BYLAWS
OF
DH APPAREL COMPANY, INC.
DECEMBER 10, 1999
BYLAWS
OF
DH APPAREL COMPANY, INC
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ARTICLE ONE
OFFICES
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1.1 Registered Office and Agent. The Corporation shall at all times
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maintain a registered office in the State of Georgia and a registered agent at
such address.
1.2 Other Offices. The Corporation may from time to time have such
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other offices within or outside the State of Georgia, as the Board of Directors
may determine or as is necessary or desirable to facilitate the business of the
Corporation.
ARTICLE TWO
SHAREHOLDERS' MEETINGS
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2.1 Annual Meetings. An annual meeting of shareholders for the
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election of directors and for such other matters as may be properly brought
before the shareholders meeting shall be held on such date and at such time and
place (within or outside the State of Georgia) as shall be designated by the
Board of Directors and as set forth in the notice thereof.
2.2 Special Meetings. Special meetings of the shareholders may be
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called at any time by the Chairman of the Board of Directors, the President, or
a committee of the Board of Directors that has been duly designated by the Board
of Directors and whose powers and authority, as provided in a resolution of the
Board of Directors or in these Bylaws, include the power to call such meetings,
and special meetings may not be called by any other person or persons. Any
special meeting of the shareholders shall be held on such date and at such time
and place (within or outside the State of Georgia) as shall be set forth in the
notice thereof.
2.3 Notice of Meetings. Unless waived as contemplated in Section 5.2
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or by attendance at the meeting (either in person or by proxy) for any purpose
other than to state at the beginning of the meeting an objection to the
transaction of business at such meeting, a written notice of each shareholders'
meeting stating the place, date and time of the meeting shall be delivered not
less than ten (10) days nor more than sixty (60) days before the date thereof,
either in person, by courier service or by mail, to each shareholder of record
entitled to vote at such meeting. Notwithstanding anything else to the contrary
in the Georgia Business Corporation Code (the "Code"), the notice of meeting
(for both annual and special meetings) shall state the purpose or purposes for
which the meeting is called and the specific business to be conducted at such
meeting. When a meeting is adjourned to another time or place, unless after the
adjournment the Board of Directors fixes a new record date for the adjourned
meeting as may be required pursuant to Section 2.8, it shall not be necessary to
give any notice of the adjourned meeting if the date, time and place to which
the meeting is adjourned are announced at the meeting at which the adjournment
is taken.
2.4 Quorum. At any meetings of the shareholders, unless otherwise
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provided by law or by the Articles of Incorporation of the Corporation (the
"Articles of Incorporation"), the presence, in person or by proxy, of the
holders of at least two-thirds (2/3) of the shares outstanding and entitled to
vote at such meeting shall constitute a quorum. A shareholder who makes a
special appearance for purposes of objecting to lack of notice or defective
notice or objecting to holding the meeting or transacting the business at the
meeting shall not be counted for purposes of determining a quorum. If a quorum
is not present to organize a meeting, the meeting may be adjourned pursuant to
Section 2.8. The shareholders present at a meeting at which a quorum is present
may continue to transact business for the remainder of the meeting and at any
adjournment of the meeting, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, unless the meeting is adjourned under
circumstances where a new record date is or must be set pursuant to Section 2.8.
2.5 Voting of Shares. Except as otherwise provided by the Articles of
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Incorporation, each outstanding share having voting rights shall be entitled to
one vote on each matter submitted to a vote at a meeting of the shareholders of
the Corporation. If a quorum is present, all elections of Directors shall be
determined by plurality vote and, as to all other matters, action on a matter is
approved if the votes cast in favor of the action exceed the votes cast against
the action, unless and to the extent the Code, these Bylaws or the Articles of
Incorporation requires a greater number of affirmative votes. There shall be no
cumulative voting for Directors.
