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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AHL Services, Inc.
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(Exact name of registrant as specified in its charter)
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Georgia No. 58-2277249
(State of incorporation or organization) (IRS Employer Identification No.)
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3353 Peachtree Road, NE
Suite 1120, North Tower
Atlanta, Georgia 30326
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(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of If this Form relates to the registration of
a class of debt securities and is effective a class of debt securities and is to become
upon filing pursuant to General Instruction effective simultaneously with the
A(c)(1) please check the following box. / / effectiveness of a concurrent registration
-- statement under the Securities Act of 1933
pursuant to General Instruction A(c)(2)
please check the following box. / /
--
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each Class to which each class is to
be so registered be registered
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None None
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
The information required by Item 1 is set forth under the
caption "Description of Capital Stock" on pages 42 to 44 of the Preliminary
Prospectus included in the Registrant's Registration Statement on Form S-1 (File
No. 333-20315), which description is incorporated herein by this reference and
qualified in its entirety by reference to the Registrant's Restated
and Amended Articles of Incorporation and Bylaws, each of which are
attached as Exhibits thereto, which set forth in full the preferences,
limitations and relative rights of each class of the Registrant's capital stock.
Item 2. Exhibits.
1. A specimen certificate of Common Stock (incorporated
by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-1, File No.
333-20315).
2. Restated and Amended Articles of Incorporation of the
Registrant.
3. Bylaws of the Registrant.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
AHL SERVICES, INC.
By: DAVID L. GAMSEY
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David L. Gamsey
Chief Financial Officer
and Secretary
Dated: March 3, 1997
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Exhibits
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Exhibit Page
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1 A specimen certificate of Common Stock (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-1, File
No. 333-20315).
2 Restated and Amended Articles of Incorporation.
3 Bylaws of the Registrant.
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EXHIBIT 2
ARTICLES OF RESTATEMENT AND AMENDMENT TO
ARTICLES OF INCORPORATION
OF
AHL SERVICES, INC.
AHL Services, Inc., a corporation organized and existing under the
laws of the State of Georgia, hereby certifies as follows:
1. The name of the corporation is AHL Services, Inc. (the
"Corporation").
2. Pursuant to Section 14-2-1007 of the Georgia Business Corporation
Code, these Articles of Incorporation restate and amend the Articles of
Incorporation of the Corporation (the "Articles of Restatement and Amendment").
These Articles of Restatement and Amendment were duly adopted by the
shareholders of the Corporation in accordance with the provisions of Section
14-2-1003 of the Georgia Business Corporation Code on February 27, 1997.
3. The Articles of Incorporation of the Corporation as heretofore
amended or supplemented are hereby restated and further amended to read in
their entirety as follows:
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RESTATED AND AMENDED
ARTICLES OF INCORPORATION
OF
AHL SERVICES, INC.
1.
The name of the Corporation is AHL Services, Inc.
2.
Section 2.1. Common Stock. The aggregate number of common
shares (referred to in these Articles of Incorporation as "Common Stock") which
the Corporation shall have the authority to issue is 50,000,000, with a par
value of $.01 per share. Each share of Common Stock shall have one vote on
each matter submitted to a vote of the shareholders of the Corporation.
Subject to the provisions of applicable law and the rights of the holders of
the outstanding shares of Preferred Stock, if any, the holders of shares of
Common Stock shall be entitled to receive, when and as declared by the Board of
Directors of the Corporation, out of the assets of the Corporation legally
available therefor, dividends or other distributions, whether payable in cash,
property or securities of the Corporation. The holders of shares of Common
Stock shall be entitled to receive, in proportion to the number of shares of
Common Stock held, the net assets of the Corporation upon dissolution after any
preferential amounts required to be paid or distributed to holders of
outstanding shares of Preferred Stock, if any, are so paid or distributed.
Section 2.2. Preferred Stock. The aggregate number of
preferred shares (referred to in these Articles of Incorporation as "Preferred
Stock") which the Corporation shall have authority to issue is 5,000,000, with
no par value. The Preferred Stock may be issued from time to time by the Board
of Directors as shares of one or more series. The description of shares of
each series of Preferred Stock, including any designations, preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications, and terms and conditions of redemption shall be as
set forth in resolutions adopted by the Board of Directors, and articles of
amendment shall be filed with the Georgia Secretary of State as required by law
to be filed with respect to issuance of such Preferred Stock, prior to the
issuance of any shares of such series.
