AMENDED AND RESTATED
BYLAWS
OF THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
ARTICLE 1.
Offices
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1.1. Principal Office. The principal office for the business of The Profit
Recovery Group International, Inc. (the "Corporation") shall be located at such
place (within or without the State of Georgia) as the Board of Directors may fix
from time to time.
1.2. Office Location. The Corporation may have other offices at such place
or places (within or without the State of Georgia) as the Board of Directors may
designate from time to time or the business of the Corporation may require or
make desirable.
1.3. Registered Office. The registered office of the Corporation and the
registered agent shall be the office and the agent set forth in the appropriate
documents filed by the Corporation in the office of the Secretary of State of
Georgia.
ARTICLE 2.
Capital Stock
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2.1. Certificates. At a minimum, each share certificate shall state on its
face: (1) the name of the Corporation and that the Corporation is organized
under the laws of Georgia; (2) the name of the person to whom the shares are
issued; and (3) the number and class of shares and the designation of the
series, if any, that the certificate represents. Share certificates shall be
numbered consecutively and entered into the stock transfer books of the
Corporation as they are issued.
2.2. Signatures; Transfer Agent; Registrar. Each certificate shall be
signed, either manually or in facsimile, by an officer of the Corporation and
may bear the corporate seal or its facsimile. If the certificate is signed in
facsimile, then it must be countersigned by a transfer agent or registered by a
registrar other than the Corporation itself or an employee of the Corporation.
The transfer agent or registrar may sign either manually or by facsimile. Share
certificates exchanged or returned shall be cancelled by the Secretary or his or
her designee and placed in their original place in the stock book.
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2.3. Stock Transfer Books. The Corporation shall keep at its registered
office or its principal office or at the principal office of its transfer agent
or registrar, wherever located, with a copy at the principal office of the
Corporation, a book or set of books, to be known as the stock transfer books of
the Corporation, containing in alphabetical order the name of each shareholder
of record, together with such shareholder's address and social security or other
tax identification number and the number of shares of each kind, class, or
series of capital stock represented by each share certificate held by the
shareholder and the number of each such certificate. The stock transfer books
shall be maintained in current condition. The stock transfer books, or the
duplicate copy thereof maintained at the principal office of the Corporation,
shall be available for inspection and copying by any shareholder authorized to
make such inspection pursuant to the Georgia Business Corporation Code (the
"Code"), at the sole cost of such person. The stock transfer books may be
inspected or copied either by such shareholder or by such shareholder's duly
authorized attorney or agent. The information contained in the stock transfer
books and share register may be stored on punch cards, magnetic tape, magnetic
discs, or other information storage devices relating to electronic data
processing equipment, provided that any such method, device, or system employed
shall be approved by the Board of Directors, and provided further that the same
is capable of reproducing all information contained therein, in legible and
understandable form, for inspection by any shareholder authorized by the Code or
for any other proper corporate purpose.
2.4. Replacement Certificate. The Corporation may issue a new certificate
for its shares in place of any certificate theretofore issued and alleged by its
owner of record or such owner's authorized representative to have been lost,
stolen, or destroyed if the Corporation, transfer agent, or registrar is not on
notice that such certificate has been acquired by a bona fide purchaser. A
replacement certificate may be issued upon such owner's or representative's
compliance with all of the following conditions: (a) the owner shall file with
the Secretary of the Corporation and the transfer agent or the registrar, if
any, a request for the issuance of a new certificate, together with an affidavit
in form satisfactory to the Secretary and transfer agent or registrar, if any,
setting forth the time, place, and circumstances of the loss; (b) if requested
by the Corporation, the owner also shall file with the Secretary and the
transfer agent or the registrar, if any, a bond with good and sufficient
security acceptable to the Secretary and the transfer agent or the registrar, if
any, conditioned to indemnify and save harmless the Corporation and the transfer
agent or the registrar, if any, from any and all damage, liability, and expense
of every nature whatsoever resulting from the Corporation, the transfer agent,
or the registrar issuing a new certificate in place of the one alleged to have
been lost, stolen, or destroyed; and (c) the owner shall comply with such other
reasonable requirements as the Chairman of the Board, the President, the
Secretary, or the Board of Directors of the Corporation and the transfer agent
or the registrar shall deem appropriate under the circumstances. A new
certificate may be issued in lieu of any certificate previously issued that has
become defaced or mutilated upon surrender for cancellation of a part of the old
certificate sufficient, in the opinion of the Secretary and the transfer agent
or the registrar, to identify the owner of the defaced or mutilated certificate,
the number of shares represented thereby, and the number of the certificate and
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its authenticity and to protect the Corporation and the transfer agent or the
registrar against loss or liability. When sufficient identification for such
defaced or mutilated certificate is lacking, a new certificate may be issued
upon compliance with all of the conditions set forth above in connection with
the replacement of lost, stolen, or destroyed certificates.
2.5. Fractional Share Interests. The Corporation may, but shall have no
obligation to, (1) issue fractions of a share or pay in money the value of
fractions of a share; (2) arrange for disposition of fractional shares by or for
the account of the shareholders; and (3) issue scrip in registered or bearer
form entitling the holder to receive a full share upon surrendering enough scrip
to equal a full share. Each certificate representing scrip must be conspicuously
labeled "scrip" and must contain the information required by the Code to be on
share certificates. The holder of a fractional share is entitled to exercise the
rights of a shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Corporation upon liquidation. The holder of
scrip is not entitled to any of these rights unless the scrip provides for such
rights. The Board of Directors may authorize the issuance of scrip subject to
any conditions considered desirable.