2.6 Proxies. A shareholder entitled to vote pursuant to Section 2.5
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may vote in person or by written proxy executed by the shareholder or by his
attorney in fact. A proxy shall not be valid after eleven (11) months from the
date of its execution, unless a longer period is expressly stated therein. A
proxy, unless it is irrevocable by its terms and it is coupled with an interest,
shall be revocable at will, but the revocation of a proxy shall not be effective
until notice thereof has been given to the Secretary of the Corporation. A
proxy shall not be revoked by the death or incapacity of the maker unless,
before the vote is counted or the authority is exercised, written notice of such
death or incapacity is given to the Secretary of the Corporation. The
Corporation is entitled to reject a vote, consent, waiver, proxy appointment or
proxy revocation if the Secretary or other officer or agent authorized to
tabulate the votes, acting in good faith, has reasonable basis for doubt about
the validity of the signature on it or about the signatory's authority to sign
for the shareholder or about the faithfulness or completeness of the
reproductions when the original has not been examined. The Corporation and its
officer or agent who accepts or rejects a vote, consent, waiver or proxy
appointment in good faith and in accordance with Sections 14-2-722(b) or
14-2-724 of the Code (or any successor provision) shall not be liable to the
shareholder for the consequences of the acceptance or rejection.
2.7 Presiding Officer; Secretary. The Chairman of the Board of
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Directors, or in his absence the Vice Chairman of the Board of Directors, or in
his absence an alternate chairman designated by a majority of the Directors
present, shall preside at all shareholders' meetings. The Secretary, or in his
absence, an Assistant Secretary, or, in the absence of the Secretary and
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Assistant Secretary, a person whom the Chairman of such meeting shall appoint,
shall act as secretary of the meeting and keep the minutes thereof.
2.8 Adjournments. Any meeting of the shareholders, whether or not a
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quorum is present, may be adjourned by the holders of a majority of the voting
shares represented at the meeting to reconvene at a specific time and place. At
any such reconvened meeting at which a quorum is represented or present, any
business may be transacted which could have been transacted at the meeting which
was adjourned. It shall not be necessary to give any notice of the reconvened
meeting, if the time and place of the reconvened meeting are announced at the
meeting which was adjourned, except that if the meeting is adjourned to a date
more than 120 days after the date of the original meeting, if additional
business shall be scheduled to be transacted at the adjourned meeting, or if
after adjournment a new record date is set, a notice of the adjourned meeting
shall be given to each shareholder.
2.9 Action by Shareholders Without a Meeting.
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(a) Any action which may be taken at a meeting of the shareholders
may be taken without a meeting if one or more written approvals and consents,
setting forth the action authorized, shall be signed and dated by all of the
shareholders entitled to vote on such matter as determined in Section 2.9(b).
(b) Unless otherwise fixed under Sections 14-2-703 or 14-2-707 of
the Code, the record date for determining shareholders entitled to take action
without a meeting shall be the date the first shareholder signs the consent. No
written consent shall be effective to take the action referred to therein unless
evidence of written consent(s) signed by all shareholders entitled to vote
thereon is delivered to the Corporation for inclusion in the minutes or filing
with the corporate records within sixty (60) days after the date the first
shareholder signed the consent. Unless the consent provides for a later
effective date, a consent delivered to the Corporation shall be effective as of
the date the last shareholder signed the consent.
(c) A shareholder may revoke his written consent by delivering a
writing to that effect to the Corporation that is received prior to receipt by
the Corporation of unrevoked written consents from all shareholders entitled to
vote thereon.
2.10 List of Shareholders. After fixing the record date for a meeting,
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the Secretary or other officer of the Corporation having charge of the stock
ledger shall prepare an alphabetical list of the names of all shareholders who
are entitled to notice of a shareholders' meeting (showing the number and class
and series, if any, of voting shares held by each), and such list shall be kept
open at the time and place of the meeting and during the whole time of said
meeting shall be open to the examination of any shareholder. If the
requirements of this section have not been substantially complied with, the
meeting shall, on the reasonable demand of any shareholder in person or by
proxy, be adjourned until the requirements are met. If no such demand is made,
failure to comply with the requirements of this section shall not affect the
validity of any action taken at such meeting.
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2.11 Shareholders' Agreements. In addition to those shareholders'
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agreements authorized by Section 14-2-731 of the Code (or any successor
provision), the holders of any outstanding capital stock of the Corporation may
enter into an agreement or agreements among themselves (or with the Corporation)
concerning the rights and privileges of the respective classes of stock
(including, without limitation, voting rights) and the transferability of the
capital stock of the Corporation. To the extent allowed by the Code, the
provisions of the Articles of Incorporation and these Bylaws shall be
interpreted in a manner consistent with any such shareholders' agreements.
