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EXHIBIT 3.2
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TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . PAGE
ARTICLE I Offices . . . . . . . . . . . . . . . . . . . 1
Section 1 Registered Office . . . . . . . . . . . . . . 1
Section 2 Other Offices . . . . . . . . . . . . . . . . 1
ARTICLE II Meetings of Shareholders . . . . . . . . . . . 1
Section 1 Place of Meeting . . . . . . . . . . . . . . . 1
Section 2 Time of Meeting . . . . . . . . . . . . . . . 1
Section 3 Special Meetings . . . . . . . . . . . . . . . 1
Section 4 Notice of Meetings . . . . . . . . . . . . . . 1
Section 5 Waiver of Notice . . . . . . . . . . . . . . . 2
Section 6 Voting List . . . . . . . . . . . . . . . . . 2
Section 7 Voting Group . . . . . . . . . . . . . . . . . 2
Section 8 Quorum . . . . . . . . . . . . . . . . . . . 2
Section 9 Vote Required for Action . . . . . . . . . . . 2
Section 10 Voting . . . . . . . . . . . . . . . . . . . 3
Section 11 Action of Shareholders Without a Meeting . . . 3
Section 12 Record Date . . . . . . . . . . . . . . . . . 3
Section 13 Proxies . . . . . . . . . . . . . . . . . . . 3
Section 14 Presiding Officer . . . . . . . . . . . . . . 4
Section 15 Adjournments . . . . . . . . . . . . . . . . . 4
Section 16 Shareholder Proposals at Annual Meetings . . . 4
Section 17 Notice of Shareholder Nominees . . . . . . . . 4
ARTICLE III Board of Directors . . . . . . . . . . . . . . 5
Section 1 General Powers . . . . . . . . . . . . . . . . 5
Section 2 Number of Directors and Term of Office . . . . 5
Section 3 Removal . . . . . . . . . . . . . . . . . . . 6
Section 4 Vacancy . . . . . . . . . . . . . . . . . . . 6
Section 5 Compensation . . . . . . . . . . . . . . . . . 6
Section 6 Regular Meetings . . . . . . . . . . . . . . . 6
Section 7 Special Meetings . . . . . . . . . . . . . . . 6
Section 8 Notice of Meetings . . . . . . . . . . . . . . 6
Section 9 Waiver of Notice . . . . . . . . . . . . . . . 7
Section 10 Place of Meetings . . . . . . . . . . . . . . 7
Section 11 Participation by Conference Telephone . . . . 7
Section 12 Quorum . . . . . . . . . . . . . . . . . . . 7
Section 13 Voting . . . . . . . . . . . . . . . . . . . 7
Section 14 Action Without a Meeting . . . . . . . . . . . 7
Section 15 Adjournments . . . . . . . . . . . . . . . . . 7
Section 16 General Powers of Director . . . . . . . . . . 7
Section 16 Specific Powers of Directors . . . . . . . . . 8
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ARTICLE IV Committees . . . . . . . . . . . . . . . . . . 8
Section 1 Appointing Committees . . . . . . . . . . . . 8
Section 2 Powers of Committees . . . . . . . . . . . . . 8
Section 3 Committee Meetings, Quorum and Voting . . . . 8
Section 4 Removal from Committees . . . . . . . . . . . 9
Section 5 Appointment of Executive Committee . . . . . . 9
Section 6 Procedures of Executive Committee . . . . . . 9
Section 7 Compensation Committee . . . . . . . . . . . . 9
Section 8 Audit Committee . . . . . . . . . . . . . . . 9
Section 9 Other Committees . . . . . . . . . . . . . . . 9
Section 10 Alternative Members . . . . . . . . . . . . . 10
ARTICLE V Officers . . . . . . . . . . . . . . . . . . . 10
Section 1 Number . . . . . . . . . . . . . . . . . . . 10
Section 2 Election and Term . . . . . . . . . . . . . . 10
Section 3 Salaries . . . . . . . . . . . . . . . . . . . 10
Section 4 Chairman of the Board . . . . . . . . . . . . 10
Section 5 Chief Executive Officer . . . . . . . . . . . 10
Section 6 Presidents and Vice Presidents . . . . . . . . 11
Section 7 Secretary . . . . . . . . . . . . . . . . . . 11
Section 8 Treasurer . . . . . . . . . . . . . . . . . . 11
Section 9 Duties of Officers May Be Delegated . . . . . 12
ARTICLE VI Contracts, Checks, Drafts, Bank Accounts,
and Documents . . . . . . . . . . . . . . . . 12
Section 1 Execution of Contracts and Documents . . . . . 12
Section 2 Checks and Drafts . . . . . . . . . . . . . . 12
Section 3 Deposits . . . . . . . . . . . . . . . . . . . 12
Section 4 Proxies . . . . . . . . . . . . . . . . . . . 12
ARTICLE VII Distributions . . . . . . . . . . . . . . . . 13
Section 1 Authorization or Declaration . . . . . . . . . 13
Section 2 Record Date With Record to Distributions
and Share Dividends . . . . . . . . . . . . . 13
ARTICLE VIII Capital Stock . . . . . . . . . . . . . . . . . . 13
Section 1 Authorization and Issuance of . . . . . . . . 13
Section 2 Capital Stock . . . . . . . . . . . . . . . . 13
Section 3 Record of Shareholders . . . . . . . . . . . . 14
Section 4 Lost, Stolen or Destroyed Certificates . . . . 14
Section 5 Transfer of Shares . . . . . . . . . . . . . . 14
Section 6 Duty of Corporation to Register Transfer . . . 14
Section 7 Registered Shareholders . . . . . . . . . . . 14
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ARTICLE IX Indemnification . . . . . . . . . . . . . . . 14
Section 1 Definitions . . . . . . . . . . . . . . . . . 14
Section 2 Indemnification . . . . . . . . . . . . . . . 15
Section 3 Advances for Expenses . . . . . . . . . . . . 16
Section 4 Court-Ordered Indemnification and
Advances for Expenses . . . . . . . . . . . . 16
Section 5 Determination and Authorization
of Indemnification . . . . . . . . . . . . . . 17
Section 6 Shareholder Approved Indemnification . . . . . 18
Section 7 Indemnification of Employees and Agents . . . 18
Section 8 Insurance . . . . . . . . . . . . . . . . . . 18
Section 9 Not Exclusive of Other Rights . . . . . . . . 19
Section 10 Severability . . . . . . . . . . . . . . . . . 19
ARTICLE X Emergency Powers . . . . . . . . . . . . . . . 19
Section 1 Power to Adopt . . . . . . . . . . . . . . . . 19
Section 2 Lines of Succession of Officers or Agents . . 19
Section 3 Change of Office . . . . . . . . . . . . . . . 19
Section 4 Effect of Bylaws . . . . . . . . . . . . . . . 19
Section 5 Notices . . . . . . . . . . . . . . . . . . . 19
Section 6 Quorum . . . . . . . . . . . . . . . . . . . 19
Section 7 Liability . . . . . . . . . . . . . . . . . . 20
ARTICLE XI General Provisions . . . . . . . . . . . . . . 20
Section 1 Fiscal Year . . . . . . . . . . . . . . . . . 20
Section 2 Corporate Seal . . . . . . . . . . . . . . . . 20
Section 3 Annual Financial Statements . . . . . . . . . 20
Section 4 Inspection of Books and Records . . . . . . . 20
Section 5 Conflict with Articles of Incorporation . . . 20
Section 6 Adoption of Amendments to Incentive
Stock Option Plans . . . . . . . . . . . . . 20
Section 7 Reference to Code Sections . . . . . . . . . . 20
ARTICLE XII Amendments . . . . . . . . . . . . . . . . . . 20
ARTICLE XIII Fair Price Requirements . . . . . . . . . . . 21
ARTICLE XIV Business Combinations with Interested
Shareholders . . . . . . . . . . . . . . . . . 21
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AMENDED AND RESTATED BYLAWS OF
HARBINGER CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
State of Georgia, County of Fulton. The Board of Directors from time to time
may change the address of the registered office, which may be, but need not be,
the principal office of the Corporation.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Georgia as the Board of
Directors may from time to time determine and the business of the Corporation
may require or make desirable.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meeting. All meetings of the Shareholders may be
held either within or without the State of Georgia, but in the absence of
notice to the contrary Shareholders' meetings shall be held at the principal
office of the Corporation.