2.6. Share Transfers and Registration. Upon compliance with provisions
restricting the transferability of shares, if any, transfers of capital stock of
the Corporation by the registered holder thereof shall be recorded on the stock
transfer books of the Corporation only upon the written request of such
registered holder, or by such holder's attorney authorized to effect such
transfers by power of attorney duly executed and filed with the Secretary of the
Corporation or with a transfer agent or registrar, if any, and upon surrender of
the certificate or certificates for such shares properly endorsed for transfer
(if the shares are represented by certificates), accompanied by such assurances
as the Corporation, or such transfer agent or registrar, may require as to the
genuineness and effectiveness of each necessary endorsement and satisfactory
evidence of compliance with all applicable laws relating to securities transfers
and the collection of taxes. It shall be the duty of the Corporation, or such
transfer agent or registrar, to issue a new certificate, cancel the old
certificate, and record the transactions upon the stock transfer books of the
Corporation.
2.7. Registered Shareholders. Except as otherwise required by law, the
Corporation shall be entitled to treat the person registered in the stock
transfer books as the owner of shares of capital stock of the Corporation as the
person exclusively entitled to receive notification, dividends, and
distributions, to vote and to otherwise exercise the rights, powers, and
privileges of ownership of such capital stock, and shall not be required to
recognize any adverse claim.
2.8. Record Date. The Board of Directors may fix a future date to serve as
the record date for one or more voting groups in order to determine the
shareholders entitled to notice of a shareholders' meeting, to demand a special
meeting, to vote, or to take any other shareholder action; provided, however,
that such future date shall not be more than seventy days before the meeting or
action requiring a determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided herein, such determination shall apply to any adjournment thereof,
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unless the Board of Directors shall fix a new record date for the adjourned
meeting, which it must do if the meeting is adjourned to a date more than 120
days after the date fixed for the original meeting.
ARTICLE 3.
Shareholders' Meetings
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3.1. Definitions. As used in these bylaws regarding the right to notice of
a meeting of shareholders or a waiver thereof or to participate or vote thereat
or to consent or dissent in writing in lieu of a meeting, as the case may be,
the term "share" or "shares" or "shareholder" or "shareholders" refers to an
outstanding share or shares of capital stock of the Corporation and to a holder
or holders of record of outstanding shares of capital stock of the Corporation
when the Corporation is authorized to issue only one class of shares. Such
reference also is intended to include any outstanding share or shares and any
holder or holders of record of outstanding shares of any class upon which or
upon whom the articles of incorporation confer such governance rights when there
are two or more classes or series of shares or upon which or upon whom the Code
confers such governance rights notwithstanding that the articles of
incorporation may provide for more than one class or series of shares, one or
more of which are limited or denied such rights thereunder.
3.2. Date and Time. The annual meeting of the shareholders of the
Corporation shall be held each fiscal year on the date and at the time
designated, from time to time, by the Board of Directors. If at any time the
Board of Directors shall fail to otherwise designate the date of an annual
meeting, then such annual meeting shall be held at 10:00 a.m., local time, on
the second Tuesday of the fifth month following the end of the fiscal year of
the Corporation, or, if such day is a legal holiday, the next following business
day. A special meeting shall be held on the date and at the time designated by
the person or persons calling such special meeting.
3.3. Place. Annual and special meetings may be held within or without the
State of Georgia at such place as the Board of Directors may from time to time
designate or as may be specified in the notice of such meeting. Whenever the
Board of Directors shall fail to designate such place, the meeting shall be held
at the principal business office of the Corporation in the State of Georgia.
3.4. Call. Annual meetings may be called by the Board of Directors, the
Chairman of the Board, if any, the President, or by any officer instructed by
the directors to call the meeting. Special meetings, including any special
meeting in lieu of an annual meeting, may be called only by:
(a) the Chairman of the Board, if any;
(b) the President;
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(c) a majority of the members of the Board of Directors then in office; or
(d) the holders of at least thirty five percent (35%) of all the votes
entitled to be cast on any issue proposed to be considered at the proposed
special meeting if said holders deliver to the Secretary of the corporation one
(1) or more signed and dated written demands for the meeting, describing therein
the purpose or purposes for which the special meeting is to be held; provided,
however, that at such time and for so long as there are one hundred (100) or
fewer shareholders of record, the corporation shall hold such special meeting
upon the demand of at least twenty five percent (25%) of said holders. The
record date for determining shareholders entitled to demand a special meeting
shall be determined in the manner provided in these bylaws. Only the business
within the purpose or purposes described in the meeting notice required by
subsection (c) of Code Section 14-2-705 may be conducted at a special meeting of
the Shareholders.
3.5. Notice. Written notice stating the place, day, and hour of each
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten days (or not
less than any other such minimum period of days as may be prescribed by the
Code) nor more than sixty days before the date of the meeting, either personally
or by first class mail by or at the direction of the President, the Secretary,
or the officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. When a meeting is adjourned to another time or
place it shall not be necessary to give any notice of the new date, time, or
place if the date, time, and place are announced at the meeting before
adjournment. If, however, a new record date is or must be fixed under the Code,
a notice of the new meeting shall be given to persons who are shareholders as of
the new record date. At the adjourned meeting any business may be transacted
that might have been transacted on the original date of the meeting.
3.6. Waiver of Notice. A shareholder may waive any notice required by the
Code, the articles of incorporation, or these bylaws before or after the date
and time of the required notice. The waiver must be in writing, signed by the
shareholder entitled to notice, and delivered to the Corporation for inclusion
in the minutes or filing with the corporate records. No such waiver of notice of
a shareholders' meeting with respect to an amendment of the articles of
incorporation pursuant to Code section 14-2-1003, a plan of merger or share
exchange pursuant to Code section 14-2-1103, a sale of assets pursuant to Code
section 14-2-1202, or any other action which would entitle the shareholder to
dissent pursuant to Code section 14-2-1302 or any successor statute shall be
effective unless the provisions of paragraphs (1) or (2) of subsection (c) of
Code section 14-2-706 or any successor statute are followed. Attendance at a
meeting waives objection (1) to notice or defective notice of a meeting unless
the shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting and (2) to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder objects to considering the matter
when it is presented.