2.12 Inspectors. At any time shares of the Corporation are listed on a
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national securities exchange or regularly traded in a market maintained by one
or more members of a national or affiliated securities association, in advance
of any meeting of shareholders, the Board of Directors may appoint inspectors,
who need not be shareholders, to act at such meeting or any adjournment thereof.
If inspectors be not so appointed, the chairman of any such meeting may, and on
the request of any shareholder or his proxy shall, make such appointment at the
meeting. The number of inspectors shall be one or three as shall be determined
by the Board of Directors, except that, if appointed at the meeting on the
request of one or more shareholders or proxies, the holders of a majority of the
shares of the Corporation present and entitled to vote shall determine whether
one or three inspectors are to be appointed. No person who is a candidate for
office shall act as an inspector.
In case any person appointed as an inspector fails to appear or fails
or refuses to act, the vacancy may be filled by appointment made by the Board of
Directors in advance of the convening of the meeting, or at the meeting by the
officer or person acting as chairman.
The inspectors shall determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting, the existence
of a quorum, the authenticity, validity and effect of proxies, receive votes or
ballots, hear and determine all challenges and questions in any way arising in
connection with the right to vote, count and tabulate all votes, determine the
result, and do such other acts as may be proper to conduct the election or vote
with fairness to all shareholders.
The inspectors shall perform their duties impartially, in good faith,
to the best of their ability, and as expeditiously as is practical. If there be
three inspectors of election, the decision, act or certificate of a majority
shall be effective in all respects as the decision, act or certificate of all.
On request of the chairman of the meeting, or of any shareholder or
his proxy, the inspectors shall make a report in writing of any challenge or
question or matter determined by them, and execute a certificate of any fact
found by them. Any report or certificate made by them shall be prima facie
evidence of the facts stated therein.
2.13 Notification of Nominations. Nominations for the election of
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directors may be made by the Board of Directors or by any shareholder entitled
to vote for the election of directors. Any shareholder entitled to vote for the
election of directors at a meeting may nominate persons for election as
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directors only if written notice of the intent of such shareholder to make such
nomination shall be given, either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation not later than (i) with
respect to an election to be held at an annual meeting of shareholders, 120 days
prior to the anniversary date of the immediately preceding annual shareholder
meeting and (ii) with respect to an election to be held at a special meeting of
shareholders for the election of directors, the close of business on the seventh
day following the date on which notice of such meeting shall first be given to
shareholders. Each such notice shall set forth:
(a) the name and address of the shareholder who shall intend to
make the nomination and of the person or persons to be nominated;
(b) the class and number of shares held of record, held
beneficially and represented by proxy by such shareholder as of the record
date of the meeting (if such a date has been established) and as of the
date of such notice, the name in which those shares are registered, and a
representation that the shareholder intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the
notice;
(c) a description of all arrangements or understandings between
the shareholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations
are to be made by the shareholder;
(d) such other information regarding each nominee proposed by
such shareholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had each nominee been nominated, or intended to be
nominated, by the Board of Directors;
(e) the consent in writing of each nominee to serve as a director
of the Corporation if so elected; and
(f) such other information as Duck Head may reasonably request.
The officer or other person presiding over the meeting as provided in
Section 2.7 of these Bylaws may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure.
ARTICLE THREE
BOARD OF DIRECTORS
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3.1 General Powers. The business and affairs of the Corporation shall
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be managed by the Board of Directors. In addition to the powers and authority
expressly conferred upon it by these Bylaws, the Board of Directors may exercise
all such powers of the Corporation and do all such lawful acts and things as are
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not by the Code, the Articles of Incorporation or these Bylaws directed or
required to be exercised or done by the shareholders.
3.2 Number, Election and Term of Office. The number of Directors shall
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be not less than two (2) or more than fifteen (15), the exact number to be set
by resolution of the Board of Directors from time to time. Except as provided
in Section 3.5, the Directors shall be elected by the affirmative vote of a
plurality of the votes cast by the shares represented at the annual meeting.