The Board of Directors is expressly authorized, at any time,
by adopting resolutions providing for the issuance of, or providing for a
change in the number of, shares of any particular series of Preferred Stock
and, if and to the extent from time to time required by
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law, by filing articles of amendment which are effective without shareholder
action, to increase or decrease the number of shares included in each series of
Preferred Stock, but not below the number of shares then issued, and to set in
any one or more respects the designations, preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, or terms and conditions of redemption relating to the shares of
each such series. The authority of the Board of Directors with respect to each
series of Preferred Stock shall include, but not be limited to, setting or
changing the following:
(i) the dividend rate, if any, on shares of such series, the
times of payment and the date from which dividends shall be
accumulated, if dividends are to be cumulative;
(ii) whether the shares of such series shall be redeemable
and, if so, the redemption price and the terms and conditions of such
redemption;
(iii) the obligation, if any, of the Corporation to redeem
shares of such series pursuant to a sinking fund;
(iv) whether shares of such series shall be convertible into,
or exchangeable for, shares of stock of any other class or classes
and, if so, the terms and conditions of such conversion or exchange,
including the price or prices or the rate or rates of conversion or
exchange and the terms of adjustment, if any;
(v) whether the shares of such series shall have voting
rights, in addition to the voting rights provided by law, and, if so,
the extent of such voting rights;
(vi) the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation; and
(vii) any other relative rights, powers, preferences,
qualifications, limitations or restrictions thereof relating to such
series.
3.
No shareholder shall have any preemptive right to subscribe
for or to purchase any shares or other securities issued by the Corporation.
4.
Section 4.1. Personal Liability of Directors. No director of
the Corporation shall be personally liable to the Corporation or its
shareholders for monetary damages for breach of duty of care or other duty as a
director, except for liability (i) for any appropriation, in violation of the
director's duties, of any business opportunity of the Corporation, (ii) for
acts or omissions which involved intentional misconduct or a knowing violation
of law, (iii) for the types of
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liabilities set forth in Section 14-2-832 of the Georgia Business Corporation
Code, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Georgia Business Corporation Code is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Georgia
Business Corporation Code, as amended.
Section 4.2. Effect of Repeal or Modification. Neither the
repeal or modification of this Article 4 nor the adoption of any provision of
these Articles of Incorporation inconsistent with these Articles shall
eliminate or adversely affect any right or protection of a director of the
Corporation existing immediately prior to such repeal, modification or
adoption.
5.
Section 5.1. Number of Directors. Subject to the rights
of the holders of any series of Preferred Stock to elect additional directors
under specified circumstances, the number of directors that shall constitute
the Board of Directors of the Corporation shall be determined from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the entire Board.
Section 5.2. Classified Board. The directors of the
Corporation (other than any directors who may be elected by holders of any
series of Preferred Stock then outstanding) shall be and are divided into three
classes: Class I, Class II and Class III. The number of directors in each
class shall be as nearly equal as the then-authorized number of directors
constituting the Board of Directors permits. Each director shall serve for a
term ending on the date of the third annual meeting following the annual
meeting at which such director was elected; provided, however, that the
directors first elected to Class I shall serve for a term ending on the date of
the annual meeting next following the end of the calendar year 1997, the
directors first elected to Class II shall serve for a term ending on the date
of the second annual meeting next following the end of the calendar year 1997,
and the directors first elected to Class III shall serve for a term ending on
the date of the third annual meeting next following the end of the calendar
year 1997. Any director who may be elected by holders of any series of
Preferred Stock then outstanding shall serve for a term ending on the date of
the next annual meeting following the annual meeting at which such director was
elected.
Section 5.3. Increase or Decrease in Authorized Number of
Directors. In the event of any increase or decrease in the authorized number
of directors:
(a) Each director then serving shall nevertheless
continue as a director of the class of which he is a member until the
expiration of his term, or his prior death, retirement, resignation or
removal; and
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(b) Newly-created or eliminated directorships
resulting from any increase or decrease shall be apportioned by the
Board of Directors among the three classes so as to keep the number of
directors in each class as nearly equal as possible.
Section 5.4. Removal. Subject to the rights of the
holders of any series of Preferred Stock then outstanding, any or all Directors
may be removed from office at any time for cause, but only by the same
affirmative vote of the shareholders required to amend this Article 5 as
provided in Section 9.2 of these Articles of Incorporation.
Section 5.5. Vacancies. Subject to the rights of the
holders of any series of Preferred Stock then outstanding to fill director
vacancies, vacancies on the Board of Directors (including vacancies resulting
from retirement, resignation, removal from office or death) shall be filled
exclusively by the Board of Directors. Any director so elected shall hold
office until the next annual meeting of shareholders.
6.
