Exhibit 3.2
AMENDED AS OF
OCTOBER 24, 2000
AMENDED AND RESTATED BYLAWS
OF
SUBURBAN LODGES OF AMERICA, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The corporation shall maintain
at all times a registered office in the State of Georgia and a registered agent
at that office.
SECTION 2. OTHER OFFICES. The corporation may also have
offices at such other places both within and without the State of Georgia as the
business of the corporation may require or make desirable.
ARTICLE II
SHAREHOLDERS MEETINGS
SECTION 1. REGULAR MEETINGS. The regular meeting of the
shareholders of the corporation shall be held at the principal office of the
corporation or at such other place in the United States as may be determined by
the board of directors, at 11:00 a.m. on the third Tuesday of the fourth month
following the close of each fiscal year, or at such other date and time as shall
be determined by the board of directors, for the purpose of electing directors
and transacting such other business as may properly be brought before the
meeting.
SECTION 2. SPECIAL MEETINGS. (a) Special meetings of
shareholders of one or more classes or series of the corporation's shares shall
be called by the President or the Secretary (i) when so directed by the Chairman
or by a majority of the entire board of directors; or (ii) upon the demand of
holders of at least forty percent (40%) of all votes entitled to be cast on each
issue to be considered at a proposed special meeting of the shareholders. The
business that may be transacted at any special meeting of shareholders shall be
limited to that proposed in the notice of the special meeting given in
accordance with SECTION 3 (including related or incidental matters that may be
necessary or appropriate to effectuate the proposed business).
(b) Promptly after the date of receipt of written shareholder
demands (the "Demand Date") purporting to comply with the provisions of the
Georgia Business Corporation Code, as
amended from time to time (the "Code"), and these Bylaws, the President or the
Secretary of the corporation shall determine the validity of the demand. If the
demand is valid, the President or the Secretary of the corporation shall call a
special shareholders meeting by mailing notice within 20 days of the Demand
Date.
(c) The time, date and place of any special shareholders
meeting shall be determined by the board of directors and shall be set forth in
the notice of meeting.
SECTION 3. NOTICE OF MEETINGS. (a) Unless otherwise required
by law or specified in the Articles of Incorporation or these Bylaws, written
notice of every meeting of shareholders, stating the place, date and hour of the
meeting, 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 prior to the date of the meeting.
(b) A shareholder may waive any notice required by the Code,
the Articles of Incorporation, or these Bylaws, before or after the date and
time of the matter to which the notice relates, by delivering to the corporation
a written waiver of notice signed by the shareholder entitled to the notice. In
addition, a shareholder's attendance at a meeting shall be (i) a waiver of
objection to lack of notice or defective notice of the meeting unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting; and (ii) a waiver of objection to
consideration of a particular matter at the meeting that is not within the
purpose stated in the meeting notice, unless the shareholder objects to
considering the matter when it is presented. Except as otherwise required by the
Code, neither the purpose of nor the business transacted at the meeting need be
specified in any waiver.
SECTION 4. QUORUM. At all meetings of shareholders, any Voting
Group entitled to vote on a matter may take action on the matter only if a
quorum of that Voting Group exists at the meeting, and if a quorum exists, the
Voting Group may take action on the matter notwithstanding the absence of a
quorum of any other Voting Group that may be entitled to vote separately on the
matter. Unless the Articles of Incorporation, these Bylaws or the Code provides
otherwise, the presence (in person or by proxy) of shares representing a
majority of votes entitled to be cast on a matter by a Voting Group shall
constitute a quorum of 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 VI, SECTION 4(A) of these Bylaws. 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.
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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 Bylaws, 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 majority 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 Bylaws 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 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.
Any proxy given pursuant to a solicitation with respect to any
meeting of the shareholders may be revoked by any shareholder who attends the
meeting and gives written notice of his or her election to vote in person,
without compliance with any other formalities. In addition, any proxy given
pursuant to a solicitation with respect to any meeting of the shareholders may
be revoked prior to the meeting by delivering an instrument revoking it or a
duly executed proxy bearing a later date to the Secretary of the Company.
