<PAGE> 1
EXHIBIT 3.02
THIRD AMENDED AND RESTATED BYLAWS
OF
ATHEROGENICS, INC.
I.
SHAREHOLDERS
1. Meetings. The annual meeting of the shareholders of the
Corporation shall be held each year at the principal place of business of the
Corporation at a time specified by the President for the purposes of electing
directors and of transacting such other business as properly may be brought
before the meeting. Other meetings may be held upon the call of any two members
of the Board of Directors, the Chief Executive Officer or, subject to Article I,
Section 3 of these Bylaws, the holders of seventy-five percent (75%) of the
issued and outstanding shares of stock of the Corporation upon not less than ten
(10) days nor more than sixty (60) days notice at any time. Notice shall be
effective when deposited in the post office with postage prepaid and directed to
each shareholder at his last known residence or at such other address as any
shareholder may have designated in writing. The holders of all outstanding
shares may waive any notice requirement. Subject to any express provision of law
or the Articles of Incorporation to the contrary, a majority of the votes
entitled to be cast by all shares voting together as a group shall constitute a
quorum for the transaction of business at all meetings of the shareholders and
each shareholder may cast the number of votes to which he is entitled, either in
person or by written proxy.
To be properly brought before the meeting, business must be either (a)
specified in the notice of the meeting (or any supplement thereto) given by or
at the direction of the Board of Directors, (b) otherwise properly brought
before the meeting by or at the direction of the Board of Directors or (c)
otherwise properly brought before the meeting by a shareholder. In addition to
any other applicable requirements, for business to be properly brought before an
annual meeting by a shareholder, the shareholder must have satisfied all of the
conditions set forth in Rule 14a-8 promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), including particularly the requirement
that the shareholder give timely written notice of his proposal to the
Corporation. To be timely, a shareholder's notice must be delivered to or mailed
and received by the Secretary of the Corporation at the executive offices of the
Corporation within the time period specified in Rule 14a-8(a)(3)(i), and such
notice to the Secretary shall set forth, as to each matter the shareholder
proposes to bring before the annual meeting, the information required by said
Rule 14a-8. Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at
<PAGE> 2
the annual meeting except in accordance with the procedures and conditions set
forth in this Article I, Section 1 and said Rule 14a-8; provided, however, that
nothing in this Article I, Section 1 or said Rule 14a-8 shall be deemed to
preclude discussion by any shareholder of any business properly brought before
the annual meeting. The chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Article I,
Section 1, 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.
2. List of Shareholders. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least 10 days before every
meeting of shareholders, a complete list of shareholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
shareholder and the number of shares registered in the name of each shareholder.
Such list shall be open to the examination of any shareholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be so specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any shareholder who is
present.
3. Special Meetings.
(a) Only such business shall be conducted at a special
meeting of shareholders as shall have been brought before the meeting pursuant
to the Corporation's notice of meeting.
(b) Nominations of persons for election to the Board of
Directors may be made at a special meeting of shareholders at which directors
are to be elected (i) pursuant to the Corporation's notice of meeting, (ii) by
or at the direction of the Board of Directors or (iii) provided that the Board
of Directors has determined that directors shall be elected at such special
meeting, by any shareholder of the Corporation who (x) has given timely notice
thereof meeting the requirements of Article I Section 3(c), (y) is a shareholder
of record at the time of giving of such notice and (z) is entitled to vote at
the meeting.
(c) To be timely, a shareholder's notice referred to in
Article I Section 3(b) must have been delivered to the secretary of the
Corporation at the principal executive office of the Corporation not earlier
than the 90th day prior to such special meeting and not later than the close of
business of the later of the 60th day prior to such special meeting or the tenth
day following the day on which public announcement is made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. Such shareholder's notice shall set forth (i) as to
each person whom the shareholder proposes to nominate for election or reelection
as a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for
-2-
<PAGE> 3
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act (including such person's written consent
to being named in the proxy statement as a nominee and to serving as a director
if elected); and (ii) as to the shareholder giving the notice and the beneficial
owners, if any, on whose behalf the nomination is made, (x) the name and address
of such shareholder, as they appear on the Corporation's books, and of such
beneficial owners, if any.
