<PAGE>
As filed with the Securities and Exchange Commission on November 3, 1999
================================================================================
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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NETZEE, INC.
(Exact name of registrant as specified in its charter)
Georgia 58-2488883
(State of incorporation or (I.R.S. Employer
organization) Identification No.)
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2410 Paces Ferry Road
150 Paces Summit
Atlanta, Georgia 30339
(Address of principal executive offices) (Zip Code)
- --------------------------------------------------------------------------------
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 Section securities pursuant to Section
12(b) of the Exchange Act and is 12(g) of the Exchange Act and
effective pursuant to General is 12(g) of the Exchange Act
Instruction A.(c), check the and is effective pursuant to
following box. [ ] General Instruction A.(d),
check the following box. [X]
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Securities Act registration statement file number to which this form relates:
333-87089
- ----------
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Name of each Exchange
Title of each class on which each class
to be so registered is to be registered
------------------- -------------------
None. None.
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Common Stock, no par value per share
------------------------------------
(Title of Class)
================================================================================
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
Information with respect to the Common Stock of Netzee, Inc. ("Netzee")
is incorporated herein by reference to the sections captioned "Description of
Capital Stock" (i) as contained in Pre-Effective Amendment No. 2 to the
Registrant's Registration Statement on Form S-1 (File No. 333-87089), as filed
with the Securities and Exchange Commission (the "Commission") on November 1,
1999 and (ii) as will be contained in the Registrant's final prospectus to be
filed with the Commission pursuant to Rule 424(b) under the Securities Act.
Item 2. Exhibits.
Exhibit
Number Description of Exhibit
- ------ ----------------------------------------------------------------
3.1 Articles of Incorporation of the Registrant, as amended to the
date hereof
3.2 Amended and Restated Bylaws of the Registrant, as amended to the
date hereof
4.1*** Form of Common Stock Certificate of the Registrant.
4.2* Registration Rights Agreement, dated August 6, 1999, by and among
Netzee, Inc. (as successor to Direct Access Interactive, Inc.)
and each of the former shareholders of SBS Corporation.
4.3* Registration Rights Agreement, dated September 3, 1999, by and
among Netzee, The Bankers Bank and TIB The Independent
BankersBank.
4.4*** Registration Rights Agreement, dated August 31, 1999, by and
among and each of the former shareholders of Dyad Corporation.
4.5* Agreement, dated September 3, 1999, by and between Netzee, Inc.
and Sirrom Investments, Inc., regarding registration rights of
Sirrom.
4.6** Registration Rights Agreement, dated October 18, 1999, by and
between Netzee, Inc. and Kellett Partners, L.P.
4.7** Warrant, dated October 18, 1999, issued to Kellett Partners,
L.P.
10.6** Employment Agreement, dated September 1, 1999, by and between
Netzee, Inc. and Glenn W. Sturm
10.7** Employment Agreement, dated September 1, 1999, by and between
Netzee, Inc. and C. Michael Bowers
10.8** Employment Agreement, dated September 1, 1999, by and between
Netzee, Inc. and David W. Brasfield
10.9** Employment Agreement, dated September 1, 1999, by and between
Netzee, Inc. and Richard S. Eiswirth
___________________________
* Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(File No. 333-87089), as filed with the Commission on September 14, 1999,
and incorporated herein by reference.
<PAGE>
** Filed as an exhibit to Pre-Effective Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-87089), as filed with the
Commission on October 21, 1999, and incorporated herein by reference.
*** Filed as an exhibit to Pre-Effective Amendment No. 2 to the Registrant's
Registration Statement on Form S-1 (File No. 333-87089), as filed with the
Commission on November 1, 1999, and incorporated herein by reference.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the registrant has caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
NETZEE, INC.
By: /s/ David W. Brasfield
--------------------------------------
David W. Brasfield
Senior Executive Vice President-
Sales and Marketing
Date: November 3, 1999
<PAGE>
EXHIBIT 3.1
-----------
ARTICLES OF INCORPORATION
OF
NETZEE, INC.
ARTICLE I.
The name of the Corporation is Netzee, Inc.
ARTICLE II.
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Georgia Business Corporation
Code (the "GBCC").
ARTICLE III.
The total number of shares of stock that the Corporation is authorized to
issue is Seventy-Five Million (75,000,000) shares, of which Seventy Million
(70,000,000) shares are Common Stock (the "Common Stock") and Five Million
(5,000,000) shares are Preferred Stock (the "Preferred Stock"), all of which
shares are without par value. The designations, preferences, limitations and
relative rights of or on the Common Stock and the Preferred Stock are as set
forth below and are otherwise subject to applicable law. The Common Stock (a)
shall be one and the same class, (b) subject to the rights of the holders of
Preferred Stock, if any, shall have full and unlimited voting rights (with each
share having one vote on each matter submitted to shareholders for vote), and
(c) subject to the rights of the holders of Preferred Stock, if any, shall have
equal rights of participation in dividends and distributions and shall be
entitled to receive the net assets of the Corporation ratably upon the voluntary
or involuntary liquidation, dissolution or winding up of the Corporation. The
Board of Directors is authorized, by causing appropriate articles of amendment
to be filed pursuant to the applicable law of the State of Georgia, to divide
the Preferred Stock into series and to determine the preferences, limitations
and relative rights thereof, including but not limited to dividend rights,
dividend rates, conversion rights, voting rights (including, without limitation,
the election of a specified number of directors by the holders of one or more
such series), redemption rights, and liquidation preferences; to fix the number
of shares constituting any such series and the designation thereof; and to
increase or decrease the number of shares of any such series (but not below the
number of shares thereof then issued).
