<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
----------------------------------
The InterCept Group, Inc.
(Exact name of Registrant as Specified in Its Charter)
Georgia 58-2237359
(State of Incorporation (I.R.S. Employer
or Organization) Identification Number)
3150 Holcomb Bridge Road 30071
Suite 200 (Zip Code)
Norcross, Georgia
(Address of Principal Executive Offices)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to securities pursuant to
Section 12(b) of the Exchange Section 12(g) of the Exchange
Act and is effective pursuant Act and is effective pursuant
to General Instruction A.(c), to General Instruction A.(d),
please check the following box. [ ] please check the following box. [X]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on
Be so Registered Which Each Class is to be Registered
-------------------- ------------------------------------
None N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, no par value per share
------------------------------------
(Title of Class)
<PAGE>
Items 1 and 2 of the Company's Registration Statement on Form 8-A dated
March 25, 1999 are hereby amended and restated as follows:
Item 1. Description of Registrant's Securities to be Registered.
The following description of our capital stock is only a summary and is
subject to the provisions of our articles of incorporation and bylaws and the
provisions of applicable law. You should read carefully the articles and
bylaws, which are included as exhibits to this Amendment No. 1 to the
Registration Statement on Form 8-A.
Authorized and Outstanding Capital Stock
Our authorized capital stock consists of 50,000,000 shares of common stock,
no par value per share, and 1,000,000 shares of preferred stock, no par value
per share. As of September 30, 1999, there were 10,115,972 shares of common
stock outstanding and no shares of preferred stock outstanding.
Common Stock
The holders of common stock are entitled to receive dividends that are
legally declared by the board of directors. Each shareholder is entitled to one
vote per share on all matters to be voted upon. Holders of common stock are not
entitled to cumulate votes for the election of directors and do not have
preemptive, redemption or conversion rights. In the event of a liquidation,
dissolution or winding up, holders of common stock will be entitled to share
ratably in our net assets available for distribution to common shareholders. All
outstanding shares are fully paid and non-assessable. The rights, preferences
and privileges of holders of common stock are subject to the rights, preferences
and privileges of holders of any classes or series of preferred stock that we
may issue in the future.
Preferred Stock
Our board of directors can issue, without further action or vote by the
holders of the common stock, shares of preferred stock in one or more series and
fix any preferences, conversion and other rights, voting powers, restrictions,
limitations, qualifications and terms and conditions of redemption as shall be
set forth in resolutions adopted by the board of directors. Articles of
amendment must be filed with the Georgia Secretary of State prior to the
issuance of any shares of preferred stock of the applicable series. Any
preferred stock issued may rank senior to the common stock with respect to the
payment of dividends or amounts upon liquidation, dissolution or winding-up.
In addition, this preferred stock may have class or series voting rights.
Issuances of preferred stock, while providing us with flexibility in connection
with general corporate purposes, may, among other things, have an adverse effect
on the rights of holders of common stock. In addition, the issuance of
preferred stock could make it more difficult for a third party to acquire a
majority of our outstanding voting stock or cause a decrease in the market
price of the common stock. We have no present plan to issue any additional
shares of preferred stock.
Certain Provisions of the Articles, Bylaws and Georgia Law
Some provisions of our articles of incorporation and bylaws and Georgia
law, summarized in the following paragraphs, may be considered to have anti-
takeover effects. They may hinder, delay, deter or prevent a tender offer,
proxy contest or other attempted takeover that a shareholder may deem
<PAGE>
to be in the shareholder's best interest or that might result in payment of a
premium over the market price for shares held by the shareholder.
Number and term of directors.
Our articles of incorporation provide that we shall have not less than 4
nor more than 12 directors. The board of directors is divided into three
classes of directors serving staggered three-year terms. Approximately one-
third of the board of directors are elected at each annual meeting of
shareholders. The classification of directors, together with other provisions
in the articles and bylaws that limit the removal of directors and permit the
remaining directors to fill any vacancies on the board of directors, make it
more difficult for shareholders to change the composition of the board of
directors. As a result, at least two annual meetings of shareholders may be
required for the shareholders to change a majority of the directors, whether or
not such change in the board of directors would be beneficial to us and our
shareholders and whether or not a majority of our shareholders believes that
such a change would be desirable. We believe, however, that the longer time
required to elect a majority of a classified board of directors will help to
ensure the continuity and stability of our management and policies. Currently,
the terms of Class I directors expire in 2002, the terms of Class II directors
expire in 2000 and the terms of Class III directors expire in 2001.
Removal of directors and filling vacancies.
Our bylaws provide that a director may be removed only with cause by the
vote of the holders of 66 2/3% of the shares entitled to vote for the election
of directors at a meeting of shareholders called to remove that director.
Unless the board of directors otherwise determines, any vacancies, including
vacancies resulting from an increase in the number of directors, will be filled
by the affirmative vote of a majority of the remaining directors, even if less
than a quorum.
Special shareholder meetings.
Our bylaws provide that our shareholders may call special meetings of the
shareholders only if those shareholders hold outstanding shares representing a
majority of all votes entitled to be cast on any issue proposed to be considered
at the special meeting.
Advance notice provisions for shareholder nominations and
shareholder proposals.
Our bylaws provide that at an annual meeting of shareholders, nominations
of persons for election to the board of directors and the proposal of business
to be considered by shareholders may be made only by or at the direction of the
board of directors, the Chairman of the board of directors or the President, or
by a shareholder who has complied with the advance notice procedures set forth
in the bylaws.
One purpose of requiring shareholders to give us advance notice of
nominations and other business is to give the board of directors a meaningful
opportunity to consider the qualifications of the proposed nominees or the
advisability of the other proposed business. If the board of directors
considers it necessary or advisable, these provisions provide our board the
opportunity to inform shareholders and make recommendations about the
qualifications or business, and to provide a more orderly procedure for
conducting meetings of shareholders. The bylaws do not give the board of
directors any power to disapprove timely shareholder nominations for the
election of directors or proposals for action. However, the provisions may
preclude a contest for the election of directors or the consideration of
shareholder proposals if the proper procedures are not followed. These
2
<PAGE>
provisions may also discourage or deter a third party from conducting a
solicitation of proxies to elect its own slate of directors or to approve its
own proposal.
Board and shareholder action required for certain transactions.
Our articles of incorporation require the affirmative vote of at least
66 2/3% of the directors for the following corporate actions to be submitted
to a vote of the shareholders:
. a sale of all or substantially all of our assets;
. our liquidation or dissolution;
. our merger, consolidation or reorganization, unless our shareholders
immediately prior to the transaction own at least a majority of our
combined voting power resulting from the merger, consolidation or
reorganization; or
. any increase in the number of directors above 12 directors.
In addition, the affirmative vote of the holders of 66 2/3% of our common stock
is required for shareholder approval of any these actions.
Issuance of preferred stock.
Our board of directors has the power to issue 1,000,000 shares of preferred
stock, in one or more classes or series and with rights and preferences as
determined by the board of directors, all without shareholder approval. Because
the board of directors has the power to establish the preferences and rights of
each class or series of preferred stock, it may allow the holders of any series
of preferred stock preferences, powers and rights, voting or otherwise, senior
to the rights of holders of common stock. The board of directors has no present
plans to issue any additional shares of preferred stock.
Georgia anti-takeover statutes.
Georgia law generally restricts a company from entering into certain
business combinations with an interested shareholder, which is defined as any
person or entity that is the beneficial owner of at least 10% of the company's
voting stock, or its affiliates for a period of five years after the date on
which such shareholder became an interested shareholder, unless:
. the transaction is approved by the board of directors of the company
prior to the date the person became an interested shareholder;
. the interested shareholder acquires 90% of the company's voting
stock in the same transaction in which it exceeds 10%; or
. subsequent to becoming an interested shareholder, the shareholder
acquires 90% of the company's voting stock and the business
combination is approved by the holders of a majority of the voting
stock entitled to vote on the matter.
Georgia law provides that these restrictions will not apply unless the
bylaws of the corporation specifically provide that these provisions of Georgia
law are applicable to the
3
<PAGE>
corporation. We have not elected to be covered by such statute, but we could do
so by action of the board of directors at any time.
Director Indemnification and Limitation of Liability
Our articles of incorporation eliminate, with some exceptions, the personal
liability of a director to our company or our shareholders for monetary damage
for breaches of the director's duty of care or other duties as a director. This
elimination of liability does not apply to:
. any appropriation, in violation of the director's duties, of any of our
business opportunities;
. acts or omissions that involve intentional misconduct or a knowing
violation of law;
. unlawful corporate distributions; or
. any transactions from which the director derived an improper personal
benefit.
Our articles also provide that if Georgia law is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of our directors will be eliminated or limited to
the fullest extent permitted by the amended law, without further action by the
shareholders. These provisions of the articles will limit the remedies
available to a shareholder in the event of breaches of any director's duties to
a shareholder or us.
Our bylaws require us to indemnify and hold harmless any director who was
or is a party, or is threatened to be made a party, to any threatened, pending
or completed action, suit or proceeding whether civil, criminal, administrative
or investigative, including any action or suit by or in our right, because he or
she is or was one of our directors. The bylaws require indemnification against
expenses, including attorney's fees and disbursements, court costs and expert
witness fees, judgments, fines, penalties, and amounts paid in settlement
incurred by him or her from the action, suit or proceeding. Indemnification
would be disallowed under any circumstances where indemnification may not be
authorized by action of the board of directors, the shareholders or otherwise.
We have entered into separate indemnification agreements with each of our
directors and executive officers, in which we agreed, among other things, to
provide for indemnification and advancement of expenses with similar terms and
conditions to those in the bylaws. These agreements also require us to purchase
and maintain liability insurance for the benefit of our directors and executive
officers. The shareholders cannot change these agreements. There is no pending
litigation or proceeding involving any of our directors, officers, employees or
other agents where indemnification is being sought. We are not aware of any
pending or threatened litigation that may result in claims for indemnification
by any director, officer, employee or other agent.