In discharging the duties of their respective positions and in
determining what is believed to be in the best interests of the Corporation,
the Board of Directors, committees of the Board of Directors, and individual
directors, in addition to considering the effects of any action on the
Corporation or its shareholders, may consider the interests of the employees,
customers, suppliers and creditors of the Corporation and its subsidiaries, the
communities in which offices or other establishments of the Corporation and its
subsidiaries are located, and all other factors such directors consider
pertinent; provided, however, that this provision solely grants discretionary
authority to the directors and no constituency shall be deemed to have been
given any right to consideration hereby.
7.
Any action required or permitted to be taken at a
shareholders' meeting may be taken without a meeting if the action is taken by
all of the shareholders entitled to vote on the action, or by persons who would
be entitled to vote at a meeting those shares having voting power to cast not
less than the minimum number (or numbers, in the case of voting by groups) of
votes that would be necessary to authorize or take such actions at a meeting at
which all shares entitled to vote were present and voted. The action must be
evidenced by one or more written consents describing the action taken, signed
by shareholders entitled to take action without a meeting and delivered to the
Corporation for inclusion in the minutes or filing with the corporate records.
8.
The mailing address of the principal office of the Corporation
is Atlanta Financial Center, 3353 Peachtree Road Northeast, Suite 1120, North
Tower, Atlanta, Georgia 30326.
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9.
Section 9.1. Amendment. These Articles of Incorporation may
not be amended without the affirmative vote of at least a majority of the
shares entitled to vote generally in the election of directors, voting as a
single voting group.
Section 9.2. Supermajority Vote Required for Certain
Amendments. Notwithstanding anything to the contrary in these Articles of
Incorporation or the Bylaws of the Corporation and subject to the rights of
holders of any series of Preferred Stock then outstanding (and notwithstanding
that a lesser percentage may be specified by law, these Articles of
Incorporation or the Bylaws of the Corporation), (i) the affirmative vote of
the holders of at least 70% of the outstanding shares of the Corporation shall
be required to alter, amend or repeal, or adopt any provisions inconsistent
with, Article 4, Article 5 or this Section 9.2 of these Articles of
Incorporation, and (ii) Article II of the Bylaws of the Corporation shall not
be altered, amended or repealed, and no provision inconsistent therewith shall
be adopted, without the affirmative vote of a majority of the entire Board of
Directors or of the holders of at least 70% of the outstanding shares of the
Corporation.
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IN WITNESS WHEREOF, AHL Services, Inc. has caused these Articles of
Restatement and Amendment to Articles of Incorporation to be executed, its
corporate seal to be affixed, and its seal and execution hereof to be attested,
all by its duly authorized officers, this 27th day of February, 1997.
AHL SERVICES, INC.
By: FRANK A. ARGENBRIGHT, JR.
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Name: Frank A. Argenbright, Jr.
Title: Chairman & Co-Chief
Executive Officer
[CORPORATE SEAL]
Attest: DAVID L. GAMSEY
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Name: David L. Gamsey
Title: Secretary
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EXHIBIT 3
BYLAWS
OF
AHL SERVICES, INC.
ARTICLE I
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the
shareholders for the election of directors and for the transaction of such
other business as may properly come before the meeting shall be held at such
place, either within or without the State of Georgia, on such date, and at such
time, as the Board of Directors may by resolution provide, or if the Board of
Directors fails to provide, then such meeting shall be held at the principal
office of the Corporation at 10:00 a.m., local time, on the fourth Tuesday in
April of each year, if not a legal holiday under the laws of the State of
Georgia, and if a legal holiday, on the next succeeding business day. The
Board of Directors may specify by resolution prior to any special meeting of
shareholders held within the year that such meeting shall be in lieu of the
annual meeting.
Section 2. Special Meetings. Special meetings of the
shareholders may be called by the Board of Directors, by the Chairman of the
Board of Directors, by the President, or by the Corporation upon the written
request (which request shall set forth the purpose or purposes of the meeting)
of the shareholders of record (see Section 6(b) of Article I of these Bylaws)
of outstanding shares representing more than 75% of all the votes entitled to
be cast on any issue proposed to be considered at the proposed special meeting.
In the event such meeting is called by the Board of Directors, such meeting may
be held at such place, either within or without the State of Georgia, as is
stated in the call and notice thereof. If such meeting is called at the
request of shareholders as provided in this Section 2, then such meeting shall
be held at such place in the State of Georgia as is stated in the notice
thereof.