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3.7. Shareholders List. After fixing a record date for a meeting, the
Corporation shall prepare an alphabetical list of the names of all its
shareholders who are entitled to notice of a shareholders' meeting. The list
shall be arranged by voting group (and within each voting group by class or
series of shares) and show the address of and number of shares held by each
shareholder. The shareholders list shall be available for inspection at the time
and place of the meeting by any shareholder or the shareholder's agent or
attorney.
3.8. Conduct of Meeting. Meetings of the shareholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting: the Chairman of the Board, if any, the Vice Chairman of the Board,
if any, the President, a Vice President, or, if none of the foregoing is in
office and present and acting, by a chairman of the meeting to be chosen by the
shareholders. The Secretary of the Corporation, or in the Secretary's absence an
Assistant Secretary, shall act as secretary of every meeting, but, if neither
the Secretary nor an Assistant Secretary is present, the chairman of the meeting
shall appoint a secretary of the meeting.
3.9. Proxy Representation. At any meeting of the shareholders, any
shareholder having the right to vote shall be entitled to vote in person or by
proxy. An appointment of a proxy is valid for eleven months, unless a longer
period is expressly provided in the appointment form.
3.10. Quorum and Action of Shareholders. At all meetings of the
shareholders, a majority of the votes entitled to be cast on a matter by a
voting group shall constitute a quorum of that voting group for action on that
matter, unless the Code, the articles of incorporation, or a provision of these
bylaws approved by shareholders, as the same are now enacted or hereafter
amended, provides otherwise. Once a share is represented for any purpose at a
meeting, other than solely to object to holding the meeting or transacting
business at the meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is or must be set for that adjourned meeting. If a quorum exists,
action on a matter (other than the election of directors) by a voting group is
approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action, unless the Code, the articles of
incorporation, or a provision of these bylaws adopted by the shareholders under
section 14-2-1021 of the Code or any successor statute, requires a greater
number of affirmative votes. Unless otherwise provided in the articles of
incorporation, directors are elected by a plurality of votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present.
3.11. Adjournment of Meeting. The holders of a majority of the voting
shares represented at a meeting, whether or not a quorum is present, may adjourn
such meeting from time to time.
3.12. Action Without a Meeting. Any action required or permitted by the
Code to be taken at a shareholders' meeting may be taken without a meeting if
all the shareholders entitled to vote on such action sign one or more written
consents describing the action taken and the consents are delivered to the
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Corporation for inclusion in the minutes or filing with the corporate records.
No such written consent shall be valid unless the provisions of section
14-2-704(b) of the Code or any successor statute are followed.
3.13. Advance Notice of Shareholder Nominations and Proposals. Nominations
of persons for election to the Board of Directors and proposals of business to
be transacted by the shareholders may be made at an annual meeting of
shareholders (a) pursuant to the Corporation's notice with respect to such
meeting, (b) by or at the direction of the Board of Directors, or (c) by any
shareholder of record of the Corporation who was a shareholder of record at the
time of the giving of the notice provided for in the following paragraph, who is
entitled to vote at the meeting and who has complied with the notice procedures
set forth in this Section.
For nominations or other business to be properly brought before an annual
meeting by a shareholder pursuant to clause (c) of the foregoing paragraph, (1)
the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation, (2) such business must be a proper matter for
shareholder action under the Georgia Business Corporation Code, (3) if the
shareholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as
that term is defined in this paragraph, such shareholder or beneficial owner
must, in the case of a proposal, have delivered a proxy statement and form of
proxy to holders of at least the percentage of the Corporation's voting shares
required under applicable law to carry any such proposal, or, in the case of a
nomination or nominations, have delivered a proxy statement and form of proxy to
holders of a percentage of the Corporation's voting shares reasonably believed
by such shareholder or beneficial holder to be sufficient to elect the nominee
or nominees proposed to be nominated by such shareholder, and must, in either
case, have included in such materials the Solicitation Notice and any proxy
statement and form of proxy utilized or to be utilized by such person, and (4)
if no Solicitation Notice relating thereto has been timely provided pursuant to
this Section, the shareholder or beneficial owner proposing such business or
nomination must not have solicited, and must represent that he, she or it will
not solicit, a number of proxies sufficient to have required the delivery of
such a Solicitation Notice under this Section. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not less than ninety (90) nor more than one hundred twenty (120)
days prior to the first anniversary (the "Anniversary") of the date on which the
Corporation first mailed its proxy materials for the preceding year's annual
meeting of shareholders; provided, however, that if the date of the annual
meeting is advanced more than thirty (30) days prior to or delayed by more than
thirty (30) days after the anniversary of the preceding year's annual meeting,
notice by the shareholder to be timely must be so delivered not later than the
close of business on the later of (i) the 90th day prior to such annual meeting
or (ii) the 10th day following the day on which public announcement of the date
of such meeting is first made. Such stockholder's notice shall set forth (a) as
to each person whom the shareholder proposes to nominate for election or
reelection as a director all information relating to such person as would be
required to be disclosed in solicitations of proxies for the election of such
nominees as directors pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and shall contain such person's
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written consent to serve as a director if elected; (b) as to any other business
that the shareholder proposes to bring before the meeting, a brief description
of such business, the reasons for conducting such business at the meeting and
any material interest in such business of such shareholder and the beneficial
owner, if any, on whose behalf the proposal is made; (c) as to the shareholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such shareholder, and
of such beneficial owner, as they appear on the Corporation's books, (ii) the
class and number of shares of the Corporation that are owned beneficially and of
record by such shareholder and such beneficial owner, and (iii) whether such
shareholder or beneficial owner has delivered or intends to deliver a proxy
statement and form of proxy to holders of, in the case of a proposal, at least
the percentage of the Corporation's voting shares required under applicable law
to carry the proposal or, in the case of a nomination or nominations, a
sufficient number of holders of the Corporation's voting shares to elect such
nominee or nominees (the notice described in this sentence, a "Solicitation
Notice").
