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EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
INNNOTRAC CORPORATION
ARTICLE I
OFFICES
SECTION 1 Registered Office. The registered office shall be in the State of
Georgia, County of Gwinnett.
SECTION 2 Other Offices. The corporation may also have offices at such other
places both inside and outside 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 inside or outside the United States as may be determined by the
board of directors, on such date and at such time as may 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. Special meetings of the shareholders shall be
held at the principal office of the corporation or at such other place inside
or outside the United States as may be designated in the notice of said
meetings, upon call of the chairman of the board of directors or the president
and shall be called by the president or the secretary when so directed by the
board of directors or at the request in writing of shareholders owning at least
25% of the issued and outstanding capital stock of the corporation entitled to
vote thereat. Any such request shall state the purposes for which the meeting
is to be called.
SECTION 3 Notice of Meetings. Written notice of every meeting of
shareholders, stating the place, date and hour of the meetings, shall be given
in a manner permitted by applicable law to each shareholder of record entitled
to vote at such meeting not less than 10 nor more than 60 days before the date
of the meeting. Attendance of a shareholder at a meeting of
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shareholders shall constitute a waiver of notice of such meeting and of all
objections to the place or time of meeting, or the manner in which it has been
called or convened, except when a shareholder attends a meeting solely for the
purpose of stating, at the beginning of the meeting, any such objection to the
transaction of any business. Notice need not be given to any shareholder who
signs a waiver of notice, in person or by proxy, either before or after the
meeting.
SECTION 4 Quorum. At all meetings of shareholders, any Voting Group (as
defined below) 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 by-laws 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 the 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 Article V, Section 4 of these by-laws. If
a quorum is not present at any meeting of the shareholders, the holders of a
majority of the shares present (in person or represented by proxy) and entitled
to vote thereat 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 original meeting.
SECTION 5 Voting. Unless otherwise provided by law, the articles of
incorporation, or board resolutions setting forth the preferences and other
rights, restrictions or limitations of any class or series of preferred stock,
each outstanding share, regardless of class or series, shall be entitled to one
vote on each matter voted on at a shareholders meeting, and each class 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"). Unless
the articles of incorporation, these by-laws, a resolution of the board of
directors or applicable law require a different vote, action on a matter
presented for consideration at a meeting where a quorum is present, shall be
approved as follows: (a) directors shall be elected by a plurality of the votes
cast by the shares entitled to vote in the election at a meeting at which a
quorum is present; and (b) all other matters shall be approved if the votes
cast within the applicable Voting Group favoring the action exceed the votes
cast opposing the action, unless the articles of incorporation, a provision of
these by-laws that has been adopted pursuant to Section 14-2-1021 of the Code
(or any successor provision), or applicable law requires a greater number of
affirmative votes. 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 each such Voting Group separately. A
shareholder may vote his shares in person or
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by proxy. A shareholder may appoint a proxy to vote or otherwise act for him by
signing an appointment form. An appointment of a proxy is valid for eleven
months unless a shorter or longer period is expressly provided in the
appointment form.
SECTION 6 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 7 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.
(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 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.
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 board of directors shall consist
of the number and shall be elected in the manner and serve the term as set
forth in the Amended and Restated Articles of Incorporation. Except as provided
in this Article with respect to filling vacancies on the board, the directors
shall be elected by the shareholders as provided in Article II, 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 persons who have attained the age of 21 years, but need not be
residents of the State
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of Georgia or shareholders of the corporation. The board, from time to time,
may designate persons to act as advisory directors.
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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 may be disregarded by the
chairman of the meeting, and upon instruction by the chairman, votes cast for
each such nominee shall be disregarded. In the event, however, that a person
should be nominated by more than one
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shareholder, and if one such nomination complies with the provisions of this
Section, such nomination shall be honored, and all shares voted for such
nominee shall be counted.
SECTION 4 Vacancies.
(a) Subject to subsections 4(b) vacancies, including vacancies
resulting from any increase in the number of directors and vacancies resulting
from removal from office by the shareholders, may be filled only by the board
of directors or by a majority of the directors then in office (if the directors
remaining in office constitute less than a quorum), and a director so chosen
shall hold office until the expiration of the term and until his successor is
duly elected and qualified, unless sooner displaced; provided, however, that if
there are no directors in office, then vacancies shall be filled through
election by the shareholders.
(b) If any vacant office described in subsection 4(a) was held by
a director elected by a particular Voting Group, only the remaining directors
elected by that Voting Group shall be entitled to fill the vacancy; provided,
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.
SECTION 5 Meetings and Notice. The board of directors of the corporation may
hold meetings, both regular and special, either inside or outside 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 upon one days notice given in a
manner permitted by law. 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
related, 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 of directors, 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.