Section 3. Notice of Meetings. A written or printed notice
stating the place, day and hour of the meeting, and in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered or mailed by the Secretary of the Corporation to each holder of
record of stock of the Corporation at the time entitled to vote, at his address
as it appears upon the records of the Corporation, not less than 10 nor more
than 60 days prior to such meeting. If the Secretary fails to give such notice
within 20 days after the call of a meeting, the person calling or requesting
such meeting, or any person designated by them, may give such notice. Notice
of such meeting may be waived in writing by any shareholder. Notice of any
adjourned meeting of the shareholders shall not be required if the time and
place to which the meeting is adjourned are announced at the meeting at which
the adjournment is taken, unless the Board of Directors sets a new record date
for such meeting in which case notice shall be given in the manner provided in
this Section 3.
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Section 4. Quorum and Shareholder Vote. A quorum for action
on any subject matter at any annual or special meeting of shareholders shall
exist when the holders of shares entitled to vote a majority of the votes
entitled to be cast on such subject matter are represented in person or by
proxy at such meeting. If a quorum is present, the affirmative vote of such
number of shares as is required by the Georgia Business Corporation Code (as in
effect at the time the vote is taken), for approval of the subject matter being
voted upon, shall be the act of the shareholders, unless a greater vote is
required by the Articles of Incorporation or these Bylaws. If a quorum is not
present, a meeting of shareholders may be adjourned from time to time by the
vote of shares having a majority of the votes of the shares represented at such
meeting, until a quorum is present. When a quorum is present at the
reconvening of any adjourned meeting, and if the requirements of Section 3 of
this Article I have been observed, then any business may be transacted at such
reconvened meeting in the same manner and to the same extent as it might have
been transacted at the meeting as originally noticed.
Section 5. Proxies. A shareholder may vote either in person
or by proxy duly executed in writing by the shareholder. Unless written notice
to the contrary is delivered to the Corporation by the shareholder, a proxy for
any meeting shall be valid for any reconvention of any adjourned meeting.
Section 6. Fixing Record Date.
(a) Except as provided in paragraph (b) of this Section 6,
for the purpose of determining shareholders entitled to notice of or to vote at
any meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders
for any other proper purpose, the Board of Directors shall have the power to
fix a date, not more than 70 days prior to the date on which the particular
action requiring a determination of shareholders is to be taken, as the record
date for any such determination of shareholders. A record date for the
determination of shareholders entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof shall not be set less than 10 days
prior to such meeting; provided that the record date for the determination of
shareholders entitled to notice of or to vote at any special meeting of
shareholders called by the Corporation at the request of holders of shares
pursuant to Section 2 of Article I hereof or any adjournment thereof shall be
20 days after the "Determination Date" (as defined in paragraph (b) of this
Section 6), and provided further that such record date shall be 70 days prior
to such special meeting. In any case where a record date is set, under any
provision of this Section 6, only shareholders of record on the said date shall
be entitled to participate in the action for which the determination of
shareholders of record is made, whether the action is payment of a dividend,
allotment of any rights or any change or conversion or exchange of capital
stock or other such action, and, if the record date is set for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, only such shareholders of record shall be entitled to such notice
or vote, notwithstanding any transfer of any shares on the books of the
Corporation after such record date.
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(b) (i) In order that the Corporation may determine the
shareholders entitled to request a special meeting of the shareholders or a
special meeting in lieu of the annual meeting of the shareholders pursuant to
Section 2 of Article I hereof, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which date shall not
be more than 10 days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. Any shareholder of record seeking
to have the shareholders request such a special meeting shall, by written
notice to the Secretary, request the Board of Directors to fix a record date.
The Board of Directors shall, within 10 business days after the date on which
such a request is received, adopt a resolution fixing the record date. If no
record date has been fixed by the Board of Directors within 10 business days
after the date on which such a request is received, the record date for
determining shareholders entitled to request such a special meeting shall be
the first day on which a signed written request setting forth the request to
fix a record date is delivered to the Corporation by delivery to its principal
place of business, or any officer or agent of the Corporation having custody of
the books in which proceedings of meetings of shareholders are recorded.
(ii) Every written request for a special meeting shall bear
the date of signature of each shareholder who signs the request and no such
request shall be effective to request such a meeting unless, within 70 days
after the record date established in accordance with paragraph (b)(i) of this
Section, written requests signed by a sufficient number of record holders as of
such record date to request a special meeting in accordance with Section 2 of
Article I hereof are delivered to the Corporation in the manner prescribed in
paragraph (b)(i) of this Section.