ARTICLE IV.
The street address of the initial registered office of the Corporation is
3150 Holcomb Bridge Road, Suite 310, Norcross, Gwinnett County, Georgia 30071,
and the initial registered agent of the Corporation at such address is C.
Michael Bowers.
<PAGE>
ARTICLE V.
The name and address of the incorporator are:
Mark D. Wasserman
Sutherland Asbill & Brennan LLP
999 Peachtree Street, N.E., Suite 2300
Atlanta, Georgia 30309-3996
ARTICLE VI.
The mailing address of the Corporation's initial principal office will be:
3150 Holcomb Bridge Road, Suite 310
Norcross, Georgia 30071
ARTICLE VII.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, amend or repeal the
Bylaws of the Corporation.
ARTICLE VIII.
A director of the Corporation shall not be personally liable to the
Corporation or to its shareholders for monetary damages for any action taken, or
any failure to take any action, as a director, except liability: (a) for any
appropriation, in violation of his or her duties, of any business opportunity of
the Corporation, (b) for acts or omissions that involve intentional misconduct
or a knowing violation of law, (c) for the types of liability set forth in
Section 14-2-832 of the GBCC, or (d) for any transaction from which the director
received an improper personal benefit. If the GBCC is hereafter amended to
further eliminate or limit the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the GBCC, as so amended, without further action by
the shareholders. Any repeal or modification of this Article VIII shall not
adversely affect the elimination or limitation of liability or alleged liability
pursuant hereto of a director of the Corporation for or with respect to any
alleged act or omission of the director occurring prior to such repeal or
modification.
ARTICLE IX.
The Board of Directors shall consist of such number of directors as fixed
or changed from time to time by the Board of Directors and shall be divided into
three classes: Class I, Class II and Class III, which shall be as nearly equal
in number as possible. Each director shall serve for a term ending on the date
of the third annual meeting of shareholders following the annual meeting at
which such 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
2
<PAGE>
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, each director shall serve until his
successor is elected and qualified or until his earlier death, resignation or
removal. The number of directors may be increased or decreased from time to time
by resolution of the Board of Directors; provided, however, that the total
number of directors at any time shall not be less than three unless these
Articles of Incorporation are amended to delete the classification of the Board
of Directors. Any vacancies in the Board of Directors for any reason, and any
directorships resulting from any increase in the authorized number of directors,
may be filled by the Board of Directors, acting by a majority of the directors
then in office, although less than a quorum, and any directors chosen to fill a
vacancy shall hold office until the next election of the class for which such
directors shall have been chosen and until their successors shall be elected and
qualified, and any directors chosen by reason of an increase in the number of
directors shall hold office until the next election of directors by the
shareholders and until their successors shall be elected and qualified. Subject
to the foregoing and the GBCC, at each annual meeting of shareholders the
successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting.
ARTICLE X.
In discharging the duties of their respective positions and in determining
what is believed to be in the best interests of the Corporation, the Board of
Directors, committees of the Board of Directors and individual directors, in
addition to considering the effects of any action on the Corporation or its
shareholders, may consider the interests of the employees, customers, suppliers
and creditors of the Corporation and its subsidiaries, the communities in which
offices or other establishments of the Corporation and its subsidiaries are
located, and all other factors such directors consider pertinent; provided,
however, that this Article X shall be deemed solely to grant discretionary
authority to the directors and shall not be deemed to provide any constituency
any right to be considered.
ARTICLE XI.
The shareholders of the Corporation shall have the right to take action in
lieu of a meeting only by one or more consents in writing signed by all of the
shareholders entitled to vote on such action.
ARTICLE XII.
Any shares of the Corporation reacquired by the Corporation shall become
treasury shares.
ARTICLE XIII.
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:
3
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(a) a sale of all or substantially all of the assets of the Corporation;
(b) a liquidation or dissolution of the Corporation; or
(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;
provided, further, that the affirmative vote of the holders of 66 2/3% of the
- -------- -------
outstanding Common Stock is required for shareholder approval of any action
outlined in the clauses above.
ARTICLE XIV.
The undersigned incorporator does hereby undertake to publish a notice of
the filing with the Secretary of State of the State of Georgia of these Articles
of Incorporation as required by O.C.G.A. (S) 14-2-201.1(b).
DULY EXECUTED and delivered by the undersigned incorporator on August
25, 1999.
- --
/s/ Mark Wasserman
----------------------------------
Mark D. Wasserman, as Incorporator
* * * * *
4
<PAGE>
ARTICLES OF AMENDMENT
OF
NETZEE, INC.
I.
The name of the Corporation, which was incorporated under the Georgia
Business Corporation Code, is Netzee, Inc.
II.
The first amendment adopted is to delete Article XIII of the Articles of
Incorporation of the Corporation in its entirety.
III.