SECTION 6. SHAREHOLDER PROPOSALS. (a) No shareholder proposal
or resolution (each a "Shareholder Proposal"), whether purporting to be binding
or non-binding on the corporation or its board of directors, shall be considered
at any annual or special meeting of the shareholders unless:
(i) If such Shareholder Proposal relates solely to the
nomination and election of directors, it satisfies
the requirements of ARTICLE III, SECTION 3; or
(ii) With respect to any Shareholder Proposal to be
considered at a special shareholders meeting called
pursuant to ARTICLE II, SECTION 2, SUBSECTION (A)(I),
the shareholder(s) proposing to make such Shareholder
Proposal provided the information set forth in
subsection (b) of this SECTION 6 to the board of
directors
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within 14 days after the date of the notice calling
such special shareholders meeting (or if less than 21
days notice of the meeting is given to shareholders,
such information was delivered to the President not
later than the close of the seventh day following the
date on which the notice of the shareholders' meeting
was mailed); or
(iii) Withrespect to any Shareholder Proposal to be
considered at a special shareholders meeting called
pursuant to ARTICLE II, SECTION 2, SUBSECTION
(A)(II), the shareholder(s) proposing to make such
Shareholder Proposal provided the information set
forth in subsection (b) of this SECTION 6 to the
board of directors concurrently with the filing of
the initial demand by shareholders relating to such
special shareholders meeting; or
(iv) With respect to any Shareholder Proposal to be
considered at any regular meeting of shareholders,
other than as described in clause (i) hereof, the
shareholder(s) proposing to make such Shareholder
Proposal provided the information set forth in
subsection (b) of this SECTION 6 to the board of
directors between 90 to 120 days prior to the regular
meeting at which they wish the Shareholder Proposal
to be considered.
For the purposes of determining whether information was provided at the times or
within the specified periods, the date of the applicable meeting shall be as set
forth in the notice of meeting given by the corporation, and such times and
periods will be determined without regard to any postponements, deferrals or
adjournments of such meeting to a later date.
(b) The following information must be provided to the board of
directors, within or at the times specified in subsection (a) above, in order
for the Shareholder Proposal to be considered at the applicable shareholders
meeting:
(i) The Shareholder Proposal, as it will be proposed, in
full text and in writing;
(ii) The purpose(s) for which the Shareholder Proposal is
desired and the specific meeting at which such
proposal is proposed to be considered;
(iii) The name(s), address(es), and number of shares held
of record by the shareholder(s) making such
Shareholder Proposal (or owned beneficially and
represented by a nominee certificate on file with the
corporation);
(iv) The number of shares that have been solicited with
regard to the Shareholder Proposal and the number of
shares the holders of which have agreed (in writing
or otherwise) to vote in any specific fashion on said
Shareholder Proposal; and
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(v) A written statement by said shareholder(s) that they
intend to continue ownership of such voting shares
through the date of the meeting at which said
Shareholder Proposal is proposed to be considered.
(c) Failure to fully comply with the provisions of this
SECTION 6 shall bar discussion of and voting on the Shareholder Proposal at the
applicable regular or special shareholders meeting. Any Shareholder Proposal
that does not comply with the requirements of this SECTION 6 shall be
disregarded by the chairman of the meeting, and any votes cast in support of the
Shareholder Proposal, unless the Shareholder Proposal has been validly submitted
by another shareholder, shall be disregarded by the chairman of such meeting.
(d) The provisions of this SECTION 6 shall be read in
accordance with and so as not to conflict with the rules and regulations
promulgated by the Securities and Exchange Commission and any stock exchange or
quotation system upon which the corporation's shares are traded. Nothing in
these Bylaws shall be deemed to require the consideration at any meeting of
shareholders of any Shareholder Proposal that, pursuant to law, the corporation
may refuse to permit consideration thereof.