(iii) In the event of the delivery, in the manner provided by
this Section, to the Corporation of the requisite written request or requests
for a special meeting and/or any related revocation or revocations, the
Corporation shall promptly perform a ministerial review of the validity of the
requests and revocations. For the purpose of permitting a prompt ministerial
review by the Corporation, no request by shareholders for a special meeting
shall be effective until the earlier of (i) five business days following
delivery to the Corporation of requests signed by the holders of record (on the
record date established in paragraph (b)(i) of this Section) of the requisite
minimum number of shares that would be necessary to request such a meeting
under Section 2 of Article I hereof, or (ii) such date as the Corporation
certifies that the requests delivered to the Corporation in accordance with
this Article represent at least the minimum number of shares that would be
necessary to request such meeting (the earlier of such dates being herein
referred to as the "Determination Date"). Nothing contained in this paragraph
shall in any way be construed to suggest or imply that the Board of Directors
or any shareholder shall not be entitled to contest the validity of any request
or revocation thereof, whether during or after such five business day period,
or to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto).
(iv) Unless the Corporation shall deliver, on or before the
Determination Date, a certificate stating that the valid requests for a special
meeting submitted pursuant to paragraph (iii) above represent less than the
requisite minimum number of shares that would be necessary to request
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a special meeting under Section 2 of Article I hereof, the Board of Directors
shall, within five business days after the Determination Date, adopt a
resolution calling a special meeting of the shareholders and fixing a record
date for such meeting, in accordance with Section 6(a) of Article I of these
Bylaws.
Section 7. Notice of Shareholder Business. At an annual
meeting of the shareholders, only such business shall be conducted as shall
have been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the Corporation who complies with the
notice procedures set forth in this Section 7 and only to the extent that such
business is appropriate for shareholder action under the provisions of the
Georgia Business Corporation Code. For business to be properly brought before
an annual meeting by a shareholder, the shareholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than 60 days prior to
the meeting; provided, however, that in the event that less than 40 days'
notice or prior public disclosure of the date of the meeting is given or made
to shareholders, notice by the shareholder to be timely must be received not
later than the close of business on the 10th day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made. A shareholder's notice to the Secretary shall set forth
as to each matter the shareholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting,
(b) the name and address, as they appear on the Corporation's books, of the
shareholder proposing such business, (c) the class and number of shares of
stock of the Corporation which are beneficially owned by the shareholder, and
(d) any material interest of the shareholder in such business. Notwithstanding
anything in the Bylaws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the procedures set forth in this
Section 7. At an annual meeting, the Chairman shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 7, and if
he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Section 8. Notice of Shareholder Nominees. Except for
Directors who are elected by Directors pursuant to the provisions of Section 2
or Section 9 of Article II of these Bylaws, only persons who are nominated in
accordance with the procedures set forth in this Section 8 shall be eligible
for election as Directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of shareholders (a) by or
at the direction of the Board of Directors or (b) by any shareholder of the
Corporation entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this Section 8. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a shareholder's notice must be delivered to
or mailed and received at the principal executive offices of the Corporation
not less than 60 days prior to the meeting; provided, however, that in the
event that less than 40 days' notice or prior public disclosure of the date of
the meeting is given or made to shareholders, notice by the shareholder to be
timely must be so received not later than the close of
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business on the 10th day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such shareholder's
notice shall set forth (a) as to each person whom the shareholder proposes to
nominate for election or re-election as a Director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended; and (b)
as to the shareholder giving the notice (i) the name and address, as they
appear on the Corporation's books, of such shareholder and (ii) the class and
number of shares of stock of the Corporation which are beneficially owned by
such shareholder. No person shall be eligible for election as a Director of
the Corporation unless nominated in accordance with the procedures set forth in
the Bylaws. The Chairman shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the Bylaws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
ARTICLE II
DIRECTORS
Section 1. Powers of Directors. The Board of Directors shall
manage the business and affairs of the Corporation and, subject to any
restrictions imposed by law, by the Articles of Incorporation, or by these
Bylaws, may exercise all the powers of the Corporation.
Section 2. Number and Term of Directors.
(a) Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
the number of directors that shall constitute the Board of Directors of the
Corporation shall be determined from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the entire Board.
No decrease in the number of Directors shall shorten the term of an incumbent
Director.
(b) The Directors of the Corporation (other than any
Directors who may be elected by holders of any series of Preferred Stock then
outstanding) shall be and are divided into three classes: Class I, Class II
and Class III. The number of Directors in each class shall be as nearly equal
as the then-authorized number of Directors constituting the Board of Directors
permits. Each Director shall serve for a term ending on the date of the third
annual meeting following the annual meeting at which such Director was elected;
provided, however, that the directors first elected to Class I shall serve for
a term ending on the date of the annual meeting next following the end of the
calendar year 1997, the directors first elected to Class II shall serve for a
term ending on the date of the second annual meeting next following the end of
the calendar year 1997, and the directors first elected to Class III shall
serve for a term ending on the date of the third annual meeting next following
the end of the calendar year 1997. Any director who may be elected by holders
of any
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series of Preferred Stock then outstanding shall serve for a term ending on the
date of the next annual meeting following the annual meeting at which such
director was elected.