Our bylaws also address potential conflicts of interest between us and
Netzee, Inc., a company in which we own approximately 49%, and provide for the
allocation of transactions that otherwise could constitute corporate
opportunities of both companies. These provisions clarify that a director or
officer has fulfilled his fiduciary duty and any other duty, is deemed to have
acted in what he reasonably believes to be in our best interests, and has not
derived an improper benefit, if the director or officer acts consistently with
the following policy:
4
<PAGE>
. if the person is one of our officers or directors who is also a
director but not an officer of Netzee, the opportunity belongs to us
unless it is expressly offered to that person primarily in his capacity
as a director of Netzee;
. if the person is one of our directors who is also an officer of Netzee,
the opportunity belongs to Netzee unless it is expressly offered to that
person primarily in his capacity as an InterCept director; and
. if the person is an officer of both companies or a director of both
companies, the opportunity belongs to us unless it is expressly offered
to that person primarily in his capacity as an officer or director of
Netzee.
A corporate opportunity offered to a person under circumstances that
make it unclear whether it was offered primarily in that person's capacity as an
officer or director of us or Netzee may be presented to the company the director
or officer deems appropriate under the circumstances in his sole discretion
exercised in good faith.
Conduct which does not follow these guidelines does not void the
transaction or create a breach of duty, but is governed by the bylaws generally,
our articles, the Georgia Code and other applicable law.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is SunTrust Bank,
Atlanta.
Item 2. Exhibits.
The following exhibits are filed as a part of this Registration Statement:
Exhibit No. Description
- ----------- -----------
1 Amended and Restated Articles of Incorporation of The InterCept
Group, Inc., as deemed filed with the Secretary of State of
Georgia on April 29, 1998.
2 Bylaws (Amended and Restated) of The InterCept Group, Inc.
3 Amendment to Bylaws (Amended and Restated) of the InterCept
Group, Inc., adopted October 1, 1999.
4 Specimen Common Stock Certificate.*
- -----------
* Incorporated by reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-1 (No. 333-47197) as declared effective by the
Securities and Exchange Commission on June 9, 1998.
5
<PAGE>
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, thereunto duly authorized.
THE INTERCEPT GROUP, INC.
/s/ John W. Collins
----------------------------------
John W. Collins
Chief Executive Officer
Date: October 1, 1999
-
6
<PAGE>
Exhibit 1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
THE INTERCEPT GROUP, INC.
ARTICLE ONE
NAME
The name of the corporation is The InterCept Group, Inc.
ARTICLE TWO
CAPITALIZATION
The total number of shares of all classes which the Corporation has
authority to issue is fifty-one million (51,000,000), of which fifty million
(50,000,000) shares shall be designated as "Common Stock," and one million
(1,000,000) shares shall be designated as "Preferred Stock." The designations
and the preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption of the shares of each class of stock are as follows:
Preferred Stock
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 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 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 or change 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.
Notwithstanding the foregoing, the Board of Directors shall not be authorized to
change the right of holders of the Common Stock of the Corporation to vote one
vote per share on all matters submitted for shareholder action. 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:
<PAGE>
(a) the annual 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;
(b) whether the shares of such series shall be redeemable and, if so, the
redemption price and the terms and conditions of such redemption;
(c) the obligation, if any, of the Corporation to redeem shares of such
series pursuant to a sinking fund;
(d) 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;
(e) 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;
(f) the rights of the shares of such series in the event of voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation; and
(g) any other relative rights, powers, preferences, qualifications,
limitations or restrictions thereof relating to such series.
The shares of Preferred Stock of any one series shall be identical with
each other in all respects except as to the dates from and after which dividends
thereon shall accumulate, if cumulative.
Series A 8% Cumulative Preferred Stock
--------------------------------------
There is hereby designated, out of the authorized but unissued shares of
Preferred Stock of the Corporation, a series thereof to consist of 30,000
shares, and the powers, designations, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions, of the shares of such series (in addition to those set forth in
the Corporations Articles of Incorporation which are applicable to the Preferred
Stock of all series) shall be as follows:
1. Designation. The designation of this series of Preferred Stock shall
-----------
be 8% Cumulative Preferred Stock, Series A (hereinafter called "Series A"). The
stated value of Series A is $100 per share.
2. Dividends. Holders of shares of Series A shall be entitled to receive,
---------
when, as and if declared by the Board of Directors of the Corporation out of
assets of the Corporation legally available therefor, cash dividends at the
annual rate of 8% of the stated value per share, or $8.00 per share. Dividends
on each share of Series A at such annual rate will be payable quarterly in
arrears on April 1, July 1, October 1 and January 1 of each year, commencing
October 1, 1996, or, if later, the first April 1, July 1, October 1, or January
1 occurring after the issuance of such
2
<PAGE>
share. Each such dividend will be payable to holders of record as they appear on
the stock books of the Corporation on such record dates, not exceeding 45 days
preceding the payment dates thereof, as shall be fixed by the Board of Directors
of the Corporation. Dividends will be cumulative from the date of original
issue, and dividends payable on shares of Series A on October 1, 1996 (or such
later date, if applicable) will be based on the number of days that shall have
elapsed since the date of original issue of such shares of Series A. Dividends
payable on Series A for any period greater or less than a full dividend period
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. Dividends payable on Series A for each full dividend period shall be
computed by dividing the annual dividend rate by four. Holders of Series A shall
not be entitled to any dividend, whether payable in cash, property or
securities, in excess of full cumulative dividends on Series A. No interest, or
sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments which may be in arrears. Dividends paid on shares of Series
A in an amount less than the total amount of such dividends at the time
accumulated and payable on such shares shall be allocated pro rata among all
such shares at the time outstanding.
If there shall be outstanding shares of any other series of Preferred Stock
of the Corporation ranking junior to or on a parity with Series A as to
dividends, no full dividends shall be declared or paid or set apart for payment
on any such other series for any period unless full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum sufficient
for payment thereof is set apart for such payment on Series A for all dividend
payment periods ending on or before the date of payment of such full cumulative
dividends. When dividends are not paid in full or are in arrears on Series A and
on any other series of Preferred Stock ranking on a parity as to dividends with
Series A, all dividends declared upon all outstanding shares of Series A and
shares of such other series of Preferred Stock shall be declared pro rata so
that the amounts of dividends declared per share on Series A and such other
Preferred Stock shall in all cases bear to each other the same ratio that
accrued and unpaid dividends per share on the shares of Series A and such other
Preferred Stock to the date of such dividend payment bear to each other.
Unless full cumulative dividends on all outstanding shares of Series A
shall have been paid or declared and set apart for payment for all past dividend
payment periods, (i) no dividends may be paid or declared and set apart for
payment, or other distribution made (other than dividends or distributions in
Common Stock or any other stock ranking junior to Series A) upon the Common
Stock or on any other stock of the Corporation ranking junior to Series A, and
(ii) no Common Stock, or any other stock of the Corporation ranking as to
dividends or upon liquidation junior to, or on a parity with, Series A, may be
redeemed, purchased or otherwise acquired for any consideration (nor may any
payment be made or made available for a sinking fund for the redemption of any
shares of such stock) by the Corporation (except for conversion of such junior
or parity stock into, or exchange of such junior or parity stock for, stock
ranking junior to Series A as to dividends and upon liquidation).
3. Liquidation Rights. In the event of any voluntary or involuntary
------------------
liquidation, dissolution or winding up of the Corporation, the holders of shares
of Series A are entitled to receive out of the assets of the Corporation
available for distribution to shareholders, before any distribution of assets is
made to holders of Common Stock or of any other shares of stock of the
3
<PAGE>
Corporation ranking as to such a distribution junior to the shares of Series A,
liquidating distributions in the amount of $100 per share plus accrued and
unpaid dividends. After payment of such liquidating distributions, the holders
of shares of Series A will not be entitled to any further participation in any
distribution of assets of the Corporation. If, upon any voluntary or involuntary
dissolution, liquidation or winding up of the Corporation, the amounts payable
with respect to the liquidation preference of the Series A and any other shares
of stock of the Corporation ranking as to any such distribution on a parity with
the Series A are not paid in full, the holders of the Series A and of such other
shares will share ratably in any such distribution of assets of the Corporation
in proportion to the full respective distributable amounts to which they are
entitled. Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation, shall be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, of the Corporation.
4. Redemption at the Option of the Corporation. The Series A is
-------------------------------------------
redeemable at the option of the Corporation for cash at any time or from time to
time, in whole or in part, on at least 10 but not more than 90 days' notice.
With respect to any such redemption at the option of the Corporation, shares of
Series A will be redeemable at 110% of the stated value per share, or $110 per
share, together in each case with accrued but unpaid dividends to the date of
redemption.
5. Redemption at the Option of the Holder. At any time after the third
--------------------------------------
anniversary of the initial issuance of shares of Series A, any holder of Series
A may tender all or part of his Series A for redemption at a price equal to 100%
of stated value, or $100 per share, together with accrued but unpaid dividends
to the date of redemption. All such tendered shares of Series A received by the
Corporation on or before the thirtieth day prior to the sixth or any subsequent
anniversary date of the initial issuance will be redeemed on such anniversary
date, subject, however, to proration (rounded down to the nearest whole share)
at the Corporation's election if more than twenty percent (20%) of the number of
shares of Series A initially issued have been tendered for redemption during the
twelve months ending on such thirtieth day prior to such anniversary date. The
Corporation must redeem twenty percent (20%) of the number of shares of Series A
initially issued and at its sole discretion may elect to redeem any greater
percentage up to and including one hundred percent (100%) of all tendered
shares.
6. Voting Rights. The holders of the Series A will have no voting rights
-------------
except as otherwise expressly required by applicable law.
