and Agents. The Board of Directors shall have
the power to cause the Corporation to provide to any person who is or was an
employee or agent of the Corporation all or any part of the right to
indemnification and other rights of the type provided under Sections 8.1, 8.2,
8.6 and 8.12 of this Article Eight (subject to the conditions, limitations,
obligations and other provisions specified herein), upon a resolution to that
effect identifying such employee or agent (by position or name) and specifying
the particular rights provided, which may be different for each employee or
agent identified. Each employee or agent of the Corporation so identified shall
be an "Indemnified Person" for purposes of the provisions of this Article Eight.
8.4 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, 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 8.1, 8.2,
8.6 and 8.12 of this Article Eight (subject to the conditions, limitations,
obligations and other provisions specified herein), with respect to service by
such person in such position with a Subsidiary or other organization, upon a
resolution identifying such person, the Subsidiary or other organization
involved (by name or other classification), and the particular rights provided,
which may be different for each person so identified. Each person so identified
shall be an "Indemnified Person" for purposes of the provisions of this Article
Eight. As used in this Article Eight, "Subsidiary" shall mean (i) another
corporation, joint venture, trust, partnership or unincorporated business
association more than 20% of the voting capital stock or other voting equity
interest of which was, at or after the time of the circumstances giving rise to
such action, suit or proceeding, owned, directly or indirectly, by the
Corporation, or (ii) a nonprofit corporation that receives its principal
financial support from the Corporation or its Subsidiaries.
8.5 Determination. Notwithstanding any judgment, order, settlement, conviction
or plea in any action, suit or proceeding of the kind referred to in Sections
8.1 and 8.2 of this Article Eight, an Indemnified Person shall be entitled to
indemnification as provided in such Sections 8.1 and 8.2 if a determination that
such Indemnified Person is 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 at the time parties to the proceeding; or (ii) if a quorum cannot be
obtained under (i) above, by majority vote of a committee duly designated by the
Board of Directors (in which designation interested directors may participate),
consisting solely of two or more directors who are not at the time parties to
the proceeding; or (iii) in a written opinion by special legal counsel selected
as required by law. To the extent that an Indemnified Person has been successful
on the merits or otherwise in defense of any action, suit or proceeding of the
kind referred to in Sections 8. 1 and 8. 2 of this Article Eight, or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
8.6 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
Sections 8.1 and 8.2 hereof (or in Section 8.4 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 days following the Indemnified Person's
delivery to the Corporation of a written request for an advance pursuant to this
Section 8. 6, together with a reasonable accounting of such expenses; provided,
however, that the Indemnified Person shall furnish the Corporation a written
affirmation of his good faith belief that the Indemnified Person shall furnish
the Corporation a written affirmation of his good faith belief that he has met
the standard of conduct set forth in the Code and a written undertaking and
agreement to repay to the Corporation any advances made pursuant to this Section
8.6 if it shall be determined 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 8.6 regardless of the Indemnified Person's
financial ability to make repayment. Any advances and undertakings to repay
pursuant to this Section 8.6 shall be unsecured and interest-free.
8.7 Non-Exclusivity. Subject to any applicable limitation imposed by the Code or
the Articles of Incorporation, the indemnification and advancement of expenses
provided by or granted pursuant to this Article Eight shall not be exclusive of
any other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any Bylaw, resolution or agreement specifically
or in general terms approved or ratified by the affirmative vote of holders of a
majority of the shares entitled to be cast thereon.
8.8 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 is or was serving as a director, officer, trustee,
general partner, employee or agent of a Subsidiary or, at the request of the
Corporation, 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 Eight.
8.9 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 months
from the date of such payment, and in any event within 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.
8.10 Security. The Corporation may designate certain of its assets as
collateral, provide self-insurance or otherwise secure its obligations under
this Article Eight, or under any indemnification agreement or plan of
indemnification adopted and entered into in accordance with the provisions of
this Article Eight, as the Board of Directors deems appropriate.