Each Director (except in case of death, resignation, retirement,
disqualification, or removal) shall serve for a term ending on the date of the
annual meeting following the annual meeting at which the Director was elected or
until his successor shall have been duly elected and qualified. No Director
need be a shareholder.
3.3 Increase or Decrease in Number of Directors. In the event of any
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increase or decrease in the authorized number of Directors, each Director then
serving as such shall nevertheless continue as Director until the expiration of
his current term, or his prior death, retirement, removal or resignation.
Notwithstanding any provisions to the contrary contained herein, each Director
shall serve until a successor is elected and qualified or until his earlier
death, resignation or removal.
3.4 Removal; Resignation. Any Director may be removed from office
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(with or without cause) by the affirmative vote of the holders of a majority of
the shares entitled to vote at an election of Directors. Removal action may be
taken at any shareholders' meeting with respect to which notice of such purpose
has been given, and a removed Director's successor may be elected at the same
meeting to serve the unexpired term.
Any Director may resign at any time by written notice to the Board of
Directors, the Chairman, the President or the Secretary. Such resignation shall
take effect immediately upon receipt thereof or at any later time specified
therein. Unless otherwise specified in any such notice, acceptance of such
resignation shall not be necessary to make it effective.
3.5 Vacancies. A vacancy occurring in the Board of Directors may be
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filled for the unexpired term and until the shareholders have elected a
successor by an affirmative vote of a majority of the Directors remaining in
office or by the sole remaining Director.
3.6 Compensation. Directors may receive such compensation for their
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services as Directors as may from time to time be fixed by vote of the Board of
Directors or the shareholders. A Director may also serve the Corporation in a
capacity other than that of Director and receive compensation, as determined by
the Board of Directors, for services rendered in that other capacity.
3.7 Presiding Officer. The Board of Directors shall appoint from among
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its members a Chairman and a Vice Chairman of the Board. The Chairman shall
preside at all meetings when present. The Vice Chairman shall perform the
duties of the Chairman in the absence of the Chairman.
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3.8 Committees. The Board of Directors shall designate a Compensation
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Committee, an Audit Committee and any other committees it from time to time
deems necessary or appropriate. Each such committee shall consist of at least
two (2) Directors. The Board of Directors may designate one or more Directors
as alternate members of any committee who may replace any absent or disqualified
member at any meeting of such committee. In the absence or disqualification of
any member of such committee or committees, the members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in place of such absent or disqualified member, and have such
powers as are provided in the resolution establishing such committee; provided,
however, notwithstanding anything else contained herein to the contrary, no such
committee shall have the power to: (a) approve or propose to the shareholders
any action that is required by the Code, the Articles of Incorporation or these
Bylaws to be approved by the shareholders; (b) fill vacancies on the Board of
Directors or any of its committees; (c) amend the Articles of Incorporation or
adopt, amend or repeal Bylaws; or (d) approve a plan of merger (whether or not
shareholder approval is required therefor under the Code). Unless otherwise
specifically permitted by the Board of Directors, the rules promulgated by these
Bylaws with respect to meetings of Directors, notice, quorums, voting and other
procedures at such meeting shall be applicable to meetings of any committee of
the Board of Directors. Each committee shall keep regular minutes of its
proceedings and all action by such committee shall be reported to the Board of
Directors at its meeting next succeeding such action. Each committee shall fix
its own rules of procedure, provided that such rules are consistent with these
Bylaws, and shall meet where and as provided by such rules or by resolution of
the Board of Directors. The presence of a majority of the then appointed number
of each committee shall constitute a quorum and in every case in which a quorum
is present an affirmative vote by a majority of the members of the Committee
present shall be the act of the committee.
3.9 Fees and Compensation. Directors may receive such compensation, if
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any, for their services, and such reimbursement of expenses, as may be fixed or
determined by resolution of the Board of Directors. Nothing herein contained
shall be construed to preclude any Director from serving the Corporation in any
other capacity as an officer, agent, employee or otherwise and receiving
compensation for such services.
ARTICLE FOUR
MEETINGS OF THE BOARD OF DIRECTORS
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4.1 Regular Meetings. Regular meetings of the Board of Directors shall
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be held at such place and at such times as the Board shall from time to time
determine and, if so determined, no notice thereof need be given.