(d) The presiding officer of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before a special meeting was made in accordance with the procedures set
forth in this Article I, Section 3 and, if any proposed nomination or business
is not in compliance with this Article I, Section 3, to declare that such
defective nomination or proposal be disregarded. Notwithstanding the foregoing
provisions of this Article I, Section 3, a shareholder shall also comply with
all applicable requirements of state law and of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this Article
I.
4. Proxies. Any shareholder may vote his shares in person or by
proxy by executing a writing which authorizes another person or persons to vote
or otherwise act on the shareholder's behalf. Execution may be accomplished by
means of facsimile telecommunication, either personally or by an
attorney-in-fact of an individual shareholder or by an authorized officer,
director, employee or agent in the case of any other shareholder. A shareholder
may authorize another person or persons to act for him as proxy by transmitting
or authorizing the transmission of a telegram, cablegram or other means of
electronic or telecommunication transmission acceptable to the Corporation to
the person who will be the holder of the proxy.
5. Quorum. The presence, in person or by proxy, of a majority of
the shares entitled to vote at a meeting shall constitute a quorum for the
transaction of business. Except as otherwise required by law or the Articles of
Incorporation of the Corporation or these Bylaws, the acts of a majority of the
shareholders present at a meeting at which a quorum is present shall be the acts
of the shareholders. If a quorum is not present, a meeting of shareholders may
be adjourned from time to time by either the vote of shares having a majority of
the votes of the shares represented at such meeting, the Chairman of the Board
or the Chief Executive Officer, until a quorum is present. If a quorum is
present, a meeting of shareholders may be adjourned from time to time by either
the Chairman of the Board or the Chief Executive Officer. When a quorum is
present at the reconvening of any adjourned meeting, and if the requirements of
this Article I have been observed, then any business may be transacted at such
reconvened meeting in the same manner and to the same extent as it might have
been transacted at the meeting as originally noticed.
6. Waiver of Notice. Any shareholder present at a meeting in
person, or by proxy, shall be deemed to have waived notice thereof.
7. Action Without Meeting. Any action required or permitted to be
taken at a
-3-
<PAGE> 4
shareholders' meeting may be taken without a meeting if the action is taken by
all the shareholders entitled to vote on the action. 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 for filing with the corporate
records. No written consent shall be valid unless the consenting shareholder has
been furnished the same material that would have been required to be sent to the
shareholders in a notice of a meeting at which the proposed action would have
been submitted to the shareholders for action, including notice of any
applicable dissenters' right, or the written consent contains an express waiver
of the right to receive the material otherwise required to be furnished.
II.
BOARD OF DIRECTORS
1. General Powers. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation managed
under the direction of, the Board of Directors.
2. Number and Tenure. The Board of Directors shall consist of not
less than three nor more than twelve (12) members with the precise number
designated from time to time by the Board of Directors of the Corporation,
divided into three classes with the apportionment determined, and the term of
each class expiring, in accordance with the provisions of the Articles of
Incorporation. The entire Board of Directors or any individual director may be
removed only for cause.
3. Qualifications of Directors. Directors shall be natural
persons who have attained the age of 25 years but need not be residents of the
State of Georgia or shareholders of the Corporation.
4. Nomination of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of the
Corporation at any annual meeting of shareholders may be made at a special
meeting of shareholders, by or at the direction of the Board of Directors, by
any nominating committee or person appointed by the Board of Directors, or by
any shareholder of the Corporation entitled to vote for the election of
Directors at the meeting who complies with the notice procedures set forth in
this Article II, Section 4. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the executive offices of
the Corporation within the time period specified in Rule 14a-8(a)(3)(i) under
the Exchange Act and must otherwise comply with the provisions of these Bylaws.