The second amendment adopted is to amend Article XI of the Articles of
Incorporation of the Corporation by deleting the text of Article XI in its
entirety and substituting therefor the following text:
"The shareholders of the Corporation shall have the right to take
action without a meeting by one or more consents in writing
signed by persons entitled to vote at a meeting shares having
voting power to cast not less than the minimum number (or
numbers, in the case of voting by groups) of votes that would be
necessary to authorize or take the action at a meeting at which
all shareholders entitled to vote were present and voted."
IV.
Such amendment was adopted by the sole incorporator on September 1, 1999.
V.
No shares of the Corporation having been issued, the amendments were
adopted by the sole incorporator without shareholder action, which action was
not required pursuant to O.C.G.A. (S) 14-2-1005.
DULY EXECUTED and delivered by the sole incorporator on September 1, 1999.
/s/ Mark Wasserman
------------------------------------
Mark D. Wasserman, Esq.
As Incorporator
<PAGE>
ARTICLES OF AMENDMENT
OF
NETZEE, INC.
I.
The name of the Corporation, which was incorporated under the Georgia
Business Corporation Code, is Netzee, Inc. (the "Corporation").
II.
This amendment is adopted to amend Article XI of the Articles of
Incorporation of the Corporation by deleting the text of Article XI in its
entirety and substituting therefor the following text:
"Any action required or permitted to be taken at a meeting of
shareholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the
action so taken, shall be signed by all of the shareholders of the
Corporation entitled to vote on the action."
All other provisions of the Articles of Incorporation shall remain in full
force and effect.
III.
This amendment was adopted by the shareholders of the Corporation on
November 3, 1999.
IV.
This amendment was duly approved by the shareholders in accordance with the
provisions of section 14-2-1003 of the Georgia Business Corporation Code.
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment
to be executed by a duly authorized officer this 3rd day of November, 1999.
---
NETZEE, INC.
By: /s/ David S. Brasfield
--------------------------------
Name: David S. Brasfield
-------------------------------
Title: Senior Executive Vice President
-------------------------------
<PAGE>
EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS OF
NETZEE, INC.
(a Georgia corporation)
October 22, 1999
References in these Bylaws to "Articles of Incorporation" are to the
Articles of Incorporation of NETZEE, INC., a Georgia corporation (the
"Corporation"), as amended and restated from time to time.
All of these Bylaws are subject to contrary provisions, if any, of the
Articles (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 I
Section 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.
Section 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.
Section 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 II
Shareholders
------------
Section 1. Annual Meeting. The annual meeting of the shareholders
--------------
shall be held on such date, at such time and at such place as shall be set by
the Board of Directors of the Corporation (the "Board of Directors") for the
purpose of electing directors and for the transaction of such other business as
may come before the meeting.
Section 2. Special Meetings. Special meetings of the shareholders, for
----------------
any purpose, unless otherwise prescribed by statute, may be called by the
Chairman of the Board and Chief Executive Officer, the President, the Board of
Directors or by holders of outstanding stock having not less than seventy-five
percent (75%) of the votes entitled to be cast by all of the outstanding shares
of the Corporation.
Section 3. Place of Meeting. The Board of Directors may designate any
----------------
place as the place for an annual meeting or special meeting of shareholders. If
no designation is made, the place of the meeting shall be the principal office
of the Corporation.
<PAGE>
Section 4. Notice of Meeting. Written or printed notice stating the
-----------------
place, day and hour of the meeting, and, in case of a special meeting, the
purpose for which the meeting is called, shall be delivered no fewer than ten
(10) nor more than sixty (60) days before the date of the meeting, either
personally or by mail, by or at the direction of the Chairman of the Board and
Chief Executive Officer, the President, or the Secretary, to each shareholder of
record entitled to vote at such meeting. If mailed, the notice shall be deemed
to be delivered when deposited in the United States mail addressed to the
shareholder at his address as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid. A shareholder may waive any notice
required by the Code, the Corporation's Articles of Incorporation (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 must be specified in any waiver.
Section 5. Nominations of Directors. Subject to the rights of holders
------------------------
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, nominations of persons for election to the Board
of Directors may only be made (a) by the Board of Directors or a committee
appointed by the Board of Directors; (b) by any shareholder entitled to vote in
the election of directors generally and who complies with the procedures set
forth in this section 5; or (c)(i) the person is nominated to replace a person
previously identified as a proposed nominee (in accordance with the provisions
of this section 5) 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 this
section 5 to have been furnished about the original nominee. No person shall be
eligible for election as a director unless nominated in accordance with this
section 5; however, the chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these Bylaws, and if he should so
determine, he shall so declare to the meeting that the defective nomination
shall be disregarded.