4.2 Special Meetings. Special meetings of the Board of Directors may
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be called by or at the request of the Chairman of the Board of Directors, the
President, or at least two (2) Directors.
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4.3 Date, Time and Place of Meetings. A meeting of the Board of
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Directors shall be held on such date and at such time and place (within or
outside the State of Georgia) as shall be determined in accordance with Section
4.1 and 4.2 and, in the case of a special meeting, the date, time and place of
the meeting shall be set forth in the notice thereof.
4.4 Notice of Meetings. Unless waived as contemplated in Section 5.2,
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the Corporation shall give written notice to each Director of each special
meeting of the Board of Directors stating the date, time and place of the
meeting. Such notice shall be given at least forty-eight (48) hours in advance
by courier service, in person or by electronic means or at least ten (10) days
in advance by mail. Attendance by a Director at a meeting shall constitute
waiver of notice of such meeting, except where a Director attends a meeting for
the express purpose of objecting at the beginning of the meeting to the
transaction of business at the meeting.
4.5 Quorum. At meetings of the Board of Directors, the presence of at
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least one half (1/2) of the Directors then in office (but not less than two (2)
Directors) shall be necessary to constitute a quorum for the transaction of
business at such meeting.
4.6 Vote Required for Action. Except as otherwise provided in the
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Code, the Articles of Incorporation or these Bylaws, the act of a majority of
the Directors present at a meeting at which a quorum is present at the time
shall be the act of the Board of Directors.
4.7 Action by Directors Without a Meeting. Any action required or
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permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if a written consent thereto shall be signed by all of the
members of the Board of Directors and if such written consent is delivered to
the Corporation for inclusion in the minutes or filing with the corporate
records. Such consent shall have the same force and effect as a unanimous vote
of the Board of Directors and may be evidenced by one (1) or more written
consents describing the action taken.
4.8 Adjournments. A meeting of the Board of Directors (whether or not
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a quorum is present) may be adjourned by a majority of the Directors present to
reconvene at a specific time and place. It shall not be necessary to give
notice of the reconvened meeting, other than by announcement at the meeting
which was adjourned. At any such reconvened meeting at which a quorum is
present, any business may be transacted which could have been transacted at the
meeting which was adjourned.
4.9 Telephone Conference Calls. Members of the Board of Directors may
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participate in a meeting thereof by conference telephone or similar
communications equipment by means of which all Directors participating in the
meeting may simultaneously hear each other during the meeting, and participation
in a meeting pursuant to this Section 4.9 shall constitute presence in person at
such meeting.
ARTICLE FIVE
NOTICE AND WAIVER
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5.1 Procedure. Whenever the Code, the Articles of Incorporation or
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these Bylaws requires notice to be given to any shareholder or Director, the
notice shall be given as prescribed in Section 14-2-141 of the Code (or any
successor provision) and Sections 2.3 or 4.4 hereof for any shareholder or
Director, respectively.
5.2 Waiver. Whenever any notice is required to be given to any
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shareholder or Director by the Code, the Articles of Incorporation or these
Bylaws, a waiver thereof in writing signed by the Director or shareholder
entitled to such notice or by the proxy of such shareholder, whether before or
after the meeting to which the waiver pertains, shall be deemed equivalent
thereto.
ARTICLE SIX
OFFICERS
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6.1 Number. The officers of the Corporation shall consist of the
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Chairman of the Board of Directors, Vice Chairman of the Board of Directors (if
so designated by resolution of the Board of Directors), a President, one (1) or
more Vice Presidents, a Secretary, one (1) or more Assistant Secretaries, a
Treasurer, one (1) or more Assistant Treasurers, and such other officers as may
be as designated by the Board of Directors from time to time, but the
Corporation shall not be required to have at any time any officers other than a
President, Secretary and Treasurer. Any two (2) or more offices may be held by
the same person.
6.2 Election and Term. All officers shall be elected by the Board of
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Directors and shall serve at the will of the Board of Directors and until their
successors have been elected and have qualified or until their earlier death,
resignation, removal, retirement or disqualification. In addition, the
Corporation may enter into employment agreements with any such officer.