Section 2. Time of Meeting. The Annual Meeting of the Shareholders
shall be held annually within six (6) months after the end of each fiscal year
of the Corporation at such time and place as may be designated in the notice of
the Annual Meeting. Failure to hold the Annual Meeting as aforesaid shall not
work a forfeiture or dissolution of the Corporation nor shall such failure
affect otherwise valid corporate acts.
Section 3. Special Meetings. Special Meetings may only be called by
the Chief Executive Officer, a majority of the Board or a majority of the
members of the Executive Committee. Moreover, if the company has more than
100 Shareholders then a special meeting can be called by request of
Shareholders holding at least 75% of the shares entitled to vote.
Section 4. Notice of Meetings. The Corporation shall give notice
stating the date, time and place of each Shareholders' Meeting, whether special
or annual, not less than ten (10) nor more than sixty (60) days before the date
of the meeting, and shall be in writing unless oral notice is reasonable under
the circumstances, and may be communicated in person, by telephone, telegraph,
facsimile, or other form of wire or wireless communication, or by mail or
private carrier, to each Shareholder of record entitled to vote at such
meeting, at such address as last appears on the books of the Corporation. In
the case of an Annual Meeting, the notice need not state the purpose or
purposes of the meeting unless the Articles of Incorporation or the Georgia
Business Corporation Code (the "Code") requires the purpose or purposes to be
stated in the notice of the meeting. In the case of a Special Meeting, the
notice of the meeting must include a description of purpose or purposes for
which the meeting is called. Notice of any adjourned meeting need not be given
otherwise than by announcement at the meeting, at which the adjournment is
taken; provided however, if a new record date for the adjourned meeting is or
must be fixed pursuant to Section 12 of this Article II, notice of the
adjourned meeting shall be given to persons who are Shareholders as of the new
record date.
Section 5. Waiver of Notice. Any Shareholder may waive notice of any
meeting, whether special or annual, either before, at or after the meeting, and
a Shareholder's attendance at a meeting, either in person or by proxy, shall of
itself constitute a waiver of notice and waiver of any and all objections to
the date, time, place, manner of calling, or consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, except when the Shareholder attends the meeting solely for
the purpose of stating such objection. Unless required by the Code, neither
the business transacted nor the purpose of the meeting need be specified in the
waiver of notice.
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Section 6. Voting List. After fixing a record date for a meeting of
the Shareholders in accordance with Section 12 of this Article II, the
Corporation will cause to be prepared a complete alphabetical list of
Shareholders entitled to notice of a Shareholders' meeting, with the address of
and the number of shares held by each. This list shall be produced and kept
open at the time and place of the meeting and shall be subject to inspection by
any Shareholder during the whole time of the meeting. The foregoing list shall
not have to be prepared where the record of Shareholders is presented and shows
in alphabetical order or by alphabetical index, and by classes or series, if
any, the names of the Shareholders entitled to vote, with the address of and
the number of shares held by each.
Section 7. Voting Group. A Voting Group means all shares of one or
more classes or series that under the Articles of Incorporation or the Code are
entitled to vote and be counted together collectively on a matter at a meeting
of the Shareholders. All shares entitled by the Articles of Incorporation or
the Code to vote generally on the matter are for that purpose a single Voting
Group.
Section 8. Quorum. Shares entitled to vote as a separate Voting Group
may take action on a matter at a meeting only if a quorum of those shares
exists with respect to that matter. Unless the Articles of Incorporation
provide otherwise, the presence, in person or by proxy, of a majority of the
votes entitled to be cast on the matter by the Voting Group constitutes a
quorum of that Voting Group for action on that matter. Once a share is
represented for any purpose at a meeting other than solely to object to holding
the meeting or transacting business at the meeting, it is deemed present for
quorum purposes for the remainder of the meeting and for any adjournment of
that meeting unless a new record date is or must be set for that adjourned
meeting.
Section 9. Vote Required for Action. If a quorum exists, action on a
matter (other than the election of Directors) by a Voting Group is approved if
the votes cast within the Voting Group favoring the action exceed the votes
cast opposing the action, unless the Articles of Incorporation, these Bylaws 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. Action may be taken by one Voting Group on a
matter even though no action is taken by another Voting Group entitled to vote
on the matter. With regard to the election of Directors, unless otherwise
provided in the Articles of Incorporation, if a quorum exists, action on the
election of Directors is taken by a plurality of the votes cast by the shares
entitled to vote in the election.
Section 10. Voting. Except as otherwise provided for in the Articles
of Incorporation, each outstanding share having voting rights shall be entitled
to one vote on each matter submitted to a vote at a Shareholders' meeting.
Outstanding shares of preferred stock, if any, shall have the voting rights set
forth within the Corporation's Articles of Incorporation or as set by
resolution of the Board of Directors, as the case may be. Voting on all
matters may be by voice vote or by show of hands unless any qualified voter,
prior to the voting on any matter, demands vote by ballot, in which case each
ballot shall state the name of the Shareholder voting and the number of shares
voted by such Shareholder, and if the ballot be cast by proxy, it shall also
state the name of the proxy.
Section 11. Action of Shareholders Without a Meeting. Any action
required to be taken at a meeting of the Shareholders, or any action which may
be taken at a meeting of the Shareholders, may be taken without a meeting if
written consent and approval, setting forth the action authorized, shall be
signed by all Shareholders entitled to vote on such action or, if so provided
in the Articles of Incorporation, any persons who would be entitled to vote at
a meeting those shares having voting power to cast not less than the minimum
number (or numbers, in the case of voting by groups) of votes that would be
necessary to authorize or take such actions at a meeting at which all shares
entitled to vote were present and voted, provided that action by less than
unanimous written consent may not be taken with respect to any election of
Directors as to which Shareholders would be entitled to cumulative voting. The
action must be evidenced by one or more written consents describing the action
taken, signed by Shareholders entitled to take action without a meeting and
delivered to the Corporation for inclusion in the minutes or for filing with
the corporate records. No written consent shall be valid unless the consenting
Shareholder has been furnished the same material that would have been required
to be sent to the Shareholders in a notice of a meeting at which the proposed
action would have been submitted to the Shareholders for action, including
notice of any applicable dissenters' rights, or the written consent contains an
express waiver of the right to receive the material otherwise required to be
furnished. If corporate action is taken without a meeting by less than
unanimous written consent,
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then written notice shall be given to all persons who are voting Shareholders
on the date the consent is first executed and who have not consented in
writing, not later than ten (10) days after such action is taken.
