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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
E3 CORPORATION
EFFECTIVE ___________, 1998
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AMENDED AND RESTATED
BYLAWS
OF
E3 CORPORATION
TABLE OF CONTENTS
Page
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ARTICLE ONE OFFICE............................................................1
1.1 REGISTERED OFFICE AND AGENT.................................................1
1.2 PRINCIPAL OFFICE............................................................1
1.3 OTHER OFFICES...............................................................1
ARTICLE TWO SHAREHOLDERS' MEETINGS............................................1
2.1 PLACE OF MEETINGS...........................................................2
2.2 ANNUAL MEETINGS.............................................................2
2.3 SPECIAL MEETINGS............................................................2
2.4 NOTICE OF MEETINGS..........................................................2
2.5 WAIVER OF NOTICE............................................................2
2.6 VOTING GROUP; QUORUM; VOTE REQUIRED TO ACT..................................3
2.7 VOTING OF SHARES............................................................3
2.8 PROXIES.....................................................................3
2.9 PRESIDING OFFICER...........................................................3
2.10 ADJOURNMENTS...............................................................4
2.11 CONDUCT OF THE MEETING.....................................................4
2.12 INSPECTOR OF ELECTION......................................................4
2.13 ACTION OF SHAREHOLDERS WITHOUT A MEETING...................................5
2.14 MATTERS CONSIDERED AT ANNUAL MEETINGS......................................5
ARTICLE THREE BOARD OF DIRECTORS..............................................6
3.1 GENERAL POWERS..............................................................6
3.2 NUMBER, ELECTION AND TERM OF OFFICE.........................................6
3.3 REMOVAL OF DIRECTORS........................................................6
3.4 VACANCIES...................................................................6
3.5 COMPENSATION................................................................7
3.6 COMMITTEES OF THE BOARD OF DIRECTORS........................................7
3.7 QUALIFICATION OF DIRECTORS..................................................7
3.8 CERTAIN NOMINATION REQUIREMENTS.............................................7
ARTICLE FOUR MEETINGS OF THE BOARD OF DIRECTORS...............................8
4.1 REGULAR MEETINGS............................................................8
4.2 SPECIAL MEETINGS............................................................8
4.3 PLACE OF MEETINGS...........................................................8
4.4 NOTICE OF MEETINGS..........................................................8
4.5 QUORUM......................................................................8
4.6 VOTE REQUIRED FOR ACTION....................................................8
4.7 PARTICIPATION BY CONFERENCE TELEPHONE.......................................9
4.8 ACTION BY DIRECTORS WITHOUT A MEETING.......................................9
4.9 ADJOURNMENTS................................................................9
4.10 WAIVER OF NOTICE...........................................................9
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ARTICLE FIVE OFFICERS........................................................10
5.1 OFFICERS...................................................................10
5.2 TERM.......................................................................10
5.3 COMPENSATION...............................................................10
5.4 REMOVAL....................................................................10
5.5 CHAIRMAN OF THE BOARD......................................................10
5.6 CHIEF EXECUTIVE OFFICER....................................................11
5.7 PRESIDENT..................................................................11
5.8 VICE PRESIDENTS............................................................11
5.9 SECRETARY..................................................................11
5.10 TREASURER.................................................................11
ARTICLE SIX DISTRIBUTIONS AND DIVIDENDS......................................12
ARTICLE SEVEN SHARES.........................................................12
7.1 SHARE CERTIFICATES.........................................................12
7.2 RIGHTS OF CORPORATION WITH RESPECT TO REGISTERED OWNERS....................12
7.3 TRANSFERS OF SHARES........................................................13
7.4 DUTY OF CORPORATION TO REGISTER TRANSFER...................................13
7.5 LOST, STOLEN, OR DESTROYED CERTIFICATES....................................13
7.6 FIXING OF RECORD DATE......................................................13
7.7 RECORD DATE IF NONE FIXED..................................................13
ARTICLE EIGHT INDEMNIFICATION................................................14
8.1 INDEMNIFICATION OF DIRECTORS...............................................14
8.2 INDEMNIFICATION OF OTHERS..................................................14
8.3 OTHER ORGANIZATIONS........................................................14
8.4 ADVANCES...................................................................15
8.5 NON-EXCLUSIVITY............................................................15
8.6 INSURANCE..................................................................15
8.7 NOTICE.....................................................................15
8.8 SECURITY...................................................................16
8.9 AMENDMENT..................................................................16
8.10 AGREEMENTS...............................................................16
8.11 CONTINUING BENEFITS......................................................16
8.12 SUCCESSORS...............................................................16
8.13 SEVERABILITY.............................................................16
8.14 ADDITIONAL INDEMNIFICATION...............................................17
ARTICLE NINE MISCELLANEOUS...................................................17
9.1 INSPECTION OF BOOKS AND RECORDS............................................17
9.2 FISCAL YEAR................................................................17
9.3 CORPORATE SEAL.............................................................17
9.4 ANNUAL STATEMENTS..........................................................17
9.5 NOTICE.....................................................................18
9.6 ELECTION OF "FAIR PRICE" STATUTE...........................................18
9.7 ELECTION OF "BUSINESS COMBINATION" STATUTE.................................18
ARTICLE TEN AMENDMENTS.......................................................18
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AMENDED AND RESTATED
BYLAWS
OF
E3 CORPORATION
References in these Amended and Restated Bylaws of E3 CORPORATION, a
Georgia corporation (the "Corporation") (these "Bylaws") to "Articles of
Incorporation" are to the Amended and Restated Articles of Incorporation of the
Corporation as may be amended and restated from time to time.
All of these Bylaws are subject to contrary provisions, if any, of the
Articles of Incorporation (including provisions designating the preferences,
limitations, and relative rights of any class or series of shares), the Georgia
Business Corporation Code (the "Code"), and other applicable law, as in effect
on and after the effective date of these Bylaws. References in these Bylaws to
"Sections" shall refer to sections of the Bylaws, unless otherwise indicated.