Nominations by shareholders shall be made pursuant to timely written notice
by registered or certified mail to the Secretary of the Corporation delivered to
or mailed and received at the principal executive offices of the Corporation (a)
in the case of an annual meeting,
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not less than ninety (90) days nor more than one hundred twenty (120) days prior
to the first anniversary of the date of the preceding year's annual meeting;
provided, however, that in the event that the date of the current year's annual
meeting is changed by more than 30 days from such anniversary date, notice by
the shareholder to be timely must be received by the Corporation no later than
the close of business on the tenth (10th) day following the earlier of (i) the
day on which notice of the date of the meeting was mailed or (ii) the day on
which public disclosure of the date of the meeting was made; and (b) in the case
of a special meeting at which directors are to be elected, not later than the
close of business on the tenth (10th) day following the earlier of the day on
which notice of the date of the meeting was mailed or public disclosure of the
special meeting was made. Each such shareholder's notice shall set forth (a) any
understandings between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (b) as to each person whom the
shareholder proposes to nominate for election or reelection as a director: (i)
the name, business address, residence address and age of the proposed nominee,
(ii) the principal occupation and employment of the proposed nominee, (iii) the
class and number of shares of capital stock of the Corporation which are
beneficially owned by the nominee, and (iv) any other information relating to
the nominee that is required to be disclosed in solicitations for proxies for
election of directors pursuant to section 14(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder, (c) as to the shareholder giving the notice and the
beneficial owners, if any, on whose behalf the nomination is made: (i) the name
and address, as they appear on the Corporation's books, of such shareholder and
of such beneficial owners, (ii) the class and number of shares of the
Corporation which are beneficially owned and are owned of record by such
shareholder and such beneficial owners, and (iii) a representation that the
shareholder is entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in the
notice. Any person nominated by the shareholders for election as a director also
shall furnish to the Secretary of the Corporation all biographical, financial
and other information and shall complete all certifications, reports and
submissions that are required by the Corporation to determine the eligibility of
the nominee to serve as director.
No person shall be eligible to serve as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Bylaw.
Section 6. New Business. No matter of business may be brought before
------------
any annual meeting except (a) pursuant to the Corporation's notice of meeting,
(b) by or at the direction of the Board of Directors, or (c) by any shareholder
of the Corporation who is a shareholder of record at the time of giving of the
notice provided for in this Bylaw, who shall be entitled to vote at such meeting
and who complies with the notice procedures set forth in this section 6.
For business to be properly brought before an Annual Meeting by a
shareholder pursuant to this section 6, the shareholder must have given timely
written notice to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at
3
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the principal executive offices of the Corporation not less than one hundred
twenty (120) days nor more than one hundred fifty (150) days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the meeting is changed by more than thirty (30) days
from such anniversary date, notice by the shareholder to be timely must be
received no later than the close of business on the tenth (10th) day following
the earlier of the day on which notice of the date of the meeting was mailed or
public disclosure was made. A shareholder's notice to the Secretary shall set
forth as to each matter the shareholder proposes to bring before the meeting:
(a) a brief description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting, (b) the name and
address, as they appear on the Corporation's books, of the shareholder proposing
such business, and the name and address of the beneficial owner, if any, on
whose behalf the proposal is made, (c) the class and number of shares of the
Corporation which are owned beneficially and of record by such shareholder of
record and by the beneficial owner, if any, one whose behalf the proposal is
made as such terms are defined in Rule 13d-3 of the Exchange Act and (d) any
material interest of such shareholder of record and the beneficial owner, if
any, on whose behalf the proposal is made in such business. For purposes of
clause (d) above, a "material interest of such shareholder" shall be deemed to
occur if such interest were reportable (assuming that the shareholder's business
was in fact brought before the annual meeting) pursuant to Item 5 of Schedule
14A (Rule 14a-101) promulgated under the Exchange Act.
Notwithstanding anything in these Bylaws to the contrary, no business shall
be conducted at an Annual Meeting except in accordance with the procedures set
forth in this section 6. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the procedures prescribed by
these Bylaws, and if he should so determine, he shall so declare to the meeting
and any such business not properly brought before the meeting shall not be
transacted.
Section 7. Quorum. Except as otherwise provided by the Articles of
------
Incorporation or the Code, a majority of the votes entitled to be cast on a
matter by the shareholders, represented in person or by proxy, shall constitute
a quorum at a meeting of shareholders. If less than a quorum is represented at a
meeting, the meeting may be adjourned without further notice if the time and
place thereof are announced at the meeting at which the adjournment is taken,
provided, however, that the period shall not exceed thirty days (30) for any one
adjournment. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted that might have been transacted at
the meeting as originally called. If a quorum is present, action on a matter
(other than the election of directors) by a voting group is approved if the
votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the Articles of Incorporation, a bylaw adopted by
the shareholders under Section 14-2-1021 of the Code, or the Code requires a
greater number of affirmative votes. Unless otherwise provided in the Articles
of Incorporation, directors of the Corporation shall be elected by a plurality
of the votes cast by the shares entitled to vote in the election at a meeting at
which a quorum is present.
4
<PAGE>
Section 8. Proxies. At all meetings of shareholders, a shareholder may
-------
vote by proxy authorized by the shareholder or his duly authorized attorney in
fact in the manner authorized by the Code. Such proxy shall be filed with the
Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven (11) months from the date of its execution, unless
otherwise provided in the proxy.
Section 9. Voting of Shares. Each outstanding share shall be entitled
----------------
to one vote on each matter submitted to a vote at a meeting of the shareholders
except as otherwise provided in the Articles of Incorporation or the Code. In
the election of directors, each record holder of stock entitled to vote at such
election shall have the right to vote the number of shares owned by him for as
many persons as there are directors to be elected, and for whose election he has
the right to vote. Cumulative voting shall not be allowed.