Such shareholder's notice to the Secretary shall set forth (a) as to each person
whom the shareholder proposes to nominate for election or re-election as a
director, (i) the name, age, business address and
-4-
<PAGE> 5
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the person and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Regulation 14A
under the Exchange Act; and (b) as to the shareholder giving the notice, (i) the
name and address of the shareholder and (ii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
shareholder. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as director of the
Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
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 foregoing
procedure, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
5. Committees. The Board of Directors may, by resolution,
designate from among its members one or more committees, each committee to
consist of one or more directors, except that committees appointed to take
action with respect to indemnification of directors, directors' conflicting
interest transactions or derivative proceedings shall consist of two or more
directors qualified to serve pursuant to the Georgia Business Corporation Code
(the "Code"). Any such committee, to the extent specified by the Board of
Directors, Articles of Incorporation or Bylaws, shall have and may exercise all
of the authority of the Board of Directors in the management of the business
affairs of the Corporation, except that it may not (1) approve or propose to
shareholders action that the Georgia Business Corporation Code requires to be
approved by shareholders, (2) fill vacancies on the Board of Directors or any of
its committees, (3) amend the Articles of Incorporation, (4) adopt, amend or
repeal the Bylaws or (5) approve a plan of merger.
6. Meetings. The Board of Directors shall meet annually, without
notice, immediately following and, unless the Chairman of the Board or the Chief
Executive Officer of the Corporation determines otherwise, at the same place as
the annual meeting of shareholders. Regular meetings of the Board of Directors,
to be held at least quarterly, or meetings of any committee, may be held between
annual meetings without notice at such time and at such place, within or without
the State of Georgia, as shall be determined by the Board of Directors or
committee, as the case may be. Any two directors, or the Chief Executive Officer
may call a special meeting of the directors at any time by giving each director
two (2) days' prior notice. Such notice may be given orally or in writing. If
given in writing, it is effective when received personally or by facsimile
transmission or by courier, or three (3) days after its deposit in the United
States mail with first-class postage prepaid and addressed to the mailing
address for such director shown in the corporate records. Neither the business
to be transacted at, not the purpose of, any regular or special meeting need be
specified in the notice or waiver of notice.
-5-
<PAGE> 6
7. Waiver of Notice. Whenever any notice is required to be given
under provisions of the Articles of Incorporation or these Bylaws or by law, a
waiver thereof, signed by the director entitled to notice and delivered to the
Corporation for inclusion in the minutes or filing with the corporate records,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting and of all objections to the place or time of the meeting
or the manner in which it has been called or convened, except when the director
attends a meeting for the express purpose of stating, at the beginning of the
meeting, any such objection 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 directors need be specified in any
written waiver of notice.
8. Quorum and Voting. At all meetings of the Board of Directors
or any committee thereof, a majority of the number of directors prescribed, or
if no number is prescribed, the number in office immediately before the meeting
begins, shall constitute a quorum for the transaction of business. The
affirmative vote of a majority of the directors present at any meeting at which
there is a quorum at the time of such act shall be the act of the Board of
Directors or of the committee, except as might be otherwise specifically
provided by statute or by the Articles of Incorporation or Bylaws.
9. Action Without Meeting. Unless the Articles of Incorporation
or Bylaws provide otherwise, any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if the action is taken by all members of the Board of Directors or
committee, as the case may be. The action must be evidenced by one or more
written consents describing the action taken, signed by each director, and filed
with the minutes of the proceedings of the Board of Directors or committee or
filed with the corporate records.
10. Remote Participation in a Meeting. Unless otherwise restricted
by the Articles of Incorporation or the Bylaws, any meeting of the Board of
Directors may be conducted by the use of any means of communication by which all
directors participating may simultaneously hear each other during the meeting. A
director participating in a meeting by this means is deemed to be present in
person at the meeting.
11. Compensation of Directors. The Board of Directors may fix the
compensation of the directors for their services as directors. No provision of
these Bylaws shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
-6-
<PAGE> 7
III.
OFFICERS
1. Appointment. The Board of Directors at each annual meeting of
directors shall elect such officers as it shall deem necessary who shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors. Any number of offices may be held by the same
person unless the Articles of Incorporation or these Bylaws otherwise provide.
The appointment of an officer does not itself create contract rights.
2. Resignation and Removal of Officers. An officer may resign at
any time by delivering notice to the Corporation and such resignation is
effective when the notice is delivered. The Board of Directors may remove any
officer at any time with or without cause.