Notwithstanding anything in the second sentence of the second paragraph of
this Section 3.13 to the contrary, in the event that the number of directors to
be elected to the Board is increased and there is no public announcement naming
all of the nominees for director or specifying the size of the increased Board
made by the Corporation at least fifty-five (55) days prior to the Anniversary,
a stockholder's notice required by this Section shall also be considered timely,
but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
Only persons nominated in accordance with the procedures set forth in this
Section 3.13 shall be eligible to serve as directors and only such business
shall be conducted at an annual meeting of shareholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section. The chairman of the meeting shall have the power and the duty to
determine whether a nomination or any business proposed to be brought before the
meeting has been made in accordance with the procedures set forth in these
Bylaws and, if any proposed nomination or business is not in compliance with
these Bylaws, to declare that such defective proposed business or nomination
shall not be presented for shareholder action at the meeting and shall be
disregarded.
Only such business shall be conducted at a special meeting of shareholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting. Nominations of persons for election to the Board of Directors
may be made at a special meeting of shareholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board or (b) by any shareholder of record of the Corporation
who is a shareholder of record at the time of giving of notice provided for in
this paragraph, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 3.13. Nominations by
shareholders of persons for election to the Board may be made at such a special
meeting of shareholders if the stockholder's notice required by the second
paragraph of this Section 3.13 shall be delivered to the Secretary at the
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principal executive offices of the Corporation not later than the close of
business on the later of the 90th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the Board to be elected at
such meeting.
For purposes of this Section, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 3.13, a
shareholder must also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 3.13. Nothing in this Section 3.13 shall be deemed to affect any
rights of shareholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act."
ARTICLE 4.
Directors
4.1. Definitions and Corporate Power and Authority. All corporate powers
shall be exercised by or under the authority of, and the business and affairs of
the Corporation shall be managed under the direction of, a board of directors
(herein referred to as the "Board of Directors," "Board," or "directors"
notwithstanding that only one director may legally constitute the Board),
subject to any limitation set forth in the articles of incorporation, or a
provision of these bylaws approved by shareholders, as the same are now enacted
or hereafter amended, or lawful agreements among the shareholders.
4.2. Qualifications and Number. Directors shall be natural persons who are
at least eighteen years of age. A director need not be a shareholder, a citizen
of the United States, or a resident of the State of Georgia. The Board of
Directors shall consist of not less than three (3) nor more than fifteen (15)
members, with the specific number to be determined by the Board of Directors.
Notwithstanding the foregoing, this bylaw provision may be amended by the vote
of a majority of the directors then in office in order to expand or contract the
variable range for the permissible number of directors.
4.3. Election and Term.
(a) The Board of Directors shall be divided into three (3) classes
with each such class to be as nearly equal in number as possible. The term of
the directors in Class I shall expire at the first annual meeting of
Shareholders following the date of adoption of these Amended and Restated
Bylaws, the term of the directors in Class 11 shall expire at the second annual
meeting of Shareholders following the date of adoption of these Amended and
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Restated Bylaws, and the term of the directors in Class III shall expire at the
third annual meeting of Shareholders following the date of adoption of these
Amended and Restated Bylaws. At each annual Shareholders' meeting, directors
shall be chosen for a term of three (3) years to succeed those whose term
expires.
(b) The members of the initial classified Board of Directors are as
follows:
Class I Class II Class III
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John M. Cook Jonathan Golden Stanley B. Cohen
John M. Toma Garth H. Greimann T. Charles Fial
E. James Lowrey Fred W. I. Lachotzki
(c) Subject to the foregoing, at each annual meeting of shareholders
beginning with the first annual meeting following the adoption of these Amended
and Restated Bylaws, the successors to the class of directors whose term shall
then expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Each director shall hold office for the term for
which he or she is elected or appointed or until his or her successor shall be
elected and qualified, or until his or her death, removal from office or
resignation.
(d) Should the number of directors be changed, any newly created
directorships or any decrease in directorships shall be so apportioned among the
classes as to make Classes I, II, and III as nearly equal in number as possible.
(e) No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
4.4. Vacancies. Any vacancy in the Board of Directors resulting from the
resignation, incapacity, death or retirement of a director, or any other cause,
other than removal by the shareholders or increase in the number of directors,
shall be filled by a majority vote of the remaining directors, though less than
a quorum, for a term corresponding to the unexpired term of his or her
predecessor in office. Newly created directorships resulting from any increase
in the authorized number of directors shall be filled by a majority vote of the
remaining directors, though less than a quorum, and the directors so chosen
shall hold office for a term expiring at the next meeting of shareholders at
which directors are to be elected; provided, however, that the term of any such
additional director, if elected by the shareholders at such meeting, shall
correspond to the term of the class to which he or she has been assigned,
regardless of whether or not such class was the subject of the election held at
the shareholders' meeting.
4.5. Quorum and Action. A majority of the directors shall constitute a
quorum for the transaction of business unless the Code, the articles of
incorporation, or a provision of these bylaws approved by shareholders, as the
same are now enacted or hereafter amended, authorizes a greater number. If a
quorum is present when a vote is taken, the affirmative vote of a majority of
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the directors present at a meeting is the act of the Board, unless the articles
of incorporation or a provision of these bylaws approved by shareholders, as the
same are now enacted or hereafter amended, requires the vote of a greater number
of directors.