ARTICLE ONE
OFFICE
1.1 REGISTERED OFFICE AND AGENT. The Corporation shall maintain a
registered office and shall have a registered agent whose business office is the
same as the registered office.
1.2 PRINCIPAL OFFICE. The principal office of the Corporation
shall be at the place designated in the Corporation's annual registration with
the Georgia Secretary of State.
1.3 OTHER OFFICES. In addition to its registered office and
principal office, the Corporation may have offices at other locations either in
or outside the State of Georgia.
ARTICLE TWO
SHAREHOLDERS' MEETINGS
2.1 PLACE OF MEETINGS. Meetings of the Corporation's shareholders
may be held at any location inside or outside the State of Georgia designated by
the Board of Directors or any other person or persons who properly call the
meeting, or if the Board of Directors or such other person or persons do not
specify a location, at the Corporation's principal office.
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2.2 ANNUAL MEETINGS. The Corporation shall hold an annual meeting
of shareholders, at a time determined by the Board of Directors, to elect
directors and to transact any business that properly may come before the
meeting. The annual meeting may be combined with any other meeting of
shareholders, whether annual or special.
2.3 SPECIAL MEETINGS. Special meetings of shareholders of one or
more classes or series of the Corporation's shares may be called at any time by
the Board of Directors, the Chairman of the Board, the Chief Executive Officer
or the President, and shall be called by the Corporation upon the written
request (in compliance with applicable requirements of the Code) of the holders
of shares representing not less than 35% or more of the votes entitled to be
cast on each issue proposed to be considered at the special meeting. 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 2.4 (including related or incidental matters that may be
necessary or appropriate to effectuate the proposed business).
2.4 NOTICE OF MEETINGS. In accordance with Section 9.5 and subject
to waiver by a shareholder pursuant to Section 2.5, the Corporation shall give
written notice of the date, time, and place of each annual and special
shareholders' meeting no fewer than 10 days nor more than 60 days before the
meeting date to each shareholder of record entitled to vote at the meeting. The
notice of an annual meeting need not state the purpose of the meeting unless
these Bylaws require otherwise. The notice of a special meeting shall state the
purpose for which the meeting is called. If an annual or special shareholders'
meeting is adjourned to a different date, time, or location, the Corporation
shall give shareholders notice of the new date, time, or location of the
adjourned meeting, unless a quorum of shareholders was present at the meeting
and information regarding the adjournment was announced before the meeting was
adjourned; provided, however, that if a new record date is or must be fixed in
accordance with Section 7.6, the Corporation must give notice of the adjourned
meeting to all shareholders of record as of the new record date who are entitled
to vote at the adjourned meeting.
2.5 WAIVER OF NOTICE. A shareholder may waive any notice required
by the Code, the Articles of Incorporation, or these Bylaws, before or after the
date and time of the matter to which the notice relates, by delivering to the
Corporation a written waiver of notice signed by the shareholder entitled to the
notice. In addition, a shareholder's attendance at a meeting shall be (a) a
waiver of objection to lack of notice or defective notice of the meeting unless
the shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting, and (b) a waiver of objection to
consideration of a particular matter at the meeting that is not within the
purpose stated in the meeting notice, unless the shareholder objects to
considering the matter when it is presented. Except as otherwise required by the
Code, neither the purpose of nor the business transacted at the meeting need be
specified in any waiver.
2.6 VOTING GROUP; QUORUM; VOTE REQUIRED TO ACT. (a) Unless
otherwise required by the Code or the Articles of Incorporation, all classes or
series of the Corporation's shares entitled to vote generally on a matter shall
for that purpose be considered a single voting group (a "Voting Group"). If
either the Articles of Incorporation or the Code requires separate voting by two
or more Voting Groups on a matter, action on that matter is taken only when
voted upon by
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each such Voting Group separately. At all meetings of shareholders, any Voting
Group entitled to vote on a matter may take action on the matter only if a
quorum of that Voting Group exists at the meeting, and if a quorum exists, the
Voting Group may take action on the matter notwithstanding the absence of a
quorum of any other Voting Group that may be entitled to vote separately on the
matter. Unless the Articles of Incorporation, these Bylaws, or the Code provides
otherwise, the presence (in person or by proxy) of shares representing a
majority of votes entitled to be cast on a matter by a Voting Group shall
constitute a quorum of that Voting Group with regard to that matter. Once a
share is present at any meeting other than solely to object to holding the
meeting or transacting business at the meeting, the share shall be deemed
present for quorum purposes for the remainder of the meeting and for any
adjournments of that meeting, unless a new record date for the adjourned meeting
is or must be set pursuant to Section 7.6 of these Bylaws.
(b) Except as provided in Section 3.4, if a quorum exists, action
on a matter by a Voting Group is approved by that Voting Group if the votes cast
within the Voting Group favoring the action exceed the votes cast opposing the
action, unless the Articles of Incorporation, a provision of these Bylaws that
has been adopted pursuant to Section 14-2-1021 of the Code (or any successor
provision), or the Code requires a greater number of affirmative votes.
2.7 VOTING OF SHARES. Unless otherwise required by the Code or the
Articles of Incorporation, each outstanding share of any class or series having
voting rights shall be entitled to one vote on each matter that is submitted to
a vote of shareholders.
2.8 PROXIES. A shareholder entitled to vote on a matter may vote
in person or by proxy pursuant to an appointment executed in writing by the
shareholder or by his or her attorney-in-fact. An appointment of a proxy shall
be valid for 11 months from the date of its execution, unless a longer or
shorter period is expressly stated in the appointment form.
