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EXHIBIT 3(B)
AMENDED AND RESTATED BY-LAWS
OF
AARON RENTS, INC.
ADOPTED ON NOVEMBER 18, 1997
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the State
of Georgia, County of Fulton.
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
SHAREHOLDERS MEETINGS
Section 1. Annual Meetings. The annual meeting of the shareholders of the
corporation shall be held at the principal office of the corporation or at such
other place in the United States as may be determined by the board of directors,
at 10:00 a.m. on the last business day of the fifth month following the close of
each fiscal year or at such other time and date following the close of the
fiscal year as shall be determined by the board of directors, for the purpose of
electing directors and transacting such other business as may properly be
brought before the meeting.
Section 2. Special Meetings. (a) Special meetings of shareholders of one
or more classes or series of the corporation's shares shall be called by the
president or the secretary (i) when so directed by the chairman or by a majority
of the entire board of directors; or (ii) upon the demand of holders of at least
twenty five percent (25%) of all votes entitled to be cast on each issue to be
considered at a proposed special meeting of the shareholders. The business that
may be transacted at any special meeting of shareholders shall be limited to
that proposed in the notice of the special meeting given in accordance with
Section 3 (including related or incidental matters that may be necessary or
appropriate to effectuate the proposed business).
(b) Promptly after the date of receipt of written shareholder demands (the
"Demand Date") purporting to comply with the provisions of the Georgia Business
Corporation Code, as amended from time to time (the "Code"), and these by-laws,
the president or the secretary of the corporation shall determine the validity
of the demand. If the demand is valid, the president or the secretary of the
corporation shall call a special shareholders meeting by mailing notice within
20 days of the Demand Date.
(c) The time, date and place of any special shareholders meeting shall be
determined by the board of directors and shall be set forth in the notice of
meeting.
Section 3. Notice of Meetings. Written notice of every meeting of
shareholders, stating the place, date and hour of the meeting, shall be given
personally or by mail to each shareholder of record not less than 10 nor more
than 60 days before the date of the meeting. Such notice may be given in any
manner permitted by, and shall be deemed to be effectively given at the times as
provided in, the Georgia Business Corporation Code. A shareholder's attendance
at a meeting waives objection to lack of notice or defective notice of such
meeting, unless the shareholder at the beginning of the meeting objects to the
holding of the meeting or transacting business at the meeting, and waives
objection to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented. A
shareholder may waive notice of a meeting before or after the date and time
stated in the notice, which waiver must be in writing, signed by the shareholder
entitled to such notice and be delivered to the corporation for inclusion in the
minutes or filing with the corporate records.
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Section 4. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at all meetings
of the shareholders except as otherwise provided by statute, by the articles of
incorporation, or by these by-laws. If a quorum is not present or represented at
any meeting of the shareholders, a majority of the shareholders entitled to vote
thereat, present in person or represented by proxy, may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each shareholder of record entitled to vote at the meeting.
Section 5. Order of Business. At the annual meeting of shareholders the
order of business shall be as follows:
1. Calling meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous annual meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
Section 6. Voting. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power, present in person or
represented by proxy, shall decide any question brought before such meeting,
unless the question is one upon which by express provision of law or of the
articles of incorporation, a different vote is required, in which case such
express provision shall govern and control the decision of the question. Each
shareholder shall at every meeting of the shareholders be entitled to one vote,
in person or by proxy, for each share of the capital stock having voting power
registered in his name on the books of the corporation, but no proxy shall be
voted or acted upon after 11 months from its date, unless otherwise provided in
the proxy.