4.6. Meetings.
(a) Time. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
(b) Place. Meetings shall be held at such place within or without the
State of Georgia as shall be determined by the Board.
(c) Call. Meetings may be called by the Chairman of the Board, if any,
by the President, or by any two directors if the Board consists of three or more
directors, or by any director if the Board consists of fewer than three
directors.
(d) Notice, Waiver of Notice. Unless the articles of incorporation
provide otherwise, regular meetings of the Board of Directors may be held
without notice required of the date, time, place, or purpose of the meeting.
Notice of special meetings shall be given to directors at least two days before
such meetings, which notice shall specify the date, time, and place of the
meeting. The notice need not state the purpose of the special meeting. 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 required
notice. The waiver must be in writing, signed by the director entitled to the
notice, and delivered to the Corporation for inclusion in the minutes or filing
with the corporate records. A director's attendance at or participation in a
meeting waives any required notice unless the director at the beginning of the
meeting (or promptly upon arrival) objects to holding the meeting or transacting
business at the meeting and does not thereafter vote for or assent to action
taken at the meeting.
(e) Chairman of the Meeting. The Chairman of the Board, if any, and if
present and acting, shall preside at all meetings. Otherwise, any director
chosen by the Board shall preside. The person presiding at the meeting shall
designate a person to act as secretary of the meeting, who may or may not be a
director or officer of the Corporation.
4.7. Action Without Meeting. Unless the articles of incorporation or a
provision of these bylaws provides otherwise, any action required or permitted
by the Code to be taken at a Board of Directors' meeting may be taken without a
meeting, if the action is taken by all members of the Board. The action must be
evidenced by one or more written consents describing the action taken, signed by
each director, and delivered to the Corporation for inclusion in the minutes or
filing with the corporate records.
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4.8. Compensation. Directors may be allowed such compensation for
attendance at regular or special meetings of the Board of Directors and any
special or standing committees thereof as may be determined from time to time by
resolution of the Board of Directors.
4.9. Removal by Shareholders. At any shareholders' meeting with respect to
which notice of such purpose has been given, the shareholders may remove one or
more directors from office, with or without cause, by a majority of the votes
entitled to be cast unless the articles of incorporation or a provision of these
bylaws approved by shareholders, as the same are now enacted or hereafter
amended, provides otherwise.
ARTICLE 5.
Committees
----------
5.1. Members. The Board of Directors may create one or more committees and
appoint members to serve on them. Each committee may have one or more directors,
who shall serve at the pleasure of the Board of Directors.
5.2. Authority. To the extent specified by the Board of Directors, each
committee may exercise the authority of the Board of Directors under Code
section 14-2-801 or any successor statute. A committee shall not, however: (1)
approve or propose to shareholders action that the Code requires to be approved
by shareholders; (2) fill vacancies on the Board of Directors or on any of its
committees; (3) amend articles of incorporation pursuant to Code section
14-2-1002 or any successor statute; (4) adopt, amend, or repeal bylaws; or (5)
approve a plan of merger not requiring shareholder approval.
5.3. Meetings. Committees shall meet from time to time on call of the
Chairman of the Board, if any, the President, or of any one or more members of
the particular committee. The requirements for meetings, action without
meetings, notices, and waivers of notice of the Board of Directors shall apply
to any committee which the Board shall establish. A committee shall keep a
record of its proceedings and shall report these proceedings to the Board of
Directors at the meeting thereof held next after the action has been taken. All
such proceedings shall be subject to revision or alteration by the Board of
Directors, except to the extent that action shall have been taken pursuant to or
in reliance upon such proceedings prior to any such revision or alteration.
5.4. Quorum and Voting. The quorum and voting requirements of the Board of
Directors also shall apply to any committee which the Board shall establish.
5.5. Removal. The Board of Directors shall have power to remove any member
of any committee at any time, with or without cause, to fill vacancies, and to
dissolve any such committee.
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ARTICLE 6.
Officers
--------
6.1. Selection. The Board of Directors at each annual meeting shall, or if
no annual meeting is held, at such time as the Board deems proper, and at any
regular or special meeting may, elect or appoint a President, a Secretary, and a
Treasurer and may elect or appoint a Chairman of the Board, one or more Vice
Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers,
and such other officers, assistant officers, and agents as they may determine,
or the Board may designate a duly appointed officer to appoint one or more
officers or assistant officers. The President may, but need not, be a director.
Any two or more offices may be held simultaneously by the same person. Unless
otherwise provided in the resolution of election or appointment, all officers
shall be elected for a term of office running until the meeting of the Board of
Directors following the next annual meeting of shareholders and until their
successors have been duly elected or appointed and qualified or until their
earlier resignation, removal from office, or death. All officers, assistant
officers, and agents of the Corporation shall have such authority, powers,
duties, functions, and privileges as provided for herein and as the Board may
determine from time to time. The Board may designate, elect, or appoint a chief
operating officer and/or a chief executive officer, each of whom shall be deemed
a Vice President unless elected to any other office.
6.2. Chairman of the Board. If a Chairman of the Board is elected by the
directors, the Chairman shall preside at all meetings of shareholders and
directors, and, unless otherwise provided by law, when the signature of the
President is required the Chairman shall possess the same power as the President
to sign all certificates, contracts, and other instruments of the Corporation.
The Chairman shall have such other powers and duties as the Board may prescribe
from time to time. In the event of the disability of the President, the Chairman
shall exercise all the powers and discharge all the duties of the President.