8.11 Amendment. Any amendment to this Article Eight that limits or otherwise
adversely affects the right of indemnification, advancement of expenses, or
other rights of any Indemnified Person hereunder shall, as to such Indemnified
Person, apply only to claims, actions, suits 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 Eight to the same
extent as if such provisions had continued as part of the Bylaws of the
Corporation without such amendment. This Section 8.11 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 Eight 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.
8.12 Agreements. The provisions of this Article Eight 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
Eight, 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
Eight.
8.13 Continuing Benefits. The indemnification and advancement of expenses
provided by or granted pursuant to this Article Eight 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.
8.14 Successors. For purposes of this Article Eight, the terms "the Corporation"
or "this Corporation" shall include any corporation, joint venture, trust,
partnership or unincorporated business association that is the successor to all
or substantially all of the business or assets of this Corporation, as a result
of merger, consolidation, sale, liquidation or otherwise, and any such successor
shall be liable to the persons indemnified under this Article Eight on the same
terms and conditions and to the same extent as this Corporation.
8.15 Severability. Each of the sections of this Article Eight, and each of the
clauses set forth herein, shall be deemed separate and independent, and should
any part of any such section or clause be declared invalid or unenforceable by
any court of competent jurisdiction, such invalidity or unenforceability shall
in no way render invalid or unenforceable any other part thereof or any other
separate section or clause of this Article Eight that is not declared invalid or
unenforceable.
8.1 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 Code or other laws of the State of
Georgia as in effect from time to time.
ARTICLE NINE
Miscellaneous
9.1 Inspection of Books and Records. The Board of Directors shall have power to
determine which accounts, books and records of the Corporation shall be opened
to the inspection of shareholders, except such as may by law be specifically
open to inspection, and shall have power to fix reasonable rules and regulations
not in conflict with applicable law for the inspection of accounts, books and
records that by law or by determination of the Board of Directors shall be open
to inspection. Unless required by the Code or otherwise provided by the Board of
Directors, a shareholder of the Corporation holding
two percent or less of the total shares of the Corporation then outstanding
shall have no right to inspect the books and records of the Corporation.
9.2 Fiscal Year. The Board of Directors is authorized to fix the fiscal year of
the Corporation and to change the same from time to time as it deems
appropriate.
9.3 Seal. The corporate seal shall be in such form as the Board of Directors may
from time to time determine.
9.4 Election of "Fair Price" Statute. All the requirements of Sections 14-2-1110
through 14-2-1113 of the Code, as they may be amended from time to time, are
hereby made applicable to the Corporation, to the extent permitted thereby,
effective July 1, 1989.
9.5 Election of "Business Combination" Statute. All the requirements of Sections
14-2-1131 through 14-2-1133 of the Code, as they may be amended from time to
time, are hereby made applicable to the Corporation, to the extent permitted
thereby, effective July 1, 1989.
9.6 Notice. Whenever these Bylaws require notice to be given to any shareholder,
the notice shall be given as prescribed in Section 2.4. Whenever these Bylaws
require notice to be given to any director, the notice may be given as provided
in Section 4.4, by mail, by personal or courier delivery, by telephone or by
telecopier, telegraph or similar electronic means. Whenever notice is given to a
shareholder or director by mail, the notice shall be sent first class mail by
depositing the same in a post office or letter box in a postage prepaid sealed
envelope addressed to the shareholder or director at his or her address as it
appears on the books of the Corporation. Such notice shall be deemed to have
been given at the time the same is deposited in the United States mail, except
in the case of a notice to a director of a special meeting of the Board of
Directors, which shall be deemed to have been given five days after the same is
deposited in the United States mail. Whenever notice is given to a shareholder
or director by any means other than mail, such notice shall be deemed given when
received.
ARTICLE TEN
Amendments
The Board of Directors shall have the power to alter, amend or repeal
these Bylaws or adopt new Bylaws. Any Bylaws adopted by the Board of Directors
may be altered, amended or repealed and new Bylaws adopted by the shareholders.
The shareholders may prescribe that any Bylaws shall not be altered, amended or
repealed by the Board of Directors.