Section 12. Record Date. For the purpose of determining Shareholders
entitled to notice of or to vote at any meeting of Shareholders or any
adjournment thereof, or in order to make a determination of Shareholders for
any other proper purpose, the Board of Directors of the Corporation may fix in
advance a date as the record date not more than seventy (70) days before the
meeting or action requiring a determination of Shareholders. When a
determination of Shareholders entitled to notice of or to vote at any meeting
of Shareholders has been made as provided in this Section 12, such
determination shall apply to any adjournment and reconvened meeting thereof,
unless the Board of Directors sets a new record date under this section for the
reconvened meeting. If the adjournment is for a date more than 120 days after
the date fixed for the original meeting, a new record date must be fixed.
Section 13. Proxies. A Shareholder entitled to vote pursuant to
Section 10 of this Article II may vote in person or by proxy executed in
writing by the Shareholder or by his attorney-in-fact. A proxy shall not be
valid after eleven (11) months from the date of its execution, unless such
instrument provides for a longer period. If the validity of any 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 the validity of any proxy submitted
and reference by the Secretary in the minutes of the meeting to the regularity
of a 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.
Section 14. Presiding Officer. The Corporation's Chief Executive
Officer shall serve as Chairman of every Shareholders' meeting unless some
other person is elected to serve as Chairman by a majority vote of the shares
represented at the meeting. The Chairman shall appoint such persons as he
deems required to assist with the meeting.
Section 15. Adjournments. Any meeting of the Shareholders, whether
or not a quorum is present, may be adjourned by the holders of a majority of
the voting shares represented at the meeting to be reconvened at a specific
time and place. If notice of the adjourned meeting was properly given, it
shall not be necessary to give any notice of the reconvened meeting or of the
business to be transacted, if the date, time and place of the reconvened
meeting are announced at the meeting which was adjourned and before
adjournment. At any such reconvened meeting at which a quorum is present or
represented, any business may be transacted which could have been transacted at
the meeting which was adjourned.
Section 16. Shareholder Proposals at Annual Meetings.
(a) Business may be properly brought before an Annual Meeting of
Shareholders by a Shareholder only upon the Shareholder's timely notice thereof
in writing to the Secretary of the Corporation. To be timely, a Shareholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation not less than thirty (30) days prior to the meeting
as originally scheduled; provided, however, that in the event that less than
thirty (30) days notice or prior public disclosure of the date of the meeting
is given or made to Shareholders, notice by the Shareholder to be timely must
be so received not later than the close of business on the tenth day following
the day on which such notice of the date of the meeting was mailed or such
public disclosure was made.
For purposes of this Section 16, any adjournment(s) or postponement(s)
of the original meeting whereby the meeting will reconvene within ninety (90)
days from the original date shall be deemed for purposes of notice to be a
continuation of the original meeting and no business may be brought before any
such reconvened meeting unless pursuant to a notice of such business which was
timely for the meeting on the date originally scheduled. Such Shareholder's
notice to the Secretary shall set forth (i) as to each matter the Shareholder
proposed to bring before the Annual Meeting, a brief description of the
business desired to be brought before the meeting, (ii) the name and address,
as they appear on the Corporation's books, of the Shareholder proposing such
business, (iii) the
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class and number of shares of the Corporation which are beneficially owned by
the Shareholder, and (iv) a complete and accurate description of any material
interest of the Shareholder in such proposed business.
Notwithstanding the foregoing, nothing in this Section 16 shall be
interpreted or construed to require the inclusion of information about any such
proposal in any proxy statement distributed by the Corporation at the direction
of or on behalf of the Corporation.
(b) The Chairman of an Annual Meeting of Shareholders shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section 16, and if the Chairman should so determine, the Chairman shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Section 17. Notice of Shareholder Nominees.
(a) Nominations of persons for election to the Board of Directors
shall be made only at an Annual or Special Meeting of the Shareholders called
for that purpose and only (i) by or at the direction of the Board of Directors
or (ii) by any Shareholder entitled to vote for the election of Directors at
the meeting who complies with the notice procedures set forth in Section 16 of
this Article II for Annual Meetings. Such nominations, other than those made
by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
Shareholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than thirty (30) days
prior to the meeting; provided, however, that in the event that less than
thirty (30) days notice of the date of the meeting is given or made to
Shareholders, notice by the Shareholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made.
For purposes of this Section 17, any adjournment(s) or postponement(s)
of the original meeting whereby the meeting will reconvene within ninety (90)
days from the original date shall be deemed for purposes of notice to be a
continuation of the original meeting and no nominations by a Shareholder of a
person or persons to be elected a director or directors of the Corporation may
be made at any such reconvened meeting unless pursuant to a notice which was
timely for the meeting on the date originally scheduled. Such Shareholder's
notice to the Secretary shall set forth (i) as to each person whom the
Shareholder proposes to nominate for election or re-election as a director, all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required,
in each case pursuant to the Securities Exchange Act of 1934, as amended; and
(ii) as to the Shareholder giving notice (A) the name and address, as they
appear on the Corporation's books, of such Shareholder, and (B) the class and
number of shares of the Corporation which are beneficially owned by such
Shareholder.
Notwithstanding the foregoing, nothing in this Section 17 shall be
interpreted or construed to require the inclusion of information about any such
nominee in any proxy statement distributed by the Corporation at the direction
of or on behalf of the Corporation.
(b) The Chairman of the Annual or Special Meeting shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by this Section 17, and if
the Chairman should so determine, the Chairman shall so declare to the meeting
and the defective nomination shall be disregarded.
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ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. All corporate powers shall be exercised by
or under the authority of, and the business and affairs of the Corporation
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, the
Board of Directors shall 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.
Section 2. Number of Directors and Term of Office. The number of
Directors of the Corporation shall not be less than one (1) nor more than
fifteen (15), the precise number to be fixed by resolution of the Board of
Directors from time to time. The Directors shall be divided into three classes
in accordance with the Articles of Incorporation of the Corporation. Except as
provided in Section 4 of this Article III, a Director shall be elected by the
affirmative vote of a plurality of the shares represented at the meeting of
shareholders at which the Director stands for election and entitled to elect
such Director. The number of Directors may be increased or decreased from time
to time as provided by these Bylaws and in the Articles of Incorporation;
provided, however, that the total number of Directors at any time shall not be
less than one (1); and provided further, that no decrease in the number of
Directors shall have the effect of shortening the term of an incumbent
director. Each Director shall serve until his successor is elected and
qualified or until his earlier resignation, retirement, disqualification,
removal from office, or death.
Section 3. Removal. The entire Board of Directors or any individual
Director may be removed from the office but only for cause and only by the
affirmative vote of at least seventy-five percent (75%) of all classes of stock
of the Corporation entitled to vote in the election of such Director or
Directors, considered for purposes of this Section as one class.
Notwithstanding the foregoing, in the event that preferred stock of the
Corporation is issued and authorizes the election of one or more Directors by
the holders of such preferred stock, any individual Director elected by the
preferred shareholders may be removed only by the holders of the outstanding
shares of the preferred stock in accordance with the terms of the preferred
stock as provided therein. Removal action may be taken at any shareholders
meeting with respect to which notice of such purpose has been given, and a
removed Directors' successor may be elected at the same meeting to serve the
unexpired term.
Section 4. Vacancies. A vacancy occurring on the Board of Directors,
other than by reason of an increase in the number of Directors, but including
vacancies arising from resignation, death or the failure of the shareholders to
replace a removed Director, may be filled for the remainder of the unexpired
term by the affirmative vote of at least two-thirds (2/3) of the total number
of Directors then remaining in office, though they constitute less than a
quorum of the Board of Directors. A vacancy occurring in the Board of
Directors by reason of an increase in the number of Directors may be filled in
like manner, but only until the next election of Directors by the shareholders.