SECTION 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 and copy the
corporate records of the corporation as and to the extent provided by the Code;
provided, however, that (i) the board of directors shall have the power to set
reasonable rules and regulations for the inspection and copying of such records
that are not in conflict with applicable law, and (ii) shareholders owning two
percent (2%) or less of the outstanding shares of the corporation shall be
entitled to inspect or copy (1) the minutes from any board, board committee or
shareholders meeting or any excerpts therefrom (including any records of action
taken thereby without a meeting), (2) the accounting records of the corporation
or (3) any record of the shareholders of the corporation only with the prior
approval of the board of directors in its sole discretion.
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 Bylaws) directed or required to be exercised or done
by the shareholders.
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SECTION 2. NUMBER, ELECTION AND TERM. (a) The number of
directors which shall constitute the whole board shall be not less than two nor
more than nine, the number thereof to be determined from time to time by
resolution of the board of directors or the shareholders; provided, however,
that no decrease in the number of directors shall have the effect of shortening
the term of an incumbent director. Upon the closing of the corporation's initial
public offering of shares of its common stock and the election of three
additional directors concurrent with such closing, the directors shall be
classified with respect to the time during which they shall severally hold
office by dividing them into three classes, as nearly equal in number as
possible, and Class 1 shall consist of one director; Class 2 shall consist of
two directors; and Class 3 shall consist of two directors, and with respect to
the initial five person board, their terms shall be as follows: Class 1, one
year; Class 2, two years; and Class 3, three years. At each annual meeting of
the shareholders held thereafter, the successors to the class of directors whose
terms shall expire that year shall be elected to hold office for a term of three
years, so that the term of office of one class of directors shall expire in each
year. Any increase in the number of directors following the establishment of the
staggered board of directors shall be apportioned among the classes so as to
make all classes as nearly equal in number as possible. Except as hereinafter
provided with respect to filling vacancies on the board, the directors shall be
elected by the shareholders as provided in ARTICLE II hereof, 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 of Georgia or shareholders of the corporation. The board, from time
to time, may designate persons to act as advisory directors.
(b) As long as any shares of the corporation's Common Stock shall be
quoted on the NASDAQ National Market, the board of directors of the corporation
shall ensure, and shall have all powers necessary to ensure, that the membership
of the board of directors shall at all times include such number of
"independent" directors (as such term is defined in Part III, Paragraph 6(c) of
Schedule D to the Bylaws of the National Association of Security Dealers, Inc.
(the "NASD"), as the same may be amended from time to time) as shall be required
by the Bylaws of the NASD in order for shares of the corporation's Common Stock
to be eligible for quotation on the NASDAQ National Market. In the event that
the shares of the corporation's Common Stock shall cease to be quoted on the
NASDAQ National Market and subsequently such shares are listed or quoted on a
national securities exchange or other trading system, the board of directors of
the corporation shall ensure, and shall have all powers necessary to ensure,
that the membership of the board of directors shall at all times be consistent
with the applicable rules and regulations, if any, for the corporation's Common
Stock to be eligible for listing and quotation on such exchange or other trading
system.