3. Vacancies. Any vacancy in office resulting from any cause may
be filled by the Board of Directors or by any officer authorized by these Bylaws
to appoint such officer.
4. Powers and Duties. Each officer has the authority and shall
perform the duties set forth below or, to the extent consistent with these
Bylaws, the duties prescribed by the Board of Directors or by direction of an
officer authorized by the Board of Directors to prescribe the duties of other
officers.
(a) Chairman of the Board. The Chairman of the Board
shall be chosen from among the directors of the Corporation and, when present,
shall preside at all meetings of the shareholders and the Board of Directors,
shall be charged with general supervision of the management and policy of the
Corporation, and shall have such other powers and duties as from time to time
may be assigned by the Board of Directors.
(b) Chief Executive Officer. Unless otherwise provided by
the Board of Directors, any officer designated as president shall be the chief
executive officer of the Corporation and shall be responsible for the
administration of the Corporation, including general supervision of the policies
of the Corporation and the general and active management of the financial
affairs of the Corporation. He shall have the power to make and execute
contracts on behalf of the Corporation and to delegate such power to others. He
also shall have such powers and perform such duties as are specifically imposed
on him by law and as may be assigned to him by the Board of Directors.
(c) Vice Presidents or Executive Vice Presidents. The
vice presidents, if any, shall perform such duties as vice presidents
customarily perform and shall perform such other duties and shall exercise such
other powers as the president or the Board of Directors may from time to time
designate. The vice president, in the absence or disability or at the direction
of the president,
-7-
<PAGE> 8
shall perform the duties and exercise the powers of the president. If the
Corporation has more than one vice president, the one first elected and
designated as executive vice president by the Board of Directors shall act in
lieu of the president, or, in the absence of any such designation, then the vice
president first elected shall act in lieu of the president.
(d) Secretary. The secretary shall attend all meetings of
the shareholders and all meetings of the Board of Directors and shall record,
unless another person is otherwise requested by the Chairman of the Board or
other chairman of a meeting to record, all votes and minutes of all proceedings
in books to be kept for that purpose, and shall perform like duties for the
standing committees when required. He shall have custody of the corporate seal
of the Corporation, shall have the authority to affix the same to any instrument
the execution of which on behalf of the Corporation under its seal is duly
authorized and shall attest to the same by his signature whenever required. The
Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest to the same by his signature. The
secretary shall give, or cause to be given, any notice required to be given of
any meetings of the shareholders, the Board of Directors and of the standing
committees when required. The secretary shall cause to be kept such books and
records as the Board of Directors, the chairman of the board or the chief
executive officer may require and shall cause to be prepared, recorded,
transferred, issued, sealed and canceled certificates of stock as required by
the transactions of the Corporation and its shareholders. The secretary shall
attend to such correspondence and shall perform such other duties as may be
incident to the office of a secretary of a Corporation or as may be assigned to
him or her by the Board of Directors, the chairman of the board or the chief
executive officer.
(e) Treasurer. Unless otherwise provided by the Board of
Directors, any officer designated as treasurer shall be charged with the
management of financial affairs of the Corporation. He or she shall perform such
duties as treasurers usually perform and shall perform such other duties and
shall exercise such other powers as the Board of Directors, the chairman of the
board or the chief executive officer may from time to time designate and shall
render to the chairman of the board, the chief executive officer and to the
Board of Directors, whenever requested, an account of the financial condition of
the Corporation.
(f) Assistant Vice President, Assistant Secretary and
Assistant Treasurer. Any person designated as assistant vice president,
assistant secretary and assistant treasurer, in the absence or disability of any
vice president, the secretary or the treasurer, respectively, shall perform the
duties and exercise the powers of those offices, and, in general, they shall
perform such other duties as shall be assigned to them by the Board of Directors
or by the person appointing them. Specifically the assistant secretary may affix
the corporate seal to all necessary documents and attest the signature of any
officer of the Corporation.
5. Delegation of Authority. In case of the absence of any officer
of the Corporation or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may
-8-
<PAGE> 9
delegate, for the time being, any or all of the powers or duties of such officer
to any other officer, assistant officer or to any director.