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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 the board, may participate in a meeting of the 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 the 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 filed with the minutes of the proceedings of the board
or committee. 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 as 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 fix the time and places 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, only for cause, by the vote of shareholders representing a majority of
the issued and outstanding capital stock entitled to vote for the election of
directors, provided that a director elected by a Voting Group may only be
removed for cause by the vote of shareholders representing a majority of the
issued and outstanding capital stock of the Voting Group that elected the
particular director, 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, 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
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to reimbursement for any reasonable expenses incurred in attending any meeting
of the board or any such committee.
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ARTICLE IV
OFFICERS
SECTION 1 Number. The officers of the corporation shall be chosen by the
board of directors and shall be a president and a treasurer. The board of
directors may also choose a chairman of the board, one or more vice-presidents,
a secretary, assistant secretaries and assistant treasurers. 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, or if appointed at the
authorization of the board of directors, by a senior officer at any time, with
or without cause, whenever in the officer's 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 offices, 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 (if there be
one) shall preside at and serve as chairman of meetings of the stockholders and
of the board of directors. 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.
(b) 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
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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 also be responsible for the development, establishment,
and implementation of the policy and strategic initiatives for the corporation.
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.
(c) 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, with the duties and authority provided in Section 6
(b). The president shall otherwise be the chief operating officer of the
corporation and shall, consistent with the authority otherwise conferred upon
the chief executive officer in Section 6 (b), have responsibility for the
conduct and general supervision of the business operations of the corporation,
including without limitation responsibility for the direction, supervision, and
coordination of the activities of all operating subsidiaries and other business
units 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. 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.
(d) Vice President. 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
by-laws or otherwise. If the corporation has more than one vice president, the
one designated by the board of directors 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.
(e) 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 any 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.
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(f) 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.
(g) 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.
(h) 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.
SECTION 7 Signatures. The signature of any officer, employee or agent upon
any document of the corporation may be made by facsimile or machine signature
under such limitations and circumstances as the board of directors or any
appropriate committee of the board of directors may provide from time to time.
SECTION 8 Voting Securities of Corporation. Unless otherwise ordered by the
board of directors, the chairman 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.
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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.
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(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 close 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 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
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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.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1 Indemnification of Directors and Officers. 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. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, is not, of itself, determinative
that the director did not meet the standards of conduct set forth in this
Article.
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
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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 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 (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.
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 or 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 (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. As used in
this Article, "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, an Indemnified Person shall be entitled to
indemnification as provided in such
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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; (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; or (iv) by the share
holders, but shares owned by or voted under the control of directors who are at
the time parties to the proceeding may not be voted on the determination. 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, 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 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, 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 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 regardless of the Indemnified Person's financial ability to make
repayment. Any advances and undertakings to repay pursuant to this Section
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 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
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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.
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, or under any indemnification agreement or plan of indemnification
adopted and entered into in accordance with the provisions of this Article, as
the board of directors deems appropriate.
SECTION 11 Amendment. Any amendment to this Article 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 to
the same extent as if such provisions had continued as part of the by-laws of
the corporation without such amendment. This Section 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,
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.
SECTION 13 Continuing Benefits. The indemnification and advancement of
expenses provided by or granted pursuant to this Article shall, unless
otherwise provided when
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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, 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 on the same terms and conditions and to the same extent as
this corporation.
SECTION 15 Severability. Each of the sections of this Article, 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 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.
SECTION 17 Mandatory Indemnification. Except to the extent limited by the
Articles of Incorporation, to the extent that a director has been successful,
on the merits or otherwise, in the defense of any proceeding to which he was a
party, or in defense of any claim, issue, or matter therein, because he is or
was a director of the corporation, the corporation shall indemnify the director
against reasonable expenses incurred by him in connection therewith.
SECTION 18 Shareholder Approved Indemnification. If authorized by the
Articles of Incorporation or a By-law, contract, or resolution approved or
ratified by the shareholders by a majority of the votes entitled to be cast, a
corporation may indemnify or obligate itself to indemnify a director made party
to a proceeding including a proceeding brought by or in the right of the
corporation. The corporation shall not indemnify a director under this Section
18 for any liability incurred in a proceeding in which the director is adjudged
liable to the corporation or is subjected to injunctive relief in favor of the
corporation: (1) for any appropriate, in violation of his duties, of any
business opportunity of the corporation; (2) for acts or omissions which
involve intentional misconduct or a knowing violation of law; (3) for an
unlawful distribution as set out in the Code; or (4) for any transaction from
which he received improper personal benefit.
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ARTICLE VIII
AMENDMENTS
The board of directors shall have power to alter, amend or repeal the
by-laws or adopt new 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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