Section 10. Presiding Officer. Except as otherwise provided herein, the
-----------------
Chairman of the Board of Directors, and in his absence or disability the Chief
Executive Officer of the Corporation, 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 of Directors
nor the Chief Executive Officer of the Corporation is present and willing to
serve as chairman of the meeting, then the President of the Corporation shall
preside. If neither of the Chairman of the Board, the Chief Executive Officer or
the President of the Corporation is present and is willing to serve as the
chairman of the meeting, and in the event that the duty has not been otherwise
properly delegated, 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 the shares present at the meeting that
would be entitled to vote in an election of directors. The chairman of the
meeting may designate other persons to assist with the meeting.
Section 11. Action Without a Meeting. Unless otherwise provided in the
------------------------
Articles of Incorporation, any action required to be taken or that may be taken
at a meeting of shareholders may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by all of the shareholders of the
Corporation. 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.
ARTICLE III
Board of Directors
------------------
Section 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
5
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Directors, subject to any limitation set forth in the Articles, in bylaws
approved by the shareholders, or in agreements among all the shareholders that
are otherwise lawful.
Section 2. Number and Election of Board. The Board of Directors shall
----------------------------
consist of such number of directors as fixed or changed from time to time by the
Board of Directors and shall be divided into three classes: Class I, Class II
and Class III, which shall be as nearly equal in number as possible. Each
director shall serve for a term ending on the date of the third annual meeting
of shareholders following the annual meeting at which such 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, each director shall serve until his
successor is elected and qualified or until his earlier death, resignation or
removal. The number of directors may be increased or decreased from time to time
by resolution of the Board of Directors; provided, however, that the total
number of directors at any time shall not be less than three unless these Bylaws
are amended to delete the classification of the Board of Directors. Any
vacancies on the Board of Directors for any reason, and any directorships
resulting from any increase in the authorized number of directors, may be filled
by the Board of Directors, acting by a majority of the directors then in office,
although less than a quorum. Any directors chosen to fill a vacancy shall hold
office until the next election of the class for which such directors shall have
been chosen and until their successors shall be elected and qualified, and any
directors chosen by reason of an increase in the number of directors shall hold
office until the next election of directors by the shareholders and until their
successors shall be elected and qualified. Subject to the foregoing and the
Code, at each annual meeting of shareholders the successors to the class of
directors whose term shall then expire shall be elected to hold office for a
term expiring at the third succeeding annual meeting.
Section 3. Chairman of the Board. Subject to the provisions of Article
---------------------
II, section 10 of these Bylaws, the Chairman of the Board shall preside at all
meetings of the Board of Directors and of the Shareholders, and may delegate
such authority to any other director or officer of the Corporation. The
Chairman of the Board shall not be deemed to be an officer of the Corporation,
but shall have all such other duties and powers as are incident to his position
or properly prescribed from time to time by the Board of Directors.
Section 4. Resignation and Removal.
-----------------------
(a) Resignation. Any director may resign at any time by giving
-----------
written notice to the Board of Directors, the Chairman of the Board, or to the
Secretary of the Corporation. Such resignation shall take effect at the time
delivered unless a later date is specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
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(b) Removal. Any director or the entire Board of Directors may be
-------
removed by the shareholders at any time, with cause; 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 given, and a director may be
removed only by the holders of two-thirds of the votes entitled to be cast. A
removed director's successor, if any, may be elected at the same meeting to
serve the unexpired them. Directors may not be removed without cause.
Section 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.
Section 6. 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 determined by reference to the Code, the
Articles of Incorporation and any further eligibility requirements established
in these Bylaws.
Section 7. Regular Meetings. A regular meeting of the Board of
----------------
Directors shall be held without notice immediately after and at the same place
as the annual meeting of shareholders. The Board of Directors may adopt a
resolution as to the time and place for the holding of additional regular
meetings without notice other than such resolution. The failure to hold the
annual meeting does not affect the validity of any corporate action.
Section 8. Special Meetings. Special meetings of the Board of
----------------
Directors may be called by or at the request of the Chairman of the Board and
Chief Executive Officer, the President or any director. The person or persons
authorized to call special meetings of the Board of Directors may fix any place
as the place for holding any special meeting of the Board of Directors called by
him or them.
Section 9. Notice. Notice of any special meeting shall be given at
------
least twenty-four (24) hours prior thereto by written notice delivered
personally or mailed (first class mail) to each director at his business address
or by notice given by telecopy to such address. If mailed, such notice shall be
deemed to be delivered three days following the deposit of such notice in the
United States mail so addressed, with postage thereon prepaid. If notice is
given by telecopy, such notice shall be deemed to be delivered upon printed
confirmation of receipt by the transmitting telecopier. Any director may waive
notice of any meeting. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting unless the director at the
beginning of the meeting (or promptly upon his arrival) objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
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Section 10. Quorum. A majority of the total number of directors shall
------
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, but if less than a majority is present at a meeting, a majority of
the directors present may adjourn the meeting from time to time without further
notice.
Section 11. Manner of Action. Except as otherwise provided in the
----------------
Articles of Incorporation, the vote of the majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors.