7. Other Aspects. No holder of shares of Series A will have any
-------------
preemptive or other rights to subscribe for any other shares or securities, or
any conversion rights. Shares of Series A, when issued, shall be validly issued,
fully paid and nonassessable. The shares of Series A shall not be subject to any
mandatory redemption or sinking fund or other obligation of the Corporation to
redeem or retire Series A, other than the obligation to redeem shares of Series
A at the option of the holders thereof.
The Series A shall rank prior to the Common Stock of the Corporation as to
dividends and upon liquidation of the Corporation.
4
<PAGE>
Common Stock
Subject to all of the rights of the Preferred Stock as expressly provided
herein, by law or by the Board of Directors pursuant to this Article Two, the
Common Stock of the Corporation shall possess all such rights and privileges as
are afforded to capital stock by applicable law in the absence of any express
grant of rights or privileges in the Corporation's Articles of Incorporation,
including, but not limited to, the following rights and privileges:
(a) dividends may be declared and paid or set apart for payment upon the
Common Stock out of any assets or funds of the Corporation legally available for
the payment of dividends;
(b) the holders of Common Stock shall have the right to vote for the
election of directors and on all other matters requiring stockholder action,
each share being entitled to one vote; and
(c) upon the voluntary or involuntary liquidation, dissolution or winding-
up of the Corporation, the net assets of the Corporation available for
distribution shall be distributed pro rata to the holders of the Common Stock in
accordance with their respective rights and interests.
ARTICLE THREE
REGISTERED OFFICE AND AGENT
The registered agent of the Corporation shall be John W. Collins at the
Company's principal office indicated below.
ARTICLE FOUR
MAILING ADDRESS OF PRINCIPAL OFFICE
The mailing address of the principal office of the Corporation is 3150
Holcomb Bridge Road, Suite 200, Norcross, Georgia 30371.
ARTICLE FIVE
LIMITATION ON DIRECTOR LIABILITY
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for breach of the duty of
care or any other duty as a director, except that such liability shall not be
eliminated for:
(a) any appropriation, in violation of the director's duties, of any
business opportunity of the corporation;
5
<PAGE>
(b) acts or omissions that involve intentional misconduct or a knowing
violation of law;
(c) liability under Section 14-2-832 (or any successor provision or
redesignation thereof) of the Georgia Business Corporation Code (the "Code");
and
(d) any transaction from which the director derived an improper personal
benefit.
If at any time the Code shall have been amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
each director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Code, as so amended, without further action by the
shareholders, unless the provisions of the Code, as amended, require further
action by the shareholders.
Any repeal or modification of the foregoing provisions of this Article Five
shall not adversely affect the elimination or limitation of liability or alleged
liability pursuant hereto of any director of the corporation for or with respect
to any alleged act or omission of the director occurring prior to such a repeal
or modification.
ARTICLE SIX
BOARD AND SHAREHOLDER ACTION
REQUIRED FOR CERTAIN TRANSACTIONS
The affirmative vote of at least 66 2/3% of the directors is required for
the following actions by the Corporation to be submitted to a vote of the
shareholders:
(a) a sale of all or substantially all of the assets of the Corporation;
(b) a liquidation or dissolution of the Corporation;
(c) the merger, consolidation or reorganization of the Corporation, unless
the shareholders of the Corporation immediately prior to such
transaction own at least a majority of the combined voting power of
the Corporation resulting from such merger, consolidation or
reorganization; or
(d) any increase in the number of directors above 12 directors;
provided, further, that the affirmative vote of the holders of 66 2/3% of the
- -------- -------
Common Stock is required for shareholder approval of any action outlined in the
clauses above.
ARTICLE SEVEN
DIRECTORS
The Corporation shall have not less than four nor more than 12 directors,
and the number of directors shall be set by the Board of Directors as provided
in the Company's bylaws. The Board of Directors shall be divided into three
classes to be known as Class I,
6
<PAGE>
Class II, and Class III, which shall be as nearly equal in number as possible.
Except in the case of death, resignation, disqualification, or removal for
cause, each director shall serve for a term ending on the date of the third
annual meeting of shareholders following the annual meeting at which the
director was elected; provided, however, that each initial director in Class I
-------- -------
shall hold office until the first annual meeting of shareholders after his
election; each initial director in Class II shall hold office until the second
annual meeting of shareholders after his election; and each initial director in
Class III shall hold office until the third annual meeting of shareholders after
his election. Despite the expiration of a director's term, such director shall
continue to serve until his or her successor, if there is to be any, has been
elected and has qualified. In the event of any increase or decrease in the
authorized number of directors, the newly created or eliminated directorships
resulting from such an increase or decrease shall be apportioned among the three
classes of directors so that the three classes remain as nearly equal in size as
possible; provided, however, that there shall be no classification of additional
-------- -------
directors elected by the Board of Directors until the next meeting of
shareholders called for the purposes of electing directors, at which meeting the
terms of all such additional directors shall expire, and such additional
directors positions, if they are to be continued, shall be apportioned among the
classes of directors and nominees therefor shall be submitted to the
shareholders for their vote.
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. This provision
solely grants discretionary authority to the directors and shall not be deemed
to provide to any other constituency any right to be considered.
These Amended and Restated Articles of Incorporation were duly approved by
the Board of Directors, on January 16, 1998 and by the shareholders in
accordance with Section 14-2-1003 of the Georgia Business Corporation Code.
IN WITNESS WHEREOF, the Corporation has caused these Amended and Restated
Articles of Incorporation to be executed and attested by its duly authorized
officer on January 30, 1998.
/s/ John W. Collins
-------------------------------------------
John W. Collins
Chief Executive Officer
7
<PAGE>
BYLAWS (AMENDED AND RESTATED)
OF
THE INTERCEPT GROUP, INC.
Adopted January 16, 1998
<PAGE>
BYLAWS
OF
THE INTERCEPT GROUP, INC.
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE ONE............................................................. 1
1.1 Registered Office and Agent.............................. 1
1.2 Principal Office......................................... 1
1.3 Other Offices............................................ 1
ARTICLE TWO............................................................. 1
2.1 Place of Meetings........................................ 1
2.2 Annual Meetings.......................................... 2
2.3 Special Meetings......................................... 2
2.4 Notice of Meetings....................................... 2
2.5 Waiver of Notice......................................... 2
2.6 Voting Group; Quorum; Vote Required to Act............... 2
2.7 Voting of Shares......................................... 3
2.8 Proxies.................................................. 3
2.9 Presiding Officer........................................ 3
2.10 Adjournments............................................. 3
2.11 Conduct of the Meeting................................... 4
2.12 Action of Shareholders Without a Meeting................. 4
2.13 Matters Considered at Annual Meeting..................... 4
ARTICLE THREE........................................................... 5
3.1 General Powers........................................... 5
3.2 Number, Election and Term of Office...................... 5
3.3 Removal of Directors..................................... 5
3.4 Vacancies................................................ 6
3.5 Compensation............................................. 6
3.6 Committees of the Board of Directors..................... 6
3.7 Qualification of Directors............................... 6
3.8 Certain Nomination Requirements.......................... 7
ARTICLE FOUR............................................................ 7
4.1 Regular Meetings......................................... 8
4.2 Special Meetings......................................... 8
4.3 Place of Meetings........................................ 8
i
<PAGE>
Page
----
4.4 Notice of Meetings....................................... 8
4.5 Quorum................................................... 8
4.6 Vote Required for Action................................. 8
4.7 Participation by Conference Telephone.................... 8
4.8 Action by Directors Without a Meeting.................... 8
4.9 Adjournments............................................. 8
4.10 Waiver of Notice......................................... 9
ARTICLE FIVE............................................................ 9
5.1 Offices.................................................. 9
5.2 Term..................................................... 9
5.3 Compensation............................................. 9
5.4 Removal.................................................. 9
5.5 Chairman of the Board.................................... 10
5.6 President................................................ 10
5.7 Vice Presidents.......................................... 10
5.8 Secretary................................................ 10
5.9 Treasurer................................................ 10
ARTICLE SIX............................................................. 11
ARTICLE SEVEN........................................................... 11
7.1 Share Certificates....................................... 11
7.2 Rights of Corporation with Respect to Registered Owners.. 11
7.3 Transfers of Shares...................................... 11
7.4 Duty of Corporation to Register Transfer................. 12
7.5 Lost, Stolen, or Destroyed Certificates.................. 12
7.6 Fixing of Record Date.................................... 12
7.7 Record Date if None Fixed................................ 12
ARTICLE EIGHT........................................................... 12
8.1 Indemnification of Directors............................. 13
8.2 Indemnification of Others................................ 13
8.3 Other Organizations...................................... 13
8.4 Determination............................................ 13
8.5 Advances................................................. 14
8.6 Non-Exclusivity.......................................... 14
8.7 Insurance................................................ 14
8.8 Notice................................................... 14
8.9 Security................................................. 15
ii
<PAGE>
Page
----
8.10 Amendment................................................ 15
8.11 Agreements............................................... 15
8.12 Continuing Benefits...................................... 15
8.13 Successors............................................... 15
8.14 Severability............................................. 15
8.15 Additional Indemnification............................... 15
ARTICLE NINE............................................................ 16
9.1 Inspection of Books and Records........................... 16
9.2 Fiscal Year............................................... 16
9.3 Corporate Seal............................................ 16
9.4 Annual Statements......................................... 16
9.5 Notice.................................................... 16
ARTICLE TEN............................................................. 17
iii
<PAGE>
EXHIBIT 2
BYLAWS
OF
THE INTERCEPT GROUP, INC.
- --------------------------------------------------------------------------------
References in these Bylaws to "Articles of Incorporation" are to the
Articles of Incorporation of THE INTERCEPT GROUP, INC., a Georgia corporation
(the "Corporation"), as amended and restated from time to time (the "Articles of
Incorporation").