Section 7. Shareholder Proposals. (a) No shareholder proposal or
resolution (each a "Shareholder Proposal"), whether purporting to be binding or
non-binding on the corporation or its board of directors, shall be considered at
any annual or special meeting of the shareholders unless:
(i) If such Shareholder Proposal relates solely to the nomination and
election of directors, it satisfies the requirements of Article III,
Section 3; or
(ii) With respect to any Shareholder Proposal to be considered at a
special shareholders meeting called pursuant to Article II, Section 2,
subsection (a)(i), the shareholder(s) proposing to make such Shareholder
Proposal provided the information set forth in subsection (b) of this
Section 7 to the board of directors within 14 days after the date of the
notice calling such special shareholders meeting (or if less than 21 days
notice of the meeting is given to shareholders, such information was
delivered to the president not later than the close of the seventh day
following the date on which the notice of the shareholders' meeting was
mailed); or
(iii) With respect to any Shareholder Proposal to be considered at a
special shareholders meeting called pursuant to Article II, Section 2,
subsection (a)(ii), the shareholder(s) proposing to make such Shareholder
Proposal provided the information set forth in subsection (b) of this
Section 7 to the board of directors concurrently with the filing of the
initial demand by shareholders relating to such special shareholders
meeting; or
(iv) With respect to any Shareholder Proposal to be considered at any
regular meeting of shareholders, other than as described in clause (i)
hereof, the shareholder(s) proposing to make such Shareholder Proposal
provided the information set forth in subsection (b) of this Section 7 to
the board of directors between 90 to 120 days prior to the regular meeting
at which they wish the Shareholder Proposal to be considered.
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For the purposes of determining whether information was provided at the
times or within the specified periods, the date of the applicable meeting shall
be as set forth in the notice of meeting given by the corporation, and such
times and periods will be determined without regard to any postponements,
deferrals or adjournments of such meeting to a later date.
(b) The following information must be provided to the board of directors,
within or at the times specified in subsection (a) above, in order for the
Shareholder Proposal to be considered at the applicable shareholders meeting:
(i) The Shareholder Proposal, as it will be proposed, in full text and
in writing;
(ii) The purpose(s) for which the Shareholder Proposal is desired and
the specific meeting at which such proposal is proposed to be considered;
(iii) The name(s), address(es), and number of shares held of record by
the shareholder(s) making such Shareholder Proposal (or owned beneficially
and represented by a nominee certificate on file with the corporation);
(iv) The number of shares that have been solicited with regard to the
Shareholder Proposal and the number of shares the holders of which have
agreed (in writing or otherwise) to vote in any specific fashion on said
Shareholder Proposal; and
(v) A written statement by said shareholder(s) that they intend to
continue ownership of such voting shares through the date of the meeting at
which said Shareholder Proposal is proposed to be considered.
(c) Failure to fully comply with the provisions of this Section 7 shall bar
discussion of and voting on the Shareholder Proposal at the applicable regular
or special shareholders meeting. Any Shareholder Proposal that does not comply
with the requirements of this Section 7 shall be disregarded by the chairman of
the meeting, and any votes cast in support of the Shareholder Proposal, unless
the Shareholder Proposal has been validly submitted by another shareholder,
shall be disregarded by the chairman of such meeting.
(d) The provisions of this Section 7 shall be read in accordance with and
so as not to conflict with the rules and regulations promulgated by the
Securities and Exchange Commission and any stock exchange or quotation system
upon which the corporation's shares are traded. Nothing in these By-laws shall
be deemed to require the consideration at any meeting of shareholders of any
Shareholder Proposal that, pursuant to law, the corporation may refuse to permit
consideration thereof.
Section 8. Consent of Shareholders. Any action required or permitted to
be taken at any meeting of the shareholders may be taken without a meeting if
all of the shareholders consent thereto in writing, setting forth the action so
taken. Such consent shall have the same force and effect as a unanimous vote of
shareholders.
Section 9. List of Shareholders; Inspection of Records. (a) The
corporation shall keep at its registered office or principal place of business,
or at the office of its transfer agent or registrar, a record of its
shareholders, giving their names and addresses and the number, class and series,
if any, of the shares held by each. The officer who has charge of the stock
transfer books of the corporation shall prepare and make, before every meeting
of shareholders or any adjournment thereof, a complete list of the shareholders
entitled to vote at the meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number and class and series, if
any, of shares held by each. The 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 for the purposes thereof. The
said list may be the corporation's regular record of shareholders if it is
arranged in alphabetical order or contains an alphabetical index.
