EXHIBIT 3.1
CHOICEPOINT INC.
BYLAWS
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Effective as of April 28, 2005
CHOICEPOINT INC.
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BYLAWS
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CONTENTS
ARTICLE ONE MEETINGS OF THE SHAREHOLDERS......................... 1
Section 1.1 Annual Meeting........................................... 1
Section 1.2 Special Meetings......................................... 1
Section 1.3 Notice of Meetings....................................... 1
Section 1.4 Voting Groups............................................ 1
Section 1.5 Quorum................................................... 2
Section 1.6 Vote Required for Action................................. 2
Section 1.7 Adjournments............................................. 2
Section 1.8 Presiding Officer........................................ 2
Section 1.9 Voting of Shares......................................... 2
Section 1.10 Proxies.................................................. 3
Section 1.11 Record Date.............................................. 3
Section 1.12 Shareholder Proposals and Nominations.................... 3
ARTICLE TWO BOARD OF DIRECTORS................................... 5
Section 2.1 General.................................................. 5
Section 2.2 Number of Directors and Term of Office .................. 5
Section 2.3 Election of Directors.................................... 6
Section 2.4 Vacancies................................................ 6
Section 2.5 Term Limits.............................................. 6
Section 2.6 Stock Ownership Requirement.............................. 7
Section 2.7 Meetings................................................. 7
Section 2.8 Special Meetings......................................... 7
Section 2.9 Notice of Meetings....................................... 7
Section 2.10 Quorum; Adjournments..................................... 7
Section 2.11 Vote Required for Action................................. 8
Section 2.12 Action by Directors Without a Meeting.................... 8
Section 2.13 Compensation of Directors................................ 8
ARTICLE THREE ELECTIONS OF OFFICERS AND COMMITTEES................. 8
Section 3.1 Election of Officers..................................... 8
Section 3.2 Executive Committee...................................... 8
Section 3.3 Other Committees......................................... 9
ARTICLE FOUR OFFICERS............................................. 9
Section 4.1 Officers................................................. 9
Section 4.2 Compensation of Officers................................. 10
Section 4.3 Chairman of the Board.................................... 10
Section 4.4 Vice Chairman of the Board............................... 10
Section 4.5 Chief Executive Officer.................................. 10
Section 4.6 President................................................ 11
Section 4.7 Executive Vice Presidents................................ 11
Section 4.8 Vice Presidents.......................................... 11
Section 4.9 Treasurer................................................ 11
Section 4.10 Secretary................................................ 12
Section 4.11 Voting of Stock.......................................... 12
ARTICLE FIVE INDEMNIFICATION...................................... 12
Section 5.1 Definitions.............................................. 12
Section 5.2 Basic Indemnification Arrangement........................ 14
Section 5.3 Advances for Expenses.................................... 14
Section 5.4 Court-Ordered Indemnification and Advances for Expenses.. 15
Section 5.5 Determination of Reasonableness of Expenses.............. 15
Section 5.6 Indemnification of Employees and Agents.................. 16
Section 5.7 Liability Insurance...................................... 16
Section 5.8 Witness Fees............................................. 16
Section 5.9 Report to Shareholders................................... 17
Section 5.10 No Duplication of Payments............................... 17
Section 5.11 Subrogation.............................................. 17
Section 5.12 Contract Rights.......................................... 17
Section 5.13 Amendments............................................... 17
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ARTICLE SIX CAPITAL STOCK........................................ 18
Section 6.1 Direct Registration of Shares............................ 18
Section 6.2 Certificates for Shares.................................. 18
Section 6.3 Transfer of Shares....................................... 18
Section 6.4 Duty of Company to Register Transfer..................... 19
Section 6.5 Lost, Stolen or Destroyed Certificates................... 19
Section 6.6 Authorization to Issue Shares and Regulations Regarding
Transfer and Registration................................ 19
ARTICLE SEVEN DISTRIBUTIONS AND DIVIDENDS.......................... 20
Section 7.1 Authorization or Declaration............................. 20
Section 7.2 Record Date with Regard to Distributions and Share
Dividends ............................................... 20
ARTICLE EIGHT MISCELLANEOUS........................................ 20
Section 8.1 Corporate Seal........................................... 20
Section 8.2 Inspection of Books and Records.......................... 20
Section 8.3 Conflict with Articles of Incorporation or Code.......... 20
Section 8.4 Severability............................................. 21
ARTICLE NINE AMENDMENTS........................................... 21
Section 9.1 Amendments............................................... 21
ARTICLE TEN FAIR PRICE REQUIREMENTS.............................. 21
Section 10.1 Fair Price Requirements.................................. 21
ARTICLE ELEVEN BUSINESS COMBINATIONS................................ 21
Section 11.1 Business Combinations.................................... 21
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BYLAWS OF CHOICEPOINT INC.
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ARTICLE ONE
MEETINGS OF THE SHAREHOLDERS
Section 1.1 Annual Meeting. The Annual Meeting of the Shareholders of the
Company shall be held during the first five months after the end of each fiscal
year of the Company at such time and place, within or without the State of
Georgia, as shall be fixed by the Board of Directors, for the purpose of
electing Directors and for the transaction of such other business as may be
properly brought before the meeting.
Section 1.2 Special Meetings Special meetings of the Shareholders may be held at
the principal office of the Company in the State of Georgia or at such other
place, within or without the State of Georgia, as may be named in the call
therefor. Such special meetings may be called by the Chairman of the Board of
Directors, the Vice Chairman, the Chief Executive Officer, the President, the
Board of Directors by vote at a meeting, a majority of the Directors in writing
without a meeting, or by unanimous call of the Shareholders.