Section 5. Compensation. Directors may receive such compensation for
their services as directors and as members of committees of the Board of
Directors as may from time to time be fixed by a majority vote of the Directors
or the Shareholders. A Director may also serve the Corporation in a capacity
other than that of director and receive compensation, as determined by the
Board of Directors for services rendered in any other capacity. Directors
shall also be entitled to reimbursement for any reasonable expenses incurred in
attending any meeting of the Board of Directors or any committee thereof.
Section 6. Regular Meetings. The first meeting of each newly elected
Board of Directors shall follow immediately after the Annual Meeting of the
Shareholders and be held at the same place as the Annual Meeting of the
Shareholders, or may be held at such time and place as shall be fixed by the
consent in writing of all the Directors. In addition, the Board of Directors
may, by resolution providing for the date, time and place, schedule other
meetings to occur at regular intervals throughout the year.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Corporation's Chief
Executive Officer, or in his absence by the Secretary of the Corporation, or by
any two (2) Directors in office at that time.
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Section 8. Notice of Meetings. Unless the Articles of Incorporation
provide otherwise, regular meetings of the Board of Directors may be held
without notice of the date, time, place or purpose of the meeting. Unless the
Articles of Incorporation provide otherwise, every Special Meeting shall be
preceded by at least twenty-four (24) hours notice of the date, time and place
of the meeting. Such notice shall be in writing unless oral notice is
reasonable under the circumstances, and may be communicated in person, by
telephone, telegraph, facsimile, telecopy, or other forms of wire or wireless
communication, or by mail or private carrier. Such notice need not specify the
purpose of the Special Meeting of the Board unless required by the Articles of
Incorporation.
Section 9. Waiver of Notice. A Director may waive notice of any
meeting either before or after the meeting stated in the notice. Except as
specified herein, the waiver must be in writing, signed by the Director
entitled to notice, and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. A Director's attendance at or
participation in a meeting waives any required notice to the Director of the
meeting unless the Director at the beginning of the meeting (or promptly upon
arrival) objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
Section 10. Place of Meetings. The Directors may hold their meetings
at the principal office of the Corporation or at such other place or places,
either in the State of Georgia or elsewhere, as they may from time to time
determine.
Section 11. Participation by Conference Telephone. Unless the
Articles of Incorporation provide otherwise, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee thereof, by means of
telephone conference or similar communications equipment, provided that all
Directors participating in the meeting can simultaneously hear each other
during the meeting. A Director participating in a meeting by this means is
deemed to be present in person at the meeting.
Section 12. Quorum. Unless a greater number is required by the
Articles of Incorporation or the Code, a majority of the Directors in office
immediately before the meeting begins shall constitute a quorum of the Board of
Directors.
Section 13. Voting. If a quorum is present when a vote is taken, the
affirmative vote of a majority of the Directors present is the act of the Board
of Directors unless the Articles of Incorporation, the Code or these Bylaws
require the vote of a greater number of Directors.
Section 14. Action Without a Meeting. Unless the Articles of
Incorporation provide otherwise, action required or permitted to be taken at a
meeting of the Board of Directors, or of any committee thereof, may be taken
without a meeting if the action is taken by all members of the Board of
Directors, or of such 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 committee member, as the case may be, and delivered
to the Corporation for inclusion in the minutes or filing with the corporate
records.
Section 15. Adjournments. Whether or not a quorum is present to
organize a meeting, any meeting of Directors (including an adjourned meeting)
may be adjourned by a majority of the Directors present, to reconvene at a
specific time and place. At any reconvened meeting any business may be
transacted that could have been transacted at the meeting that was adjourned.
If notice of the adjourned meeting was properly given, it shall not be
necessary to give any notice of the reconvened meeting or of the business to be
transacted, if the date, time and place of the reconvened meeting are announced
at the meeting that was adjourned.
Section 16. General Powers of Directors. The Board of Directors
shall have, in addition to such powers as are herein expressly conferred on it
and all such powers as may be conferred on it by law, all such powers as may be
exercised by the Corporation, subject to the provisions of the Articles of
Incorporation and the Code.
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Section 17. Specific Powers of Directors. The Board of Directors
shall also have power:
(a) to purchase or otherwise acquire property, rights, or
privileges for the Corporation, which the Corporation has power to make, at
such prices and on such terms as the Board of Directors may deem proper;
(b) to pay for such property, rights or privileges in
whole or in part with money, stocks, bonds, debentures or other securities of
the Corporation, or by the delivery of other property of the Corporation;
(c) to create, make and issue mortgages, bonds, deeds of
trust, trust agreements and negotiable or transferable instruments and
securities, secured by mortgages or otherwise, and to do every act and thing
necessary to effectuate the same;
(d) to elect the corporate officers and fix their
salaries, to appoint employees and trustees, and to dismiss them at its
discretion, to fix their duties and emoluments, and to change them from time to
time, and to require security as it may deem proper;
(e) to confer on any officer of the Corporation the power
of selecting, discharging or suspending such employees; and
(f) to determine by whom and in what manner the
Corporation's bills, notes, receipts, acceptances, endorsements, checks,
releases, contracts, or other documents shall be signed.
Section 18. Transactions with Affiliates. Any and all material
transactions between the Company and its affiliates, which include Harbinger
N.V. and Harbinger NET Services LLC as of the date hereof, shall be structured
by the Corporation to be on terms no less favorable to the Corporation than
terms which would be offered to an unaffiliated third party, and any such
transactions will be subject to approval by members of the Corporation's Board
of Directors who are not officers or directors of the affiliated entity which
is the other party to the proposed transaction. The Board of Directors shall
be authorized and empowered to take such other actions as it may deem
reasonably necessary to address any conflicts of interest that may arise
between the Corporation and any affiliated entities and otherwise to comply
with applicable laws.
ARTICLE IV
COMMITTEES
Section 1. Appointing Committees. Unless the Articles of
Incorporation provide otherwise, the Board of Directors may create one (1) or
more committees and appoint members of the Board of Directors to serve on them.
Each committee may have one or more members, who serve at the pleasure of the
Board of Directors.
Section 2. Powers of Committees. To the extent specified by the Board
of Directors or in the Articles of Incorporation, each committee may exercise
the authority granted to the Board of Directors, except that a committee may
not:
(a) approve or propose to Shareholders action that the
Code requires to be approved by Shareholders;
(b) fill vacancies on the Board of Directors or on any of
its committees;
(c) amend the Articles of Incorporation pursuant to
O.C.G.A. Section 14-2-1002;
(d) adopt, amend, or repeal Bylaws; or
(e) approve a plan of merger not requiring Shareholder
approval.
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Section 3. Committee Meetings, Quorum and Voting. Except as set forth
with respect to the Executive Committee in Section 6 below, Sections 8, 9, 10,
11, 12, 13, 14 and 15 of Article III of these Bylaws which govern meetings,
adjournments of meetings, actions without meeting, notice and waiver of notice,
and quorum and voting requirements of the Board of Directors, apply to
committees and their members.
Section 4. Removal from Committees. The Board of Directors shall have
power at any given time to remove any member of any committee, with or without
cause, and to fill vacancies in and to dissolve any such committee.
Section 5. Appointment of Executive Committee. The Board of Directors
may by resolution adopted by a majority of the full Board of Directors appoint
an Executive Committee consisting of not less than three (3) Directors who
shall serve until such time as their successors are elected to the Executive
Committee or such time as such person ceases being a member of the Board of
Directors or the Executive Committee. The Executive Committee shall to the
extent provided in such resolution have all of the powers and authority of the
Board of Directors, except as otherwise provided by these Bylaws or by law.