(b) Shareholders are entitled to inspect the corporate records as and to
the extent provided by the Code; provided, however, that only shareholders
owning more than two percent (2%) of the outstanding shares of any class of the
corporation's stock shall be entitled to inspect (1) the minutes from any board,
board
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committee or shareholders meeting (including any records of action taken thereby
without a meeting); (2) the accounting records of the corporation; or (3) any
record of the shareholders of the corporation.
ARTICLE III
DIRECTORS
Section 1. Powers. Except as otherwise provided by any legal agreement
among shareholders, the property, affairs and business of the corporation shall
be managed and directed by its board of directors, which may exercise all powers
of the corporation and do all lawful acts and things which are not by law, by
any legal agreement among shareholders, by the articles of incorporation or by
these by-laws directed or required to be exercised or done by the shareholders.
Section 2. Number, Election and Term. The number of directors which shall
constitute the whole board shall be eleven. Provided, however, the number of
directors may be increased or decreased from time to time by the board of
directors by amendment of this by-law, but no decrease shall have the effect of
shortening the term of an incumbent director. The directors shall be elected by
plurality vote at the annual meeting of shareholders, except as hereinafter
provided, and each director elected shall hold office until his successor is
elected and qualified or until his earlier resignation, removal from office or
death. Directors shall be natural person who have attained the age of 18 years,
but need not be residents of the State of Georgia or shareholders of the
corporation.
Section 3. Nominations. (a) If any shareholder intends to nominate or
cause to be nominated any candidate for election to the board of directors
(other than any candidate to be sponsored by and proposed at the instance of the
management), such shareholder shall notify the president by first class
registered mail sent not less than 14 nor more than 50 days before the scheduled
meeting of the shareholders at which directors will be elected. However, if less
than 21 days notice of the meeting is given to shareholders, such nomination
shall be delivered or mailed to the president not later than the close of the
seventh day following the date on which the notice of the shareholders' meeting
was mailed. Such notification shall contain the following information with
respect to each nominee, to the extent known to the shareholder giving such
notification:
(1) Name, address and principal present occupation;
(2) To the knowledge of the shareholder who proposed to make such
nomination, the total number of shares that may be voted for such proposed
nominee;
(3) The names and address of the shareholders who propose to make such
nomination, and the number of shares of the corporation owned by each of
such shareholders; and
(4) The following additional information with respect to each nominee:
age, past employment, education, beneficial ownership of shares in the
corporation, past and present financial standing, criminal history
(including any convictions, indictments or settlements thereof),
involvement in any past or pending litigation or administrative proceedings
(including threatened involvement), relationship to and agreements (whether
or not in writing) with the shareholder(s) (and their relatives,
subsidiaries and affiliates) intending to make such nomination, past and
present relationships or dealings with the corporation or any of its
subsidiaries, affiliates, directors, officers or agents, plans or ideas for
managing the affairs of the corporation (including, without limitation, any
termination of employees, any sales of corporate assets, any proposed
merger, business combination or recapitalization involving the corporation,
and any proposed dissolution or liquidation of the corporation), and all
additional information relating to such person that would be required to be
disclosed, or otherwise required, pursuant to Sections 13 or 14 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (the "Exchange Act"), in connection with any
acquisition of shares by such nominee or in connection with the
solicitation of proxies by such nominee for his election as a director,
regardless of the applicability of such provisions of the Exchange Act.
(b) Any nominations not in accordance with the provisions of this Section 3
may be disregarded by the chairman of the meeting, and upon instruction by the
chairman, votes cast for each such nominee shall be
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disregarded. In the event, however, that a person should be nominated by more
than one shareholder, and if one such nomination complies with the provisions of
this Section 3, such nomination shall be honored, and all shares voted for such
nominee shall be counted.