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
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the President not later than the close of the seventh day following the date on
which the notice of the shareholders' meeting was mailed. Such notification
shall contain the following information with respect to each nominee, to the
extent known to the shareholder giving such notification:
(1) Name, address and principal present occupation;
(2) To the knowledge of the shareholder who proposed to make
such nomination, the total number of shares that may be
voted for such proposed nominee;
(3) The names and address of the shareholders who propose to
make such nomination, and the number of shares of the
corporation owned by each of such shareholders; and
(4) The following additional information with respect to each
nominee: age, past employment, education, beneficial
ownership of shares in the corporation, past and present
financial standing, criminal history (including any
convictions, indictments or settlements thereof),
involvement in any past or pending litigation or
administrative proceedings (including threatened
involvement), relationship to and agreements (whether or
not in writing) with the shareholder(s) (and their
relatives, subsidiaries and affiliates) intending to make
such nomination, past and present relationships or
dealings with the corporation or any of its subsidiaries,
affiliates, directors, officers or agents, plans or ideas
for managing the affairs of the corporation (including,
without limitation, any termination of employees, any
sales of corporate assets, any proposed merger, business
combination or recapitalization involving the
corporation, and any proposed dissolution or liquidation
of the corporation), and all additional information
relating to such person that would be required to be
disclosed, or otherwise required, pursuant to Sections 13
or 14 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (the
"Exchange Act"), in connection with any acquisition of
shares by such nominee or in connection with the
solicitation of proxies by such nominee for his election
as a director, regardless of the applicability of such
provisions of the Exchange Act.
(b) Any nominations not in accordance with the provisions of
this SECTION 3 may be disregarded by the chairman of the meeting, and upon
instruction by the chairman, votes cast for each such nominee shall be
disregarded. In the event, however, that a person should be nominated by more
than one shareholder, and if one such nomination complies with the provisions of
this SECTION 3, such nomination shall be honored, and all shares voted for such
nominee shall be counted.
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SECTION 4. VACANCIES. (a) Subject to SUBSECTIONS 4(B) AND
4(C), 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 next
annual election 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.
(c) If any vacant office described in SUBSECTION 4(A) was held
by an independent director (as such term is defined in Part III, Paragraph 6(c)
of Schedule D to the Bylaws of the National Association of Security Dealers,
Inc. (the "NASD"), as the same may be amended from time to time), such vacancy
shall be filled by the affirmative vote of a majority of the remaining
independent directors.
SECTION 5. MEETINGS AND NOTICE. (a) The board of directors of
the corporation may hold meetings, both regular and special, either within or
without the State of Georgia. Regular meetings of the board of directors may be
held without notice at such time and place as shall from time to time be
determined by resolution of the board. Special meetings of the board may be
called by the Chairman or by any two directors upon two day's 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. Unless otherwise
provided by law, the Articles of Incorporation or these Bylaws, directors may
participate in a meeting of the board, or any committee thereof, 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.
(b) A director may waive any notice required by the Code, the
Articles of Incorporation, or these Bylaws before or after the date and time of
the matter to which the notice relates, by a written waiver signed by the
director and delivered to the corporation for inclusion in the minutes or filing
with the corporate records. Attendance by a director at a meeting shall
constitute waiver of notice of the meeting, except where a director at the
beginning of the meeting (or promptly upon his or her arrival) objects to
holding the meeting or to transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
SECTION 6. QUORUM. At all meetings of the board a majority of
directors shall constitute a quorum for the action of business, and the act of a
majority of the directors present at
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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,
by these Bylaws or by contract. If a quorum shall not be present at any meeting
of the board, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 7. CONSENT OF DIRECTORS. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, 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 the action is evidenced by
one or more written consents describing the action taken and signed by each
director or committee member, and the writing or writings are delivered to the
corporation for inclusion in the minutes for filing with the corporate records.
Such consent shall have the same force and effect as a unanimous vote of the
board or committee, as the case may be.
SECTION 8. COMMITTEES. The board of directors may by
resolution create one or more committees and appoint one or more members of the
board of directors to serve on them. 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, subject to limitations imposed by law or the Articles of
Incorporation. 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 9. 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 a majority of the shares outstanding;
provided that directors elected by a particular Voting Group may be removed only
by the shareholders in that Voting Group.
SECTION 10. COMPENSATION OF DIRECTORS. Directors shall be
entitled to such compensation for their services as directors or members of any
committee of the board as shall be fixed from time to time by resolution adopted
by the board, and shall also be entitled to reimbursement for any reasonable
expenses incurred in attending any meeting of the board or any such committee.