Such Executive Committee shall not have the power to amend or repeal any
resolution of the Board of Directors which by its terms is not subject to
amendment or repeal by the Executive Committee.
Section 6. Procedures of Executive Committee. The Executive Committee
shall meet from time to time on call of the Corporation's Chief Executive
Officer or of any two (2) or more members of the Executive Committee. Meetings
of the Executive Committee may be held at such place or places as the Executive
Committee shall determine or as may be specified or fixed in the respective
notices or waivers of such meetings. The Executive Committee may fix its own
rules of procedure, including provisions for notice of its meetings. It shall
keep minutes of its proceedings which shall be reviewed by the Board of
Directors and inserted with the Corporation's records, and all such proceedings
shall be subject to revision or alteration by the Board of Directors except to
the extent that action shall have been taken pursuant to or in reliance upon
such proceedings prior to any such revision or alteration.
Section 7. Compensation Committee. The Board of Directors may, from
time to time by a majority vote of the Directors, elect one or more Directors
as a Compensation Committee to serve until its authority is revoked or its
membership is changed by a majority vote of the Directors. The Compensation
Committee shall have such power and authority with regard to compensation
issues as are granted to the Committee by the Board of Directors from time to
time, including responsibility for recommendations to the Board of Directors
regarding compensation for key employees or key consultants of the Company,
including annual bonus compensation and stock grants to such persons.
Section 8. Audit Committee. The Board of Directors may, from time to
time by a majority vote of the Directors, elect two or more members of the
Board of Directors to serve as an Audit Committee. The members of the Audit
Committee shall serve until the authority of the Audit Committee is revoked or
its membership is changed by a majority vote of the Board of Directors. The
Board of Directors may designate persons other than members of the Board of
Directors to serve as non-voting members of the Audit Committee. The Audit
Committee shall have such power and authority with regards to accounting and
financial reporting issues as are granted to the Committee by the Board of
Directors from time to time, including making recommendations regarding the
Company's independent accountants, the annual audit of the Company's financial
statements and the Company's internal accounting practices and policies.
Section 9. Other Committees. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate one or more
additional committees of the Board of Directors, each committee to consist of
one (1) or more Directors of the Corporation, which shall have such name or
names and shall have and may exercise such powers of the Board of Directors in
the management of the business and affairs of the Corporation, except as
otherwise provided by these Bylaws or by law, as may be determined from time to
time by resolution of the Board of Directors. The Board of Directors may also
appoint other committees which do not exercise any of the authority of the
Board of Directors, but which are fact finding, planning or advisory in nature.
Such additional committees may have members who are not directors.
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Section 10. Alternative Members. The Board of Directors, by
resolution adopted in accordance with Section 1 of Article IV of these Bylaws,
may designate one or more Directors as alternate members of any such committee,
who may act in the place of any absent member or members at any meeting of such
committee.
ARTICLE V
OFFICERS
Section 1. Number. The officers of the Corporation shall be
designated and elected by the Board of Directors, or appointed by the Chief
Executive Officer, with such responsibilities and duties as may be designated
by the Board of Directors consistent with this Article V. The Board of
Directors shall elect at least one officer who shall be responsible for
preparing minutes of the Directors' and Shareholders' meetings and for
authenticating records of the Corporation. Any two or more offices may be held
by the same person. No officer need be a Shareholder.
Section 2. Election and Term. All officers shall be appointed by the
Board of Directors or by a duly appointed officer pursuant to this Article V
and shall serve at the pleasure of the Board of Directors and the appointing
officers as the case may be. All officers, however appointed, may be removed
with or without cause by the Board of Directors and any officer appointed by
another officer may also be removed by the appointing officer with or without
cause.
Section 3. Salaries. The salaries and compensation of all officers
appointed by the Board of Directors shall be fixed by the Board of Directors,
unless the Directors delegate such power to any officer or officers.
Section 4. Chairman of the Board. Unless the Board of Directors
determines otherwise, the Chairman of the Board, if one shall so be elected,
shall preside at all meetings of the Board. The Chairman shall have such other
powers and duties as may be specifically designated by the Board of Directors
and, if so designated, may serve as Chief Executive Officer.
Section 5. Chief Executive Officer.
(a) The Chief Executive Officer shall be elected by the Board of
Directors. In the absence or disability of a President of the Corporation, or
at the direction of the Board of Directors, the Chief Executive Officer shall
also serve as a President of the Corporation. The Chief Executive Officer
shall preside at all meetings of the Shareholders; and, in the absence of the
Chairman, he shall preside at all meetings of the Board of Directors if the
Board so requests. He shall have general and active management of the business
of the Corporation, and shall exercise general supervision and administration
over all of its affairs with power to make all contracts in the conduct of the
regular and ordinary business of the Corporation, and shall see that all orders
and resolutions of the Board of Directors are carried into effect.
(b) The Chief Executive Officer shall execute deeds, bonds, notes,
mortgages and other contracts on behalf of the Corporation.
(c) The Chief Executive Officer shall be ex-officio a member of
all standing committees and shall have the general powers and duties of
supervision and management of the Corporation.
(d) The Chief Executive Officer may appoint and discharge agents
and employees of the Corporation and fix their compensation subject to the
general supervisory power of the Board of Directors, and do and perform such
other duties as from time to time may be assigned to him by the Board of
Directors and as may be authorized by law. The Chief Executive Officer may
from time to time appoint one or more Vice Presidents, Assistant Secretaries or
other inferior officers of the Corporation.
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Section 6. Presidents and Vice Presidents. The Board may elect one or
more Presidents, and the Board may elect, or the Chief Executive Officer
appoint, one or more Vice Presidents who shall have such duties as are assigned
by the electing or appointing party. The President, if one shall so be
elected, shall act in the absence or disability of the Chief Executive Officer.
If there is more than one (1) President or Vice President, then the one
designated by the Board of Directors shall act in the absence or disability of
the Chief Executive Officer.
Section 7. Secretary. The Secretary, if one shall so be elected,
shall keep accurate records of the acts and proceedings of all meetings of
Shareholders, Directors and committees of Directors. The Secretary shall give,
or cause to be given, notice of all meetings of the Shareholders and any
meetings of the Board of Directors, and other notices required by law or these
Bylaws, and shall perform such other duties as may be prescribed by the Board
of Directors or President, under whose supervision the Secretary shall be. The
Secretary shall keep in safe custody the seal of the Corporation, and the
Secretary or any other officer may affix the same to any instrument requiring
it and, when so affixed, it may be attested by the Secretary's signature or by
the signature of an Assistant Secretary. Notwithstanding the foregoing, unless
otherwise required by law or the Code, the seal of the Corporation need not be
affixed to any documents or instruments, nor must the Secretary or Assistant
Secretary attest any such document or instrument. In the absence or disability
of the Secretary or at the direction of the Chief Executive Officer, any
Assistant Secretary or other officer designated by the Board of Directors may
perform the duties and exercise the powers of the Secretary.
Section 8. Treasurer.
(a) The Treasurer, if one shall so be elected shall have custody
of and be responsible for all funds and securities, receipts and disbursements
of the Corporation, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation, and shall deposit or cause
to be deposited, all monies and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board of Directors.
(b) The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors or by the President, taking proper
vouchers for such disbursements, and shall render to the President and
Directors, whenever they may require it, an account of all transactions as
Treasurer and of the financial condition of the Corporation, and at the regular
meeting of the Board of Directors next preceding the Annual Shareholders'
Meeting, a like report for the preceding year.