2.9 PRESIDING OFFICER. Except as otherwise provided in this
Section 2.9, the Chairman of the Board, and in his or her absence or disability
the Chief Executive Officer, and in his or her absence or disability the
President, shall preside at every shareholders' meeting (and any adjournment
thereof) as its chairman, if either of them is present and willing to serve. If
neither the Chairman of the Board, nor the Chief Executive Officer nor the
President is present and willing to serve as chairman of the meeting, and if the
Chairman of the Board has not designated another person who is present and
willing to serve, then a majority of the Corporation's directors present at the
meeting shall be entitled to designate a person to serve as chairman. If no
director of the Corporation is present at the meeting or if a majority of the
directors who are present cannot be established, then a chairman of the meeting
shall be selected by a majority vote of (a) the shares present at the meeting
that would be entitled to vote in an election of directors, or (b) if no such
shares are present at the meeting, then the shares present at the meeting
comprising the Voting Group with the largest number of shares present at the
meeting and entitled to vote on a matter properly proposed to be considered at
the meeting. The chairman of the meeting may designate other persons to assist
with the meeting.
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2.10 ADJOURNMENTS. At any meeting of shareholders (including an
adjourned meeting), a majority of shares of any Voting Group present and
entitled to vote at the meeting (whether or not those shares constitute a
quorum) may adjourn the meeting, but only with respect to that Voting Group, to
reconvene at a specific time and place. If more than one Voting Group is present
and entitled to vote on a matter at the meeting, then the meeting may be
continued with respect to any such Voting Group that does not vote to adjourn as
provided above, and such Voting Group may proceed to vote on any matter to which
it is otherwise entitled to do so; provided, however, that if (a) more than one
Voting Group is required to take action on a matter at the meeting and (b) any
one of those Voting Groups votes to adjourn the meeting (in accordance with the
preceding sentence), then the action shall not be deemed to have been taken
until the requisite vote of any adjourned Voting Group is obtained at its
reconvened meeting. The only business that may be transacted at any reconvened
meeting is business that could have been transacted at the meeting that was
adjourned, unless further notice of the adjourned meeting has been given in
compliance with the requirements for a special meeting that specifies the
additional purpose or purposes for which the meeting is called. Nothing
contained in this Section 2.10 shall be deemed or otherwise construed to limit
any lawful authority of the chairman of a meeting to adjourn the meeting.
2.11 CONDUCT OF THE MEETING. At any meeting of shareholders, the
chairman of the meeting shall be entitled to establish the rules of order
governing the conduct of business at the meeting.
2.12 INSPECTORS OF ELECTION. The Corporation shall appoint one or
more persons, each of whom may be an officer or employee of the Corporation, to
act as an inspector at each meeting of shareholders. At each such meeting of
shareholders, the inspector shall be responsible for (i) ascertaining the number
of shares outstanding and the voting power of each; (ii) determining the shares
represents at such meeting; (iii) determining the validity of proxies and
ballots; (iv) counting all votes; (v) determining the result of all votes; and
(vi) making a written report of his or her determinations. In addition, such
inspector shall take and sign an oath to execute faithfully his or her duties
with strict impartiality and according to the best of his or her ability.
2.13 ACTION OF SHAREHOLDERS WITHOUT A MEETING. Action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting if the action is taken by all shareholders entitled to vote on the
action or, if permitted by the Articles of Incorporation, by persons who would
be entitled to vote at a meeting shares having voting power to cast the
requisite number of votes (or numbers, in the case of voting by groups) that
would be necessary to authorize or take the action at a meeting at which all
shareholders entitled to vote were present and voted. 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 filing with the corporate records.
Such consents shall be executed by shareholders sufficient to act by written
consent and received by the Corporation within sixty days of the date upon which
such consent is dated. Where required by Section 14-2-704 or other applicable
provision of the Code, the Corporation shall provide shareholders with written
notice of actions taken without a meeting.
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2.14 MATTERS CONSIDERED AT ANNUAL MEETINGS. Notwithstanding
anything to the contrary in these Bylaws, the only business that may be
conducted at an annual meeting of shareholders shall be business brought before
the meeting (a) by or at the direction of the Board of Directors prior to the
meeting, (b) by or at the direction of the Chairman of the Board, the Chief
Executive Officer or the President, or (c) by a shareholder of the Corporation
who is entitled to vote with respect to the business and who complies with the
notice procedures set forth in this Section 2.14. For business to be brought
properly before an annual meeting by a shareholder, the shareholder must have
given timely notice of the business in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice must be delivered or mailed to
and received at the principal offices of the Corporation, not less than 60 days
before the date of the meeting at which the director(s) are to be elected or the
proposal is to be considered; however, if less than 70 days notice or prior
public disclosure of the date of the scheduled meeting is given or made, notice
by the shareholder, to be timely, must be delivered or received not later than
the close of business on the tenth day following the earlier of the day on which
notice of the date of the meeting is mailed to shareholders or public disclosure
of the date of such meeting is made. A shareholder's notice to the Secretary
shall set forth a brief description of each matter of business the shareholder
proposes to bring before the meeting and the reasons for conducting that
business at the meeting; the name, as it appears on the Corporation's books, and
address of the shareholder proposing the business; the series or class and
number of shares of the Corporation's capital stock that are beneficially owned
by the shareholder; and any material interest of the shareholder in the proposed
business. The chairman of the meeting shall have the discretion to declare to
the meeting that any business proposed by a shareholder to be considered at the
meeting is out of order and that such business shall not be transacted at the
meeting if (i) the chairman concludes that the matter has been proposed in a
manner inconsistent with this Section 2.14 or (ii) the chairman concludes that
the subject matter of the proposed business is inappropriate for consideration
by the shareholders at the meeting.
ARTICLE THREE
BOARD OF DIRECTORS
3.1 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 by, the Board of Directors, subject to any limitation set forth in the
Articles of Incorporation, in bylaws approved by the shareholders, or in
agreements among all the shareholders that are otherwise lawful.