6. Appointment by Officers. A duly appointed officer may appoint
one or more officers or assistant officers, as such officer deems necessary.
IV.
CAPITAL STOCK
1. Stock Certificates. The capital stock of the Corporation shall
be evidenced by certificates bearing the signatures or facsimiles thereof of the
Chief Executive Officer or President and the Secretary or any Assistant
Secretary and countersigned by the Registrar and Transfer Agent, if any. The
stock shall be transferable only on the books of the Corporation by assignment
properly signed by the shareholder of record or such shareholder's duly
authorized attorney-in-fact and with all taxes on the transfer having been paid.
The Corporation or its transfer agent or agents shall be authorized to refuse
any transfer unless and until it is furnished such evidence as it may reasonably
require showing that the requested transfer is proper. The Corporation may deem
and treat the registered holder of any stock as the absolute owner thereof for
all purposes and shall not be required to take any notice of any right or claim
of right of any other person.
2. Lost, Destroyed or Stolen Certificates. When the holder of
record of a share or shares of stock of the Corporation claims that the
certificate representing said share has been lost, destroyed or wrongfully
taken, the Board of Directors may by resolution provide for, or may authorize
such officer or agent as it may designate to provide for, the issuance of a
certificate to replace the original if the holder of record so requests before
the Corporation has notice that the certificate has been acquired by a bona fide
purchaser, files with the Corporation a sufficient indemnity bond, if required
by the Corporation, and furnishes evidence of such loss, destruction or wrongful
taking satisfactory to the Corporation, in the reasonable exercise of its
discretion. The Board of Directors may also authorize such officer or agent as
it may designate to determine the sufficiency of such an indemnity bond and to
determine reasonably the sufficiency of the evidence of loss, destruction or
wrongful taking.
3. Transfer Agent and Registrar. The Board of Directors may (but
shall not be required to) appoint a transfer agent or agents and a registrar or
registrars to effect transfers of shares of stock, and may require that all
stock certificates bear the signature of such transfer agent or of such transfer
agent and registrar.
4. Record Date. The Board of Directors may fix a date (the
"record date") not exceeding seventy (70) days prior to the date appointed for
any meeting of the shareholders, or prior to the date
-9-
<PAGE> 10
fixed for the payment of any dividend, or for the delivery of any evidences of
rights, or other distribution allowed by law or in order to make a determination
of shareholders for any other proper purpose, as the record date for the
determination of the shareholders entitled to participate in the aforesaid. A
record date for the determination of shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof shall not be set
less than 10 days prior to such meeting. Only shareholders of record on the
record date shall be entitled to notice of or to participate in the aforesaid.
5. Inspection of Records. The record of shareholders, accounting
records and written proceedings of the shareholders, the Board of Directors and
committees of the Board of Directors shall be open for inspection and copying
during regular business hours at the Corporation's principal office by a
shareholder owning not less than two percent (2%) of the outstanding shares of
the Corporation upon at least five (5) days written notice of his demand to
inspect and copy. The right of inspection by a shareholder may be granted only
if his demand is made in good faith and for a proper purpose that is reasonably
relevant to his legitimate interest as a shareholder, he describes with
reasonable particularity his purpose and the records he desires to inspect, the
records are directly connected with his purpose and are to be used only for the
stated purpose.
V.