Section 12. Expenses. The Corporation shall pay the actual out-of-
--------
pocket expenses incurred by each director in connection with attending the
meetings of the Board of Directors and any committee thereof; provided, that the
Corporation shall not be obligated to pay for any of such expenses that are
significantly in excess of the customary out-of-pocket expenses that would have
been incurred for travel to such meetings from such director's home or office.
Section 13. Presumption of Assent. A director of the Corporation who is
---------------------
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his dissent or abstention shall be entered in the minutes of the meeting or
unless he files his written notice of dissent or abstention to such action with
the presiding officer of the meeting before the adjournment thereof or shall
forward such dissent to the Corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in favor
of such action.
Section 14. Meeting by Conference Telephone. Members of the Board of
-------------------------------
Directors may participate in a meeting by means of a conference telephone or
similar communications equipment by which all persons participating in a meeting
can hear each other during the meeting. Such participation shall constitute
presence in person at the meeting.
Section 15. Action Without a Meeting. Any action required or permitted
------------------------
to be taken at a meeting of the Board of Directors may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by all of the directors entitled to vote with respect to the subject
matter thereof and filed with the minutes of the proceedings of the Board of
Directors. Such consent shall have the same force and effect as a unanimous
vote of the directors.
Section 16. Committees. The Board of Directors may, by resolution
----------
passed by a majority of the whole Board of Directors, appoint an executive
committee and any other committee of the Board of Directors, the composition of
each of which shall consist of one or more directors of the Corporation, and may
delegate to any such committee any of the authority of the Board of Directors,
however conferred, other than the power or authority to (i) approve or propose
to shareholders action that the Code requires be approved by shareholders; (ii)
fill vacancies on the Board of Directors or any of its committees; (iii) amend
the Articles of
8
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Incorporation pursuant to Section 14-2-1002 of the Code; (iv) adopt, amend or
repeal the Bylaws of the Corporation; or (v) approve a plan of merger not
requiring shareholder approval. Each such committee shall serve at the pleasure
of the Board of Directors. Any such committee shall keep written minutes of its
meetings and report the same to the Board of Directors at the next regular
meeting of the Board of Directors.
ARTICLE IV
Officers and Agents
-------------------
Section 1. General. The officers of the Corporation shall be a Chief
-------
Executive Officer, a President, a Secretary and a Chief Financial Officer. The
Board of Directors may appoint such other officers, assistant officers and
agents, including assistant secretaries and assistant treasurers, as it may
consider necessary, who shall be chosen in such a manner, hold their offices for
such terms and have such authority and duties as from time to time may be
determined by the Board of Directors. The compensation for all the officers of
the Corporation shall be fixed by the Board of Directors. Any number of offices
may be held by the same person. In all cases in which duties of any officer,
agent or employee are not prescribed by the Bylaws or by the Board of Directors,
such officer, agent or employee shall follow the orders and instructions of the
President.
Section 2. Election and Term of Office. The officers of the
---------------------------
Corporation shall be elected by the Board of Directors annually at the first
meeting of the Board held after each annual meeting of the shareholders. Each
officer shall hold office until his successor is elected and qualified or until
his earlier death, resignation or removal.
Section 3. 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 person removed but shall be effective notwithstanding any damage claim that
may result from infringement of such contract rights.
Section 4. Vacancies. A vacancy in any office, however occurring, may
---------
be filled by the Board of Directors.
Section 5. Chief Executive Officer. The Chief Executive Officer of
-----------------------
the Corporation shall be responsible for the administration of the Corporation
(including the general supervision of the policies of the Corporation, the
general and active management of the business and financial affairs of the
Corporation and the supervision and direction of the actions of the other
officers of the Corporation), shall have the authority to sign and deliver
agreements, certificates and other instruments on behalf of the Corporation and
shall have all such other duties and powers that are incident to his office or
that are from time to time assigned to him by the Board
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<PAGE>
of Directors. In the absence of the Chairman of the Board and if the Chairman of
the Board has not delegated his authority to preside, the Chief Executive
Officer shall preside at meetings of the Shareholders and, if he is a director,
at meetings of the Board. He may exercise any powers, authorities or functions,
granted or designated, to be performed by the President under the Bylaws, by law
or by a resolution adopted by the Board of Directors.
Section 6. President. The President, subject to the direction of the
---------
Board of Directors and the Chief Executive Officer, shall be the chief operating
officer of the Corporation, shall have general supervision of the day-to-day
operational affairs of the Corporation, shall, subject to the Chief Executive
Officer, supervise and direct the day-to-day actions of the other officers of
the Corporation, shall have the power to sign and deliver agreements,
certificates and other instruments on behalf of the Corporation and shall have
all such other duties and powers that are incident to his office or that are
from time to time assigned by the Board of Directors or the Chief Executive
Officer. In the absence of the Chairman of the Board and the Chief Executive
Officer, and if their authority to preside is not otherwise delegated, (a) the
President shall preside at meetings of the Shareholders, and, (b) if he is a
director, at meetings of the Board of Directors.
Section 7. Secretary. The Secretary shall keep and prepare minutes of
---------
all meetings of the shareholders of the Corporation and the Board of Directors,
shall have charge of the minute books, stock records and seal of the
Corporation, shall authenticate records of the Corporation and shall perform
such other duties and have such other powers as are from time to time assigned
by the Chief Executive Officer, the President or the Board of Directors.