3.2 NUMBER, ELECTION AND TERM OF OFFICE. The number of directors
of the Corporation shall be fixed by resolution of the Board of Directors or of
the shareholders from time to time and, until otherwise determined, shall be
five; provided, however, that no decrease in the number of directors shall have
the effect of shortening the term of an incumbent director. Except as provided
elsewhere in this Section 3.2 and in Section 3.4, the directors shall be elected
at each annual meeting of shareholders, or at a special meeting of shareholders
called for purposes that include the election of directors, by a plurality of
the votes cast by the shares
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entitled to vote and present at the meeting. Despite the expiration of a
director's term, he or she shall continue to serve until his or her successor,
if there is to be any, has been elected and has qualified.
3.3 REMOVAL OF DIRECTORS. The entire Board of Directors or any
individual director may be removed, with or without cause, by the shareholders,
provided that Directors elected by a particular Voting Group may be removed only
by the shareholders in that Voting Group. Removal action may be taken only at a
shareholder's meeting for which notice of the removal action has been given. The
foregoing notwithstanding, if the Directors have staggered terms, directors may
be removed only for "cause" unless the Articles of Incorporation provide
otherwise. A removed director's successor, if any, may be elected at the same
meeting to serve the unexpired term. "Cause" shall mean (i) misconduct as a
director of the Corporation or any subsidiary of the Corporation which involves
dishonesty with respect to a material corporate activity or material corporate
asset or (ii) conviction of an offense punishable by one or more years of
imprisonment (other than minor regulatory infractions and traffic violations
which do not materially and adversely affect the Company).
3.4 VACANCIES. A vacancy occurring in the Board of Directors may
be filled for the unexpired term, unless the shareholders have elected a
successor, by the affirmative vote of a majority of the remaining directors,
whether or not the remaining directors constitute a quorum; provided, however,
that if the vacant office was held by a director elected by a particular Voting
Group, only the holders of shares of that Voting Group or the remaining
directors elected by that Voting Group shall be entitled to fill the vacancy;
provided further, however, that if the vacant office was held by a director
elected by a particular Voting Group and there is no remaining director elected
by that Voting Group, the other remaining directors or director (elected by
another Voting Group or Groups) may fill the vacancy during an interim period
before the shareholders of the vacated director's Voting Group act to fill the
vacancy. A vacancy or vacancies in the Board of Directors may result from the
death, resignation, disqualification, or removal of any director, or from an
increase in the number of directors.
3.5 COMPENSATION. Directors may receive such compensation for
their services as directors as may be fixed by the Board of Directors from time
to time. A director may also serve the Corporation in one or more capacities
other than that of director and receive compensation for services rendered in
those other capacities.
3.6 COMMITTEES OF THE BOARD OF DIRECTORS. The Board of Directors
may designate from among its members an executive committee or one or more other
standing or ad hoc committees, each consisting of one or more directors, who
serve at the pleasure of the Board of Directors. Subject to the limitations
imposed by the Code, each committee shall (i) have the authority set forth in
the resolution establishing the committee or in any other resolution of the
Board of Directors specifying, enlarging, or limiting the authority of the
committee and (ii) conduct itself in accordance with the mechanical requirements
of this Article Three.
3.7 QUALIFICATION OF DIRECTORS. No person elected to serve as a
director of the Corporation shall assume office and begin serving unless and
until duly qualified to serve, as determined by reference to the Code, the
Articles of Incorporation, and any further eligibility requirements established
in these Bylaws.
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3.8 CERTAIN NOMINATION REQUIREMENTS. No person may be nominated
for election as a director at any annual or special meeting of shareholders
unless (a) the nomination has been or is being made pursuant to a recommendation
or approval of the Board of Directors of the Corporation or a properly
constituted committee of the Board of Directors previously delegated authority
to recommend or approve nominees for director; (b) the person is nominated by a
shareholder of the Corporation who is entitled to vote for the election of the
nominee at the subject meeting, and the nominating shareholder has furnished
written notice to the Secretary of the Corporation, at the Corporation's
principal office, not less than 60 days before the date of the meeting at which
the director(s) are to be elected or the proposal is to be considered; however,
if less than 70 days notice or prior public disclosure of the date of the
scheduled meeting is given or made, notice by the shareholder, to be timely,
must be delivered or received not later than the close of business on the tenth
day following the earlier of the day on which notice of the date of the meeting
is mailed to shareholders or public disclosure of the date of such meeting is
made and the notice (i) sets forth with respect to the person to be nominated
his or her name, age, business and residence addresses, principal business or
occupation during the past five years, any affiliation with or material interest
in the Corporation or any transaction involving the Corporation, and any
affiliation with or material interest in any person or entity having an interest
materially adverse to the Corporation, and (ii) is accompanied by the sworn or
certified statement of the shareholder that the nominee has consented to being
nominated and that the shareholder believes the nominee will stand for election
and will serve if elected; or (c) (i) the person is nominated to replace a
person previously identified as a proposed nominee (in accordance with the
provisions of subpart (b) of this Section 3.8) who has since become unable or
unwilling to be nominated or to serve if elected, (ii) the shareholder who
furnished such previous identification makes the replacement nomination and
delivers to the Secretary of the Corporation (at the time of or prior to making
the replacement nomination) an affidavit or other sworn statement affirming that
the shareholder had no reason to believe the original nominee would be so unable
or unwilling, and (iii) such shareholder also furnishes in writing to the
Secretary of the Corporation (at the time of or prior to making the replacement
nomination) the same type of information about the replacement nominee as
required by subpart (b) of this Section 3.8 to have been furnished about the
original nominee. The chairman of any meeting of shareholders at which one or
more directors are to be elected, for good cause shown and with proper regard
for the orderly conduct of business at the meeting, may waive in whole or in
part the operation of this Section 3.8.
ARTICLE FOUR
MEETINGS OF THE BOARD OF DIRECTORS
4.1 REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held in conjunction with each annual meeting of shareholders. In
addition, the Board of Directors may hold regular meetings at other times
established by prior resolution.
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4.2 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the Chairman of the Board, the Chief
Executive Officer, the President, or any two directors in office at that time.
4.3 PLACE OF MEETINGS. Directors may hold their meetings at any
place in or outside the State of Georgia that the Board of Directors may
establish from time to time.