Section 1.3 Notice of Meetings. Unless waived in accordance with the Georgia
Business Corporation Code as amended from time-to-time (the "Code"), a notice of
each meeting of Shareholders stating the date, time and place of the meeting
shall be given not less than 10 days nor more than 60 days before the date
thereof to each Shareholder entitled to vote at that meeting. In the case of an
Annual Meeting, the notice need not state the purpose or purposes of the meeting
unless the Articles of Incorporation or the Code requires the purpose or
purposes to be stated in the notice of the meeting. Any irregularity in such
notice shall not affect the validity of the Annual Meeting or any action taken
at such meeting. In the case of a special meeting of the Shareholders, the
notice of meeting shall state the purpose or purposes for which the meeting is
called, and only business within the purpose or purposes described in such
notice may be conducted at the meeting.
Section 1.4 Voting Groups. Voting group means all shares of one or more classes
or series that are entitled to vote and be counted together collectively on a
matter at a meeting of Shareholders. All shares entitled to vote generally on
the matter are for that purpose a single voting group.
Section 1.5 Quorum. With respect to shares entitled to vote as a separate voting
group on a matter at a meeting of Shareholders, the presence, in person or by
proxy, of a majority of the votes entitled to be cast on the matter by the
voting group shall constitute a quorum of that voting group for action on that
matter unless the Articles of Incorporation or the Code provides otherwise. Once
a share is represented for any purpose at a meeting, other than solely to object
to holding the meeting or to transacting business at the meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of the meeting unless a new record date is or must be set for the
adjourned meeting pursuant to Section 1.11 of these Bylaws.
Section 1.6 Vote Required for Action. If a quorum exists, action on a matter
(other than the election of Directors) is approved if the votes cast favoring
the action exceed the votes cast opposing the action, unless the Articles of
Incorporation, provisions of these Bylaws validly adopted by the Shareholders,
or the Code requires a greater number of affirmative votes. If the Articles of
Incorporation or the Code provide for voting by two or more voting groups on a
matter, action on that matter is taken only when voted upon by each of those
voting groups counted separately.
Section 1.7 Adjournments. Whether or not a quorum is present to organize a
meeting, any meeting of Shareholders (including an adjourned meeting) may be
adjourned by the holders of a majority of the voting shares represented at the
meeting to reconvene at a specific time and place, but no later than 120 days
after the date fixed for the original meeting unless the requirements of the
Code concerning the selection of a new record date have been met.
Section 1.8 Presiding Officer. The Chairman of the Board shall call the meeting
of the Shareholders to order and shall act as Chairman of such meeting. In the
absence of the Chairman of the Board, the meeting shall be called to order by
any one of the following officers then present, in the following order: the Vice
Chairman of the Board, the Chief Executive Officer, the President, the senior
Executive Vice President, the next senior Executive Vice President, or any one
of the Vice Presidents, who shall act as chairman of the meeting. The Secretary
of the Company shall act as secretary of the meeting of the Shareholders. In the
absence of the Secretary, at any meeting of the Shareholders, the presiding
officer may appoint any person to act as Secretary of the meeting.
Section 1.9 Voting of Shares. Unless the Articles of Incorporation or the Code
provides otherwise, each outstanding share having voting rights shall be
entitled to one vote on each matter submitted to a vote at a meeting of
Shareholders.
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Section 1.10 Proxies. A Shareholder entitled to vote pursuant to Section 1.9 may
vote in person or by proxy pursuant to an appointment of proxy executed in
writing by the Shareholder. An appointment of proxy shall be valid for only one
meeting to be specified therein, and any adjournments of such meeting, but shall
not be valid for more than eleven months unless expressly provided therein.
Appointments of proxy shall be dated and filed with the records of the meeting
to which they relate. If the validity of any appointment of proxy is questioned,
it must be submitted for examination to the Secretary of the Company or to a
proxy officer or committee appointed by the Board of Directors. The Secretary
or, if appointed, the proxy officer or committee shall determine the validity or
invalidity of any appointment of proxy submitted, and reference by the Secretary
in the minutes of the meeting to the regularity of an appointment of proxy shall
be received as prima facie evidence of the facts stated for the purpose of
establishing the presence of a quorum at the meeting and for all other purposes.
Section 1.11 Record Date. For the purpose of determining Shareholders entitled
to notice of a meeting of the Shareholders, to demand a special meeting, to
vote, or to take any other action, the Board of Directors may fix a future date
as the record date, which date shall be not more than 70 days prior to the date
on which the particular action, requiring a determination of the Shareholders,
is to be taken. A determination of the Shareholders entitled to notice of or to
vote at a meeting of the Shareholders is effective for any adjournment of the
meeting unless the Board of Directors fixes a new record date, which it must do
if the meeting is adjourned to a date more than 120 days after the date fixed
for the original meeting. If no record date is fixed by the Board of Directors,
the 70th day preceding the date on which the particular action, requiring a
determination of the Shareholders, is to be taken shall be the record date for
that purpose.
Section 1.12 Shareholder Proposals and Nominations.
(a) No proposal for a Shareholder vote (other than a proposal that
appears in the Company's proxy statement after compliance with the
procedures set forth in Securities and Exchange Commission Rule
14a-8) shall be submitted by a Shareholder (a "Shareholder
Proposal") to the Company's Shareholders unless the Shareholder
submitting such proposal (the "Proponent") shall have filed a
written notice setting forth with particularity (i) the names and
business addresses of the Proponent and all natural persons,
corporations, partnerships, trusts or any other type of legal entity
or recognized ownership vehicle (collectively, a "Person") acting in
concert with the Proponent; (ii) the name and address of the
Proponent and the Persons identified in clause (i), as they appear
on the Company's books (if they so appear); (iii) the class and
number of shares of the
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Company beneficially owned by the Proponent and by each Person
identified in clause (i); (iv) a description of the Shareholder
Proposal containing all material information relating thereto; and
(v) such other information as the Board of Directors reasonably
determines is necessary or appropriate to enable the Board of
Directors and Shareholders of the Company to consider the
Shareholder Proposal. The presiding officer at any meeting of the
Shareholders may determine that any Shareholder Proposal was not
made in accordance with the procedures prescribed in these Bylaws or
is otherwise not in accordance with law, and if it is so determined,
such officer shall so declare at the meeting and the Shareholder
Proposal shall be disregarded.