(c) In the event of any increase or decrease in the
authorized number of Directors:
(i) Each Director then serving shall nevertheless
continue as a Director of the class of which he is a member until the
expiration of his term or his prior death, retirement, resignation or
removal; and
(ii) Newly-created or eliminated Directorships
resulting from any increase or decrease shall be apportioned by the
Board of Directors among the three classes so as to keep the number of
Directors in each class as nearly equal as possible.
Section 3. Meetings of the Directors. The Board of Directors
shall meet each year immediately following the annual meeting of shareholders,
and the Board may by resolution provide for the time and place of other regular
meetings. Special meetings of the Directors may be called by the Chairman of
the Board or by any Co-Chief Executive Officer or by the President or by any
two of the Directors.
Section 4. Notice of Meetings. Notice of each meeting of the
Directors shall be given by the Secretary by mailing the same at least ten days
before the meeting or by telephone, telegraph, facsimile or cablegram or in
person at least five days before the meeting, to each Director, except that no
notice need be given of regular meetings fixed by the resolution of the Board
or of the meeting of the Board held at the place of and immediately following
the annual meeting of the shareholders. Any Director may waive notice, either
before or after the meeting, and shall be deemed to have waived notice if he is
present at the meeting.
Section 5. Action of Directors Without a Meeting. Any action
required by law to be taken at a meeting of the Board of Directors, or any
action which may be taken at a meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if written consent, setting
forth the action so taken, shall be signed by all the Directors, or all the
members of the committee, as the case may be, and be filed with the minutes of
the proceedings of the Board or the committee. Such consent shall have the
same force and effect as a unanimous vote of the Board or the committee, as the
case may be.
Section 6. Committees. The Board of Directors may, in its
discretion, appoint committees, each consisting of one or more Directors, which
shall have and may exercise such delegated powers as shall be conferred on or
authorized by the resolutions appointing them, except that no such committee
may: (1) approve or propose to shareholders action that the Georgia Business
Corporation Code requires to be approved by shareholders, (2) fill vacancies on
the Board of Directors or any of its committees, (3) amend the Articles of
Incorporation of the Corporation pursuant to Section 14-2-1002 of the Georgia
Business Corporation Code, (4) adopt, amend or repeal these Bylaws, or (5)
approve a plan of merger not requiring shareholder approval. A majority of any
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such committee may determine its action, fix the time and place of its
meetings, and determine its rules of procedure. Each committee shall keep
minutes of its proceedings and actions and shall report regularly to the Board
of Directors. The Board of Directors shall have power at any time to fill
vacancies in, change the membership of, or discharge any such committee.
Section 7. Compensation. The Board of Directors shall have
the authority to determine from time to time the amount of compensation that
shall be paid to its members for attendance at meetings of, or service on, the
Board of Directors of any committee of the Board. The Board of Directors also
shall have the power to reimburse Directors for reasonable expenses of
attendance at Directors' meetings and committee meetings.
Section 8. Removal. Subject to the rights of the holders of
any series of Preferred Stock then outstanding, any or all Directors may be
removed from office at any time for cause, but only by the same affirmative
vote of the shareholders required to amend this Article II as provided in the
Corporation's Articles of Incorporation.
Section 9. Vacancies. Subject to the rights of the holders
of any series of Preferred Stock then outstanding to fill director vacancies,
vacancies on the Board of Directors (including vacancies resulting from
retirement, resignation, removal from office (with or without cause) or death)
shall be filled exclusively by the Board of Directors. Any Director so elected
shall hold office until the next annual meeting of shareholders.
Section 10. Telephone Conference Meetings. Unless the
Articles of Incorporation otherwise provide, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board or committee by means of telephone conference or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section 10 shall constitute presence in person at such meeting.
ARTICLE III
OFFICERS
Section 1. Officers. The officers of the Corporation shall
consist of a Chairman of the Board of Directors, a Chief Executive Officer or
Co-Chief Executive Officers, a President, a Chief Financial Officer, one or
more Vice-Presidents, a Secretary and a Treasurer, and such other officers or
assistant officers as may be elected by the Board of Directors. More than one
office may be held by the same person. The Board may designate a
Vice-President as an Executive Vice-President or a Senior Vice President, and
may designate the order in which the other Vice-Presidents may act.
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Section 2. Chairman of the Board. The Chairman of the Board
of Directors shall preside at all meetings of the shareholders and all meetings
of the Board of Directors and shall have such other duties as the Board of
Directors shall from time to time prescribe.