(c) The Treasurer shall keep an account of stock registered and
transferred in such manner and subject to such regulations as the Board of
Directors may prescribe.
(d) The Treasurer shall give the Corporation a bond, if required
by the Board of Directors, in such sum and in form and with security
satisfactory to the Board of Directors for the faithful performance of the
duties of the office and the restoration to the Corporation in case of the
Treasurer's death, resignation or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in the possession of the
Treasurer, belonging to the Corporation. The Treasurer shall perform such
other duties as the Board of Directors may from time to time prescribe or
require.
Section 9. Duties of Officers May Be Delegated. In case of the
absence of any officer of the Corporation, or for any other reason that the
Board of Directors may deem sufficient, the Board may delegate, for the time
being, the powers or duties, or any of them, of such officer to any other
officer or to any Director or employee of the Corporation, provided a majority
of the entire Board of Directors concurs.
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ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS AND DOCUMENTS
Section 1. Execution of Contracts and Documents. The Board of
Directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers or agent or agents of the Corporation to enter into any
contract or execute and deliver any instrument in the name and on the behalf of
the Corporation, and such authority may be general or confined to specific
instances. Unless otherwise specifically determined by the Board of Directors
or otherwise required by law, formal contracts, promissory notes and other
evidences of indebtedness, deeds of trust, mortgages and corporate instruments
or documents requiring the corporate seal, and certificates for shares of stock
owned by the Corporation shall be executed, signed or endorsed by the President
(or any Vice President) and by the Secretary (or any Assistant Secretary) or
the Treasurer (or any Assistant Treasurer). The Board of Directors may,
however, authorize any one of these officers to sign any of such instruments,
for and on behalf of the Corporation, without necessity of countersignature;
may designate officers or employees of the Corporation, other than those named
above, who may, in the name of the Corporation, sign such instruments; and may
authorize the use of facsimile signatures for any of such persons. No officer,
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it liable for
damages, whether monetary or otherwise, for any purpose or for any amount
except as specifically authorized in these Bylaws or by the Board of Directors
or an officer or committee with the power to grant such authority.
Section 2. Checks and Drafts. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by the President or such other person
or persons and in such manner as shall, from time to time, be determined by the
Board of Directors.
Section 3. Deposits. All funds of the Corporation shall be deposited
to the credit of the Corporation under such conditions and in such banks, trust
companies or other depositories as the Board of Directors may designate or as
may be designated by an officer or officers or agent or agents of the
Corporation to whom such power may, from time to time, be determined by the
Board of Directors.
Section 4. Proxies. Unless otherwise provided by the Board of
Directors, the President may from time to time appoint an attorney or attorneys
or agent or agents of the Corporation in the name and on behalf of the
Corporation to cast the vote which the Corporation may be entitled to cast as a
Shareholder or otherwise in any other Corporation any of the stock or other
securities of which is held by the Corporation, at meetings of the holders of
the stock or other securities of such other Corporation, and may instruct the
person or persons so appointed as to the manner of casting such vote or giving
such consent, and may execute or cause to be executed in the name and on behalf
of the Corporation such written proxies or other instruments as the President
may deem necessary or proper in the premises.
ARTICLE VII
DISTRIBUTIONS
Section 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 2. Record Date With Respect to Distributions and Share
Dividends. For the purpose of determining shareholders entitled to a
distribution (other than one involving a purchase, redemption, or other
reacquisition of the Corporation's shares) or a share dividend, the Board of
Directors may fix a date as the record date. If no record date is fixed by the
Board of Directors, the record date shall be determined in accordance with the
provisions of the Code.
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ARTICLE VIII
Capital Stock
Section 1. Authorization and Issuance of Shares. In accordance with
the Code, the Board of Directors may authorize shares of any class or series
provided for in the Articles of Incorporation to be issued for any
consideration valid under the provisions of the Code. To the extent provided
in the Articles of Incorporation, the Board of Directors shall determine the
preferences, limitations, and relative rights of the shares.
Section 2. Capital Stock. All shares issued by the Corporation shall
be evidenced by a certificate or certificates. Each certificate of stock of
the Corporation shall be numbered, shall be entered in the books of the
Corporation, and shall be signed, either manually or in facsimile, by any one
of the President, a Vice President, the Secretary, or the Treasurer or such
other officer or officers as designated to sign such certificates, from time to
time, by the Board of Directors. In any case in which any officer or officers
who shall have signed, or whose facsimile signature or signatures shall have
been used on, any such certificate or certificates shall cease to be such
officer or officers of the Corporation, whether because of death, resignation
or otherwise, before such certificate or certificates shall have been delivered
by the Corporation, such certificate or certificates may nevertheless be
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature shall have been used thereon had not
ceased to be such officer or officers. If a share certificate is signed in
facsimile, then it shall be countersigned by a transfer agent or registered by
a registrar other than the Corporation itself or an employee of the
Corporation. The corporate seal need not be affixed to the share certificate.
Each certificate representing shares shall set forth upon the face thereof:
(a) The name of the Corporation;
(b) That the Corporation is organized under the laws of
the State of Georgia;
(c) The name of the person to whom issued; and
(d) The number and class of shares and the designation of
the series, if any, such certificate represents.
Section 3. Record of Shareholders. The Corporation shall keep a
record of the Shareholders of the Corporation which readily shows, in
alphabetical order or by alphabetical index, and by classes of stock, the names
of the Shareholders, including those Shareholders entitled to vote, with the
address of and the number of shares held by each.
Section 4. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate of stock to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his or her legal representative, to advertise the same in such
manner as it shall require or give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 5. Transfer of Shares. Transfers of shares shall be made upon
the transfer books of the Corporation, kept at the office of the transfer agent
designated to transfer the shares, only upon direction of the person named in
the certificate, or by an attorney lawfully constituted in writing; and before
a new certificate is issued, the old certificate shall be surrendered for
cancellation or in the case of a certificate alleged to have been lost, stolen
or destroyed, the provisions of Section 4 of this Article VIII shall have been
complied with.
Section 6. Duty of Corporation to Register Transfer. Notwithstanding
any of the provisions of Section 5 of this Article VIII, 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; and
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(b) reasonable assurance is given that these endorsements are
genuine and effective; and
(c) the Corporation has no duty to inquire into adverse claims or
has discharged any such duty; and
(d) any applicable law relating to the collection of taxes has
been complied with; and
(e) the transfer is in fact rightful or is to a bona fide
purchaser.
Section 7. Registered Shareholders. Prior to due presentation for
transfer of registration of its shares, the Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the person
exclusively entitled to vote the shares, to receive any dividend or
distribution with respect to the shares, and for all other purposes; and,
accordingly, the Corporation shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
ARTICLE IX
INDEMNIFICATION
Section 1. Definitions. As used in this Article IX, the term:
(a) "Corporation" includes any domestic or foreign predecessor
entity of the Corporation in a merger or other transaction in
which the predecessor's existence ceased upon consummation of
the transaction.
(b) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the
Corporation, is or was serving at the Corporation's request as
a director, officer, partner, trustee, employee, or agent of
another foreign or domestic Corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. A
director is considered to be serving an employee benefit plan
at the Corporation's request if his duties to the Corporation
also impose duties on, or otherwise involve services by, him
to the plan or to participants in or beneficiaries of the
plan. Director includes, unless the context requires
otherwise, the estate or personal representative of a
director.
(c) "Expenses" include attorneys' fees.
(d) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed
with respect to an employee benefit plan), or reasonable
expenses incurred with respect to a proceeding.