(b) Only persons who are selected and recommended by the Board of
Directors or the committee of the Board of Directors designated to make
nominations, or who are nominated by Shareholders in accordance with the
procedures set forth in this Section 1.12, shall be eligible for election, or
qualified to serve, as Directors. Nominations of individuals for election to the
Board of Directors of the Company at any Annual Meeting or any special meeting
of Shareholders at which Directors are to be elected may be made by any
Shareholder of the Company entitled to vote for the election of Directors at
that meeting by compliance with the procedures set forth in this Section 1.12.
Nominations by Shareholders shall be made by written notice (a "Nomination
Notice"), which shall set forth (i) as to each individual nominated, (A) the
name, date of birth, business address and residence address of such individual;
(B) the business experience during the past five years of such nominee,
including his or her principal occupations and employment during such period,
the name and principal business of any corporation or other organization in
which such occupations and employment were carried on, and such other
information as to the nature of his or her responsibilities and level of
professional competence as may be sufficient to permit assessment of such prior
business experience; (C) whether the nominee is or has ever been at any time a
director, officer or owner of five percent or more of any class of capital
stock, partnership interests or other equity interest of any corporation,
partnership or other entity; (D) any directorships held by such nominee in any
company with a class of securities registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended, or subject to the requirements of
Section 15(d) of such Act or any company registered as an investment company
under the Investment Company Act of 1940, as amended; and (E) whether such
nominee has ever been convicted in a criminal proceeding or has ever been
subject to a judgment, order, finding or decree of any federal, state or other
governmental entity, concerning any violation of federal, state or other law, or
any proceeding in bankruptcy, which conviction, order, finding, decree or
proceeding may be material to an evaluation of the ability or integrity of the
nominee; and (ii) as to the Person submitting the Nomination Notice and any
Person acting in concert with such Person, (X) the name and business address of
such Person, (Y) the name and address of such Person as they
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appear on the Company's books (if they so appear), and (Z) the class and number
of shares of the Company that are beneficially owned by such Person. A written
consent to being named in a proxy statement as a nominee, and to serve as a
Director if elected, signed by the nominee, shall be filed with any Nomination
Notice. If the presiding officer at any meeting of the Shareholders determines
that a nomination was not made in accordance with the procedures prescribed by
these Bylaws, such officer shall so declare to the meeting and the defective
nomination shall be disregarded.
(c) If a Shareholder Proposal or Nomination Notice is to be submitted at
an Annual Meeting of the Shareholders, it shall be delivered to the Secretary of
the Company at the principal executive office of the Company within the time
period specified in Securities and Exchange Commission Rule 14a-8(3)(2). Subject
to Section 1.3 as to matters that may be acted upon at a special meeting of the
Shareholders, if a Shareholder Proposal or Nomination Notice is to be submitted
at a special meeting of the Shareholders, it shall be delivered to the Secretary
of the Company at the principal executive office of the Company no later than
the close of business on the earlier of (i) the 30th day following the public
announcement that a matter will be submitted to a vote of the Shareholders at a
special meeting, or (ii) the 15th day following the day on which notice of the
special meeting was given.
ARTICLE TWO
BOARD OF DIRECTORS
Section 2.1 General. Subject to the Articles of Incorporation, all corporate
powers shall be exercised by or under the authority of, and the business and
affairs of the Company shall be managed under the direction of, the Board of
Directors. In addition to the powers and authority expressly conferred upon it
by these Bylaws and the Articles of Incorporation, the Board of Directors may
exercise all such lawful acts and things as are not by law, by the Articles of
Incorporation or by these Bylaws directed or required to be exercised or done by
the Shareholders.
Section 2.2 Number of Directors and Term of Office. The number of Directors
shall be not less than seven, nor more than fifteen Shareholders, and shall be
fixed within such range by the Board of Directors. The Directors shall be
divided into three classes, designated as Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of Directors constituting the entire Board of Directors. At each Annual
Meeting of the Shareholders, successors to the class of Directors whose term
expires at that Annual Meeting of Shareholders shall be elected for a three-year
term. If the number of Directors has changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of Directors in each
class as
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nearly equal as possible, and any additional Director of any class elected to
the Board of Directors to fill a vacancy resulting from an increase in such a
class shall hold office for a term that shall coincide with the remaining term
of that class, unless otherwise required by law, but in no case shall a decrease
in the number of Directors for a class shorten the term of an incumbent
Director. A Director shall hold office until the Annual Meeting of Shareholders
for the year in which such Director's term expires and until his or her
successor shall be elected and qualified, subject, however, to prior death,
resignation, retirement, disqualification or removal from office.
Section 2.3 Election of Directors. A Director shall be elected by a plurality of
the votes cast by the shares entitled to vote in the election at a meeting of
Shareholders at which a quorum is present.
Section 2.4 Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of Directors or from prior death, resignation,
retirement, disqualification or removal from office of a Director shall be
filled by a majority of the Board of Directors then in office, though less than
a quorum, or by the sole remaining Director. Any Director elected to fill a
vacancy resulting from prior death, resignation, retirement, disqualification or
removal from office of a director, shall have the same remaining term as that of
his or her predecessor.