Section 4. Vacancies. Vacancies, including vacancies resulting from any
increase in the number of directors, but not including vacancies resulting from
removal from office by the shareholders, may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, and a director so chosen shall hold office until the next annual
election and until his successor is duly elected and qualified unless sooner
displaced. If there are no directors in office, then vacancies shall be filled
through election by the shareholders.
Section 5. Meetings and Notice. The board of directors of the corporation
may hold meetings, both regular and special, either within or without the State
of Georgia. Regular meetings of the board of directors may be held without
notice at such time and place as shall from time to time be determined by
resolution of the board. Special meetings of the board may be called by the
chairman of the board or president or by any two directors on one day's oral,
telegraphic or written notice duly given or served on each director personally,
or three days' notice deposited, first class postage prepaid, in the United
States mail. Such notice shall state a reasonable time, date and place of
meeting, but the purpose need not be stated therein. A director may waive any
notice required by the Code, the articles of incorporation, or these by-laws
before or after the date and time of the matter to which the notice relates, by
a written waiver signed by the director and delivered to the corporation for
inclusion in the minutes or filing with the corporate records. Attendance of a
director at a meeting shall constitute a waiver of notice of such meeting and
waiver of all objections to the place and time of the meeting, or the manner in
which it has been called or convened except when the director states, at the
beginning of the meeting, any such objection or objections to the transaction of
business.
Section 6. Quorum. At all meetings of the board a majority of directors
shall constitute a quorum for the transaction of business, and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board, except as may be otherwise specifically provided
by law, by the articles of incorporation, or by these by-laws. If a quorum shall
not be present at any meeting of the board, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 7. Conference Telephone Meeting. Unless the articles of
incorporation or these by-laws otherwise provide, members of the board of
directors, or any committee designated by such board, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other. Participation in such a meeting shall constitute presence in
person.
Section 8. Consent of Directors. Unless otherwise restricted by the
articles of incorporation or these by-laws, any action required or permitted to
be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, setting forth the action so taken, and
the writing or writings are delivered to the corporation for inclusion in the
minutes or filing with the corporate records. Such consent shall have the same
force and effect as a unanimous vote of the board.
Section 9. Committees. The board of directors may, by resolution passed
by a majority of the whole board, designate from among its members one or more
committees, each committee to consist of two or more directors. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent member at any meeting of such committee. Any such committee,
to the extent provided in the resolution, shall have and may exercise all of the
authority of the board of directors in the management of the business and
affairs of the corporation except that it shall have no authority with respect
to (1) amending the articles of incorporation or these by-laws; (2) adopting a
plan of merger or consolidation; (3) the sale, lease, exchange or other
disposition of all or substantially all of the property and assets of the
corporation; (4) a voluntary dissolution of the corporation or a revocation
thereof; and (5) any other action limited by law. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors. A majority of each committee may
determine its action and may
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fix the time and place of its meetings, unless otherwise provided by the board
of directors. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
Section 10. Removal of Directors. At any shareholders meeting with
respect to which notice of such purpose has been given, any director may be
removed from office, with or without cause, by the vote of shareholders
representing a majority of the issued and outstanding capital stock entitled to
vote for the election of directors, and his successor may be elected at the same
or any subsequent meeting of shareholders; provided that to the extent any
vacancy created by such removal is not filled by such an election within 60 days
after such removal, the remaining directors shall, by majority vote, be entitled
to fill any such vacancy.
Section 11. Compensation of Directors. Directors shall be entitled to
such reasonable compensation for their services as directors or members of any
committee of the board as shall be fixed from time to time by resolution adopted
by the board, and shall also be entitled to reimbursement for any reasonable
expenses incurred in attending any meeting of the board or any such committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a secretary and a treasurer. The
board of directors may also choose a chairman of the board, one or more
vice-presidents, assistant secretaries and assistant treasurers. Any number of
officers, except the offices of president and secretary may be held by the same
person. The board of directors may appoint such other officers and agents as it
shall deem necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the board.
Section 2. Compensation. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors or a committee or officer
appointed by the board.