All of these Bylaws are subject to contrary provisions, if any, of the
Articles of Incorporation (including provisions designating the preferences,
limitations, and relative rights of any class or series of shares), the Georgia
Business Corporation Code (the "Code"), and other applicable law, as in effect
on and after the effective date of these Bylaws. References in these Bylaws to
"Sections" shall refer to sections of the Bylaws, unless otherwise indicated.
ARTICLE ONE
Office
1.1 Registered Office and Agent. The Corporation shall maintain a
---------------------------
registered office and shall have a registered agent whose business office is the
same as the registered office.
1.2 Principal Office. The principal office of the Corporation shall be at
----------------
the place designated in the Corporation's annual registration with the Georgia
Secretary of State.
1.3 Other Offices. In addition to its registered office and principal
-------------
office, the Corporation may have offices at other locations either in or outside
the State of Georgia.
ARTICLE TWO
Shareholders' Meetings
2.1 Place of Meetings. Meetings of the Corporation's shareholders may
-----------------
be held at any location inside or outside the State of Georgia designated by the
Board of Directors or any other person or persons who properly call the meeting,
or if the Board of Directors or such other person or persons do not specify a
location, at the Corporation's principal office.
2.2 Annual Meetings. The Corporation shall hold an annual meeting of
---------------
shareholders, at a time determined by the Board of Directors, to elect directors
and to transact any business that
<PAGE>
properly may come before the meeting. The annual meeting may be combined with
any other meeting of shareholders, whether annual or special.
2.3 Special Meetings. Special meetings of shareholders of one or more
----------------
classes or series of the Corporation's shares may be called at any time by the
Board of Directors, the Chairman of the Board, or the President, and shall be
called by the Corporation upon the written request (in compliance with
applicable requirements of the Code) of the holders of shares representing
twenty-five percent (25%) or more of the votes entitled to be cast on each issue
proposed to be considered at the special meeting; provided, however, that at any
time the Corporation has more than 100 beneficial owners (as defined in Section
14-2-1110 of the Code) of its shares, such written request must be made by the
holders of a majority of such votes. The business that may be transacted at any
special meeting of shareholders shall be limited to that proposed in the notice
of the special meeting given in accordance with Section 2.4 (including related
or incidental matters that may be necessary or appropriate to effectuate the
proposed business).
2.4 Notice of Meetings. In accordance with Section 9.5 and subject to
------------------
waiver by a shareholder pursuant to Section 2.5, the Corporation shall give
written notice of the date, time, and place of each annual and special
shareholders' meeting no fewer than 10 days nor more than 60 days before the
meeting date to each shareholder of record entitled to vote at the meeting. The
notice of an annual meeting need not state the purpose of the meeting unless
these Bylaws require otherwise. The notice of a special meeting shall state the
purpose for which the meeting is called. If an annual or special shareholders'
meeting is adjourned to a different date, time, or location, the Corporation
shall give shareholders notice of the new date, time, or location of the
adjourned meeting, unless a quorum of shareholders was present at the meeting
and information regarding the adjournment was announced before the meeting was
adjourned; provided, however, that if a new record date is or must be fixed in
-------- -------
accordance with Section 7.6, the Corporation must give notice of the adjourned
meeting to all shareholders of record as of the new record date who are entitled
to vote at the adjourned meeting.
2.5 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 matter to which the notice relates, by delivering to the
Corporation a written waiver of notice signed by the shareholder entitled to the
notice. In addition, a shareholder's attendance at a meeting shall be (a) a
waiver of objection to lack of notice or defective notice of the meeting unless
the shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting, and (b) a waiver of objection to
consideration of a particular matter at the meeting that is not within the
purpose stated in the meeting notice, unless the shareholder objects to
considering the matter when it is presented. Except as otherwise required by
the Code, neither the purpose of nor the business transacted at the meeting need
be specified in any waiver.
2.6 Voting Group; Quorum; Vote Required to Act. (a) Unless otherwise
------------------------------------------
required by the Code or the Articles of Incorporation, all classes or series of
the Corporation's shares entitled to vote generally on a matter shall for that
purpose be considered a single voting group (a "Voting Group"). If either the
Articles of Incorporation or the Code requires separate voting by two or more
Voting Groups on a matter, action on that matter is taken only when voted upon
by
2
<PAGE>
each such Voting Group separately. At all meetings of shareholders, any
Voting Group entitled to vote on a matter may take action on the matter only if
a quorum of that Voting Group exists at the meeting, and if a quorum exists, the
Voting Group may take action on the matter notwithstanding the absence of a
quorum of any other Voting Group that may be entitled to vote separately on the
matter. Unless the Articles of Incorporation, these Bylaws, or the Code
provides otherwise, the presence (in person or by proxy) of shares representing
a majority of votes entitled to be cast on a matter by a Voting Group shall
constitute a quorum of that Voting Group with regard to that matter. Once a
shareholder is present at any meeting other than solely to object to holding the
meeting or transacting business at the meeting, the shareholder shall be deemed
present for quorum purposes for the remainder of the meeting and for any
adjournments of that meeting, unless a new record date for the adjourned meeting
is or must be set pursuant to Section 7.6 of these Bylaws.
(b) Except as provided in Section 3.4, if a quorum exists, action on a
matter by a Voting Group is approved by that Voting Group if the votes cast
within the Voting Group favoring the action exceed the votes cast opposing the
action, unless the Articles of Incorporation, a provision of these Bylaws that
has been adopted pursuant to Section 14-2-1021 of the Code (or any successor
provision), or the Code requires a greater number of affirmative votes.
2.7 Voting of Shares. Unless otherwise required by the Code or the
----------------
Articles of Incorporation, each outstanding share of any class or series having
voting rights shall be entitled to one vote on each matter that is submitted to
a vote of shareholders.
2.8 Proxies. A shareholder entitled to vote on a matter may vote in
-------
person or by proxy pursuant to an appointment executed in writing by the
shareholder or by his or her attorney-in-fact. An appointment of a proxy shall
be valid for 11 months from the date of its execution, unless a longer or
shorter period is expressly stated in the proxy.
2.9 Presiding Officer. Except as otherwise provided in this Section
-----------------
2.9, the Chairman of the Board, and in his or her absence or disability the
President shall preside at every shareholders' meeting (and any adjournment
thereof) as its chairman, if either of them is present and willing to serve. If
neither the Chairman of the Board nor the President is present and willing to
serve as chairman of the meeting, and if the Chairman of the Board has not
designated another person who is present and willing to serve, then a majority
of the Corporation's directors present at the meeting shall be entitled to
designate a person to serve as chairman. If no director of the Corporation is
present at the meeting or if a majority of the directors who are present cannot
be established, then a chairman of the meeting shall be selected by a majority
vote of (a) the shares present at the meeting that would be entitled to vote in
an election of directors, or (b) if no such shares are present at the meeting,
then the shares present at the meeting comprising the Voting Group with the
largest number of shares present at the meeting and entitled to vote on a matter
properly proposed to be considered at the meeting. The chairman of the meeting
may designate other persons to assist with the meeting.
2.10 Adjournments. At any meeting of shareholders (including an
------------
adjourned meeting), a majority of shares of any Voting Group present and
entitled to vote at the meeting (whether or not those shares constitute a
quorum) may adjourn the meeting, but only with respect
3
<PAGE>
to that Voting Group, to reconvene at a specific time and place. If more than
one Voting Group is present and entitled to vote on a matter at the meeting,
then the meeting may be continued with respect to any such Voting Group that
does not vote to adjourn as provided above, and such Voting Group may proceed to
vote on any matter to which it is otherwise entitled to do so; provided,
--------
however, that if (a) more than one Voting Group is required to take action on a
- -------
matter at the meeting and (b) any one of those Voting Groups votes to adjourn
the meeting (in accordance with the preceding sentence), then the action shall
not be deemed to have been taken until the requisite vote of any adjourned
Voting Group is obtained at its reconvened meeting. The only business that may
be transacted at any reconvened meeting is business that could have been
transacted at the meeting that was adjourned, unless further notice of the
adjourned meeting has been given in compliance with the requirements for a
special meeting that specifies the additional purpose or purposes for which the
meeting is called. Nothing contained in this Section 2.10 shall be deemed or
otherwise construed to limit any lawful authority of the chairman of a meeting
to adjourn the meeting.
2.11 Conduct of the Meeting. At any meeting of shareholders, the chairman
----------------------
of the meeting shall be entitled to establish the rules of order governing the
conduct of business at the meeting.
2.12 Action of Shareholders Without a Meeting. Action required or
----------------------------------------
permitted to be taken at a meeting of shareholders may be taken without a
meeting if the action is taken by all shareholders entitled to vote on the
action or, if permitted by the Articles of Incorporation, by persons who would
be entitled to vote at a meeting shares having voting power to cast the
requisite number of votes (or numbers, in the case of voting by groups) that
would be necessary to authorize or take the action at a meeting at which all
shareholders 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.
Where required by Section 14-2-704 or other applicable provision of the Code,
the Corporation shall provide shareholders with written notice of actions taken
without a meeting.
2.13 Matters Considered at Annual Meetings. Notwithstanding anything to
-------------------------------------
the contrary in these Bylaws, the only business that may be conducted at an
annual meeting of shareholders shall be business brought before the meeting (a)
by or at the direction of the Board of Directors prior to the meeting, (b) by or
at the direction of the Chairman of the Board or the President, or (c) by a
shareholder of the Corporation who is entitled to vote with respect to the
business and who complies with the notice procedures set forth in this Section
2.13. For business to be brought properly before an annual meeting by a
shareholder, the shareholder must have given timely notice of the business in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice must be delivered or mailed to and received at the principal office of
the Corporation not less than sixty (60) nor more than ninety (90) days prior to
the first anniversary of the previous year's annual meeting. A shareholder's
notice to the Secretary shall set forth a brief description of each matter of
business the shareholder proposes to bring before the meeting and the reasons
for conducting that business at the meeting; the name, as it appears on the
Corporation's books, and address of the shareholder proposing the business; the
series or class and number of shares of the Corporation's capital stock that are
beneficially owned by the
4
<PAGE>
shareholder; and any material interest of the shareholder in the proposed
business. The chairman of the meeting shall have the discretion to declare to
the meeting that any business proposed by a shareholder to be considered at the
meeting is out of order and that such business shall not be transacted at the
meeting if (i) the chairman concludes that the matter has been proposed in a
manner inconsistent with this Section 2.13 or (ii) the chairman concludes that
the subject matter of the proposed business is inappropriate for consideration
by the shareholders at the meeting.