Section 2.5 Term Limits. A Director reaching 72 years of age (or 65 years of age
for Directors, other than Chairman of the Board, who are also employees of the
Company) or who ceases to continue a regular business relationship (as defined
below) shall automatically retire from the Board, except that a non-employee
Director who ceases to continue a regular business relationship may continue
serving as a Director until the next Annual Meeting of the Shareholders, or 72
years of age, whichever first occurs. Notwithstanding the preceding, a
non-employee Director, or a retiring Chairman of the Board and Chief Executive
Officer (or either) may, at the request of the Corporate Governance and
Nominating Committee and if ratified by the Board, continue to serve as a
Director until age 72 if he or she continues in a position or business activity
that the Board determines would be of substantial benefit to the Company.
Notwithstanding the other provisions of this Section 2.5 to the contrary, (i) a
non-employee Director elected to the Board, who is at least age 72 at the time
of his or her initial election, may serve his or her elected term, (ii) if the
Board determines in its discretion that a non-employee Director's continued
service as a Director of the Company would be of substantial benefit to the
Company, then the Board may renominate such non-employee Director for election
even after he or she reaches age 72, and (iii) if the Board determines in its
discretion that a non-employee Director's continued service as a Director of the
Company would be of substantial benefit to the Company, then such non-employee
Director may serve the remainder of his or her term as a Director even after he
or she reaches age 72. For purposes of this Section 2.5, the expression
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"regular business relationship" means a relationship as an employee, consultant
or officer of a substantial business, professional or educational organization,
which requires exercise of business judgment on a regular basis, and which is
not lower in seniority than the position with such organization occupied by the
Director at the time of the Director's first election to the Board of Directors
of the Company.
Section 2.6 Stock Ownership Requirement. Every Director shall be a Shareholder
of the Company. Directors shall serve for the terms for which they are elected
and until their successors shall have been duly chosen, unless any such term is
sooner ended as herein permitted; provided, however, that if a Director ceases
to be a Shareholder, the disposition of the stock shall constitute a resignation
of the Director's office as a Director.
Section 2.7 Meetings. Regular meetings of the Board of Directors shall be held
at such times as the Board of Directors may determine from time to time.
Section 2.8 Special Meetings. Special meetings of the Board of Directors shall
be held whenever called by the direction of the Chairman of the Board, or in his
or her absence, by the Vice Chairman, or in his or her absence, by either the
Chief Executive Officer or the President. Special meetings of the Board may also
be called by one-third of the Directors then in office. Unless otherwise
indicated in the notice thereof, any and all business of the Company may be
transacted at any special meeting of the Board of Directors.
Section 2.9 Notice of Meetings. Unless waived in accordance with the Code,
notice of each regular or special meeting of the Board of Directors, stating the
date, time and place of the meeting, shall be given not less than two days
before the date thereof to each Director.
Section 2.10 Quorum; Adjournments. A majority of the Board of Directors shall
constitute a quorum for the transaction of business. Whether or not a quorum is
present to organize a meeting, any meeting of Directors (including a reconvened
meeting) may be adjourned by a majority of the Directors present, to reconvene
within 120 days at a specific time and place. At any adjourned meeting, any
business may be transacted that could have been transacted at the meeting prior
to adjournment. If notice of the original meeting was properly given, it shall
not be necessary to give any notice of the adjourned meeting or of the business
to be transacted if the date, time and place of the adjourned meeting are
announced at the meeting prior to adjournment.
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Section 2.11 Vote Required for Action. If a quorum is present when a vote is
taken, the affirmative vote of a majority of Directors present is the act of the
Board of Directors unless the Code, the Articles of Incorporation, or these
Bylaws require the vote of a greater number of Directors.
Section 2.12 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 the Board of Directors may be
taken without a meeting if the action is taken by all the members of the Board
of Directors or of the committee, as the case may be. The action must be
evidenced by one or more written consents describing the action taken, signed by
each Director or each Director serving on the committee, as the case may be, and
delivered to the Company for inclusion in the minutes or filing with the
corporate records.
Section 2.13 Compensation of Directors. Directors who are salaried officers or
employees of the Company shall receive no additional compensation for service as
a Director or as a member of a committee of the Board of Directors. Each
Director who is not a salaried officer or employee of the Company shall be
compensated as established from time-to-time by the Board of Directors.
ARTICLE THREE
ELECTIONS OF OFFICERS AND COMMITTEES
Section 3.1 Election of Officers. At the April meeting of the Board of Directors
in each year, or, if not done at that time, then at any subsequent meeting, the
Board of Directors shall proceed to the election of executive officers of the
Company, and of the Executive Committee, as hereinafter provided for.
Section 3.2 Executive Committee. The Board of Directors may elect from their
members an Executive Committee which shall include the Chairman of the Board,
the Chief Executive Officer, and the President. The Executive Committee shall
consist of not less than three nor more than five members, the precise number to
be fixed by resolution of the Board of Directors from time to time.
Each member shall serve for one year and until his or her successor shall
have been elected, unless that term is sooner terminated by the Board of
Directors. The Board of Directors shall fill the
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vacancies in the Executive Committee by election. The Chairman of the Board
shall serve as Chairman of the Executive Committee, if so designated by the
Board of Directors.
All action by the Executive Committee shall be reported to the Board of
Directors at its meeting next succeeding such action, and shall be subject to
revision or alteration by the Board of Directors, provided that no rights or
interests of third parties shall be affected by any such revision or alteration.
The Executive Committee shall fix its own rules and proceedings, and shall meet
where and as provided by such rules or by resolution of the Board of Directors.
In every case, the affirmative vote of a majority of all the members of the
Committee shall be necessary to its adoption of any resolution.