Section 3. Term of Office. Unless otherwise provided by resolution of the
board of directors, the principal officers shall be chosen annually by the board
at the first meeting of the board following the annual meeting of shareholders
of the corporation, or as soon thereafter as is conveniently possible.
Subordinate officers may be elected from time to time. Each officer shall serve
until his successor shall have been chosen and qualified, or until his death,
resignation or removal.
Section 4. Removal. Any officer may be removed from office at any time,
with or without cause, by the board of directors whenever in its judgment the
best interest of the corporation will be served thereby.
Section 5. Vacancies. Any vacancy in an office resulting from any cause
may be filled by the board of directors.
Section 6. Powers and Duties. Except as hereinafter provided, the
officers of the corporation shall each have such powers and duties as generally
pertain to their respective officers, as well as such powers and duties as from
time to time may be conferred by the board of directors.
(a) Chairman of the Board. The chairman of the board shall preside at all
meetings of the shareholders and the board of directors. Except where by law the
signature of the president is required, the chairman shall possess the same
power as the president to sign all certificates representing shares of the
corporation and all bonds, mortgages and other contracts requiring a seal, under
the seal of the corporation.
(b) Chief Executive Officer. The chief executive officer shall be the
chief executive officer of the corporation and shall in the absence of the
chairman of the board preside at all meetings of the shareholders and the board
of directors, and shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe. Except where by law the
signature of the president is required, the chief executive officer shall
possess the same power as the president to sign all certificates representing
shares of the corporation and all bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation.
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(c) President. The president shall in the absence of the chairman of the
board and the chief executive officer preside at all meetings of the
shareholders and the board of directors. The president shall have general and
active management of the business of the corporation and shall see that all
orders and resolutions of the board of directors are carried into effect. He
shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the board of directors to some other officer or
agent of the corporation.
(d) Chief Operating Officer. The chief operating officer shall be the
chief operations officer of the corporation. He shall superintend all operations
of the corporation and in the absence of the chairman of the board, the chief
executive officer and the president shall preside at all meetings of the
shareholders and the board of directors, and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
(e) Vice President. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-president in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the president, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the president. The vice-presidents
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
(f) Secretary. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to the instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
(g) Assistant Secretary. The assistant secretary or if there be more than
one, the assistant secretaries in the order determined by the board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the secretary and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
(h) Treasurer. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
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. He shall
disburse the funds of the corporation as may be ordered by the board of
directors, taking proper vouchers for such disbursements, and shall render to
the president and the board of directors, at its regular meetings, or when the
board of directors so requires, an account of all his transactions as treasurer
and of the financial condition of the corporation. If required by the board of
directors, he shall give the corporation a bond (which shall be renewed every
six years) in such sum and with such surety or sureties as shall be satisfactory
to the board of directors for the faithful performance of the duties of his
office and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under this
control belonging to the corporation.
(i) Assistant Treasurer. The assistant treasurer, or if there shall be
more than one, the assistant treasurers in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
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Section 7. Voting Securities of Corporation. Unless otherwise directed by
the board of directors, the chairman of the board, and in his absence, the
president shall have full power and authority on behalf of the corporation to
attend and to act and vote at any meetings of security holders of corporations
in which the corporation may hold securities, and at such meetings shall possess
and may exercise any and all rights and powers incident to the ownership of such
securities which the corporation might have possessed and exercised if it had
been present. The board of directors by resolution from time to time may confer
like powers upon any other person or persons.
ARTICLE V
CERTIFICATE
Section 1. Form of Certificate. Every holder of fully-paid stock in the
corporation shall be entitled to have a certificate in such form as the board of
directors may from time to time prescribe.
Section 2. Lost Certificates. The board of directors may direct that a
new certificate be issued in place of any certificate theretofore issued by the
corporation and alleged to have been lost, stolen 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,
the board of directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as it shall require and/or to 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 3. Transfers. (a) Transfers of shares of the capital stock of the
corporation shall be made only on the books of the corporation by the registered
holder thereof, or by his duly authorized attorney, or with a transfer clerk or
transfer agent appointed as provided in Section 5 of this Article, and on
surrender of the certificate or certificates for such shares properly endorsed
and the payment of all taxes thereon.