4.4 NOTICE OF MEETINGS. Directors need not be provided with notice
of any regular meeting of the Board of Directors. Unless waived in accordance
with Section 4.10, the Corporation shall give at least two days' notice to each
director of the date, time, and place of each special meeting. Notice of a
meeting shall be deemed to have been given to any director in attendance at any
prior meeting at which the date, time, and place of the subsequent meeting was
announced.
4.5 QUORUM At meetings of the Board of Directors, the greater of
(a) a majority of the directors then in office, or (b) one-third of the number
of directors fixed in accordance with these Bylaws shall constitute a quorum for
the transaction of business.
4.6 VOTE REQUIRED FOR ACTION. If a quorum is present when a vote
is taken, the vote of a majority of the directors present at the time of the
vote will be the act of the Board of Directors, unless the vote of a greater
number is required by the Code, the Articles of Incorporation, or these Bylaws.
A director who is present at a meeting of the Board of Directors when corporate
action is taken is deemed to have assented to the action taken unless (a) he or
she objects at the beginning of the meeting (or promptly upon his or her
arrival) to holding the meeting or transacting business at it; (b) his or her
dissent or abstention from the action taken is entered in the minutes of the
meeting; or (c) he or she delivers written notice of dissent or abstention to
the presiding officer of the meeting before its adjournment or to the
Corporation immediately after adjournment of the meeting. The right of dissent
or abstention is not available to a director who votes in favor of the action
taken.
4.7 PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of
Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment through which all persons
participating may hear and speak to each other. Participation in a meeting
pursuant to this Section 4.7 shall constitute presence in person at the meeting.
4.8 ACTION BY DIRECTORS WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if a written consent, describing the action taken, is signed
by each director and delivered to the Corporation for inclusion in the minutes
or filing with the corporate records. The consent may be executed in
counterpart, and shall have the same force and effect as a unanimous vote of the
Board of Directors at a duly convened meeting.
4.9 ADJOURNMENTS. A meeting of the Board of Directors, whether or
not a quorum is present, may be adjourned by a majority of the directors present
to reconvene at a specific time
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and place. It shall not be necessary to give notice to the directors of the
reconvened meeting or of the business to be transacted, other than by
announcement at the meeting that was adjourned, unless a quorum was not present
at the meeting that was adjourned, in which case notice shall be given to
directors in the same manner as for a special meeting. At any such reconvened
meeting at which a quorum is present, any business may be transacted that could
have been transacted at the meeting that was adjourned.
4.10 WAIVER OF NOTICE. A director may waive any notice required by
the Code, the Articles of Incorporation, or these Bylaws before or after the
date and time of the matter to which the notice relates, by a written waiver
signed by the director and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. Attendance by a director at a
meeting shall constitute waiver of notice of the meeting, except where a
director at the beginning of the meeting (or promptly upon his or her arrival)
objects to holding the meeting or to transacting business at the meeting and
does not thereafter vote for or assent to action taken at the meeting.
ARTICLE FIVE
OFFICERS
5.1 OFFICERS. The officers of the Corporation shall consist of a
President, a Secretary, and a Treasurer, and may include a Chief Executive
Officer separate from the President, each of whom shall be elected or appointed
by the Board of Directors. The Board of Directors may also elect a Chairman of
the Board from among its members. The Board of Directors from time to time may,
or may authorize the Chief Executive Officer or the President to, create and
establish other offices and the duties thereof and may, or may authorize the
Chief Executive Officer or the President to, elect or appoint, or authorize
specific senior officers to appoint, the persons who shall hold such other
offices, including one or more Vice Presidents (including Executive Vice
Presidents, Senior Vice Presidents, Assistant Vice Presidents, and the like),
one or more Assistant Secretaries, and one or more Assistant Treasurers. Whether
or not so provided by the Board of Directors, the Chairman of the Board, the
Chief Executive Officer or the President may appoint one or more Assistant
Secretaries, and one or more Assistant Treasurers. Any two or more offices may
be held by the same person.
5.2 TERM. Each officer shall serve at the pleasure of the Board of
Directors (or, if appointed by the Chief Executive Officer, the President, or a
senior officer pursuant to this Article Five, at the pleasure of the Board of
Directors, the Chief Executive Officer, the President, or the senior officer
authorized to have appointed the officer) until his or her death, resignation,
or removal, or until his or her replacement is elected or appointed in
accordance with this Article Five.
5.3 COMPENSATION. The compensation of all officers of the
Corporation shall be fixed by the Board of Directors or by a committee or
officer appointed by the Board of Directors. Officers may serve without
compensation.
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5.4 REMOVAL. All officers (regardless of how elected or appointed)
may be removed, with or without cause, by the Board of Directors, and any
officer appointed by the Chief Executive Officer, the President, or another
senior officer may also be removed, with or without cause, by the Chief
Executive Officer, the President, or by any senior officer authorized to have
appointed the officer to be removed. Removal will be without prejudice to the
contract rights, if any, of the person removed, but shall be effective
notwithstanding any damage claim that may result from infringement of such
contract rights.
5.5 CHAIRMAN OF THE BOARD. The Chairman of the Board (if there be
one) shall preside at and serve as chairman of meetings of the shareholders and
of the Board of Directors (unless another person is selected under Section 2.9
to act as chairman). The Chairman of the Board shall perform other duties and
have other authority as may from time to time be delegated by the Board of
Directors.
5.6 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be
charged with the general and active management of the Corporation, shall see
that all orders and resolutions of the Board of Directors are carried into
effect, shall have the authority to select and appoint employees and agents of
the Corporation, and shall, in the absence or disability of the Chairman of the
Board, perform the duties and exercise the powers of the Chairman of the Board.
The Chief Executive Officer shall perform any other duties and have any other
authority as may be delegated from time to time by the Board of Directors, and
shall be subject to the limitations fixed from time to time by the Board of
Directors.