6.3 Compensation. The compensation of all officers of the Corporation
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shall be fixed by the Board of Directors.
6.4 Removal. The Board of Directors may remove any officer at any time
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with or without cause.
6.5 Chief Executive Officer. The Board of Directors may designate an
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officer of the Corporation as its Chief Executive Officer. The Chief Executive
Officer shall be subject to the direction and supervision of the Board of
Directors and shall have general control and supervision over the policies of
the Corporation.
6.6 President. The President shall be subject to the direction and
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supervision of the Board of Directors and (if the President is not also serving
as the Chief Executive Officer) the Chief Executive Officer, have general
control and supervision over the operations of the Corporation, and shall see
that all orders and resolutions of the Board of Directors are carried into
effect. In particular he shall: (a) manage and administer the Corporation's
business and affairs and perform all duties and exercise all powers usually
pertaining to the office of President of a corporation; (b) appoint and fix the
duties of any and all employees and agents of the Corporation who are not
otherwise appointed by the Board of Directors (and he shall have the authority
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to remove or suspend any of such employees or agents not appointed by the Board
of Directors); and (c) have the general power and authority to sign and exe-cute
in the name of and on behalf of the Corporation, any and all agreements and
other documents.
6.7 Vice President. Each Vice President shall have the power to sign
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and execute, in the name of and on behalf of the Corporation, any and all
agreements, instruments and other documents. In the absence of a resolution of
the Board of Directors to the contrary, the several Vice Presidents, other than
those whose authority may be expressly limited, shall act, in the order of their
appointment, in the place of the President, exercising all of his powers and
performing all of his duties, during his absence or disability. Each Vice
President shall perform whatever additional duties and have whatever additional
powers as may be assigned to him from time to time by the Board of Directors.
6.8 Secretary. The Secretary shall keep accurate records of the acts
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and proceedings of all meetings of shareholders, Directors and committees of
Directors. He shall have authority to give on behalf of the Corporation all
notices required by the Code, the Articles of Incorporation or these Bylaws. He
shall maintain the books, records, contracts and other documents of the
Corporation. The Secretary may affix the corporate seal to any lawfully
executed documents requiring it and shall sign such instruments as may require
his signature. The Secretary shall perform whatever additional duties and have
whatever additional powers as may be assigned to him from time to time by the
Board of Directors.
6.9 Treasurer. The Treasurer shall, subject to the direction and
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supervision of the Board of Directors, have custody of all funds and securities
belonging to the Corporation and shall receive, deposit or disburse the same
under the direction of the Board of Directors. The Treasurer shall keep full
and true accounts of all receipts and disbursements and shall make such reports
on the same to the Board of Directors and the President. The Treasurer shall
perform whatever additional duties and have whatever additional powers as may be
assigned to him from time to time by the Board of Directors.
6.10 Assistant Secretary and Assistant Treasurer. Any Assistant
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Secretary and any Assistant Treasurer may, in the absence or disability of the
Secretary or the Treasurer, respectively, perform the duties and exercise the
powers of those offices. Each Assistant Secretary and each Assistant Treasurer
shall perform whatever additional duties and have whatever additional powers as
may be assigned to him from time to time by the Board of Directors.
6.11 Additional Powers and Duties. In addition to the foregoing
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especially enumerated powers and duties, the several officers of the Corporation
shall have such other powers and duties as the Board of Directors or any
committee of the Board of Directors may from time to time prescribe.
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ARTICLE SEVEN
SHARES
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7.1 Issuance of Shares. The Board of Directors may increase or
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decrease the number of issued and outstanding shares of the Corporation in
accordance with the Code and within the maximum amounts authorized by the
Articles of Incorporation.
7.2 Share Certificates. The interest of each shareholder in the
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Corporation shall be evidenced by a certificate or certificates representing
shares of the capital stock of the Corporation which shall be in such form as
the Board of Directors may from time to time adopt in accordance with the Code.