ARTICLE THREE
Board of Directors
3.1 General Powers. All corporate powers shall be exercised by or under
--------------
the authority of, and the business and affairs of the Corporation shall be
managed by, the Board of Directors, subject to any limitation set forth in the
Articles of Incorporation, in bylaws approved by the shareholders, or in
agreements among all the shareholders that are otherwise lawful.
3.2 Number, Election and Term of Office. Except as otherwise provided
-----------------------------------
in the Articles of Incorporation, the Board of Directors shall consist of a
maximum of twelve members. The Board of Directors shall have the authority to
change the number of directors from time to time by resolution so long as the
number of directors does not exceed twelve; provided, however, that no decrease
-------- -------
in the number of directors (if more than one director is elected by a resolution
of the Board of Directors or the shareholders) shall have the effect of
shortening the term of an incumbent director. The Board of Directors shall be
divided into three classes to be known as Class I, Class II, and Class III,
which shall be as nearly equal in number as possible. Except in the case of
death, resignation, disqualification, or removal for cause, each director shall
serve for a term ending on the date of the third annual meeting of shareholders
following the annual meeting at which the director was elected; provided,
--------
however, that each initial director in Class I shall hold office until
- -------
the first annual meeting of shareholders after his election; each initial
director in Class II shall hold office until the second annual meeting of
shareholders after his election; and each initial director in Class III shall
hold office until the third annual meeting of shareholders after his election.
Despite the expiration of a director's term, such director shall continue to
serve until his or her successor, if there is to be any, has been elected and
has qualified. In the event of any increase or decrease in the authorized
number of directors, the newly created or eliminated directorships resulting
from such an increase or decrease shall be apportioned among the three classes
of directors so that the three classes remain as nearly equal in size as
possible; provided, however, that there shall be no classification of additional
-------- -------
directors elected by the Board of Directors until the next meeting of
shareholders called for the purposes of electing directors, at which meeting the
terms of all such additional directors shall expire, and such additional
directors positions, if they are to be continued, shall be apportioned among the
classes of directors and nominees therefor shall be submitted to the
shareholders for their vote.
3.3 Removal of Directors. The entire Board of Directors or any
--------------------
individual director may be removed with cause by the shareholders, provided that
directors elected by a particular Voting Group may be removed only by the
shareholders in that Voting Group. Removal action may be taken only at a
shareholders' meeting for which notice of the removal action has been
5
<PAGE>
given, and a director may be removed only by the holders of 66 2/3% of the votes
entitled to be cast. If any removed director is a member of any committee of the
Board of Directors, he shall cease to be a member of that committee when he
ceases to be a director. A removed director's successor, if any, may be elected
at the same meeting to serve the unexpired term. Directors may not be removed
without cause.
3.4 Vacancies. A vacancy or vacancies in the Board of Directors may
---------
result from the death, resignation, disqualification, or removal of any
director, or from an increase in the number of directors. Any vacancy occurring
on the Board of Directors, including a vacancy resulting from an increase in the
number of directors, may only be filled by the affirmative vote of the remaining
directors, even if the remaining directors constitute less than a quorum of the
Board of Directors; provided, however, that if the vacant office was held by a
-------- -------
director elected by a particular Voting Group, only the holders of shares of
that Voting Group or the remaining directors elected by that Voting Group shall
be entitled to fill the vacancy; provided further, however, that if the vacant
-------- ------- -------
office was held by a director elected by a particular Voting Group and there is
---
no remaining director elected by that Voting Group, the other remaining
directors or director (elected by another Voting Group or Groups) may fill the
vacancy during an interim period before the shareholders of the vacated
director's Voting Group act to fill the vacancy. A director elected to fill a
vacancy shall hold office only until the next election of directors by the
shareholders.
3.5 Compensation. Directors may receive such compensation for their
------------
services as directors as may be fixed by the Board of Directors from time to
time. A director may also serve the Corporation in one or more capacities other
than that of director and receive compensation for services rendered in those
other capacities.
3.6 Committees of the Board of Directors. The Board of Directors may
------------------------------------
designate from among its members an executive committee or one or more other
standing or ad hoc committees, each consisting of one or more directors, who
serve at the pleasure of the Board of Directors. Subject to the limitations
imposed by the Code, each committee shall have the authority set forth in the
resolution establishing the committee or in any other resolution of the Board of
Directors specifying, enlarging, or limiting the authority of the committee.
Any such committee, to the extent provided in the resolution, shall have and may
exercise all of the authority of the Board of Directors in the management of the
business and affairs of the Corporation, except that it shall have no authority
with respect to (1) amending the Articles of Incorporation or these Bylaws; (2)
adopting a plan of merger or consolidation; (3) the sale, lease, exchange or
other disposition of all or substantially all of the property and assets of the
Corporation; and (4) a voluntary dissolution of the Corporation or a revocation
thereof. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors. A
majority of each committee may determine its action and may fix the time and
places of its meetings, unless otherwise provided by the Board of Directors.
Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required.
3.7 Qualification of Directors. No person elected to serve as a
--------------------------
director of the Corporation shall assume office and begin serving unless and
until duly qualified to serve, as
6
<PAGE>
determined by reference to the Code, the Articles of Incorporation, and any
further eligibility requirements established in these Bylaws.
3.8 Certain Nomination Requirements. No person may be nominated for
-------------------------------
election as a director at any annual or special meeting of shareholders unless
(a) the nomination has been or is being made pursuant to a recommendation or
approval of the Board of Directors of the Corporation or a properly constituted
committee of the Board of Directors previously delegated authority to recommend
or approve nominees for director; (b) the person is nominated by a shareholder
of the Corporation who is entitled to vote for the election of the nominee at
the subject meeting, and the nominating shareholder has furnished written notice
to the Secretary of the Corporation, at the Corporation's principal office,
provided, however, that if at any time the number of beneficial owners (as
- -------- -------
defined in Section 14-2-1110 of the Code) of the shares of the Corporation
exceeds 100, then such notice shall be delivered to the Secretary of the
Corporation at the Corporation's principal office not less than sixty (60) nor
more than ninety (90) days prior to the first anniversary of the previous year's
annual meeting, and such notice shall (i) set forth with respect to the person
to be nominated his or her name, age, business and residence addresses,
principal business or occupation during the past five years, any affiliation
with or material interest in the Corporation or any transaction involving the
Corporation, and any affiliation with or material interest in any person or
entity having an interest materially adverse to the Corporation, and (ii) shall
be accompanied by the sworn or certified statement of the shareholder that the
nominee has consented to being nominated and that the shareholder believes the
nominee will stand for election and will serve if elected; or (c) (i) the person
is nominated to replace a person previously identified as a proposed nominee (in
accordance with the provisions of subpart (b) of this Section 3.8) who has since
become unable or unwilling to be nominated or to serve if elected, (ii) the
shareholder who furnished such previous identification makes the replacement
nomination and delivers to the Secretary of the Corporation (at the time of or
prior to making the replacement nomination) an affidavit or other sworn
statement affirming that the shareholder had no reason to believe the original
nominee would be so unable or unwilling, and (iii) such shareholder also
furnishes in writing to the Secretary of the Corporation (at the time of or
prior to making the replacement nomination) the same type of information about
the replacement nominee as required by subpart (b) of this Section 3.8 to have
been furnished about the original nominee. The chairman of any meeting of
shareholders at which one or more directors are to be elected, for good cause
shown and with proper regard for the orderly conduct of business at the meeting,
may waive in whole or in part the operation of this Section 3.8.
ARTICLE FOUR
Meetings of the Board of Directors
4.1 Regular Meetings. A regular meeting of the Board of Directors shall
----------------
be held in conjunction with each annual meeting of shareholders. In addition,
the Board of Directors may, by prior resolution, hold regular meetings at other
times.
7
<PAGE>
4.2 Special Meetings. Special meetings of the Board of Directors may be
----------------
called by or at the request of the Chairman of the Board, the President, or the
majority of directors in office at that time.
4.3 Place of Meetings. Directors may hold their meetings at any place
-----------------
in or outside the State of Georgia that the Board of Directors may establish
from time to time.
4.4 Notice of Meetings. Directors need not be provided with notice of
------------------
any regular meeting of the Board of Directors. Unless waived in accordance with
Section 4.10, the Corporation shall give at least two days' notice to each
director of the date, time, and place of each special meeting. Notice of a
meeting shall be deemed to have been given to any director in attendance at any
prior meeting at which the date, time, and place of the subsequent meeting was
announced.
4.5 Quorum. At meetings of the Board of Directors, a majority of the
------
directors then in office shall constitute a quorum for the transaction of
business.
4.6 Vote Required for Action. If a quorum is present when a vote is
------------------------
taken, the vote of a majority of the directors present at the time of the vote
will be the act of the Board of Directors, unless the vote of a greater number
is required by the Code, the Articles of Incorporation, or these Bylaws. A
director who is present at a meeting of the Board of Directors when corporate
action is taken is deemed to have assented to the action taken unless (a) he or
she objects at the beginning of the meeting (or promptly upon his or her
arrival) to holding the meeting or transacting business at such meeting; (b) his
or her dissent or abstention from the action taken is entered in the minutes of
the meeting; or (c) he or she delivers written notice of dissent or abstention
to the presiding officer of the meeting before its adjournment or to the
Corporation immediately after adjournment of the meeting. The right of dissent
or abstention is not available to a director who votes in favor of the action
taken.