6.3. President. The President shall, in the absence of a Chairman of the
Board, preside at all meetings of the shareholders. The immediate supervision of
the affairs of the Corporation shall be vested in the President. It shall be the
President's duty to attend to the business of the Corporation and maintain
strict supervision over all of its affairs and interests. The President shall
keep the Board of Directors fully advised about the affairs and conditions of
the Corporation, and shall manage and operate the business of the Corporation
pursuant to and in accordance with such policies as may be prescribed from time
to time by the Board of Directors. The President shall, subject to the approval
of the Board, hire and fix the compensation of all employees and agents of the
Corporation (other than the executive officers of the Corporation), and any such
employee or agent shall be removable at the President's pleasure. Unless the
Board of Directors by resolution shall otherwise provide, the President may
delegate such of the President's powers as the President deems appropriate to
other officers, employees, and agents of the Corporation.
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6.4. Vice President. The Vice President (or Vice Presidents, in the order
designated by the Board) shall, in the absence or disability of the President
(and the Chairman of the Board, if one is elected by the Board of Directors)
perform the duties and exercise the powers of the President, and shall perform
such other duties as shall from time to time be imposed upon any Vice President
by the Board or delegated to a Vice President by the President. The Board may by
resolution supplement the title of any Vice President in any manner.
6.5. Secretary. It shall be the duty of the Secretary to keep a record of
the proceedings of all meetings of the shareholders and the Board of Directors;
to keep the stock transfer books of the Corporation or to assure that they are
properly kept if the Corporation employs an independent transfer agent; to
notify the shareholders and directors of meetings as provided by these bylaws or
the Code; to have custody of the seal of the Corporation; to affix such seal to
any instrument requiring the same; to attest the signature or certify the
incumbency or signature of any officer of the Corporation; and to perform such
other duties as the Chairman of the Board, the President, or the Board of
Directors may prescribe. Any Assistant Secretary, if elected, shall perform the
duties of the Secretary during the absence or disability of the Secretary and
shall perform such other duties as the Chairman of the Board, the President, the
Secretary, or the Board of Directors may prescribe.
6.6. Treasurer. The Treasurer shall keep, or cause to be kept, the
financial books and records of the Corporation, and shall faithfully account for
the Corporation's funds, financial assets, and other assets entrusted to the
Treasurer's care and custody. The Treasurer shall make such reports as may be
necessary to keep the Chairman of the Board, the President, and the Board of
Directors informed at all times as to the financial condition of the
Corporation, and shall perform such other duties as the Chairman of the Board,
the President, or the Board of Directors may prescribe. The Treasurer shall
maintain the money and other assets of the Corporation in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer may provide for the investment of the money and
other assets of the Corporation consistent with the needs of the Corporation to
disburse such money and assets in the course of the Corporation's business. The
Treasurer shall perform the duties of the Secretary of the Corporation in the
absence or disability of the Secretary and any Assistant Secretary. Any
Assistant Treasurer, if elected, shall perform the duties of the Treasurer
during the absence or disability of the Treasurer, and shall perform such other
duties as the Chairman of the Board, the President, the Treasurer, or the Board
of Directors may prescribe.
6.7. Salaries and Bonds. The Board of Directors shall fix the compensation
of all officers of the Corporation, unless pursuant to a resolution of the Board
the authority to fix such compensation is delegated to a committee of the Board
or (other than compensation of executive officers) to the President. The fact
that any officer also is a director shall not preclude such officer from
receiving a salary or from voting upon the resolution providing the same. The
Board of Directors may, in its sole discretion, require bonds from any or all of
the officers and employees of the Corporation for the faithful performance of
their duties and conduct while in office.
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6.8. Removal. The Board of Directors may remove any officer at any time
with or without cause.
ARTICLE 7.
Indemnification
---------------
7.1. Authority to Indemnify.
(a) Except as provided in subsections (b) and (c) of this Section 7.1,
the Corporation shall indemnify an individual made a party to a proceeding
because such individual is or was a director or officer of the Corporation
against liability incurred in the proceeding, if such director or officer acted
in a manner such director or officer believed in good faith to be in or not
opposed to the best interests of the Corporation and, in the case of any
criminal proceeding, such director or officer had no reasonable cause to believe
the conduct was unlawful.
(b) The Corporation may not indemnify a director or officer under this
Section 7.1:
(1) In connection with a proceeding by or in the right of the
Corporation in which the director or officer was adjudged liable to the
Corporation; or
(2) In connection with any other proceeding in which the director
or officer was adjudged liable on the basis that personal benefit was improperly
received by the director or officer.
(c) Indemnification permitted under this Section 7.1 in connection
with a proceeding by or in the right of the Corporation is limited to reasonable
expenses incurred in connection with the proceeding.
7.2. Mandatory Indemnification. Unless otherwise provided in the articles
of incorporation, to the extent that a director or officer has been successful,
on the merits or otherwise, in the defense of any proceeding to which the
director or officer was a party, or in defense of any claim, issue, or matter
therein, because that individual is or was a director or officer of the
Corporation, the Corporation shall indemnify the director or officer against
reasonable expenses incurred by the director or officer in connection therewith.
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7.3. Advance for Expenses.
(a) The Corporation shall pay for or reimburse the reasonable expenses
incurred by a director or officer who is a party to a proceeding in advance of
final disposition of the proceeding if:
(1) The director or officer furnishes the Corporation a written
affirmation of such director's or officer's good faith belief that such director
or officer has met the standard of conduct set forth in subsection (a) of
Section 7.1 of these bylaws; and
(2) The director or officer furnishes the Corporation a written
undertaking, executed personally or on the director's or officer's behalf, to
repay any advances if it is ultimately determined that the director or officer
is not entitled to indemnification under Section 7.1.
(b) The undertaking required by paragraph (2) of subsection (a) of
this Section 7.3 must be an unlimited general obligation of the director or
officer, but need not be secured and may be accepted without reference to
financial ability to make repayment.