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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 Chairman, a President and a
Secretary. The board of directors may also choose one or more Vice Presidents
(including Executive Vice Presidents, Senior Vice Presidents, Assistant Vice
Presidents, and the like), one or more Assistant Secretaries, a Treasurer and
one or more Assistant Treasurers. Any number of offices may be held by the same
person. The board of directors may appoint such other officers and agents as it
shall deem necessary.
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 of directors at the first meeting of the board following
the regular 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 interests of the corporation will be served thereby.
SECTION 5. VACANCIES. Any vacancy in an office, existing for
any reason, may be filled by the board of directors.
SECTION 6. POWERS AND DUTIES. Except as otherwise provided by
law, the Articles of Incorporation or these Bylaws, or as hereinafter provided,
the officers of the corporation shall each have such powers and duties as from
time to time may be conferred by the board of directors.
(a) Chairman. The Chairman shall preside as chairman at all
meetings of the board of directors and of the shareholders, and shall have such
other authority and duties as the board of directors or these Bylaws shall
provide.
(b) President. The President shall be the chief executive
officer of the corporation, shall in the absence of the Chairman preside as
chairman at all meetings of shareholders, and shall have general and active
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect. The President
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 President shall perform any other duties and have any other authority
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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.
The President shall otherwise have such authority as generally pertains to the
office of president.
(c) Vice Presidents. The Vice President (if there be one)
shall, in the absence or disability of the President, or at the direction of the
President, perform the duties and exercise the powers of the President, whether
the duties and powers are specified in these Bylaws or otherwise. If the
corporation has more than one Vice President, the one designated by the board of
directors or the President (in that order of precedence) shall act in the event
of the absence or disability of the President. Vice Presidents shall perform any
other duties and have any other authority as from time to time may be delegated
by the board of directors or the President.
(d) Secretary. The Secretary shall attend all meetings of the
board of directors and all meetings of the shareholders and record all the
proceedings of such meetings in a book to be kept for that purpose and shall
perform like duties for the standing committees of the board when required. He
or a designee shall give, or cause to be given, notice of all meetings of the
shareholders, 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 to affixing
by his signature.
(e) Bonds and Sureties. If required by the board of directors,
any officer or employee shall give the corporation a bond 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 his control belonging to the corporation.
(f) 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 7. VOTING SECURITIES OF CORPORATION. Unless otherwise
provided by the board of directors, the Chairman, and in his absence, the
President, shall have full power and authority on behalf of the corporation to
attend and to act and vote at any meetings of security holders of corporations
in which the corporation may hold securities, and at such meetings shall possess
and may exercise any and all rights and powers incident to the ownership of such
securities which the corporation might have possessed and exercised if it had
been present. The board of directors by resolution from time to time may confer
like powers upon any other person or persons.
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ARTICLE V
INDEMNIFICATION
SECTION 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The
corporation shall indemnify and hold harmless any person (an "Indemnified
Person") who is or was a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action or suit by or in
the right of the corporation) by reason of the fact that he is or was a director
or officer of the corporation, against expenses (including, but not limited to,
attorneys' fees and disbursements, court costs and expert witness fees), and
against any judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful; provided, in any case, that no indemnification shall be made in
respect of expenses, judgments, fines and amounts paid in settlement
attributable to circumstances as to which, under applicable provisions of the
Code as in effect from time to time, such indemnification may not be authorized
by action of the Board of Directors, the shareholders or otherwise.