Section 8. Chief Financial Officer. The Chief Financial Officer shall
-----------------------
be charged with the management of the financial affairs of the Corporation. The
Chief Financial Officer shall perform all of the duties incident to the office
of a treasurer and financial officer and such other duties as are from time to
time assigned by the Chief Executive Officer, the President or the Board of
Directors.
ARTICLE V
Distributions and Dividends
---------------------------
Section 1. Dividends. Unless the Articles of Incorporation provide
---------
otherwise, the Board of Directors may, from time to time in its discretion,
authorize or declare distributions or share dividends in accordance with the
Code.
ARTICLE VI
Stock
-----
10
<PAGE>
Section 1. Stock Certificates. The interest of each shareholder of the
------------------
Corporation shall be evidenced by a certificate or certificates representing
shares of the Corporation. Stock certificates shall be issued in consecutive
order and shall be in a form or forms prescribed by the Board of Directors and
shall be numbered in the order in which they are issued. They shall be signed by
(1) the Chief Executive Officer, the President or any Vice President and (2) the
Secretary or an Assistant Secretary. If there is a seal of the Corporation, such
seal (or a facsimile of it) shall be affixed to such certificates. Signatures on
a share certificate may be facsimiles but in such case the certificate must be
countersigned by a transfer agent or registered by a registrar other than the
Corporation or an employee of the Corporation.
Section 2. Rights of Corporation with Respect to Registered Owners.
-------------------------------------------------------
Prior to presentation for transfer of 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; 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.
Section 3. Transfers of Shares. Transfers of shares shall be made upon
-------------------
the books of the Corporation 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 these Bylaws shall have been complied with.
Section 4. Duty of Corporation to Register Transfer. Notwithstanding
----------------------------------------
any of the provisions of Section 3 above, 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; and
(e) the transfer is in compliance with applicable provisions of any transfer
restrictions of which the Corporation shall have notice.
Section 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.
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<PAGE>
Section 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 seventy (70) days (and, in the case of a notice to shareholders of
a shareholders' meeting, not less than ten (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. If no record date is fixed as provided in this Section, then the record
date for any determination of shareholders that may be proper or required by law
shall be, as appropriate, the date on which notice of a shareholders' meeting is
mailed, the date on which the Board of Directors adopts a resolution declaring a
dividend or authorizing a distribution, or the date on which any other action is
taken that requires a determination of shareholders.
Section 7. Regulations, Transfer Agents and Registrars. The Board of
-------------------------------------------
Directors may make all such rules and regulations as it may deem expedient
concerning the issuance, transfer, conversion, registration and cancellation of
share certificates not inconsistent with applicable law, the Articles of
Incorporation or the Bylaws of the Corporation. The Board of Directors may
appoint one or more transfer agents or registrars, or both, and may require all
share certificates to bear the signature of a transfer agent or registrar or
both.
ARTICLE VII
Indemnification of Officers and Directors
-----------------------------------------
12
<PAGE>
Section 1. Indemnification of Directors. The Corporation shall
----------------------------
indemnify and hold harmless, and shall advance funds to pay for or reimburse
expenses to, 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, arbitrative or
investigative, whether formal or informal, including any action or suit by or in
the right of the Corporation (for purposes of this Article Seven, collectively,
a "Proceeding") because he is or was a director of the Corporation, against any
obligation to pay a 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 Seven, a "Liability"), if he conducted himself in good faith and
he reasonably believed that, in the case of conduct in his official capacity,
his conduct was in the best interests of the Corporation, in all other cases,
his conduct was at least not opposed to the best interests of the Corporation,
and, in the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful; 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 director to the
Corporation for: (a) any appropriation by a director, in violation of the
director's duties, of any business opportunity of the Corporation; (b) any acts
or omissions of a director 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 the director 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.
Section 2. Indemnification of Others. The Board of Directors shall
--------------------------
have the power to cause the Corporation to provide to officers, employee and
agents of the Corporation all or any part of the right to indemnification and
other rights of the type provided under Sections 1, 5 and 6 of this Article
Seven (subject to the conditions, limitations, and obligations specified in
those sections) upon a resolution to that effect identifying the officers,
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 officer, employee or agent of the Corporation so identified
shall be an "Indemnified Person" for purposes of the provisions of this Article
Seven.
Section 3. Other Organizations. The Board of Directors shall have the
-------------------
power to cause the Corporation to provide to any director, 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 1, 5 and 6 of this Article Seven (subject to the
conditions, limitations, and obligations specified in those sections) upon a
resolution to that effect identifying the persons to be indemnified and
specifying the particular rights provided, which may be different
13
<PAGE>
for each of the persons identified. Each person so identified shall be an
"Indemnified Person" for purposes of the provisions of this Article Seven.
Section 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 1 if a determination that
such Indemnified Person is entitled to such indemnification shall be made (a) if
there are two or more directors who are not at the time parties to the
Proceeding, 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 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.
Section 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 an Indemnified Person in defending any Proceeding of the kind described in
Section 1 (or in Sections 2 or 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 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
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 5 regardless of the Indemnified Person's
financial ability to make repayment. Any advances and undertakings to repay
pursuant to this Section 5 may be unsecured and interest-free.