7.4. Determination and Authorization of Indemnification.
(a) The Corporation may not indemnify a director or officer under
Section 7.1 of these bylaws unless authorized thereunder and a determination has
been made in the specific case that indemnification of the director or officer
is required in the circumstances because the director or officer has met the
standard of conduct set forth in subsection (a) of Section 7.1.
(b) The determination shall be made:
(1) By the Board of Directors by majority vote of a quorum
consisting of directors not at the time parties to the proceeding; or
(2) If a quorum cannot be obtained under paragraph (1) of this
subsection, by majority vote of a committee duly designated by the Board of
Directors (in which designation directors who are parties may participate),
consisting solely of two or more directors not at the time parties to the
proceeding; or
(3) By special legal counsel:
(i) Selected by the Board of Directors or its committee in
the manner prescribed in paragraphs (1) or (2) of this subsection (b); or
(ii) If a quorum of the Board of Directors cannot be
obtained under paragraph (1) of this subsection (b) and a committee cannot be
designated under paragraph (2) of this subsection, selected by majority vote of
the full Board of Directors (in which selection directors who are parties may
participate); or
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(4) By the shareholders, but shares owned by or voted under the
control of directors or officers who are at the time parties to the proceeding
may not be voted on the determination.
(c) Evaluation as to reasonableness of expenses shall be made in the
same manner as the determination that indemnification is required, except that
if the determination that indemnification is required is made by special legal
counsel, evaluation as to reasonableness of expenses shall be made by those
entitled under paragraph (3) of subsection (b) of this bylaw provision to select
counsel.
7.5. Indemnification of Officers, Employees, and Agents. Notwithstanding
any other provisions of these bylaws to the contrary, unless the articles of
incorporation provide otherwise, the Corporation may, in the discretion of the
Board of Directors, indemnify and advance expenses to an officer, employee, or
agent who is not a director, to the extent the Board deems appropriate,
consistent with public policy.
7.6. Director's Expenses as a Witness. This Article Seven does not limit
the Corporation's power to pay or reimburse expenses incurred by a director in
connection with such director's appearance as a witness in a proceeding at a
time when such director has not been made a named defendant or respondent to the
proceeding.
7.7. Rights to Indemnification Not Exclusive. The right of the directors
and officers of the Corporation to indemnification under these bylaws is not
exclusive of or in limitation of any other right now possessed or hereafter
acquired under the Articles of Incorporation or any statute, agreement or
otherwise.
ARTICLE 8.
Notices
-------
(a) Except as otherwise specifically provided in these bylaws,
whenever under the provisions of these bylaws notice is required to be given to
any shareholder, director, or officer, it shall be in writing unless oral notice
is reasonable under the circumstances. Notice may be communicated in person; by
telephone, telegraph, teletype, or other form of wire or wireless communication;
or by mail or private carrier. If these forms of personal notice are
impracticable, notice may be communicated by a newspaper of general circulation
in the area where published, or by radio, television, or other form of public
broadcast communication.
(b) Written notice to a shareholder, if in comprehensible form, is
effective when mailed, if mailed with first-class postage prepaid and correctly
addressed to the shareholder's address shown in the Corporation's current record
of shareholders. If the Corporation has more than 500 shareholders of record
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entitled to vote at a meeting, however, the Corporation may utilize a class of
mail other than first class if the notice of the meeting is mailed, with
adequate postage prepaid, not less than thirty days before the date of the
meeting.
(c) Except as provided in subsection (b) of this Article Eight,
written notice, if in comprehensible form, is effective at the earliest of the
following: (1) when received, or when delivered, properly addressed, to the
addressee's last known principal place of business or residence; (2) five days
after its deposit in the mail, as evidenced by the postmark or such longer
period as may be provided in the articles of incorporation or these bylaws, if
mailed with first-class postage prepaid and correctly addressed; or (3) on the
date shown on the return receipt, if sent by registered or certified mail,
return receipt requested, and the receipt is signed by or on behalf of the
addressee. Oral notice is effective when communicated if communicated in a
comprehensible manner.
ARTICLE 9.
Amendments
----------
(a) Unless the articles of incorporation or the Code provides otherwise, or
the shareholders in amending or repealing a particular bylaw provide expressly
that the Board of Directors may not amend or repeal that bylaw, the Board of
Directors may amend the bylaws if the voting requirements provided in Section
4.5 of these bylaws are satisfied, except as provided below. The shareholders
also may amend or repeal the Corporation's bylaws or adopt new bylaws, but only
by the affirmative vote of the holders of not less than sixty percent (60%) of
all the issued and outstanding shares of Common Stock. Unless the articles of
incorporation or a provision of these bylaws provides otherwise, a bylaw that
fixes a greater quorum or voting requirement for the Board of Directors may be
adopted, amended, repealed or rescinded only by (i) the affirmative vote of the
majority of the entire Board of Directors or (ii) the affirmative vote of the
holders of not less than sixty percent (60%) of all the issued and outstanding
shares of Common Stock. A bylaw adopted or amended by the shareholders that
fixes a greater quorum or voting requirement for the Board of Directors may
provide that it may be amended or repealed only by a specified vote of either
the shareholders or the Board of Directors.
(b) Unless the articles of incorporation or the Code provides otherwise, a
provision of these bylaws limiting the authority of the Board of Directors or
establishing staggered terms for directors may be adopted, amended, repealed or
rescinded only by the affirmative vote of the holders of not less than sixty
percent (60%) of all the issued and outstanding shares of Common Stock. The
shareholders may provide by resolution that any bylaw provision repealed or
amended by them may not be repealed or amended by the Board of Directors.
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ARTICLE 10.