INDEMNIFICATION AND INSURANCE
1. Authority to Indemnify; Third Party Actions. Every person now
or hereafter serving as a director, officer or in-house legal counsel acting in
a legal capacity of the Corporation and any and all former directors and
officers shall be indemnified and held harmless by the Corporation from and
against any and all loss, cost, liability, and expense that may be imposed upon
or incurred by him in connection with or resulting from any threatened, pending,
or completed claim, action, suit, or proceeding (other than an action by or in
the right of the Corporation), whether civil, criminal, administrative, or
investigative, in which he may become involved, as a party or otherwise, by
reason of his being or having been a director or officer of the Corporation, or
arising from his status as such, or that he is or was serving at the request of
the Corporation as a director, officer, employee, or agent of another
Corporation, limited liability corporation, partnership, limited partnership,
limited liability partnership, limited liability limited partnership, joint
venture, trust, or other enterprise, regardless of whether such person is acting
in such capacity at the time such loss, cost, liability or expense shall have
been imposed or incurred. As used herein, the term "loss, cost, liability and
expense" shall include, but shall not be limited to, any and all costs, expenses
(including attorneys' fees and disbursements), judgments, penalties, fines, and
amounts paid in settlement incurred in connection with any such claim, action,
suit, or proceeding if such person acted in good faith and, while acting in an
official capacity as a director or officer, acted in a manner he reasonably
believed to be in the best interest of the Corporation, and, in all other cases,
acted in a manner he reasonably believed was
-10-
<PAGE> 11
not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, if such person had no reasonable cause to believe
his conduct was unlawful. The termination of any claim, action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contender or its equivalent, shall not, of itself, create a presumption that the
person did not act in a manner which meets the standard described in the
immediately preceding sentence. If any such claim, action, suit, or proceeding
is settled (whether by agreement, plea of nolo contender, entry of judgment or
consent, or otherwise), the determination in good faith by the Board of
Directors of the Corporation that such person acted in a manner that met the
standard set forth in this paragraph shall be necessary and sufficient to
justify indemnification.
2. Authority to Indemnify; Derivative Actions. The Corporation
shall indemnify and hold harmless any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact he is or was a director, officer or in-house legal counsel
acting in a legal capacity of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee, or agent of another
Corporation, limited liability corporation, partnership, limited partnership,
limited liability partnership, limited liability limited partnership, joint
venture, trust, or other enterprise, against expenses (including attorneys' fees
and disbursements), judgments and any other amounts, now or hereafter permitted
by applicable law, actually and reasonably incurred by him or in connection with
the defense or settlement of such action or suit; except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation, unless the director or
officer has not been adjudged liable or subject to injunctive relief in favor of
the Corporation (i) for any appropriation, in violation of his duties, of any
business opportunity of the Corporation; (ii) for acts or omissions which
involve intentional misconduct or a knowing violation of law; (iii) for the
types of liability set forth in Code Section 14-2-832; or (iv) for any
transaction from which he received an improper personal benefit, and in the
event the foregoing conditions are not met, then only to the extent that the
court in which such action or suit was brought or another court of competent
jurisdiction shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
3. Advancement of Expenses. Expenses incurred in any claim,
action, suit, or proceeding shall be paid by the Corporation in advance of the
final disposition of such claim, action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt from the director, officer
or in-house legal counsel of a written affirmation of his good faith belief that
he has met the relevant standard of conduct set forth under Section 14-2-851 of
the Code and furnishes to the Corporation an undertaking to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation.
4. Determination of Indemnification Rights. Except as ordered by
a court, the
-11-
<PAGE> 12
Corporation may not indemnify a director, officer, in-house legal counsel acting
in a legal capacity, employee or agent under this Article unless authorized
hereunder and a determination has been made in the specific case that
indemnification of the director, officer, in-house legal counsel or employee is
permissible under the circumstances because he or she has met the relevant
standard of conduct set forth in either Section 1 or Section 2. The
determination shall be made (i) if there are two or more disinterested
directors, by the Board of Directors by a majority vote of all the disinterested
directors (a majority of whom shall for such purpose constitute a quorum), or by
a majority of the members of a committee of two or more disinterested directors
appointed by such a vote; (ii) by special legal counsel (a) selected in the
manner prescribed in clause (i) of this sentence or (b) if there are fewer than
two disinterested directors, selected by the Board of Directors (in which
selection directors who do not qualify as disinterested directors may
participate); or (iii) by the shareholders, but shares owned by or voted under
the control of a director who at the time does not qualify as a disinterested
director may not be voted on the determination.