Share certificates shall be consecutively numbered and shall indicate the date
of issuance thereof, and all such information shall be entered on the
Corporation's books. Each share certificate shall contain such information as
is required by the Code and such further information as may be required pursuant
to the terms of the Corporation's capital stock. Each certificate shall be
signed either manually or in facsimile by the President or a Vice President and
the Secretary or an Assistant Secretary and shall be sealed with the seal of the
Corporation or a facsimile thereof; provided, however, that if the certificate
is signed in facsimile, then it must be countersigned, either manually or by
facsimile, by a transfer agent or registered by a registrar other than the
Corporation itself or an employee of the Corporation. In the event an officer
signs a share certificate and thereafter ceases to be an officer of the
Corporation before such certificate is issued, such certificate may nonetheless
be issued by the Corporation with the same effect as if the person or persons
who signed such certificate still held such office.
7.3 Rights of Corporation with Respect to Record Owners. Prior to due
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presentation for transfer of its shares, the Corporation may treat the record
owner of the shares as the person exclusively entitled to vote such shares, to
receive any dividend or other distribution with respect to such shares, and for
all other purposes, and the Corporation shall not be bound to recognize any
equitable or other claim to or interest in such shares on the part of any other
person, whether or not it shall have express or other notice thereof.
7.4 Transfers of Shares. The Board of Directors shall cause suitable
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records to be kept for the registry and transfer of the shares of capital stock
of the Corporation. Transfers of shares shall be made upon the stock transfer
books of the Corporation (kept at the office of the transfer agent designated to
transfer the shares) only upon direction of the person named in such
certificate, or by an attorney lawfully constituted in writing. Prior to
completing a requested transfer, pledge or release, the Corporation shall be
entitled to obtain reasonable assurances that all endorsement, instructions and
other documents are genuine and effective, that the payment of all transfer
taxes has been made, and that all provisions of law and procedures required by
the Corporation's transfer agent have been complied with. 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 record owner shall have complied with the provisions of Section 7.5.
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7.5 Lost, Stolen or Destroyed Certificates. Any person claiming a
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share certificate to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in such manner as the Board of Directors may require and
shall, if the Board of Directors so requires, give the Corporation a bond of
indemnity in form and amount (and with one or more sureties satisfactory to the
Board of Directors) as the Board of Directors 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. The Board of Directors may fix an advance
-----------------------
date as the record date in order to determine the shareholders entitled to a
distribution, to notice of a shareholders' meeting, to demand a special meeting,
to vote or to take any other action.
7.7 Record Date if None Fixed. If no record date is fixed as provided
--------------------------
in Section 7.6, then the record date for: (a) determining shareholders entitled
to notice of and to vote at an annual or special shareholders' meeting is the
close of business on the day before the first notice is delivered to
shareholders; (b) for determining shareholders entitled to a distribution (other
than one involving a purchase, redemption, or other acquisition of the
Corporation's shares) is the date the Board of Directors authorizes the
distribution; and (c) for any other action the consummation of which requires a
determination of shareholders is the date such action is to be taken.
7.8 Fractional Shares or Scrip. The Corporation shall not issue
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fractional shares or scrip and, in lieu thereof, shall pay in cash the fair
value of fractional interests as determined by the Board of Directors.
7.9 Restrictions on Transfer. The Board of Directors may impose
--------------------------
restrictions on the transfer of rights, to be distributed as a dividend pursuant
to a rights agreement to which the Corporation is a party, as and to the extent
required by such rights agreement as amended from time to time.
ARTICLE EIGHT
INDEMNIFICATION AND INTERESTED PARTIES
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8.1 Indemnification.
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(a) The Corporation shall indemnify its directors and officers
(and each person who at its request served as an officer or director of any
other entity) to the fullest extent permitted by Article 8, Part 5 of the Code
(or any successor provision); provided, however, indemnification shall only be
made upon compliance with the requirements of such statutory provisions and only
in those circumstances in which indemnification is authorized under those
provisions; provided further, however, that the shareholders may approve
additional indemnification pursuant to Code Section 14-2-856 (or any successor
provision).
(b) The Corporation may purchase and maintain insurance on behalf
of those persons for whom it is entitled to purchase and maintain insurance
against any liability asserted against such persons and incurred by such persons
in any of the capacities specified in, or arising out of such persons' status as
described in Section 14-2-857 of the Code (or any successor provision), whether
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or not the Corporation would have the power to indemnify such persons against
such liability under the laws of the State of Georgia.