4.7 Participation by Conference Telephone. Members of the Board of
-------------------------------------
Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment through which all persons
participating may hear and speak to each other. Participation in a meeting
pursuant to this Section 4.7 shall constitute presence in person at the meeting.
4.8 Action by Directors Without a Meeting. Any action required or
-------------------------------------
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if a written consent, describing the action taken, is signed
by each director and delivered to the Corporation for inclusion in the minutes
or filing with the corporate records. The consent may be executed in
counterpart, and shall have the same force and effect as a unanimous vote of the
Board of Directors at a duly convened meeting.
4.9 Adjournments. A meeting of the Board of Directors, whether or not a
------------
quorum is present, may be adjourned by a majority of the directors present to
reconvene at a specific time and place. It shall not be necessary to give
notice to the directors of the reconvened meeting or of the business to be
transacted, other than by announcement at the meeting that was adjourned,
8
<PAGE>
unless a quorum was not present at the meeting that was adjourned, in which case
notice shall be given to directors in the same manner as for a special meeting.
At any such reconvened meeting at which a quorum is present, any business may be
transacted that could have been transacted at the meeting that was adjourned.
4.10 Waiver of Notice. A director may waive any notice required by the
----------------
Code, the Articles of Incorporation, or these Bylaws before or after the date
and time of the matter to which the notice relates, by a written waiver signed
by the director and delivered to the Corporation for inclusion in the minutes or
filing with the corporate records. Attendance by a director at a meeting shall
constitute waiver of notice of the meeting, except where a director at the
beginning of the meeting (or promptly upon his or her arrival) objects to
holding the meeting or to transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
ARTICLE FIVE
Officers
5.1 Offices. The officers of the Corporation shall consist of a
-------
Chairman of the Board, a President, a Secretary, and a Treasurer, each of whom
shall be elected or appointed by the Board of Directors. The Chairman of the
Board shall be elected by the Board of Directors from among its members. The
Board of Directors from time to time may create and establish the duties of
other offices and may elect or appoint, or authorize specific senior officers to
appoint, the persons who shall hold such other offices, including one or more
Vice Presidents (including Executive Vice Presidents, Senior Vice Presidents,
Assistant Vice Presidents, and the like), one or more Assistant Secretaries, and
one or more Assistant Treasurers. Whether or not so provided by the Board of
Directors, the Chairman of the Board may appoint one or more Assistant
Secretaries and one or more Assistant Treasurers. Any two or more offices may
be held by the same person.
5.2 Term. Each officer shall serve at the pleasure of the Board of
----
Directors (or, if appointed by a senior officer pursuant to this Article Five,
at the pleasure of the Board of Directors or any senior officer authorized to
have appointed the officer) until his or her death, resignation, or removal, or
until his or her replacement is elected or appointed in accordance with this
Article Five.
5.3 Compensation. The compensation of all officers of the Corporation
------------
shall be fixed by the Board of Directors or by a committee or officer appointed
by the Board of Directors. Officers may serve without compensation.
5.4 Removal. All officers (regardless of how elected or appointed) may
-------
be removed, with or without cause, by the Board of Directors, and any officer
appointed by another officer may also be removed, with or without cause, by any
senior officer authorized to have appointed the officer to be removed. Removal
will be without prejudice to the contract rights, if any, of the
9
<PAGE>
person removed, but shall be effective notwithstanding any damage claim that may
result from infringement of such contract rights.
5.5 Chairman of the Board. The Chairman of the Board shall preside at
---------------------
and serve as chairman of meetings of the shareholders and of the Board of
Directors (unless another person is selected under Section 2.9 to act as
chairman). Unless otherwise provided in these Bylaws or by the Board of
Directors, the Chairman of the Board shall be the Chief Executive Officer of the
Corporation, shall be charged with the general and active management of the
business of the Corporation, shall see that all orders and resolutions of the
Board of Directors are carried into effect, and shall have the authority to
select and appoint employees and agents of the Corporation. The Chairman of the
Board shall perform other duties and have other authority as may from time to
time be delegated by the Board of Directors.
5.6 President. Unless otherwise provided in these Bylaws or by the Board
---------
of Directors, the President shall be the Chief Operating Officer of the
Corporation, and shall, in the absence or disability of the Chairman of the
Board, perform the duties and exercise the powers of the Chairman of the Board.
The President shall perform any other duties and have any other authority as may
be delegated from time to time by the Board of Directors, and shall be subject
to the limitations fixed from time to time by the Board of Directors.
5.7 Vice Presidents. The Vice President (if there be one) shall, in the
---------------
absence or disability of the President, or at the direction of the President,
perform the duties and exercise the powers of the President, whether the duties
and powers are specified in these Bylaws or otherwise. If the Corporation has
more than one Vice President, the one designated by the Board of Directors or
the President (in that order of precedence) shall act in the event of the
absence or disability of the President. Vice Presidents shall perform any other
duties and have any other authority as from time to time may be delegated by the
Board of Directors or the President.
5.8 Secretary. The Secretary shall be responsible for preparing minutes
---------
of the meetings of shareholders, directors, and committees of directors and for
authenticating records of the Corporation. The Secretary or any Assistant
Secretary shall have authority to give all notices required by law or these
Bylaws. The Secretary shall be responsible for the custody of the corporate
books, records, contracts, and other documents. The Secretary or any Assistant
Secretary may affix the corporate seal to any lawfully executed documents
requiring it, may attest to the signature of any officer of the Corporation, and
shall sign any instrument that requires the Secretary's signature. The
Secretary or any Assistant Secretary shall perform any other duties and have any
other authority as from time to time may be delegated by the Board of Directors
or the President.
5.9 Treasurer. Unless otherwise provided by the Board of Directors, the
---------
Treasurer shall be the Chief Financial Officer and shall be responsible for the
custody of all funds and securities belonging to the Corporation and for the
receipt, deposit, or disbursement of these funds and securities under the
direction of the Board of Directors. The Treasurer shall cause full and true
accounts of all receipts and disbursements to be maintained and shall make
reports of these receipts and disbursements to the Board of Directors and
President upon request. The Treasurer
10
<PAGE>
or Assistant Treasurer shall perform any other duties and have any other
authority as from time to time may be delegated by the Board of Directors or the
President.
ARTICLE SIX
Distributions and Dividends
Unless the Articles of Incorporation provide otherwise, the Board of
Directors, from time to time in its discretion, may authorize or declare
distributions or share dividends in accordance with the Code.
ARTICLE SEVEN
Shares
7.1 Share Certificates. The interest of each shareholder in the
------------------
Corporation shall be evidenced by a certificate or certificates representing
shares of the Corporation, which shall be in such form as the Board of Directors
from time to time may adopt in accordance with the Code. Share certificates
shall be in registered form and shall indicate the date of issue, the name of
the Corporation, that the Corporation is organized under the laws of the State
of Georgia, the name of the shareholder, and the number and class of shares and
designation of the series, if any, represented by the certificate. Each
certificate shall be signed by the President or a Vice President (or in lieu
thereof, by the Chairman of the Board or Chief Executive Officer, if there be
one) and may be signed by the Secretary or an Assistant Secretary; provided,
--------
however, that where the certificate is signed (either manually or by facsimile)
- -------
by a transfer agent, or registered by a registrar, the signatures of those
officers may be facsimiles.
7.2 Rights of Corporation with Respect to Registered Owners. Prior to
-------------------------------------------------------
due presentation for transfer of registration of its shares, the Corporation may
treat the registered owner of the shares (or the beneficial owner of the shares
to the extent of any rights granted by a nominee certificate on file with the
Corporation pursuant to any procedure that may be established by the Corporation
in accordance with the Code) as the person exclusively entitled to vote the
shares, to receive any dividend or other distribution with respect to the
shares, and for all other purposes; and the Corporation shall not be bound to
recognize any equitable or other claim to or interest in the shares on the part
of any other person, whether or not it has express or other notice of such a
claim or interest, except as otherwise provided by law.
7.3 Transfers of Shares. Transfers of shares shall be made upon the books
-------------------
of the Corporation kept by the Corporation or by the transfer agent designated
to transfer the shares, only upon direction of the person named in the
certificate or by an attorney lawfully constituted in writing. Before a new
certificate is issued, the old certificate shall be surrendered for cancellation
or, in the case of a certificate alleged to have been lost, stolen, or
destroyed, the provisions of Section 7.5 of these Bylaws shall have been
complied with.
11
<PAGE>
7.4 Duty of Corporation to Register Transfer. Notwithstanding any of
----------------------------------------
the provisions of Section 7.3 of these Bylaws, the Corporation is under a duty
to register the transfer of its shares only if: (a) the share certificate is
endorsed by the appropriate person or persons;(b) reasonable assurance is given
that each required endorsement is genuine and effective; (c) the Corporation has
no duty to inquire into adverse claims or has discharged any such duty; (d) any
applicable law relating to the collection of taxes has been complied with; (e)
the transfer is in fact rightful or is to a bona fide purchaser; and (f) the
transfer is in compliance with applicable provisions of any transfer
restrictions of which the Corporation shall have notice.
7.5 Lost, Stolen, or Destroyed Certificates. Any person claiming a
---------------------------------------
share certificate to be lost, stolen, or destroyed shall make an affidavit or
affirmation of this claim in such a manner as the Corporation may require and
shall, if the Corporation requires, give the Corporation a bond of indemnity in
form and amount, and with one or more sureties satisfactory to the Corporation,
as the Corporation may require, whereupon an appropriate new certificate may be
issued in lieu of the one alleged to have been lost, stolen or destroyed.