Section 3. Chief Executive Officer. The (Co-) Chief
Executive Officer(s) shall be the chief executive officer(s) of the
Corporation. He shall, under the direction of the Board of Directors, have
responsibility for the general direction of the business, policies and affairs
of the Corporation and shall supervise the management of the day-to-day
business of the Corporation. He shall have such further powers and duties as
from time to time may be conferred on him by the Board of Directors. In the
absence of the Chairman of the Board he shall preside at all meetings of the
shareholders and the Board of Directors.
Section 4. President. The President shall also serve as the
Company's Vice-President of Production and shall be responsible for the
Company's product development activities. He shall have such further powers
and duties as from time to time may be conferred on him by the Chief Executive
Officer(s).
Section 5. Vice-President. The Vice-President shall act in
the case of the absence or disability of the Chairman of the Board and the
President. If there is more than one Vice-President, such Vice-Presidents
shall act in the order of precedence, as set out by the Board of Directors.
Section 6. Treasurer. The Treasurer shall be responsible for
the maintenance of proper financial books and records of the Corporation.
Section 7. Secretary. The Secretary shall keep the minutes
of the meetings of the shareholders and the Directors and shall have custody of
and attest the seal of the Corporation.
Section 8. Other Duties and Authorities. Each officer,
employee and agent shall have such other duties and authorities as may be
conferred on them by the Board of Directors.
Section 9. Removal. Any officer may be removed at any time
by the Board of Directors, and such vacancy may be filled by the Board of
Directors. A contract of employment for a definite term shall not prevent the
removal of any officer, but this provision shall not prevent the making of a
contract of employment with any officer and shall have no effect upon any cause
of action which any officer may have as a result of removal in breach of a
contract of employment.
Section 10. Compensation. The salaries of the officers shall
be fixed from time to time by the Board of Directors. No officer shall be
prevented from receiving such salary by reason of the fact that he is also a
Director of the Corporation.
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ARTICLE IV
DEPOSITORIES, SIGNATURE AND SEAL
Section 1. Depositories. All funds of the Corporation shall
be deposited in the name of the Corporation in such depository or depositories
as the Board may designate and shall be drawn out on checks, drafts or other
orders signed by such officer, officers, agent or agents as the Board may from
time to time authorize.
Section 2. Contracts. All contracts and other instruments
shall be signed on behalf of the Corporation by the Chairman of the Board, the
President, any Vice-President or by such other officer, officers, agent or
agents, as the Chairman of the Board or the President designates from time to
time or as the Board from time to time may by resolution provide.
Section 3. Seal. The seal of the Corporation shall be as
follows:
The seal may be manually affixed to any document or may be
lithographed or otherwise printed on any document with the same force and
effect as if it had been affixed manually. The signature of the Secretary or
Assistant Secretary shall attest the seal and may be a facsimile if and to the
extent permitted by law.
ARTICLE V
STOCK TRANSFERS
Section 1. Form and Execution of Certificates. The
certificates of shares of capital stock of the Corporation shall be in such
form as may be approved by the Board of Directors and shall be signed by the
Chairman of the Board, the President or a Vice-President and by the Secretary
or any Assistant Secretary or the Treasurer or any Assistant Treasurer,
provided that any such certificate may be signed by the facsimile signature of
either or both of such officers imprinted thereon if the same is countersigned
by a transfer agent of the Corporation, and provided further that certificates
bearing the facsimile of the signature of such officers imprinted thereon shall
be valid in all respects as if such person or persons were still in office,
even though such officer or officers shall have died or otherwise ceased to be
officers.
Section 2. Transfers of Shares. Shares of stock in the
Corporation shall be transferable only on the books of the Corporation by
proper transfer signed by the holder of record
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thereof or by a person duly authorized to sign for such holder of record. The
Corporation or its transfer agent or agents shall be authorized to refuse any
transfer unless and until it is furnished such evidence as it may reasonably
require showing that the requested transfer is proper.
Section 3. Lost, Destroyed or Stolen Certificates. Where the
holder of record of a share or shares of stock of the Corporation claims that
the certificate representing said share has been lost, destroyed or wrongfully
taken, the Board shall by resolution provide for the issuance of a certificate
to replace the original if the holder of record so requests before the
Corporation has notice that the certificate has been acquired by a bona fide
purchaser, files with the Corporation a sufficient indemnity bond, and
furnishes evidence of such loss, destruction or wrongful taking satisfactory to
the Corporation, in the reasonable exercise of its discretion. The Board may
authorize such officer or agent as it may designate to determine the
sufficiency of such an indemnity bond and to determine reasonably the
sufficiency of the evidence of loss, destruction or wrongful taking.