(b) The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and for all other purposes, and 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.
(c) Shares of capital stock may be transferred by delivery of the
certificates therefor, accompanied either by an assignment in writing on the
back of the certificates or by separate written power of attorney to sell,
assign and transfer the same, signed by the record holder, thereof, or by his
duly authorized attorney-in-fact, but no transfer shall affect the right of the
corporation to pay any dividend upon the stock to the holder of record as the
holder in fact thereof for all purposes, and no transfer shall be valid, except
between the parties thereto, until such transfer shall have been made upon the
books of the corporation as herein provided.
(d) The board may, from time to time, make such additional rules and
regulations as it may deem expedient, not inconsistent with these by-laws or the
articles of incorporation, concerning the issue, transfer and registration of
certificates for shares of the capital stock of the corporation.
Section 4. Record Date. In order that the corporation may determine the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than 70 days and, in case of a meeting of shareholders,
not less than 10 days prior to the date on which the particular action requiring
such determination of stockholders is to be taken. If no record date is fixed
for the determination of shareholders entitled to notice of and to vote at any
meeting of shareholders, the record date shall be at the close of business on
the day next preceding the day on which the notice is given, or, if notice is
waived, at the chose of business on the day next preceding the day on which the
meeting is held. If no record date is fixed for other purposes, the record date
shall be at the close of
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business on the day next preceding the day on which the board of directors
adopts the resolution relating thereto. A determination of shareholders of
record entitled to notice of or to vote at a meeting of shareholders shall apply
to any adjournment of the meeting unless the board of directors shall fix a new
record date for the adjourned meeting.
Section 5. Transfer Agent and Registrar. The board of directors may
appoint one or more transfer agents or one or more transfer clerks and one or
more registrars, and may require all certificates of stock to bear the signature
or signatures of any of them.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Distributions. Distributions upon the capital stock of the
corporation, subject to the provisions of the articles of incorporation, if any,
may be declared by the board of directors at any regular or special meetings,
pursuant to law. Distributions may be paid in cash, in property, or in shares of
the corporation's capital stock, subject to the provisions of the articles of
incorporation. Before payment of any distribution, there may be set aside out of
any funds of the corporation available for distributions such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing distributions, or
for repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 2. Fiscal Year. The fiscal year of the corporation shall be fixed
by resolution of the board of directors.
Section 3. Seal. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal"
and "Georgia". 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 4. Savings Clause. To the extent these by-laws conflict with any
provision of any state or federal law as such laws may be amended from time to
time, these by-laws shall be construed so as not to conflict with said law, and
any discretionary actions made hereunder shall be made in accordance with
applicable law.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification of Directors and Officers. The corporation
shall indemnify and hold harmless any person (an "Indemnified Person") who is or
was a party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action or suit by or in the right of the
corporation) by reason of the fact that he is or was a director or officer of
the corporation, against expenses (including, but not limited to, attorneys'
fees and disbursements, court costs and expert witness fees), and against any
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful;
provided, in any case, that no indemnification shall be made in respect of
expenses, judgments, fines and amounts paid in settlement attributable to
circumstances as to which, under applicable provisions of the Code as in effect
from time to time, such indemnification may not be authorized by action of the
board of directors, the shareholders or otherwise.