Except as prohibited by the Code, during the interval between the meetings
of the Board of Directors, the Executive Committee shall possess and may
exercise all the powers of the Board in the management of all the affairs of the
Company, including the making of contracts, the purchase and sale of property,
the execution of legal instruments, and all other matters in which specific
direction shall not have been given by the Board of Directors.
Section 3.3 Other Committees. The Board of Directors is authorized and empowered
to appoint from its own body or from the officers of the Company, or both, such
other committees as it may think best, and may delegate to or confer upon such
committees all or such part of its powers except as prohibited by the Code, and
may prescribe the exercise thereof as it may deem proper.
ARTICLE FOUR
OFFICERS
Section 4.1 Officers. The officers of the Company, unless otherwise provided by
the Board from time to time, shall consist of the following: a Chairman of the
Board, a Chief Executive Officer, a President, one or more Vice Presidents (one
or more of whom may be designated Executive Vice President, one or more of whom
may be designated Corporate Vice President and one or more of whom may be
designated Senior Vice President), a Treasurer, and a Secretary, who shall be
elected by the Board of Directors. The Board of Directors may from time to time
elect a Vice Chairman of the Board. The Board of Directors, or any officer to
whom the Board may delegate such authority, may also appoint such other officers
as it or they may see fit, and may prescribe their respective duties. All
officers, however elected or appointed, may be removed with or without cause by
the Board of Directors, and any officer appointed by another officer may also be
removed, with or
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without cause, by the appointing officer or any officer senior to the appointing
officer. Any two or more of the offices may be filled by the same person. No
person shall serve as Chairman of the Board and Chief Executive Officer (or
either), beyond his or her 65th birthday.
Section 4.2 Compensation of Officers. The Executive Committee shall approve
salaries of all elected officers and such other employees as may be designated
by the Executive Committee, except that salaries of members of the Executive
Committee shall be fixed by the Management Compensation Committee of the Board
of Directors or by the Board of Directors.
Section 4.3 Chairman of the Board. The Chairman of the Board of Directors shall
serve as Chief Executive Officer of the Company, unless determined otherwise by
the Board of Directors. The Chairman of the Board shall preside at all meetings
of the Shareholders and shall preside at all meetings of the Board of Directors
and the Executive Committee. Except where by law the signature of the Chief
Executive Officer or President is required, the Chairman of the Board shall have
the same power as the Chief Executive Officer or President to sign all
authorized certificates, contracts, bonds, deeds, mortgages, and other
instruments.
Section 4.4 Vice Chairman of the Board. If the Chairman of the Board is not
designated Chief Executive Officer by the Board of Directors, then, if so
designated by the Board of Directors, the Vice Chairman shall serve as Chief
Executive Officer. It shall be the duty of the Vice Chairman of the Board, in
the absence of the Chairman of the Board, to preside at meetings of the
Shareholders, at meetings of the Directors, and at meetings of the Executive
Committee. The Vice Chairman shall do and perform all acts incident to the
office of Vice Chairman and, if so designated, those of Chief Executive Officer,
subject to the approval and direction of the Board of Directors.
Section 4.5 Chief Executive Officer. The Chief Executive Officer shall direct
the business and policies of the Company and shall have such other powers and
duties as from time to time may be assigned by the Board of Directors. In the
event of a vacancy in the office of Chairman and Vice Chairman of the Board or
during the absence or disability of the Chairman and the Vice Chairman, the
Chief Executive Officer shall have all of the rights, powers and authority given
hereunder to the Chairman of the Board. The Chief Executive Officer may sign all
authorized certificates, contracts, bonds, deeds, mortgages and other
instruments, except in cases in which the signing thereof shall have been
expressly delegated to some other officer or agent of the Company. In general,
the Chief Executive Officer shall have the usual powers and duties incident to
the office of a Chief Executive Officer of a corporation and such other powers
and duties as from time to time may be assigned by the Board of Directors or
Chairman of the Board.
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Section 4.6 President. The President shall be the Chief Operating Officer of the
Company and shall have general charge of the business of the Company subject to
the specific direction and approval of the Board of Directors or its Chairman or
Vice Chairman or the Executive Committee. The President shall also serve as
Chief Executive Officer of the Company if so designated by the Board of
Directors. In the event of a vacancy in the office of Chairman and Vice Chairman
of the Board or during the absence or disability of both the Chairman, the Vice
Chairman, and the Chief Executive Officer, the President shall serve as Chief
Executive Officer and shall have all of the rights, powers and authority given
hereunder to the Chairman of the Board. The President may sign all authorized
certificates, contracts, bonds, deeds, mortgages and other instruments, except
in cases in which the signing thereof shall have been expressly delegated to
some other officer or agent of the Company. In general, the President shall have
the usual powers and duties incident to the office of a president of a
corporation and such other powers and duties as from time to time may be
assigned by the Board or Chairman or Vice Chairman of the Board.
Section 4.7 Executive Vice Presidents. Each shall have authority, on behalf of
the Company, to execute, approve, or accept agreements for service, bids, or
other contracts, and shall sign such other instruments as each is authorized or
directed to sign by the Board of Directors or its Committee or by the Chief
Executive Officer or the President. Each shall do and perform all acts incident
to the office of the Executive Vice President of the Company or as may be
directed by its Board of Directors or its Committee or the Chief Executive
Officer or the President.
Section 4.8 Vice Presidents. There shall be one or more Vice Presidents of the
Company, as the Board of Directors may from time to time elect. Each Vice
President shall have such power and perform such duties as may be assigned by or
under the authority of the Board of Directors.