(c) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director or officer who is a party to a proceeding
because he or she is a director or officer of the Corporation in advance of a
final disposition of the proceeding if the director or officer submits to the
Secretary of the Corporation a written request that complies with the
requirements of Section 14-2-853 of the Code (or any successor provision). The
Secretary of the Corporation shall promptly upon receipt of such a request for
advance of expenses advise the Board of Directors in writing that such director
or officer has requested an advance of expenses.
(d) The indemnification and advancement of expenses provided by or
granted pursuant to this Section 8.1 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director
or officer of the Corporation and shall inure to the benefit of the heirs,
executors, and administrators of such a person. Such indemnification and
advancement of expenses provided by or granted pursuant to this Section 8.1
shall be a contractual right of the Corporation's directors and officers.
8.2 Interested Directors and Officers.
------------------------------------
(a) No contract or transaction between the Corporation and one or
more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers or have a material
financial interest, shall be enjoined, set aside or give rise to an award of
damages or other sanctions, in an action by a shareholder or by or in the right
of the Corporation, on the grounds of an interest in the transaction of the
director or officer or any person with whom or which he has a personal,
economic, or other association, if:
(1) such transaction is approved by the directors in
accordance with Section 14-2-862 of the Code (or any successor provision);
(2) such transaction is approved by the shareholders in
accordance with Section 14-2-863 of the Code (or any successor provision);
or
(3) the transaction, judged in the circumstances at the
time of the commitment, is established to have been fair to the
Corporation.
(b) A majority (but not less than two) of all of the "qualified
directors" (as such term is defined in Section 14-2-862 of the Code (or any
successor provision)) on the Board of Directors shall constitute a quorum for
purposes of an action that complies with Section 8.2(a)(1) of these Bylaws. An
action of the Board of Directors that otherwise complies with the Code and these
Bylaws is not affected by the presence or vote of a Director who is not a
"qualified director."
ARTICLE NINE
MISCELLANEOUS
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9.1 Inspection of Books and Records. Except to the extent otherwise
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provided by the Code, the Board of Directors shall have the power to determine
which accounts, books and records of the Corporation shall be opened to the
inspection of shareholders and shall have the power to fix reasonable rules and
regulations not in conflict with the Code for the inspection thereof.
9.2 Fiscal Year. The Board of Directors is authorized to fix the
------------
fiscal year of the Corporation and to change the same from time to time as it
deems appropriate. Unless otherwise so determined, the fiscal year of the
Corporation shall begin on the Sunday following the Saturday closest to June 30
of each year and end on the Saturday closest to June 30 of the following year.
9.3 Seal. The seal of the Corporation shall consist of an impression
----
bearing the name of the Corporation around the perimeter and word "Seal" in the
center thereof. In lieu thereof, the Corporation may use an impression or
writing bearing the words "CORPORATE SEAL," which shall also be deemed to be the
seal of the Corporation.
ARTICLE TEN
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
--------------------------------------------------
10.1 Applicability of Statutes. The Corporation elects to be covered
---------------------------
by all of the requirements set forth in Sections 14-2-1131 through 14-2-1133 of
the Code with respect to business combinations with interested shareholders.
ARTICLE ELEVEN
AMENDMENT
---------
11.1 Power to Amend These Bylaws. The Board of Directors shall have
------------------------------
power to alter, amend or repeal these Bylaws or to adopt any new bylaws;
provided, however, any new bylaws adopted by the Board of Directors may be
altered, amended or repealed, and new bylaws may also be adopted, by the
shareholders. The shareholders may prescribe that any bylaw or bylaws adopted
by them shall not be altered, amended or repealed by the Board of Directors.
11.2 Requisite Vote. Action taken by the shareholders with respect to
---------------
Bylaws shall be taken by an affirmative vote of at least two-thirds (2/3) of
each class of shares entitled to vote, and action by the Board of Directors with
respect to Bylaws shall be taken by an affirmative vote of at least two-thirds
(2/3) of all Directors then in office.
These Bylaws were duly adopted by the Incorporator of the Corporation as of
December 10, 1999.
/s/ K. Scott Grassmyer
___________________________________
K. Scott Grassmyer, Secretary
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