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Section 2. Indemnification of Directors and Officers for Derivative
Actions. The corporation shall indemnify and hold harmless any Indemnified
Person who is or was a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by or in the right of the
corporation, by reason of the fact that he is or was a director or officer of
the corporation, against expenses (including, but not limited to, attorneys'
fees and disbursements, court costs and expert witness fees) actually and
reasonably incurred by him in connection with such action, suit or proceeding,
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation. No indemnification shall be
made pursuant to this Section 2 for any claim, issue or matter as to which an
Indemnified Person shall have been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
corporation, or for amounts paid in settlement to the corporation, unless and
only to the extent that the court in which such action or suit was brought or
other court of competent jurisdiction shall determine upon application that such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
Section 3. Indemnification of Employees and Agents. The board of
directors shall have the power to cause the corporation to provide to any person
who is or was an employee or agent of the corporation all or any part of the
right to indemnification and other rights of the type provided under Sections 1,
2, 6 and 12 of this Article VII (subject to the conditions, limitations,
obligations and other provisions specified herein), upon a resolution to that
effect identifying such employee or agent (by position or name) and specifying
the particular rights provided, which may be different for each employee or
agent identified. Each employee or agent of the corporation so identified shall
be an "Indemnified Person" for purposes of the provisions of this Article VII.
Section 4. Subsidiaries and Other Organizations. The board of directors
shall have the power to cause the corporation to provide to any person who is or
was a director, officer, employee or agent of the corporation who also is or was
a director, officer, trustee, partner, employee or agent of a Subsidiary (as
defined below), or is or was serving at the corporation's request in such a
position with any other organization, all or any part of the right to
indemnification and other rights of the type provided under Sections 1, 2, 6 and
12 of this Article VII (subject to the conditions, limitations, obligations and
other provisions specified herein), with respect to service by such person in
such position with a Subsidiary or other organization, upon a resolution
identifying such person, the Subsidiary or other organization involved (by name
or other classification), and the particular rights provided, which may be
different for each person so identified. Each person so identified shall be an
"Indemnified Person" for purposes of the provisions of this Article VII. As used
in this Article VII, "Subsidiary" shall mean (i) another corporation, joint
venture, trust, partnership or unincorporated business association more than 20%
of the voting capital stock or other voting equity interest of which was, at or
after the time of the circumstances giving rise to such action, suit or
proceeding, owned, directly or indirectly, by the corporation; or (ii) a
nonprofit corporation that receives its principal financial support from the
corporation or its Subsidiaries.
Section 5. Determination. Notwithstanding any judgment, order,
settlement, conviction or plea in any action, suit or proceeding of the kind
referred to in Sections 1 and 2 of this Article VII, an Indemnified Person shall
be entitled to indemnification as provided in such Sections 1 and 2 if a
determination that such Indemnified Person is entitled to such indemnification
shall be made (i) by the board of directors by a majority vote of a quorum
consisting of directors who are not at the time parties to the proceeding; or
(ii) if a quorum cannot be obtained under (i) above, by majority vote of a
committee duly designated by the board of directors (in which designation
interested directors may participate), consisting solely of two or more
directors who are not at the time parties to the proceeding; or (iii) in a
written opinion by special legal counsel selected as required by Section
14-2-855(b)(3) of the Code or any successor provision. To the extent that an
Indemnified Person has been successful on the merits or otherwise in defense of
any action, suit or proceeding of the kind referred to in Sections 1 and 2 of
this Article VII, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 6. Advances. Expenses (including, but not limited to, attorneys'
fees and disbursements, court costs, and expert witness fees) incurred by an
Indemnified Person in defending any action, suit or proceeding of the kind
described in Sections 1 and 2 hereof (or in Section 4 hereof if applicable to
such
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Indemnified Person) shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as set forth herein. The
corporation shall promptly pay the amount of such expenses to the Indemnified
Person, but in no event later than ten days following the Indemnified Person's
delivery to the corporation of a written request for an advance pursuant to this
Section 6, together with a reasonable accounting of such expenses; provided,
however, that the Indemnified Person shall furnish the corporation a written
affirmation of his good faith belief that he has met the standard of conduct set
forth in the Code and a written undertaking and agreement, executed personally
or on his behalf, to repay to the corporation any advances made pursuant to this
Section 6 if it shall be ultimately determined that the Indemnified Person is
not entitled to be indemnified by the corporation for such amounts. The
corporation shall make the advances contemplated by this Section 6 regardless of
the Indemnified Person's financial ability to make repayment. Any advances and
undertakings to repay pursuant to this Section 6 shall be unsecured and
interest-free.