SECTION 2. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR
DERIVATIVE ACTIONS. The corporation shall indemnify and hold harmless any
Indemnified Person who is or was a party, or is threatened to be made a party,
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by or in the right of the
corporation, by reason of the fact that he is or was a director or officer of
the corporation, against expenses (including, but not limited to, attorneys'
fees and disbursements, court costs and expert witness fees) actually and
reasonably incurred by him in connection with such action, suit or proceeding,
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation. No indemnification shall be
made pursuant to this SECTION 2 for any claim, issue or matter as to which an
Indemnified Person shall have been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
corporation, or for amounts paid in settlement to the corporation, unless and
only to the extent that the court in which such action or suit was brought or
other court of competent jurisdiction shall determine upon application that such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
SECTION 3. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Board
of Directors shall have the power to cause the corporation to provide to any
person who is or was an employee or agent of the corporation all or any part of
the right to indemnification and other rights of the type provided under
SECTIONS 1, 2, 6 AND 12 of this ARTICLE V (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
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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 V.
SECTION 4. SUBSIDIARIES AND OTHER ORGANIZATIONS. The Board of Directors
shall have the power to cause the corporation to provide to any person who is or
was a director, officer, employee or agent of the corporation who also is or was
a director, officer, trustee, partner, employee or agent of a Subsidiary (as
defined below), or is or was serving at the corporation's request in such a
position with any other organization, all or any part of the right to
indemnification and other rights of the type provided under SECTIONS 1, 2, 6 AND
12 of this ARTICLE V (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 V. As used
in this ARTICLE V, "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 V, an Indemnified Person shall
be entitled to indemnification as provided in such SECTIONS 1 AND 2 if a
determination that such Indemnified Person is entitled to such indemnification
shall be made (i) by the Board of Directors by a majority vote of a quorum
consisting of directors who are not at the time parties to the proceeding; or
(ii) if a quorum cannot be obtained under (i) above, by majority vote of a
committee duly designated by the Board of Directors (in which designation
interested directors may participate), consisting solely of two or more
directors who are not at the time parties to the proceeding; or (iii) in a
written opinion by special legal counsel selected as required by Section
14-2-855(b)(3) of the Code or any successor provision. To the extent that an
Indemnified Person has been successful on the merits or otherwise in defense of
any action, suit or proceeding of the kind referred to in SECTIONS 1 AND 2 of
this ARTICLE V, 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
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advance of the final disposition of such action, suit or proceeding as set forth
herein. The corporation shall promptly pay the amount of such expenses to the
Indemnified Person, but in no event later than ten days following the
Indemnified Person's delivery to the corporation of a written request for an
advance pursuant to this SECTION 6, together with a reasonable accounting of
such expenses; provided, however, that the Indemnified Person shall furnish the
corporation a written affirmation of his good faith belief that he has met the
standard of conduct set forth in the Code and a written undertaking and
agreement, executed personally or on his behalf, to repay to the corporation any
advances made pursuant to this SECTION 6 if it shall be ultimately determined
that the Indemnified Person is not entitled to be indemnified by the corporation
for such amounts. The corporation shall make the advances contemplated by this
SECTION 6 regardless of the Indemnified Person's financial ability to make
repayment. Any advances and undertakings to repay pursuant to this SECTION 6
shall be unsecured and interest-free.
SECTION 7. NON-EXCLUSIVITY. Subject to any applicable
limitation imposed by the Code or the Articles of Incorporation, the
indemnification and advancement of expenses provided by or granted pursuant to
this ARTICLE V shall not be exclusive of any other rights to which a person
seeking indemnification or advancement of expenses may be entitled under any
bylaw, resolution or agreement specifically or in general terms approved or
ratified by the affirmative vote of holders of a majority of the shares entitled
to be cast thereon.
SECTION 8. INSURANCE. The corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or who, while a
director, officer, employee, or agent of the corporation, is or was serving as a
director, officer, trustee, general partner, employee or agent of a Subsidiary
or, at the request of the corporation, of any other organization, against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of this
ARTICLE V.
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 V, or under any indemnification agreement or plan
of indemnification adopted and entered into in accordance with the provisions of
this ARTICLE V, as the Board of Directors deems appropriate.