5.7 PRESIDENT. If there shall be no separate Chief Executive
Officer of the Corporation, then the President shall be the chief executive
officer of the Corporation and shall have all the duties and authority given
under these Bylaws to the Chief Executive Officer. The President shall otherwise
be the chief operating officer of the Corporation and shall, subject to the
authority of the Chief Executive Officer, have responsibility for the conduct
and general supervision of the business operations of the Corporation. The
President shall perform such other duties and have such other authority as may
from time to time be delegated by the Board of Directors or the Chief Executive
Officer. In the absence or disability of the Chief Executive Officer, the
President shall perform the duties and exercise the powers of the Chief
Executive Officer.
5.8 VICE PRESIDENTS. The Vice President (if there be one) shall,
in the absence or disability of the President, perform the duties and exercise
the powers of the President, whether the duties and powers are specified in
these Bylaws or otherwise. If the Corporation has more than one Vice President,
the one designated by the Board of Directors or the Chief Executive Officer (in
that order of precedence) shall act in the event of the absence or disability of
the President. Vice Presidents shall perform any other duties and have any other
authority as from time to time may be delegated by the Board of Directors, the
Chief Executive Officer, or the President.
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5.9 SECRETARY. The Secretary shall be responsible for preparing
minutes of the meetings of shareholders, directors, and committees of directors
and for authenticating records of the Corporation. The Secretary or any
Assistant Secretary shall have authority to give all notices required by law or
these Bylaws. The Secretary shall be responsible for the custody of the
corporate books, records, contracts, and other documents. The Secretary or any
Assistant Secretary may affix the corporate seal to any lawfully executed
documents requiring it, may attest to the signature of any officer of the
Corporation, and shall sign any instrument that requires the Secretary's
signature. The Secretary or any Assistant Secretary shall perform any other
duties and have any other authority as from time to time may be delegated by the
Board of Directors, the Chief Executive Officer, or the President.
5.10 TREASURER. Unless otherwise provided by the Board of
Directors, the Treasurer shall be responsible for the custody of all funds and
securities belonging to the Corporation and for the receipt, deposit, or
disbursement of these funds and securities under the direction of the Board of
Directors. The Treasurer shall cause full and true accounts of all receipts and
disbursements to be maintained and shall make reports of these receipts and
disbursements to the Board of Directors, the Chief Executive Officer and
President upon request. The Treasurer or Assistant Treasurer shall perform any
other duties and have any other authority as from time to time may be delegated
by the Board of Directors, the Chief Executive Officer, or the President.
ARTICLE SIX
DISTRIBUTIONS AND DIVIDENDS
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.
ARTICLE SEVEN
SHARES
7.1 SHARE CERTIFICATES. The interest of each shareholder in the
Corporation shall be evidenced by a certificate or certificates representing
shares of the Corporation, which shall be in such form as the Board of Directors
from time to time may adopt in accordance with the Code. Share certificates
shall be in registered form and shall indicate the date of issue, the name of
the Corporation, that the Corporation is organized under the laws of the State
of Georgia, the name of the shareholder, and the number and class of shares and
designation of the series, if any, represented by the certificate. Each
certificate shall be signed by the President or a Vice President (or in lieu
thereof, by the Chairman of the Board or Chief Executive Officer, if there be
one) and may be signed by the Secretary or an Assistant Secretary; provided,
however, that where the certificate is signed (either manually or by facsimile)
by a transfer agent, or registered by a registrar, the signatures of those
officers may be facsimiles.
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7.2 RIGHTS OF CORPORATION WITH RESPECT TO REGISTERED OWNERS. Prior
to due presentation for transfer of registration of its shares, the Corporation
may treat the registered owner of the shares (or the beneficial owner of the
shares to the extent of any rights granted by a nominee certificate on file with
the Corporation pursuant to any procedure that may be established by the
Corporation in accordance with the Code) as the person exclusively entitled to
vote the shares, to receive any dividend or other distribution with respect to
the shares, and for all other purposes; and the Corporation shall not be bound
to recognize any equitable or other claim to or interest in the shares on the
part of any other person, whether or not it has express or other notice of such
a claim or interest, except as otherwise provided by law.
7.3 TRANSFERS OF SHARES. Transfers of shares shall be made upon
the books of the Corporation kept by the Corporation or by 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. Before a new
certificate is issued, the old certificate shall be surrendered for cancellation
or, in the case of a certificate alleged to have been lost, stolen, or
destroyed, the provisions of Section 7.5 of these Bylaws shall have been
complied with.
7.4 DUTY OF CORPORATION TO REGISTER TRANSFER. Notwithstanding any
of the provisions of Section 7.3 of these Bylaws, the Corporation is under a
duty to register the transfer of its shares only if: (a) the share certificate
is endorsed by the appropriate person or persons; (b) reasonable assurance is
given that each required endorsement is genuine and effective; (c) the
Corporation has no duty to inquire into adverse claims or has discharged any
such duty; (d) any applicable law relating to the collection of taxes has been
complied with; (e) the transfer is in fact rightful or is to a bona fide
purchaser; and (f) the transfer is in compliance with applicable provisions of
any transfer restrictions of which the Corporation shall have notice.
7.5 LOST, STOLEN, OR DESTROYED CERTIFICATES. Any person claiming a
share certificate to be lost, stolen, or destroyed shall make an affidavit or
affirmation of this claim in such a manner as the Corporation may require and
shall, if the Corporation requires, give the Corporation a bond of indemnity in
form and amount, and with one or more sureties satisfactory to the Corporation,
as the Corporation may require, whereupon an appropriate new certificate may be
issued in lieu of the one alleged to have been lost, stolen or destroyed.
7.6 FIXING OF RECORD DATE. For the purpose of determining
shareholders (a) entitled to notice of or to vote at any meeting of shareholders
or, if necessary, any adjournment thereof, (b) entitled to receive payment of
any distribution or dividend, or (c) for any other proper purpose, the Board of
Directors may fix in advance a date as the record date. The record date may not
be more than 70 days (and, in the case of a notice to shareholders of a
shareholders' meeting, not less than 10 days) prior to the date on which the
particular action, requiring the determination of shareholders, is to be taken.