7.6 Fixing of Record Date. For the purpose of determining shareholders
---------------------
(a) entitled to notice of or to vote at any meeting of shareholders or, if
necessary, any adjournment thereof, (b) entitled to receive payment of any
distribution or dividend, or (c) for any other proper purpose, the Board of
Directors may fix in advance a date as the record date. The record date may not
be more than 70 days (and, in the case of a notice to shareholders of a
shareholders' meeting, not less than 10 days) prior to the date on which the
particular action, requiring the determination of shareholders, is to be taken.
A separate record date may be established for each Voting Group entitled to vote
separately on a matter at a meeting. A determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders shall apply to any
adjournment of the meeting, unless the Board of Directors shall fix a new record
date for the reconvened 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.
7.7 Record Date if None Fixed. If no record date is fixed as provided
-------------------------
in Section 7.6, then the record date for any determination of shareholders that
may be proper or required by law shall be, as appropriate, the date on which
notice of a shareholders' meeting is mailed, the date on which the Board of
Directors adopts a resolution declaring a dividend or authorizing a
distribution, or the date on which any other action is taken that requires a
determination of shareholders.
ARTICLE EIGHT
Indemnification
8.1 Indemnification of Directors. The Corporation shall indemnify and
----------------------------
hold harmless any person (an "Indemnified Person") who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative,
whether formal or informal, including any action or suit by or in the right of
the Corporation (for purposes of this Article Eight, collectively, a
12
<PAGE>
"Proceeding") because he or she is or was a director or officer of the
Corporation, against any judgment, settlement, penalty, fine, or reasonable
expenses (including, but not limited to, attorneys' fees and disbursements,
court costs, and expert witness fees) incurred with respect to the Proceeding
(for purposes of this Article Eight, a "Liability"), if such person acted in a
manner he or she 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, had
no reasonable cause to believe his conduct was unlawful; provided, however, that
-------- -------
no indemnification shall be made for any Liability for which, under the Code,
indemnification may not be authorized by action of the Board of Directors, the
shareholders, or otherwise, including, but not limited to, any Liability of a
person to the Corporation for: (a) any appropriation by such person, in
violation of his or her duties, of any business opportunity of the corporation;
(b) any acts or omissions of such person that involve intentional misconduct or
a knowing violation of law; (c) the types of liability set forth in Code Section
14-2-832; or (d) any transaction from which such person received an improper
personal benefit. Indemnification in connection with a Proceeding brought by or
in the right of the Corporation is limited to reasonable expenses incurred in
connection with the Proceeding.
8.2 Indemnification of Others. The Board of Directors shall have the
-------------------------
power to cause the Corporation to provide to employees and agents of the
Corporation all or any part of the right to indemnification and other rights of
the type provided under Sections 8.1, 8.5, and 8.11 of this Article Eight
(subject to the conditions, limitations, and obligations specified in those
sections) upon a resolution to that effect identifying such employees or agents
(by position or name) to be indemnified and specifying the particular rights
provided, which may be different for each of the persons identified. Each
employee or agent of the Corporation so identified shall be an "Indemnified
Person" for purposes of the provisions of this Article Eight.
8.3 Other Organizations. The Board of Directors shall provide to each
-------------------
director, and the Board of Directors shall have the power to cause the
Corporation to provide to any officer, employee, or agent, of the Corporation
who is or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise all or any part of
the right to indemnification and other rights of the type provided under
Sections 8.1, 8.5, and 8.11 of this Article Eight (subject to the conditions,
limitations, and obligations specified in those sections) upon a resolution to
that effect identifying the persons to be identified and specifying the
particular rights provided, which may be different for each of the persons
identified. Each person so identified shall be an "Indemnified Person" for
purposes of the provisions of this Article Eight.
8.4 Determination. Notwithstanding any judgment, order, settlement,
-------------
conviction, or plea in any Proceeding, an Indemnified Person shall be entitled
to indemnification as provided in Section 8.1 if a determination that such
Indemnified Person is entitled to such indemnification shall be made (a) by the
Board of Directors by a majority vote of a quorum consisting of directors who
are not at the time parties to the Proceeding; (b) if a quorum cannot be
obtained under (a) above, by majority vote of a committee duly designated by the
Board of Directors (in which designated directors who are parties may
participate), consisting solely of two or more directors who are not at the time
parties to the Proceeding; (c) in a written opinion by special legal counsel
selected as required by the Code; or (d) by the shareholders; provided, however,
-------- -------
that shares
13
<PAGE>
owned by or voted under the control of directors who are at the time parties to
the Proceeding may not be voted on the determination.
8.5 Advances. To the extent the Corporation has funds reasonably
--------
available to be used for this purpose, expenses (including, but not limited to,
attorneys' fees and disbursements, court costs, and expert witness fees)
incurred by the Indemnified Person in defending any Proceeding of the kind
described in Section 8.1 (or in Sections 8.2 or 8.3, if the Board of Directors
has specified that advancement of expenses be made available to such Indemnified
Person) shall be paid by the Corporation in advance of the final disposition of
such Proceeding as set forth herein. The Corporation shall promptly pay the
amount of such expenses to the Indemnified Person, but in no event later than 10
days following the Indemnified Person's delivery to the Corporation of a written
request for an advance pursuant to this Section 8.5, together with a reasonable
accounting of such expenses; provided, however, that the Indemnified Person
-------- -------
shall furnish the Corporation a written affirmation of his good faith belief
that he has met the standard of conduct set forth in the Code and a written
undertaking and agreement to repay to the Corporation any advances made pursuant
to this Section 8.5 if it shall be determined that the Indemnified Person is not
entitled to be indemnified by the Corporation for such amounts. The Corporation
may make the advances contemplated by this Section 8.5 regardless of the
Indemnified Person's financial ability to make repayment. Any advances and
undertakings to repay pursuant to this Section 8.5 may be unsecured and
interest-free.
8.6 Non-Exclusivity. Subject to any applicable limitation imposed by
---------------
the Code or the Articles of Incorporation, the indemnification and advancement
of expenses provided by or granted pursuant to this Article Eight shall not be
deemed exclusive of any other rights to which a person seeking indemnification
or advancement of expenses may be entitled under any provision of the Articles
of Incorporation, or any Bylaw, resolution, or agreement specifically or in
general terms approved or ratified by the affirmative vote of holders of a
majority of the shares entitled to be voted thereon.
8.7 Insurance. The Corporation shall have the power to purchase and
---------
maintain insurance on behalf of any person who is or was a director, officer,
employee, or agent of the Corporation, or who, while serving in such a capacity,
is also or was also serving at the request of the Corporation as a director,
officer, trustee, partner, employee, or agent of any corporation, partnership,
joint venture, trust, employee benefit plan, or other enterprise, against any
Liability that may be asserted against him or incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article Eight.
8.8 Notice. If the Corporation indemnifies or advances expenses to a
------
director under any of Sections 14-2-851 through 14-2-854 of the Code (or any
equivalent provision of these Bylaws) in connection with a Proceeding by or in
the right of the Corporation, the Corporation shall, to the extent required by
Section 14-2-1621 or any other applicable provision of the Code, report the
indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders' meeting.
14
<PAGE>
8.9 Security. The Corporation may designate certain of its assets as
--------
collateral, provide self-insurance, establish one or more indemnification
trusts, or otherwise secure or facilitate its ability to meet its obligations
under this Article Eight, or under any indemnification agreement or plan of
indemnification adopted and entered into in accordance with the provisions of
this Article Eight, as the Board of Directors deems appropriate.
8.10 Amendment. Any amendment to this Article Eight that limits or
---------
otherwise adversely affects the right of indemnification, advancement of
expenses, or other rights of any Indemnified Person hereunder shall, as to such
Indemnified Person, apply only to Proceedings based on actions, events, or
omissions occurring after such amendment and after delivery of notice of such
amendment to the Indemnified Person so affected (collectively, "Post Amendment
Events"). Any Indemnified Person shall, as to any Proceeding based on actions,
events, or omissions occurring prior to the date of receipt of such notice, be
entitled to the right of indemnification, advancement of expenses, and other
rights under this Article Eight to the same extent as if such provisions had
continued as part of the Bylaws of the Corporation without such amendment. This
Section 8.10 cannot be altered, amended, or repealed in a manner effective as to
any Indemnified Person (except as to Post Amendment Events) without the prior
written consent of such Indemnified Person.
8.11 Agreements. The provisions of this Article Eight shall be deemed to
----------
constitute an agreement between the Corporation and each Indemnified Person
hereunder. In addition to the rights provided in this Article Eight, the
Corporation shall have the power, upon authorization by the Board of Directors,
to enter into an agreement or agreements providing to any Indemnified Person
indemnification rights substantially similar to those provided in this Article
Eight.
8.12 Continuing Benefits. The rights of indemnification and advancement
-------------------
of expenses permitted or authorized by this Article Eight shall, unless
otherwise provided when such rights are granted or conferred, continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such person.
8.13 Successors. For purposes of this Article Eight, the term
----------
"Corporation" shall include any corporation, joint venture, trust, partnership,
or unincorporated business association that is the successor to all or
substantially all of the business or assets of this Corporation, as a result of
merger, consolidation, sale, liquidation, or otherwise, and any such successor
shall be liable to the persons indemnified under this Article Eight on the same
terms and conditions and to the same extent as this Corporation.
8.14 Severability. Each of the Sections of this Article Eight, and each
------------
of the clauses set forth herein, shall be deemed separate and independent, and
should any part of any such Section or clause be declared invalid or
unenforceable by any court of competent jurisdiction, such invalidity or
unenforceability shall in no way render invalid or unenforceable any other part
thereof or any separate Section or clause of this Article Eight that is not
declared invalid or unenforceable.
8.15 Additional Indemnification. In addition to the specific
--------------------------
indemnification rights set forth herein, the Corporation shall indemnify each of
its directors and such of its officers as have
15
<PAGE>
been designated by the Board of Directors to the full extent permitted by action
of the Board of Directors without shareholder approval under the Code or other
laws of the State of Georgia as in effect from time to time.