Section 7. Non-Exclusivity. Subject to any applicable limitation imposed
by the Code or the Articles of Incorporation, the indemnification and
advancement of expenses provided by or granted pursuant to this Article VII
shall not be exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any by-law,
resolution or agreement specifically or in general terms approved or ratified by
the affirmative vote of holders of a majority of the shares entitled to be cast
thereon.
Section 8. Insurance. The corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or who, while a director,
officer, employee, or agent of the corporation, is or was serving as a director,
officer, trustee, general partner, employee or agent of a Subsidiary or, at the
request of the corporation, of any other organization, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Article VII.
Section 9. Notice. If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the shareholders or
by an insurance carrier pursuant to insurance maintained by the corporation, the
corporation shall, not later than the next annual meeting of shareholders,
unless such meeting is held within three months from the date of such payment,
and in any event within 15 months from the date of such payment, send by first
class mail to its shareholders of record at the time entitled to vote for the
election of directors a statement specifying the persons paid, the amount paid
and the nature and status at the time of such payment of the litigation or
threatened litigation.
Section 10. Security. The corporation may designate certain of its assets
as collateral, provide self-insurance or otherwise secure its obligations under
this Article VII, or under any indemnification agreement or plan of
indemnification adopted and entered into in accordance with the provisions of
this Article VII, as the board of directors deems appropriate.
Section 11. Amendment. Any amendment to this Article VII that limits or
otherwise adversely affects the right of indemnification, advancement of
expenses, or other rights of any Indemnified Person hereunder shall, as to such
Indemnified Person, apply only to claims, actions, suits or proceedings based on
actions, events or omissions (collectively, "Post Amendment Events") occurring
after such amendment and after delivery of notice of such amendment to the
Indemnified Person so affected. Any Indemnified Person shall, as to any claim,
action, suit or proceeding based on actions, events or omissions occurring prior
to the date of receipt of such notice, be entitled to the right of
indemnification, advancement of expenses and other rights under this Article VII
to the same extent as if such provisions had continued as part of the by-laws of
the corporation without such amendment. This Section 11 cannot be altered,
amended or repealed in a manner effective as to any Indemnified Person (except
as to Post Amendment Events) without the prior written consent of such
Indemnified Person.
Section 12. Agreements. In addition to the rights provided in this
Article VII, the corporation shall have the power, upon authorization by the
board of directors, to enter into an agreement or agreements providing to any
person who is or was a director, officer, employee or agent of the corporation
indemnification rights substantially similar to, or greater than, those provided
in this Article VII.
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Section 13. Continuing Benefits. The indemnification and advancement of
expenses provided by or granted pursuant to this Article VII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 14. Successors. For purposes of this Article VII, the terms "the
corporation" or "this corporation" shall include any corporation, joint venture,
trust, partnership or unincorporated business association that is the successor
to all or substantially all of the business or assets of this corporation, as a
result of merger, consolidation, sale, liquidation or otherwise, and any such
successor shall be liable to the persons indemnified under this Article VII on
the same terms and conditions and to the same extent as this corporation.
Section 15. Severability. Each of the sections of this Article VII, and
each of the clauses set forth herein, shall be deemed separate and independent,
and should any part of any such section or clause be declared invalid or
unenforceable by any court of competent jurisdiction, such invalidity or
unenforceability shall in no way render invalid or unenforceable any other part
thereof or any other separate section or clause of this Article VII that is not
declared invalid or unenforceable.
Section 16. Additional Indemnification. In addition to the specific
indemnification rights set forth herein, the corporation shall indemnify each of
its directors and officers to the full extent permitted by action of the board
of directors without shareholder approval under the Code or other laws of the
State of Georgia as in effect from time to time.
ARTICLE VIII
AMENDMENTS
The board of directors shall have power to alter, amend or repeal the
by-laws by majority vote of all of the directors, but any by-laws adopted by the
board of directors may be altered, amended or repealed and new by-laws adopted,
by the shareholders by majority vote of all of the shares having voting power.
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