A separate record date may be established for each Voting Group entitled to vote
separately on a matter at a meeting. 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
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reconvened meeting, which it must do if the meeting is adjourned to a date more
than 120 days after the date fixed for the original meeting.
7.7 RECORD DATE IF NONE FIXED. If no record date is fixed as
provided in Section 7.6, then the record date for any determination of
shareholders that may be proper or required by law shall be, as appropriate, the
date on which notice of a shareholders' meeting is mailed, the date on which the
Board of Directors adopts a resolution declaring a dividend or authorizing a
distribution, or the date on which any other action is taken that requires a
determination of shareholders.
ARTICLE EIGHT
INDEMNIFICATION
8.1 INDEMNIFICATION OF DIRECTORS. The Corporation shall indemnify
and hold harmless any director of the Corporation (an "Indemnified Person") who
was or is 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, whether formal or informal, including any
action or suit by or in the right of the Corporation (for purposes of this
Article Eight, collectively, a "Proceeding") because he or she is or was a
director, officer, employee, or agent of the Corporation, against any judgment,
settlement, penalty, fine, or reasonable expenses (including, but not limited
to, attorneys' fees and disbursements, court costs, and expert witness fees)
incurred with respect to the Proceeding (for purposes of this Article Eight, a
"Liability"), provided, however, that no indemnification shall be made for: (a)
any appropriation by a director, in violation of the director's duties, of any
business opportunity of the corporation; (b) any acts or omissions of a director
that involve intentional misconduct or a knowing violation of law; (c) the types
of liability set forth in Code Section 14-2-832; or (d) any transaction from
which the director received an improper personal benefit.
8.2 INDEMNIFICATION OF OTHERS. The Board of Directors shall have
the power to cause the Corporation to provide to officers, employees, and agents
of the Corporation all or any part of the right to indemnification permitted for
such persons by appropriate provisions of the Code. Persons to be indemnified
may be identified by position or name, and the right of indemnification may be
different for each of the persons identified. Each officer, employee, or agent
of the Corporation so identified shall be an "Indemnified Person" for purposes
of the provisions of this Article Eight.
8.3 OTHER ORGANIZATIONS. The Corporation shall provide to each
director, and the Board of Directors shall have the power to cause the
Corporation to provide to any officer, employee, or agent, of the Corporation
who is or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise all or any part of
the right to indemnification and other rights of the type provided under
Sections 8.1, 8.2, 8.4, and 8.10 of this Article Eight (subject to the
conditions, limitations, and obligations specified in those
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Sections) permitted for such persons by appropriate provisions of the Code.
Persons to be indemnified may be identified by position or name, and the right
of indemnification may be different for each of the persons identified. Each
person so identified shall be an "Indemnified Person" for purposes of the
provisions of this Article Eight.
8.4 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 Proceeding of the kind described in Sections
8.1 or 8.3, as to an Indemnified Person who is a director of the Corporation, or
in Sections 8.2 or 8.3, as to other Indemnified Persons, if the Board of
Directors has specified that advancement of expenses be made available to any
such Indemnified Person, shall be paid by the Corporation in advance of the
final disposition of such 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 10 days following the Indemnified Person's delivery to the
Corporation of a written request for an advance pursuant to this Section 8.4,
together with a reasonable accounting of such expenses; provided, however, that
the Indemnified Person shall furnish the Corporation a written affirmation of
his or her good faith belief that he or she has met the applicable standard of
conduct and a written undertaking and agreement to repay to the Corporation any
advances made pursuant to this Section 8.4 if it shall be determined that the
Indemnified Person is not entitled to be indemnified by the Corporation for such
amounts. The Corporation may make the advances contemplated by this Section 8.4
regardless of the Indemnified Person's financial ability to make repayment. Any
advances and undertakings to repay pursuant to this Section 8.4 may be unsecured
and interest-free.
8.5 NON-EXCLUSIVITY. Subject to any applicable limitation imposed
by the Code or the Articles of Incorporation, the indemnification and
advancement of expenses provided by or granted pursuant to this Article Eight
shall not be exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any provision
of the Articles of Incorporation, or any Bylaw, resolution, or agreement
specifically or in general terms approved or ratified by the affirmative vote of
holders of a majority of the shares entitled to be voted thereon.
8.6 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 serving in such a
capacity, is also or was also serving at the request of the Corporation as a
director, officer, trustee, partner, employee, or agent of any corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against any Liability that may be asserted against or incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not
the Corporation would have the power to indemnify him or her against such
liability under the provisions of this Article Eight.
8.7 NOTICE. If the Corporation indemnifies or advances expenses to
a director under any of Sections 14-2-851 through 14-2-854 of the Code in
connection with a Proceeding by or in the right of the Corporation, the
Corporation shall, to the extent required by Section 14-2-1621 or
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any other applicable provision of the Code, report the indemnification or
advance in writing to the shareholders with or before the notice of the next
shareholders' meeting.
8.8 SECURITY. The Corporation may designate certain of its assets
as collateral, provide self-insurance, establish one or more indemnification
trusts, or otherwise secure or facilitate its ability to meet its obligations
under this Article Eight, or under any indemnification agreement or plan of
indemnification adopted and entered into in accordance with the provisions of
this Article Eight, as the Board of Directors deems appropriate.
8.9 AMENDMENT. Any amendment to this Article Eight that limits or
otherwise adversely affects the right of indemnification, advancement of
expenses, or other rights of any Indemnified Person hereunder shall, as to such
Indemnified Person, apply only to 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 Proceeding based on actions,
events, or omissions occurring prior to the date of receipt of such notice, be
entitled to the right of indemnification, advancement of expenses, and other
rights under this Article Eight to the same extent as if such provisions had
continued as part of the Bylaws of the Corporation without such amendment. This
Section 8.9 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.