Section 4.9 Treasurer. The Treasurer shall be responsible for the custody of all
funds and securities belonging to the Company and for the receipt, deposit or
disbursement of funds and securities under the direction of the Board of
Directors. The Treasurer shall cause to be maintained full and true accounts of
all receipts and disbursements and shall make reports of the same to the Board
of Directors, the Chief Executive Officer, and the President upon request. The
Treasurer shall perform all duties as may be assigned from time to time by the
Board of Directors.
Section 4.10 Secretary. The Secretary shall be responsible for preparing minutes
of the acts and proceedings of all meetings of the Shareholders and of the Board
of Directors and any committees thereof. The Secretary shall have authority to
give all notices required by law or these Bylaws, and
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shall be responsible for the custody of the corporate books, records, contracts
and other documents. The Secretary may affix the corporate seal to any lawfully
executed documents and shall sign any instruments as may require the Secretary's
signature. The Secretary shall authenticate records of the Company and shall
perform whatever additional duties and have whatever additional powers the Board
of Directors may from time to time assign. In the absence or disability of the
Secretary or at the direction of the Chief Executive Officer, any Assistant
Secretary may perform the duties and exercise the powers of the Secretary.
Section 4.11 Voting of Stock. Unless otherwise ordered by the Board of Directors
or Executive Committee, the Chairman of the Board, the Vice Chairman, the Chief
Executive Officer, the President or any Executive Vice President of the Company
shall have full power and authority in behalf of the Company to attend and to
act and to vote at any meetings of shareholders of any corporation in which the
Company may hold stock, and at such meetings may possess and shall exercise any
and all rights and powers incident to the ownership of such stock which such
owner thereof (the Company) might have possessed and exercised if present. The
Board of Directors or Executive Committee, by resolution from time to time, may
confer like powers upon any other person or persons.
ARTICLE FIVE
INDEMNIFICATION
Section 5.1 Definitions. As used in this Article, the term:
(a) "Company" includes any domestic or foreign predecessor entity of the
Company in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
(b) "Director" or "Officer" means an individual who is or was a member
of the Board of Directors or an officer elected by the Board of
Directors, respectively, or who, while a Director or Officer, is or
was serving at the Company's request as a director, officer,
partner, trustee, employee, or agent of another domestic or foreign
corporation, partnership, joint venture, trust, employee benefit
plan, or other entity. A Director or Officer is considered to be
serving an employee benefit plan at the Company's request if his or
her duties to the Company also impose duties on, or otherwise
involve services by, the Director or Officer to the plan or to
participants in
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or beneficiaries of the plan. "Director" or "Officer" includes,
unless the context otherwise requires, the estate or personal
representative of a Director or Officer.
(c) "Disinterested Director" or "Disinterested Officer" means a Director
or Officer, respectively who at the time of an evaluation referred
to in subsection 5.5(b) is not:
(1) A Party to the Proceeding; or
(2) An individual having a familial, financial, professional, or
employment relationship with the person whose advance for
Expenses is the subject of the decision being made with
respect to the Proceeding, which relationship would, in the
circumstances, reasonably be expected to exert an influence on
the Director's or Officer's judgment when voting on the
decision being made.
(d) "Expenses" includes counsel fees.
(e) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), and reasonable Expenses incurred with
respect to a Proceeding.
(f) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a Proceeding.
(g) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative,
arbitrative or investigative and whether formal or informal.
(h) "Reviewing Party" shall mean the person or persons making the
determination as to reasonableness of Expenses pursuant to Section
5.5 of this Article, and shall not include a court making any
determination under this Article or otherwise.
Section 5.2 Basic Indemnification Arrangement.
(a) The Company shall indemnify an individual who is a Party to a
Proceeding because he or she is or was a Director or Officer against
Liability incurred in the Proceeding;
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provided, however, that the Company shall not indemnify a Director
or Officer under this Article for any Liability incurred in a
Proceeding in which the Director or Officer is adjudged liable to
the Company or is subjected to injunctive relief in favor of the
Company:
(1) For any appropriation, in violation of his or her duties, of
any business opportunity of the Company;
(2) For acts or omissions which involve intentional misconduct or
a knowing violation of law;
(3) For the types of liability set forth in Section 14-2-832 of
the Code; or
(4) For any transaction from which he or she received an improper
personal benefit.
(b) If any person is entitled under any provision of this Article to
indemnification by the Company for some portion of Liability
incurred, but not the total amount thereof, the Company shall
indemnify such person for the portion of such Liability to which
such person is entitled.
Section 5.3 Advances for Expenses.
(a) The Company shall, before final disposition of a Proceeding, advance
funds to pay for or reimburse the reasonable Expenses incurred by a
Director or Officer who is a Party to a Proceeding because he or she
is a Director or Officer if he or she delivers to the Company:
(1) A written affirmation of his or her good faith belief that his
or her conduct does not constitute behavior of the kind
described in subsection 5.2(a) above; and
(2) His or her written undertaking (meeting the qualifications set
forth below in subsection 5.3(b)) to repay any funds advanced
if it is ultimately determined that he or she is not entitled
to indemnification under this Article or the Code.
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(b) The undertaking required by subsection 5.3(a)(2) above must be an
unlimited general obligation of the proposed indemnitee but need not
be secured and shall be accepted without reference to the financial
ability of the proposed indemnitee to make repayment. If a Director
or Officer seeks to enforce his or her rights to indemnification in
a court pursuant to Section 5.4 below, such undertaking to repay
shall not be applicable or enforceable unless and until there is a
final court determination that he or she is not entitled to
indemnification, as to which all rights of appeal have been
exhausted or have expired.
Section 5.4 Court-Ordered Indemnification and Advances for Expenses. A Director
or Officer who is a Party to a Proceeding shall have the rights to court-ordered
indemnification and advances for expenses as provided in the Code.