Miscellaneous
-------------
10.1. Inspection of Records by Shareholders. (a) A Shareholder is entitled
to inspect and copy, during regular business hours at the Corporation's
principal office, any of the following records of the Corporation if the
shareholder gives the Corporation written notice of the shareholder's demand at
least five business days before the date on which the shareholder wishes to
inspect and copy such records:
(1) The Corporation's articles or restated articles of
incorporation and all amendments currently in effect;
(2) The Corporation's bylaws or restated bylaws and all
amendments currently in effect;
(3) Resolutions adopted by either the shareholders or the Board
of Directors with respect to increasing or decreasing the number of directors,
the classification of directors, if any, or the names and residence addresses of
any members of the Board of Directors;
(4) Resolutions adopted by the Board of Directors creating one or
more classes or series of shares, and fixing their relative rights, preferences,
and limitations, if shares issued pursuant to such resolutions are outstanding
and any resolution adopted by the Board of Directors that affect the size of the
Board of Directors;
(5) The minutes of all shareholders' meetings, executed waivers
of notice of meetings, and executed written consents evidencing all actions
taken by shareholders without a meeting, for the past three years;
(6) All written communications to shareholders generally within
the past three years, including the financial statements furnished for the past
three years under section 14-2-1620 of the Code;
(7) A list of the names and business addresses of the
Corporation's current directors and officers; and
(8) The Corporation's most recent annual registration as
delivered to the Secretary of State.
(b) A shareholder is entitled to inspect and copy, during regular
business hours at a reasonable location specified by the Corporation, any of the
following records of the Corporation if the shareholder meets the requirements
of subsection (c) of this Section 10.1 and gives the Corporation written notice
of the shareholder's demand at least five business days before the date on which
the shareholder wishes to inspect and copy such records:
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(1) Excerpts from minutes of any meeting of the Board of
Directors, records of any action of a committee of the Board of Directors while
acting in place of the Board of Directors on behalf of the Corporation, minutes
of any meeting of the shareholders, and records of action taken by the
shareholders or Board of Directors without a meeting, to the extent not subject
to inspection under subsection (a) of this Section 10.1;
(2) Accounting records of the Corporation; and
(3) The record of shareholders.
(c) A shareholder may inspect and copy the records described in
subsection (b) of this Section 10.1 only if: (1) the shareholder's demand is
made in good faith and for a proper purpose that is reasonably relevant to the
shareholder's legitimate interest as a shareholder; (2) the shareholder
describes with reasonable particularity the shareholder's purpose and the
records the shareholder desires to inspect; (3) the records are directly
connected with the shareholder's purpose; and (4) the records are to be used
only for the stated purpose.
10.2. Fiscal Year. The fiscal year of the Corporation shall be fixed from
time to time by resolution of the Board of Directors. If no fiscal year is fixed
by the Board, the fiscal year of the Corporation shall end on December 31 of
each calendar year.
10.3. Seal. The corporate seal shall be in such form as the Board of
Directors may determine from time to time.
10.4. Financial Statements. The Board of Directors may appoint the
Treasurer or other fiscal officer or the Secretary or any other officer to cause
to be prepared and furnished to shareholders entitled thereto any special
financial notice or any financial statements which may be required by any
provision of law.
10.5. Appointment of Agents. The Chairman of the Board, if any, the
President or any Vice President or any other officer authorized by the Board
shall be authorized and empowered in the name and as the act and deed of the
Corporation to name and appoint general and special agents, representatives, and
attorneys to represent the Corporation in the United States or in any foreign
country or countries and to name and appoint attorneys and proxies to vote any
shares of stock in any other corporation at any time owned or held of record by
the Corporation, and to prescribe, limit, and define the powers and duties of
such agents, representatives, attorneys, and proxies and to make substitution,
revocation, or cancellation in whole or in part of any power or authority
conferred on any such agent, representative, attorney, or proxy. All powers of
attorney or instruments under which such agents, representatives, attorneys, or
proxies shall be so named and appointed shall be signed and executed by the
Chairman of the Board, if any, the President, or a Vice President, or any other
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officer designated by the Board, and the corporate seal shall be affixed
thereto. Any substitution, revocation, or cancellation shall be signed in like
manner. Any agent, representative, attorney, or proxy, when so authorized by the
instrument appointing such person, may substitute or delegate such person's
powers in whole or in part and revoke and cancel such substitutions or
delegations. No special authorization by the Board of Directors shall be
necessary in connection with the foregoing, and this bylaw shall be deemed to
constitute full and complete authority to the officers above designated to do
all the acts and things as they deem necessary or incidental thereto or in
connection therewith.
10.6. Contracts, Deeds, and Loans. All contracts, deeds, mortgages,
pledges, promissory notes, security documents, transfers, and other written
instruments binding upon the Corporation shall be executed on behalf of the
Corporation by the Chairman of the Board, if any, or the President, or any Vice
President, or by such officers or agents as the Board of Directors or the
President (unless the Board of Directors shall otherwise provide) may designate
from time to time. Any such instrument which may be or is required to be given
under the seal of the Corporation may be sealed and attested by the Secretary or
any Assistant Secretary of the Corporation.
10.7. Checks and Drafts. Checks and drafts of the Corporation shall be
signed by such officer or officers or such other employees or persons as the
Board of Directors may from time to time designate. The Board of Directors may
provide by resolution for the authority of officers, employees, and other
persons to deal with banks and other financial institutions on behalf of the
Corporation.
ARTICLE 11.
Fair Price Provisions
---------------------
The requirements of Part 2 of Article 11 of the Code shall be applicable to
the Corporation to the maximum extent permitted by the Code and under the
circumstances set forth therein.
ARTICLE 12.
Business Combinations With Interested Shareholders
--------------------------------------------------
The requirements of Part 3 of Article 11 of the Code shall be applicable to
the Corporation to the maximum extent permitted by the Code and under the
circumstances set forth therein.