8.10 AGREEMENTS. The provisions of this Article Eight shall be
deemed to constitute an agreement between the Corporation and each Indemnified
Person hereunder. In addition to the rights provided in this Article Eight, the
Corporation shall have the power, upon authorization by the Board of Directors,
to enter into an agreement or agreements providing to any Indemnified Person
indemnification rights substantially similar to those provided in this Article
Eight.
8.11 CONTINUING BENEFITS. The rights of indemnification and
advancement of expenses permitted or authorized by this Article Eight shall,
unless otherwise provided when such rights are granted or conferred, 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
person.
8.12 SUCCESSORS. For purposes of this Article Eight, the term
"Corporation" shall include any corporation, joint venture, trust, partnership,
or unincorporated business association that is the successor to all or
substantially all of the business or assets of this Corporation, as a result of
merger, consolidation, sale, liquidation, or otherwise, and any such successor
shall be liable to the persons indemnified under this Article Eight on the same
terms and conditions and to the same extent as this Corporation.
8.13 SEVERABILITY. Each of the Sections of this Article Eight, and
each of the clauses set forth herein, shall be deemed separate and independent,
and should any part of any such Section or clause be declared invalid or
unenforceable by any court of competent jurisdiction,
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such invalidity or unenforceability shall in no way render invalid or
unenforceable any other part thereof or any separate Section or clause of this
Article Eight that is not declared invalid or unenforceable.
8.14 ADDITIONAL INDEMNIFICATION. In addition to the specific
indemnification rights set forth herein, the Corporation shall indemnify each of
its directors and such of its officers as have been designated by the Board of
Directors to the full extent permitted by action of the Board of Directors
without shareholder approval under the Code or other laws of the State of
Georgia as in effect from time to time.
ARTICLE NINE
MISCELLANEOUS
9.1 INSPECTION OF BOOKS AND RECORDS. The Board of Directors shall
have the power to determine which accounts, books, and records of the
Corporation shall be available for shareholders to inspect or copy, except for
those books and records required by the Code to be made available upon
compliance by a shareholder with applicable requirements, and shall have the
power to fix reasonable rules and regulations (including confidentiality
restrictions and procedures) not in conflict with applicable law for the
inspection and copying of accounts, books, and records that by law or by
determination of the Board of Directors are made available. Unless required by
the Code or otherwise provided by the Board of Directors, a shareholder of the
Corporation holding less than two percent of the total shares of the Corporation
then outstanding shall have no right to inspect the books and records of the
Corporation.
9.2 FISCAL YEAR. The Board of Directors is authorized to fix the
fiscal year of the Corporation and to change the fiscal year from time to time
as it deems appropriate.
9.3 CORPORATE SEAL. The corporate seal will be in such form as the
Board of Directors may from time to time determine. The Board of Directors may
authorize the use of one or more facsimile forms of the corporate seal. The
corporate seal need not be used unless its use is required by law, by these
Bylaws, or by the Articles of Incorporation.
9.4 ANNUAL STATEMENTS. Not later than four months after the close
of each fiscal year, and in any case prior to the next annual meeting of
shareholders, the Corporation shall prepare (a) a balance sheet showing in
reasonable detail the financial condition of the Corporation as of the close of
its fiscal year, and (b) a profit and loss statement showing the results of its
operations during its fiscal year. Upon receipt of written request, the
Corporation promptly shall mail to any shareholder of record a copy of the most
recent such balance sheet and profit and loss statement, in such form and with
such information as the Code may require.
9.5 NOTICE. (a) Whenever these Bylaws require notice to be given
to any shareholder or to any director, the notice may be given by mail, in
person, by courier delivery, by telephone, or by telecopier, telegraph, or
similar electronic means. Whenever notice is given to a
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shareholder or director by mail, the notice shall be sent by depositing the
notice in a post office or letter box in a postage-prepaid, sealed envelope
addressed to the shareholder or director at his or her address as it appears on
the books of the Corporation. Any such written notice given by mail shall be
effective: (i) if given to shareholders, at the time the same is deposited in
the United States mail; and (ii) in all other cases, at the earliest of (x) when
received or when delivered, properly addressed, to the addressee's last known
principal place of business or residence, (y) five days after its deposit in the
mail, as evidenced by the postmark, if mailed with first-class postage prepaid
and correctly addressed, or (z) on the date shown on the return receipt, if sent
by registered or certified mail, return receipt requested, and the receipt is
signed by or on behalf of the addressee. Whenever notice is given to a
shareholder or director by any means other than mail, the notice shall be deemed
given when received.
(b) In calculating time periods for notice, when a period of time
measured in days, weeks, months, years, or other measurement of time is
prescribed for the exercise of any privilege or the discharge of any duty, the
first day shall not be counted but the last day shall be counted.
9.6 ELECTION OF "FAIR PRICE" STATUTE. The provisions of Sections
14-2-1110 through 14-2-1113 of the Code, as they may be amended from time to
time, shall apply to the Corporation, to the extent permitted by the Code.
9.7 ELECTION OF "BUSINESS COMBINATION" STATUTE. The provisions of
Section 14-2-1131 through 14-2-1133 of the Code, as they may be amended from
time to time, shall apply to the Corporation, to the extent permitted by the
Code.
ARTICLE TEN
AMENDMENTS
Except as otherwise provided below or under the Code, the Board of
Directors shall have the power to alter, amend, or repeal these Bylaws or adopt
new Bylaws. Notwithstanding any other provision of these Bylaws, the
Corporation's Articles of Incorporation or law, neither Section 2.3, 2.14 or
3.8, nor Article Eight hereof nor this Article Ten may be amended or repealed
except upon the affirmative vote of holders of at least a majority of the total
number of votes of the then outstanding shares of capital stock of the Company
that are entitled to vote generally in the election of directors, voting
together as a single class. Any Bylaws adopted by the Board of Directors may be
altered, amended, or repealed, and new Bylaws adopted, by the shareholders. The
shareholders may prescribe 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.
Dated: __________, 1998.
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