ARTICLE NINE
Miscellaneous
9.1 Inspection of Books and Records. The Board of Directors shall have
-------------------------------
the power to determine which accounts, books, and records of the Corporation
shall be available for shareholders to inspect or copy, except for those books
and records required by the Code to be made available upon compliance by a
shareholder with applicable requirements, and shall have the power to fix
reasonable rules and regulations (including confidentiality restrictions and
procedures) not in conflict with applicable law for the inspection and copying
of accounts, books, and records that by law or by determination of the Board of
Directors are made available. Unless required by the Code or otherwise provided
by the Board of Directors, a shareholder of the Corporation holding less than
two percent of the total shares of the Corporation then outstanding shall have
no right to inspect the books and records of the Corporation.
9.2 Fiscal Year. The Board of Directors is authorized to fix the fiscal
-----------
year of the Corporation and to change the fiscal year from time to time as it
deems appropriate.
9.3 Corporate Seal. The corporate seal will be in such form as the Board
--------------
of Directors may from time to time determine. The Board of Directors may
authorize the use of one or more facsimile forms of the corporate seal. The
corporate seal need not be used unless its use is required by law, by these
Bylaws, or by the Articles of Incorporation.
9.4 Annual Statements. Not later than four months after the close of
-----------------
each fiscal year, and in any case prior to the next annual meeting of
shareholders, the Corporation shall prepare (a) a balance sheet showing in
reasonable detail the financial condition of the Corporation as of the close of
its fiscal year, and (b) a profit and loss statement showing the results of its
operations during its fiscal year. Upon receipt of written request, the
Corporation promptly shall mail to any shareholder of record a copy of the most
recent such balance sheet and profit and loss statement, in such form and with
such information as the Code may require.
9.5 Notice. (a) Whenever these Bylaws require notice to be given to
------
any shareholder or to any director, the notice may be given by mail, in person,
by courier delivery, by telephone, or by telecopier, telegraph, or similar
electronic means. Whenever notice is given to a shareholder or director by
mail, the notice shall be sent by depositing the notice in a post office or
letter box in a postage-prepaid, sealed envelope addressed to the shareholder or
director at his or her address as it appears on the books of the Corporation.
Any such written notice given by mail shall be effective: (i) if given to
shareholders, at the time the same is deposited in the United States mail; and
(ii) in all other cases, at the earliest of (x) when received or when delivered,
properly addressed, to the addressee's last known principal place of business or
residence, (y) five days after its deposit in the mail, as evidenced by the
postmark, if mailed with first-class postage
16
<PAGE>
prepaid and correctly addressed, or (z) 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. Whenever notice is given to
a shareholder or director by any means other than mail, the notice shall be
deemed given when received.
(b) In calculating time periods for notice, when a period of time measured
in days, weeks, months, years, or other measurement of time is prescribed for
the exercise of any privilege or the discharge of any duty, the first day shall
not be counted but the last day shall be counted.
ARTICLE TEN
Amendments
Except as otherwise provided under the Code, the Board of Directors shall
have the power to alter, amend, or repeal these Bylaws or adopt new Bylaws. Any
Bylaws adopted by the Board of Directors may be altered, amended, or repealed,
and new Bylaws adopted, by the shareholders. The shareholders may prescribe in
adopting any Bylaw or Bylaws that the Bylaw or Bylaws so adopted shall not be
altered, amended, or repealed by the Board of Directors.
17
<PAGE>
EXHIBIT 3
AMENDMENT TO
BYLAWS (AMENDED AND RESTATED)
OF
THE INTERCEPT GROUP, INC.
Adopted October 1, 1999
<PAGE>
The provisions below are to be inserted into the Bylaws (Amended and
Restated) of The InterCept Group, Inc., as a new ARTICLE NINE. The former
Article Nine shall become ARTICLE TEN, and the former Article Ten shall become
ARTICLE ELEVEN.
ARTICLE NINE
Conduct of Certain Affairs of the Corporation
9.1 Relationship with Netzee, Inc. The provisions of this Article Nine are
-----------------------------
set forth to regulate, define and guide the conduct of certain affairs of the
Corporation as they may involve Netzee, Inc. ("Netzee") and its officers and
directors, and the powers, rights, duties and liabilities of the Corporation and
its officers, directors and shareholders in connection therewith. The
Corporation anticipates and recognizes that: (a) the Corporation has ceased to
be the sole shareholder of Netzee and expects to remain a significant
shareholder in Netzee; (b) the Corporation and Netzee may engage in the same or
similar activities or lines of business and have an interest in the same areas
of corporate opportunities; (c) the Corporation will derive certain benefits
through its continued contractual, corporate and business relations with Netzee
(including service of officers and directors of the Corporation as officers and
directors of Netzee); and (d) the Corporation will benefit from providing
guidelines for directors and officers of the Corporation with respect to the
allocation of corporate opportunities and other matters.
9.2 Similar business activities. No officer or director of Netzee or the
----------------------------
Corporation shall be liable to the Corporation or its shareholders (except as
provided in section 9.3 below) for breach of any fiduciary duty by reason of
Netzee engaging in the same or similar activities or lines of business as the
Corporation, or by reason of such person's participation therein.
9.3 Corporate opportunities. In the event that a director or officer of the
------------------------
Corporation who is also a director or officer of Netzee acquires knowledge of a
potential transaction or matter which may be a corporate opportunity for both
the Corporation and Netzee (whether such potential transaction or matter is
proposed by a third party or is conceived of by such director or officer of
Corporation), such director or officer of the Corporation shall act in a manner
consistent with the following policy:
(i) a corporate opportunity offered to any person who is an officer or
director of the Corporation, and who is also a director but not an
officer of Netzee, shall be presented to and belong to the
Corporation, unless such opportunity is expressly offered to such
person primarily in his or her capacity as a director of Netzee,
in which case such opportunity shall be presented to and belong to
Netzee;
(ii) a corporate opportunity offered to any person who is a director
but not an officer of the Corporation, and who is also an officer
of Netzee, shall be presented to and belong to Netzee, unless such
opportunity is expressly offered to such person primarily in his
or her capacity as a director of the Corporation, in which case
such opportunity shall be presented to and belong to the
Corporation; and
(iii) a corporate opportunity offered to any person who is an officer of
both the Corporation and Netzee or a director of both the
Corporation and Netzee shall be presented to and belong to the
Corporation, unless such opportunity is expressly offered to such
person primarily in his or her capacity as an officer or director
of Netzee, in which case such opportunity shall be presented to
and belong to Netzee.
<PAGE>
A corporate opportunity offered to an officer or director under
circumstances that make it unclear whether such opportunity was presented to
such person primarily in their capacity as an officer or director of either the
Corporation or Netzee shall be presented as such director or officer deems
appropriate under the circumstances in his or her sole discretion exercised in
good faith.
Each director and officer acting in accordance with the above policy:
(a) shall be deemed to have fully satisfied and fulfilled his or her fiduciary
duty to the Corporation and its shareholders with respect to such corporate
opportunity; (b) shall be deemed to have acted in good faith and in a manner
such person reasonably believes to be in and not opposed to the best interests
of the Corporation; (c) shall be deemed not to have breached any duty of loyalty
or other duty such person may have to the Corporation or its shareholders; and
(d) shall be deemed not to have derived an improper benefit from a transaction
or opportunity which is handled in accordance with the above policy, unless he
or she fails to disclose to the Corporation his or her personal interest(s) in
such transaction, if any.
9.5 Limitation of liability. No director or officer of the Corporation
------------------------
acting in accordance with the above policy shall be liable to the Corporation or
its shareholders for breach of any fiduciary duty or duty of loyalty or failure
to act in (or not opposed to) the best interests of the Corporation or the
derivation of any improper personal benefit by reason of the fact that (a) such
director or officer offered such corporate opportunity to Netzee rather than the
Corporation or did not communicate information regarding such corporate
opportunity to the Corporation or (b) Netzee pursues or acquires such corporate
opportunity for itself or does not communicate information regarding such
corporate opportunity to the Corporation.
9.4 Definitions. For purposes of this Article Nine, a director of the
------------
Corporation who is Chairman of the Board of Directors of the Corporation or a
committee thereof shall not be deemed to be an officer of the Corporation by
reason of holding such position (without regard to whether such position is
deemed an office of the Corporation generally under these bylaws), unless such
person is a full-time employee of the Corporation; and the Corporation shall
include all subsidiary corporations and other entities in which the Corporation
owns (directly or indirectly) more than 50 percent of the outstanding voting
capital stock or voting power.
9.5 Provisions not exclusive; Severability. Any conduct by the Corporation
---------------------------------------
or Netzee or any of their respective officers or directors in connection with
the affairs of the Corporation that does not follow the guidelines set forth in
this Article Nine shall not by reason thereof void the transaction or make it
voidable or be deemed a breach of any fiduciary or other duty to the
Corporation, but shall be governed by the other provisions of these bylaws, the
Corporation's articles of incorporation, the Georgia Business Corporation Code
and other applicable law. The provisions of this Article Nine shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
9.6 Deemed consent of shareholders. Any person or entity purchasing or
-------------------------------
otherwise acquiring any interest in any shares of capital stock of the
Corporation shall be deemed to have notice of and to have consented to the
provisions of this Article Nine.
9.7 Termination. Notwithstanding anything in these bylaws to the contrary,
------------
the foregoing provisions of this Article Nine shall expire on the first day on
which (a) the Corporation does not own beneficially common stock representing at
least ten percent (10%) of the combined voting power of
<PAGE>
outstanding shares of common stock of Netzee and (b) no person who is a director
or officer of the Corporation is also a director or officer of Netzee. Neither
the alteration, amendment or repeal of this Article Nine nor the adoption of any
provision inconsistent with this Article Nine shall eliminate or reduce the
effect of this Article Nine in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Article Nine, would accrue or arise,
prior to such alteration, amendment, repeal or adoption.