Section 5.5 Determination of Reasonableness of Expenses.
(a) The Company acknowledges that indemnification of a Director or
Officer under Section 5.2 has been pre-authorized by the Company as
permitted by Section 14-2-859(a) of the Code, and that pursuant to
Section 14-2-856 of the Code, no determination need be made for a
specific Proceeding that indemnification of the Director or Officer
is permissible in the circumstances because he or she has met a
particular standard of conduct. Nevertheless, except as set forth in
subsection 5.5(b) below, evaluation as to reasonableness of Expenses
of a Director or Officer for a specific Proceeding shall be made as
follows:
(1) If there are two or more Disinterested Directors, by the Board
of Directors of the Company by a majority vote of all
Disinterested Directors (a majority of whom shall for such
purpose constitute a quorum) or by a majority of the members
of a committee of two or more Disinterested Directors
appointed by such a vote; or
(2) If there are fewer than two Disinterested Directors, by the
Board of Directors (in which determination Directors who do
not qualify as Disinterested Directors may participate); or
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(3) By the Shareholders, but shares owned by or voted under the
control of a Director or Officer who at the time does not
qualify as a Disinterested Director or Disinterested Officer
may not be voted on the determination.
(b) Notwithstanding the requirement under subsection 5.5(a) that the
Reviewing Party evaluate the reasonableness of Expenses claimed by
the proposed indemnitee, any Expenses claimed by the proposed
indemnitee shall be deemed reasonable if the Reviewing Party fails
to make the evaluation required by subsection 5.5(a) within sixty
(60) days following the proposed indemnitee's written request for
indemnification or advance for Expenses.
Section 5.6 Indemnification of Employees and Agents. The Company may indemnify
and advance Expenses under this Article to an employee or agent of the Company
who is not a Director or Officer to the same extent and subject to the same
conditions that a Georgia corporation could, without shareholder approval under
Section 14-2-856 of the Code, indemnify and advance Expenses to a Director, or
to any lesser extent (or greater extent if permitted by law) determined by the
Chief Executive Officer, in each case consistent with public policy.
Section 5.7 Liability Insurance. The Company may purchase and maintain insurance
on behalf of an individual who is a Director, Officer, employee or agent of the
Company or who, while a Director, Officer, employee or agent of the Company,
serves at the Company's request as a director, officer, partner, trustee,
employee or agent of another domestic or foreign corporation, partnership, joint
venture, trust, employee benefit plan, or other entity against Liability
asserted against or incurred by him or her in that capacity or arising from his
or her status as a Director, Officer, employee, or agent, whether or not the
corporation would have power to indemnify or advance Expenses to him or her
against the same Liability under this Article or the Code.
Section 5.8 Witness Fees. Nothing in this Article shall limit the Company's
power to pay or reimburse Expenses incurred by a person in connection with his
or her appearance as a witness in a Proceeding at a time when he or she is not a
Party.
Section 5.9 Report to Shareholders. To the extent and in the manner required by
the Code from time to time, if the Company indemnifies or advances Expenses to a
Director or Officer in connection with a Proceeding by or in the right of the
Company, the Company shall report the indemnification or advance to the
Shareholders.
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Section 5.10 No Duplication of Payments. The Company shall not be liable under
this Article to make any payment to a person hereunder to the extent such person
has otherwise actually received payment (under any insurance policy, agreement
or otherwise) of the amounts otherwise payable hereunder.
Section 5.11 Subrogation. In the event of payment under this Article, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the indemnitee, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to bring
suit to enforce such rights.
Section 5.12 Contract Rights. The right to indemnification and advancement of
Expenses conferred hereunder to Directors and Officers shall be a contract right
and shall not be affected adversely to any Director or Officer by any amendment
of these Bylaws with respect to any action or inaction occurring prior to such
amendment; provided, however, that this provision shall not confer upon any
indemnitee or potential indemnitee (in his or her capacity as such) the right to
consent or object to any subsequent amendment of these Bylaws.
Section 5.13 Amendments. It is the intent of the Company to indemnify and
advance Expenses to its Directors and Officers to the full extent permitted by
the Code, as amended from time to time. To the extent that the Code is hereafter
amended to permit a Georgia business corporation to provide to its directors
greater rights to indemnification or advancement of Expenses than those
specifically set forth hereinabove, this Article shall be deemed amended to
require such greater indemnification or more liberal advancement of Expenses to
the Company's Directors and Officers, in each case consistent with the Code as
so amended from time to time. No amendment, modification or rescission of this
Article, or any provision hereof, the effect of which would diminish the rights
to indemnification or advancement of Expenses as set forth herein shall be
effective as to any person with respect to any action taken or omitted by such
person prior to such amendment, modification or rescission.
ARTICLE SIX
CAPITAL STOCK
Section 6.1 Direct Registration of Shares. The Company may, with the Board of
Directors' approval, participate in a direct registration system approved by the
Securities and Exchange Commission and by the New York Stock Exchange or any
securities exchange on which the stock of
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the Company may from time to time be traded, whereby shares of capital stock of
the Company may be registered in the holder's name in uncertificated, book-entry
form on the books of the Company.
Section 6.2 Certificates for Shares. Except for shares represented in book-entry
form under a direct registration system contemplated in Section 6.1, the
interest of each Shareholder in the Company shall be evidenced by a certificate
or certificates representing shares of the Company which shall be in such form
as the Board of Directors from time to time may adopt. Share certificates shall
be numbered consecutively, shall be in registered form, shall indicate the date
of issuance, the name of the Company and that it is organized under the laws of
the State of Georgia, the name of the Shareholder, and the number and class of
shares and the designation of the series, if any, represented by the
certificate. Each certificate shall be signed by the Chairman of the Board, the
President or other Chief Executive Officer and by a Vice President or the
Secretary or may be signed with the facsimile signatures of the Chairman of the
Board, the President or other Chief Executive Officer and by a Vice President or
the Secretary, and in all cases a stock certificate must also be signed by the
transfer agent for the stock. The corporate seal need not be affixed.