(e) "Officer" means an individual who is or was an officer of the
Corporation or an individual who, while an officer of the
Corporation, is and was serving at the Corporation's request
as a director, officer, partner, trustee, employee, or agent
of another foreign or domestic Corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise.
An officer is considered to be serving an employee benefit
plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or
beneficiaries of the plan. Officer includes, unless the
context requires otherwise, the estate or personal
representative of an officer.
(f) "Party" includes an individual who was, is, or is threatened
to be made a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or
informal.
Section 2. Indemnification.
(a) Except as provided in subsections (d) and (e) of this Section
2 below, the Corporation shall indemnify to the fullest extent
permitted by the Code, and to the extent that applicable law
from time to time in effect shall permit indemnification that
is broader than provided in these Bylaws, then to the maximum
extent authorized by law, any individual who is made a party
to a proceeding because he is or was a director or officer
against liability incurred by him in the proceeding if the
individual acted in a manner he believed in good faith to be
in or not opposed to
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the best interests of the Corporation and, in the case of any
criminal proceeding, he had no reasonable cause to be believe
his conduct was unlawful.
(b) An individual's conduct with respect to an employee benefit
plan for a purpose he believed in good faith to be in the
interests of the participants in and beneficiaries of the plan
is conduct that satisfies the requirement of subsection (a) of
this Section 2 above.
(c) The termination of a proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere
or its equivalent shall not, of itself, be determinative that
an individual did not meet the standard of conduct set forth
in subsection (a) of this Section 2 above.
(d) The Corporation shall not indemnify an individual under this
Article IX:
(1) In connection with a proceeding by or in the right of
the Corporation in which such individual was adjudged
liable to the Corporation; or
(2) In connection with any other proceeding in which such
individual was adjudged liable on the basis that
personal benefit was improperly received by him
unless, and then only to the extent that, a court of
competent jurisdiction determines pursuant to Section
14-2-854 of the Code that in view of the
circumstances of the case, such individual is fairly
and reasonably entitled to indemnification.
(e) Indemnification permitted under this Article IX in connection
with a proceeding by or in the right of the Corporation is
limited to reasonable expenses incurred in connection with the
proceeding.
Section 3. Advances for Expenses.
(a) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director or officer who is a party to a
proceeding in advance of final disposition of the proceeding
if:
(1) Such individual furnishes the Corporation a written affirmation of his
good faith belief that he has met the standard of conduct set forth in
subsection (a) of Section 2 above; and
(2) Such individual furnishes the Corporation a written undertaking,
executed personally or on his behalf, to repay any advances if it is
ultimately determined that he is not entitled to indemnification under
this Article IX.
(b) The undertaking required by paragraph (2) of subsection (a) of
this Section 3 must be an unlimited general obligation of the
director or officer but need not be secured and may be
accepted without reference to financial ability to make
repayment.
Section 4. Court-Ordered Indemnification and Advances for Expenses.
Unless the Articles of Incorporation provide otherwise, a director or officer
of the Corporation who is a party to a proceeding may apply for indemnification
or advances for expenses to the court conducting the proceeding or to another
court of competent jurisdiction. On receipt of an application, the court after
giving any notice the court considers necessary may order indemnification or
advances for expenses if it determines:
(a) The individual is entitled to mandatory indemnification under
Code Section 14-2-852, in which case the court shall also order the Corporation
to pay such individual's reasonable expenses incurred to obtain court ordered
indemnification;
(b) The individual is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not he
met the standard of conduct set forth in subsection (a) of Section 2 above or
was adjudged liable as described in subsection (d) of Section 2 above, but if
he was adjudged so liable his indemnification is limited to reasonable expenses
incurred unless the Articles of Incorporation or a contract or resolution
approved or ratified by the Shareholders pursuant to Section 6 of this Article
IX below provides otherwise; or
(c) In the case of advances for expenses, the individual is
entitled pursuant to the Articles of Incorporation or any applicable resolution
or agreement, to payment or reimbursement of his reasonable expenses incurred
as a party to a proceeding in advance of final disposition of the proceeding.
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Section 5. Determination and Authorization of Indemnification.
(a) The Corporation shall not indemnify a director or officer
under Section 2 of this Article IX above unless a
determination has been made in the specific case that
indemnification of such individual is permissible in the
circumstances because he has met the standard of conduct set
forth in subsection (a) of Section 2 of this Article IX above;
provided, however, that regardless of the result or absence of
any such determination, and unless limited by the Articles of
Incorporation, to the extent that such individual has been
successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party, or in defense of any
claim, issue or matter therein, because he is or was a
director or officer, the Corporation shall indemnify such
individual against reasonable expenses incurred by him in
connection therewith.
(b) The determination specified in subsection (a) of this Section
5 shall be made:
(1) By the Board of Directors by majority vote of a quorum consisting of
Directors not at the time parties to the proceeding;
(2) If a quorum cannot be obtained under paragraph (1) of this subsection
(b) of this Section 5, by majority vote of a committee duly designated
by the Board of Directors (in which designation Directors who are
parties may participate), consisting solely of two or more Directors
not at the time parties to the proceeding;
(3) By special legal counsel:
(A) Selected by the Board of Directors or its committee in the
manner prescribed in paragraphs (1) and (2) of this subsection
(b) of this Section 5; or
(B) If a quorum of the Board of Directors cannot be obtained under
paragraph (1) of this subsection (b) of this Section 5 and a
committee cannot be designated under paragraph (2) of this
subsection (b) of this Section 5, selected by a majority vote
of the full Board of Directors (in which selection Directors
who are parties may participate); or
(4) By the Shareholders, but shares owned by or voted under the control of
directors or officers who are at the time parties to the proceeding
may not be voted on the determination.
(c) Evaluation as to reasonableness of expenses shall be made in
the same manner as the determination that indemnification is
permissible, except that if the determination is made by
special legal counsel, evaluation as to reasonableness of
expenses shall be made by those entitled under paragraph (3)
of subsection (b) of this Section 5 to select counsel.
(d) If the determination to be made pursuant to Section 5(a) above
has not been made within thirty (30) days following an
individual's written request for indemnification, then the
individual shall be deemed to have met the standard of conduct
set forth in subsection (a) of Section 5 of this Article IX.
If the determination to be made pursuant to Section 5(c) above
has not been made within thirty (30) days following an
individual's written request for indemnification for, or
advancement of, expenses, then the expenses claimed shall be
deemed reasonable.
Section 6. Shareholder Approved Indemnification.
(a) If authorized by the Articles of Incorporation or a contract
or resolution approved or ratified by the Shareholders of the
Corporation by a majority of the votes entitled to be cast,
the Corporation may indemnify or obligate itself to indemnify
a director or officer made a party to a proceeding, including
a proceeding brought by or in the right of the Corporation,
without regard to the limitations in other Sections of this
Article IX.
(b) The Corporation shall not indemnify an individual under this
Section 6 for any liability incurred in a proceeding in which
such individual is adjudged liable to the Corporation or is
subjected to injunctive relief in favor of the Corporation:
(1) For any appropriation, in violation of his duties, of any business
opportunity of the Corporation;
(2) For acts or omissions which involve intentional misconduct or a
knowing violation of law;
(3) For the types of liability set forth in Code Section 14-2-832 of the
Code; or
(4) For any transaction from which he received an improper personal
benefit.