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SECTION 11. AMENDMENT. Any amendment to this ARTICLE V 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
V to the same extent as if such provisions had continued as part of the Bylaws
of the corporation without such amendment. This SECTION 11 cannot be altered,
amended or repealed in a manner effective as to any Indemnified Person (except
as to Post Amendment Events) without the prior written consent of such
Indemnified Person.
SECTION 12. AGREEMENTS. In addition to the rights provided in
this ARTICLE V, 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 V.
SECTION 13. CONTINUING BENEFITS. The indemnification and
advancement of expenses provided by or granted pursuant to this ARTICLE V shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
SECTION 14. SUCCESSORS. For purposes of this ARTICLE V, 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 V on the same terms and conditions and to the same extent as
this corporation.
SECTION 15. SEVERABILITY. Each of the sections of this ARTICLE
V, 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 V 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
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officers to the full extent permitted by action of the Board of Directors
without shareholder approval under the Code or other laws of the State of
Georgia as in effect from time to time.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 1. FORM OF CERTIFICATE. Every holder of record of
fully-paid shares 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 corporation may issue a new
certificate 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, in form and substance satisfactory to the corporation, of that fact
by the person claiming the certificate to be lost, stolen or destroyed. The
corporation may, in its discretion and as a condition precedent to the issuance
thereof, together with such other conditions precedent that it may reasonably
require, 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 capital shares 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) Except as otherwise provided by law or as provided
elsewhere herein, 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.
(c) Capital shares may be transferred by delivery of the
certificates thereof, 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, and accompanied by such evidence that all such
signatures are genuine, as the corporation, at its option, may request, 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
Bylaws or the Articles of Incorporation concerning the issue, transfer and
registration of certificates for shares of the corporation, and nothing
contained herein shall limit or waive any rights of the corporation with respect
to such matters under applicable law or any subscriptions or other agreement by
which the corporation is bound.
SECTION 4. RECORD DATE. (a) 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 any consent or demand
with respect to any corporate action, 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 shares
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 shareholders is to be taken.
(b) If no record date is fixed as provided in SECTION 4(A),
then the record date for any determination of shareholders that may be proper or
required by law shall be, as appropriate, the date on which notice of a
shareholders' meeting is mailed, the date on which the board of directors adopts
a resolution declaring a dividend or authorizing a distribution, or the date on
which any other action is taken that requires a determination of shareholders.
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 shares to bear
the signature or signatures of any of them.
ARTICLE VII
BUSINESS COMBINATIONS
SECTION 1. BUSINESS COMBINATIONS. All of the requirements of
Sections 14-2-1110 et seq. and 14-2-1131 et seq. of the Georgia Business
Corporation Code (and any successor provisions) shall be applicable to the
corporation.
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ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. DISTRIBUTION. Distributions upon shares of the
corporation, subject to the provisions, if any, of the Articles of
Incorporation, or any lawful agreement among shareholders, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Distributions may be paid in cash or in property, subject to applicable
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
distribution such sum or sums as the board from time to time, in its sole and
absolute discretion, deems 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 board shall
deem conducive to the interest of the corporation, and the board may modify or
abolish any such reserve in its sole and absolute discretion.
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, affixed or reproduced.
SECTION 4. SAVINGS CLAUSE. To the extent these Bylaws conflict
with any provision of any state or federal law as such laws may be amended from
time to time, these Bylaws shall be construed so as not to conflict with said
law, and any discretionary actions made hereunder shall be made in accordance
with applicable law.
ARTICLE IX
AMENDMENTS
SECTION 1. AMENDMENTS. The board of directors shall have power
to alter, amend or repeal these Bylaws or adopt new bylaws by the affirmative
vote of a majority of the members of the board, but any bylaws adopted by the
board of directors may be altered, amended or repealed, and new bylaws may be
adopted, by the affirmative vote of a majority of the shares outstanding, unless
the Articles of Incorporation, these Bylaws or applicable law require otherwise.
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