Section 6.3 Transfer of Shares. The Board of Directors shall have authority to
appoint a transfer agent and/or a registrar for the shares of its capital stock,
and to empower them or either of them in such manner and to such extent as it
may deem best, and to remove such agent or agents from time to time, and to
appoint another agent or other agents. Transfers of shares shall be made upon
the transfer books of the Company, kept at the office of the transfer agent
designated to transfer the shares, only upon direction of the registered owner,
or by an attorney lawfully constituted in writing. With respect to certificated
shares, before a new certificate is issued, the old certificate shall be
surrendered for cancellation or, in the case of a certificate alleged to have
been lost, stolen, or destroyed, the requirements of Section 6.5 of these Bylaws
shall have been met. Transfer of shares shall be in accordance with such
reasonable rules and regulations as may be made from time to time by the Board
of Directors.
Section 6.4 Duty of Company to Register Transfer. Notwithstanding any of the
provisions of Section 6.3 of these Bylaws, the Company is under a duty to
register the transfer of its shares only if:
(a) the certificate or transfer instruction is endorsed by the appropriate
person or persons; and
(b) reasonable assurance is given that the endorsement or affidavit is
genuine and effective; and
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(c) the Company either has no duty to inquire into adverse claims or has
discharged that duty; and
(d) the requirements of any applicable law relating to the collection of
taxes have been met; and
(e) the transfer in fact is rightful or is to a bona fide purchaser.
Section 6.5 Lost, Stolen or Destroyed Certificates. Any person claiming a share
certificate to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in the manner required by the Company and, if the
Company requires, shall give the Company a bond of indemnity in form and amount,
and with one or more sureties satisfactory to the Company, as the Company may
require, whereupon an appropriate new certificate may be issued in lieu of the
one alleged to have been lost, stolen or destroyed.
Section 6.6 Authorization to Issue Shares and Regulations Regarding Transfer and
Registration. The Board of Directors and the Executive Committee shall have
power and authority to issue shares of capital stock of the Company and to make
all such rules and regulations as, respectively, they may deem expedient
concerning the transfer and registration of shares of the capital stock of the
Company.
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ARTICLE SEVEN
DISTRIBUTIONS AND DIVIDENDS
Section 7.1 Authorization or Declaration. Unless the Articles of Incorporation
provide otherwise, the Board of Directors from time to time in its discretion
may authorize or declare distributions or share dividends in accordance with the
Code.
Section 7.2 Record Date with Regard to Distributions and Share Dividends. For
the purpose of determining Shareholders entitled to a distribution (other than
one involving a purchase, redemption, or other reacquisition of the Company's
shares) or a share dividend, the Board of Directors may fix a date as the record
date. If no record date is fixed by the Board of Directors, the record date
shall be determined in accordance with the provisions of the Code.
ARTICLE EIGHT
MISCELLANEOUS
Section 8.1 Corporate Seal. If the Board of Directors determines that there
should be a corporate seal for the Company, it shall be in the form as the Board
of Directors may from time to time determine.
Section 8.2 Inspection of Books and Records. The Board of Directors shall have
power to determine which accounts, books and records of the Company shall be
opened to the inspection of Shareholders, except those as may by law
specifically be made open to inspection, and shall have power to fix reasonable
rules and regulations not in conflict with the applicable law for the inspection
of accounts, books and records which by law or by determination of the Board of
Directors shall be open to inspection. Without the prior approval of the Board
of Directors in its discretion, the right of inspection set forth in Section
14-2-1602(c) of the Code shall not be available to any Shareholder owning two
percent or less of the shares outstanding.
Section 8.3 Conflict with Articles of Incorporation or Code. To the extent that
any provision of these Bylaws conflicts with any provision of the Articles of
Incorporation, such provision of the Articles of Incorporation shall govern. To
the extent that any provision of these Bylaws conflicts with any
non-discretionary provision of the Code, such provision of the Code shall
govern.
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Section 8.4 Severability. In the event that any of the provisions of these
Bylaws (including any provision within a single section, subsection, division or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions of these Bylaws shall remain
enforceable to the fullest extent permitted by law.
ARTICLE NINE
AMENDMENTS
Section 9.1 Amendments. Subject, in each case, to the Articles of
Incorporation:
(a) the Board of Directors shall have power to alter, amend or
repeal these Bylaws or adopt new Bylaws; and
(b) any Bylaws adopted by the Board of Directors may be
altered, amended or repealed, and new Bylaws may be adopted, by the
Shareholders, as provided by the Code; and
(c) Articles Ten and Eleven of these Bylaws shall be amended
only in the manner provided by relevant provisions of the Code.
ARTICLE TEN
FAIR PRICE REQUIREMENTS
Section 10.1 Fair Price Requirements. All of the requirements of Article 11,
Part 2, of the Code, included in Sections 14-2-1110 through 1113 (and any
successor provisions thereto), shall be applicable to the Company in connection
with any business combination, as defined therein, with any interested
shareholder, as defined therein.
ARTICLE ELEVEN
BUSINESS COMBINATIONS
Section 11.1 Business Combinations. All of the requirements of Article 11, Part
3, of the Code, included in Sections 14-2-1131 through 1133 (and any successor
provisions thereto), shall be
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applicable to the Company in connection with any business combination, as
defined therein, with any interested shareholder, as defined therein.
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