Section 4. Transfer Agent and Registrar. The Board may (but
shall not be required to) appoint a transfer agent or agents and a registrar or
registrars to transfers, and may require that all stock certificates bear the
signature of such transfer agent or of such transfer agent and registrar.
ARTICLE VI
INDEMNIFICATION
Section 1. Mandatory Indemnification. The Corporation shall
indemnify to the fullest extent permitted by the Georgia Business Corporation
Code, and to the extent that applicable law from time to time in effect shall
permit indemnification that is broader than provided in these Bylaws, then to
the maximum extent authorized by law, any individual made a party to a
proceeding (as defined in the Georgia Business Corporation Code) because he is
or was a director or officer against liability (as defined in the Georgia
Business Corporation Code), incurred in the proceeding, if he acted in a manner
he 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, he had no reasonable
cause to believe his conduct was unlawful.
Section 2. Permissive Indemnification. The Corporation shall
have the power to indemnify to the fullest extent permitted by the Georgia
Business Corporation Code, any individual made a party to a proceeding (as
defined in the Georgia Business Corporation Code) because he is or was an
employee or agent of the Company against liability (as defined in the Georgia
Business Corporation Code), incurred in the proceeding, if he acted in a manner
he 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, he had no reasonable
cause to believe his conduct was unlawful.
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Section 3. Advances for Expenses. The Corporation shall pay
for or reimburse the reasonable expenses incurred by a director or officer who
is a party to a proceeding, and shall have the authority to pay for or
reimburse the reasonable expenses of an employee or agent of the Company who is
a party to a proceeding, in each case in advance of the final disposition of a
proceeding if:
(a) Such person furnishes the Corporation a written
affirmation of his good faith belief that he has met
the standard of conduct set forth in Section 1 or
Section 2 above, as applicable; and
(b) Such person furnishes the Corporation a written
undertaking, executed personally on his behalf to
repay any advances if it is ultimately determined
that he is not entitled to indemnification.
The written undertaking required by paragraph (ii) above must be an
unlimited general obligation of such person but need not be secured and may be
accepted without reference to financial ability to make repayment.
Section 4. Indemnification Not Exclusive. The right to
indemnification and the payment of expenses incurred in defending a proceeding
in advance of its final disposition conferred in this Article VI shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation, provision of
these Bylaws, agreement, vote of shareholders or disinterested directors or
otherwise.
Section 5. Amendment or Repeal. Any repeal or modification
of the foregoing provisions of this Article VI shall not adversely affect any
right or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE VII
BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS
All of the requirements of Article 11A of the Georgia Business
Corporation Code (currently codified in Sections 14-2-1131 through 14-2-1133
thereof), as may be in effect from time to time (the "Business Combination
Statute"), shall apply to all "business combinations" (as defined in Section
14-2-1131 of the Georgia Business Corporation Code) involving the Corporation.
The requirements of the Business Combination Statute shall be in addition to
the requirements of Article VIII of these Bylaws. Nothing contained in the
Business Combination Statute shall be deemed to limit the provisions contained
in Article VIII of these Bylaws, and nothing contained in Article VIII of these
Bylaws shall be deemed to limit the provisions contained in the Business
Combination Statute.
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ARTICLE VIII
FAIR PRICE PROVISIONS
All requirements of Sections 14-2-1110 through 14-2-1113 of the
Georgia Business Corporation Code, as may be in effect from time to time, shall
apply to the Corporation.
ARTICLE IX
AMENDMENT OF BYLAWS
Section 1. Amendment.
(a) Except as otherwise provided in the Articles of
Incorporation or these Bylaws, these Bylaws may be altered, amended, repealed
or new Bylaws adopted by the Board of Directors by the affirmative vote of a
majority of all directors then holding office, but any bylaws adopted by the
Board of Directors may be altered, amended, repealed, or any new bylaws
adopted, by the shareholders at an annual or special meeting of shareholders,
when notice of any such proposed alteration, amendment, repeal or addition
shall have been given in the notice of such meeting. The shareholders may
prescribe that any bylaw or bylaws adopted by them shall not be altered,
amended or repealed by the Board of Directors. Except as otherwise provided in
the Articles of Incorporation or these Bylaws, action by the shareholders with
respect to these Bylaws shall be taken by an affirmative vote of a majority of
all shares outstanding and entitled to vote generally in the election of
directors, voting as a single voting group.
(b) Notwithstanding anything herein to the contrary, Article
II of these Bylaws shall not be altered, amended or repealed, and no provision
inconsistent therewith shall be adopted, without the affirmative vote of a
majority of the entire Board of Directors or of the holders of at least 70% of
the outstanding shares of the Corporation.
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