Section 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 Seven
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. Nothing
contained in this Article Seven shall be deemed to prohibit, and the Corporation
is specifically authorized to enter into, agreements which provide
indemnification rights and procedures permitted by the Code.
14
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Section 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 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 Seven.
Section 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.
Section 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 Seven, or under any indemnification agreement or
plan of indemnification adopted and entered into in accordance with the
provisions of this Article Seven, as the Board of Directors deems appropriate.
Section 10. Amendment. Any amendment to this Article Seven 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 Seven to the same extent as if such provisions had
continued as part of the Bylaws of the Corporation without such amendment. This
Section 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.
Section 11. Continuing Benefits. The rights of indemnification and
-------------------
advancement of expenses permitted or authorized by this Article Seven 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.
15
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Section 12. Successors. For purposes of this Article Seven, 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 Seven on the same
terms and conditions and to the same extent as this Corporation.
Section 13. Severability. Each of the Sections of this Article Seven,
------------
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 Seven that is not
declared invalid or unenforceable.
ARTICLE VIII
Transactions Involving The InterCept Group, Inc.
Section 1. Relationship with The InterCept Group, Inc. In anticipation
------------------------------------------
that in the foreseeable future The InterCept Group, Inc. ("InterCept") will
remain a substantial shareholder of the Corporation, and in anticipation that
the Corporation and InterCept may engage in the same or similar activities or
lines of business and have an interest in the same areas of corporate
opportunities, and in recognition of the benefits to be derived by the
Corporation through its continued contractual, corporate and business relations
with InterCept (including service of officers and directors of InterCept as
officers and directors of the Corporation), the provisions of this Article Eight
are set forth to regulate and define the conduct of certain affairs of the
Corporation as they may involve InterCept and its officers and directors, and
the powers, rights, duties and liabilities of the Corporation and its officers,
directors and shareholders in connection therewith.
Section 2. Similar Business Activities. No officer or director of
---------------------------
InterCept or the Corporation shall be liable to the Corporation or its
shareholders (except as provided in section 3 below) for breach of any fiduciary
duty by reason of InterCept engaging in the same or similar activities or lines
of business as the Corporation, or by reason of such person's participation
therein.
Section 3. Corporate Opportunities.
-----------------------
(a) In the event that a director or officer of the Corporation who is also
a director or officer of InterCept acquires knowledge of a potential transaction
or matter which may be a corporate opportunity for both the Corporation and
InterCept (whether such potential transaction or matter is proposed by a third
party or is conceived of by such director or officer of
16
<PAGE>
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
of the Corporation and is also a director but not an officer of
InterCept, 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 InterCept in
which case such opportunity shall be presented to and belong to
InterCept;
(ii) a corporate opportunity offered to any person who is a director
but not an officer of the Corporation, and who is also a
director or officer of InterCept, shall be presented to and
belong to the Corporation if such opportunity is expressly
offered to such person solely in his or her capacity as a
director of the Corporation; otherwise, such opportunity shall
be presented to and belong to InterCept; and
(iii) a corporate opportunity offered to any person who is an officer
of both InterCept and the Corporation shall 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 InterCept, in which case such opportunity shall be
presented to and belong to InterCept.
(b) 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 InterCept shall be presented as such director or officer deems
appropriate under the circumstances in his or her sole discretion exercised in
good faith.
(c) Each director and officer acting in accordance with the above policy:
(i) 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; (ii) 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; (iii) 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 (iv) 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.
Section 4. 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
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fact that (a) such director or officer offered such corporate opportunity to
InterCept rather than the Corporation or did not communicate information
regarding such corporate opportunity to the Corporation or (b) InterCept pursues
or acquires such corporate opportunity for itself or does not communicate
information regarding such corporate opportunity to the Corporation.
Section 5. Definitions. For purposes of this Article Eight, a director
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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.
Section 6. Severability. Any conduct by the Corporation or InterCept,
------------
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
Eight 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 Eight shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
Section 7. 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 Eight.
Section 8. Termination of Bylaw. Notwithstanding anything in these
--------------------
bylaws to the contrary, the foregoing provisions of this Article Eight shall
expire on the first day on which (a) InterCept does not own beneficially common
stock representing at least ten percent (10%) of the combined voting power of
outstanding shares of common stock of the Corporation and (b) no person who is a
director or officer of the Corporation is also a director or officer of
InterCept. Neither the alteration, amendment or repeal of this Article Eight nor
the adoption of any provision inconsistent with this Article Eight shall
eliminate or reduce the effect of this Article Eight in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article
Eight, would accrue or arise, prior to such alteration, amendment, repeal or
adoption.
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ARTICLE IX
Miscellaneous
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Section 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 such 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 (2%) of the total shares of the
Corporation then outstanding shall have no right to inspect the books and
records of the Corporation.
Section 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.
Section 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.
ARTICLE X
Amendments
----------
Subject to the Articles of Incorporation, these Bylaws and the Code, these
Bylaws may be amended (or repealed and new bylaws adopted) by the Board of
Directors. Any Bylaws adopted by the Board of Directors may be altered, amended
or repealed, and new Bylaws adopted, by the shareholders. The shareholders of
the Corporation may provide expressly that any bylaws adopted, amended or
repealed by them shall not be amended or repealed by the Board of Directors.
* * * * *
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