(c) Where approved or authorized in the manner described in
subsection (a) of this Section 6, the Corporation may advance
or reimburse expenses incurred in advance of final disposition
of the proceeding only if:
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(1) The Director furnishes the Corporation a written affirmation of his
good faith belief that his conduct does not constitute behavior of the
kind described in subsection (b) of this Section 6; and
(2) The Director furnishes the Corporation a written undertaking, executed
personally or on his behalf to repay any advance if it is ultimately
determined that he is not entitled to indemnification under this
Section 6 of this Article IX.
Section 7. Indemnification of Employees and Agents. Unless the
Articles of Incorporation provide otherwise, the Corporation may indemnify and
advance expenses to an employee or agent of the Corporation who is not a
director or officer to the same extent, consistent with public policy, that may
be provided by the Articles of Incorporation, these Bylaws, general or specific
action of the Board of Directors, or contract.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of an individual who is or was a director, officer,
employee, or agent of the Corporation or who, while a director, officer,
employee, or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise against liability asserted against
or incurred by him in that capacity or arising from his status as a director,
officer, employee, or agent, whether or not the Corporation would have power to
indemnify him against the same liability under Sections 2 and 5 of this Article
IX above.
Section 9. Not Exclusive of Other Rights. The indemnification and
advancement of expenses provided by this Article IX shall not be deemed
exclusive of any other rights, in respect of indemnification or otherwise, to
which those seeking indemnification or advancement of expenses may be entitled
under any resolution or agreement, either specifically or in general terms
approved by the affirmative vote of the holders of a majority of the shares
entitled to vote thereon, with respect to any proceeding to which a director or
officer is made a party, including a proceeding brought by or in the right of
the Corporation. This Section 9 shall apply both as to action by a director,
officer, employee or agent in his official capacity and as to action in another
capacity while holding such office or position, and shall 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.
Section 10. Severability. In the event that any of the provisions of
Article IX is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions of this Article IX shall
remain enforceable to the fullest extent permitted by law.
ARTICLE X
EMERGENCY POWERS
Section 1. Power to Adopt. Unless the Articles of Incorporation
provide otherwise, the Board of Directors may adopt bylaws to be effective only
in an emergency, which bylaws shall be subject to amendment or repeal by the
Shareholders. An emergency exists for purposes of this Section if a quorum of
the Directors cannot readily be assembled because of some catastrophic event.
The emergency bylaws may make any provision that may be practical and necessary
for the circumstances of the emergency.
Section 2. Lines of Succession of Officers or Agents. The Board of
Directors, either before or during any such emergency, may provide, and from
time to time modify, lines of succession in the event that during such an
emergency any or all officers or agents of the Corporation shall for any reason
be rendered incapable of discharging their duties.
Section 3. Change of Office. The Board of Directors, either before or
during any such emergency, may, effective in the emergency, change the head
office or designate several alternative head offices or regional offices, or
authorize the officers so to do.
Section 4. Effect of Bylaws. To the extent not inconsistent with any
emergency bylaws so adopted, these Bylaws shall remain in effect during any
such emergency and, upon its termination, the emergency bylaws shall cease to
be operative.
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Section 5. Notices. Unless otherwise provided in emergency bylaws,
notice of any meeting of the Board of Directors during any such emergency may
be given only to such of the Directors as it may be feasible to reach at the
time, and by such means as may be feasible at the time, including publication,
radio or television.
Section 6. Quorum. To the extent required to constitute a quorum at
any meeting of the Board of Directors during any such emergency, the officers
of the Corporation who are present shall, unless otherwise provided in the
emergency bylaws, be deemed, in order of rank and within the same rank and
order of seniority, Directors for such meeting.
Section 7. Liability. Corporate action taken in good faith in
accordance with the emergency bylaws binds the Corporation and may not be used
to impose liability on a corporate director, officer, employee or agent.
ARTICLE XI
GENERAL PROVISIONS
Section 1. Fiscal Year. The Board of Directors is authorized to
designate and change the fiscal year of the Corporation from time to time as it
deems appropriate.
Section 2. Corporate Seal. The seal of the Corporation shall be in
such form as the Board of Directors shall approve from time to time. The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. In the event it is inconvenient to use such a seal at
any time, the signature of the Corporation followed by the word "Seal" enclosed
in parentheses shall be deemed the seal of the Corporation.
Section 3. Annual Financial Statements. In accordance with the Code,
the Corporation shall prepare and furnish to shareholders such financial
statements as may be required by the Code.
Section 4. Inspection of Books and Records. The Board of Directors
shall have power to determine which accounts, books and records of the
corporation shall be opened to the inspection of shareholders, except those as
may by law specifically be made open to inspection, and shall have power to fix
reasonable rules and regulations not in conflict with the applicable law for
the inspection of accounts, books and records which by law or by determination
of the Board of Directors shall be open to inspection. Without the prior
approval of the Board of Directors in their discretion, the right of inspection
set forth in Section 14-2-1602(c) of the Code shall not be available to any
Shareholder owning two percent (2%) or less of the shares outstanding.
Section 5. Conflict with Articles of Incorporation. In the event that
any provision of these Bylaws conflicts with any provision of the Articles of
Incorporation, the Articles of Incorporation shall govern.
Section 6. Adoption of Amendments to Incentive Stock Option Plans. In
addition to the rights of the Board of Directors to approve the adoption of
amendments to any incentive stock option plans of the Corporation which qualify
under Section 422A of the Internal Revenue Code of 1986, as amended, the
Shareholders of the Corporation may approve any such amendment by written
consent of the Shareholders which is signed by Shareholders having voting power
to cast not less than the minimum number of votes that would be necessary to
authorize such action, as provided in and subject to the provisions of Section
14-2-704, as amended, of the Code.
Section 7. Reference to Code Sections. Any reference to any Section
or Article of the Georgia Business Corporation Code contained herein shall be
interpreted to include any Section or Article which amends or supersedes such
Section or Article.
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ARTICLE XII
AMENDMENTS
Except as otherwise provided in these Bylaws, the Board of Directors
shall have power to alter, amend or repeal these Bylaws or adopt new Bylaws by
majority vote of all of the Directors, but any Bylaws adopted by the Board of
Directors may be altered, amended or repealed, and new Bylaws adopted, by the
Shareholders by majority vote of the holders of record entitled to vote
thereon. The Shareholders may prescribe by expressing in the action they take
in adopting any Bylaw or Bylaws that the Bylaw or Bylaws so adopted shall not
be altered, amended or repealed by the Board of Directors. Notwithstanding
anything herein to the contrary, the provisions of Articles IX, XII, XIII, or
XIV, or of Sections 3 or 11 of Article II, or Sections 2, 3 or 4 of Article
III, of these Bylaws shall not be altered, amended or repealed, and no
provision inconsistent therewith shall be adopted, without the affirmative vote
of a majority of the entire Board of Directors or of the holders of at least
75% of the shares of the Corporation entitled to vote generally in the election
of directors, voting as a single Voting Group.
ARTICLE XIII
FAIR PRICE REQUIREMENTS
All requirements of Sections 14-2-1110 through 14-2-1113 of the Code,
as may be in effect from time to time, shall apply to the Corporation.
ARTICLE XIV
BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS
All of the requirements of Part 3 of Article 11 of the Code (currently
codified in Sections 14-2-1131 through 14-2-1133 thereof), as may be in effect
from time to time (the "Business Combination Statute"), shall apply to all
"business combinations" (as defined in Section 14-2-1131 of the Code) involving
the Corporation. The requirements of the Business Combination Statute shall be
in addition to the requirements of Article XIII above. Nothing contained in
the Business Combination Statute shall be deemed to limit the provisions
contained in Article XIII above, and nothing contained in Article XIII above
shall be deemed to limit the provisions contained in the Business Combination
Statute.
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