5. Consideration. The Corporation shall be obligated to provide
indemnification in accordance with the provisions of this Article VI. Any person
who at any time after the adoption of this Article serves or has served in the
capacity of director, officer or in-house legal counsel acting in a legal
capacity for or on behalf of the Corporation shall be deemed to be doing or to
have done so in reliance upon, and as consideration for, the right of
indemnification provided herein. Such right shall inure to the benefit of the
legal representatives of any such person and shall not be exclusive of any other
rights to which such person may be entitled apart from the provision of this
Article. Any repeal or modification of these indemnification provisions shall
not affect any rights or obligations existing at the time of such repeal or
modification.
6. Non-Exclusive Right of Indemnification. The foregoing rights
of indemnification and advancement of expenses shall not be deemed exclusive of
any other right to which those indemnified may be entitled, and the Corporation
may provide additional indemnity and rights to its directors, officers,
employees or agents.
7. Insurance. The Corporation may purchase and maintain
insurance, at its expense, on behalf of an individual who is or was a director,
officer, in-house legal counsel acting in a legal capacity, employee or agent of
the Corporation or who, while a director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against liability asserted against or incurred by him in any such
capacity or arising from his status as a director, officer, employee or agent,
whether or not the corporation would have power to indemnify him against the
same liability under this Article.
8. Miscellaneous. The provisions of this Article VI shall cover
claims, actions, suits and proceedings, civil or criminal, whether now pending
or hereafter commenced and shall be retroactive to cover acts or omissions or
alleged acts or omissions which heretofore have taken place.
-12-
<PAGE> 13
In the event of death of any person having a right of indemnification or
advancement of expenses under the provisions of this Article VI, such right
shall inure to the benefit of his heirs, executors, administrators and personal
representatives. If any part of this Article VI should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not be affected.
VI.
INTERESTED SHAREHOLDER TRANSACTIONS
The Corporation hereby elects to be governed by all of the requirements
of the Fair Price Requirements and Business Combinations with Interested
Shareholders rules set forth in Part 2 and Part 3 of Article 11 of the Code,
ss.ss. 14-2-1110 through 14-2-1133; provided, however, that, notwithstanding
anything to the contrary in the foregoing rules, the restrictions set forth in
the foregoing rules shall not apply to any "business combination" (as such term
is defined in ss.14-2-1110 or ss.14-2-1131 of the Code) with (i) any shareholder
of the Corporation who was an "Interested Shareholder" (as such term is defined
in ss.14-2-1110 of the Code) as of the date the Corporation adopts these Bylaws
or (ii) any person or entity now existing or hereafter created that is at the
time of such business combination wholly owned by such Interested Shareholder.
VII
GENERAL PROVISIONS
1. Seal. The Corporation may have a seal, which shall be in such
form as the Board of Directors may from time to time determine. In the event
that the use of the seal is at any time inconvenient, the signature of an
officer of the Corporation, followed by the word "Seal" enclosed in parenthesis
or brackets, shall be deemed the seal of the Corporation.
2. Voting Shares in Other Corporations. In the absence of other
arrangements by the Board of Directors, shares of stock issued by another
Corporation whether or not owned or controlled by the Corporation, whether in a
fiduciary capacity or otherwise, may be voted by the chief executive officer,
president or any vice president, in the absence of action by the chief executive
officer or president, in the same order as they preside in the absence of the
chief executive officer or president, or, in the absence of action by the
president or any vice president, by any other officer of the Corporation, and
such person may execute the aforementioned powers by executing proxies and
written waivers and consents on behalf of the Corporation.
3. Amendment of Bylaws. These Bylaws may be amended or repealed
and new Bylaws may be adopted by the Board of Directors at any time unless
otherwise restricted by the these Bylaws, the Articles of Incorporation or the
Code, or the shareholders, in amending or
-13-
<PAGE> 14
repealing the particular Bylaw, provide expressly that the Board of Directors
may not amend or repeal that Bylaw.
VII.
EMERGENCY BYLAWS
1. Emergency Bylaws. This Article shall be operative during any
emergency resulting from some catastrophic event that prevents a quorum of the
Board of Directors or any committee thereof from being readily assembled (an
"emergency"), notwithstanding any different or conflicting provisions set forth
elsewhere in these Bylaws or in the Articles of Incorporation. To the extent not
inconsistent with the provisions of this Article, the Bylaws set forth elsewhere
herein and the provisions of the Articles of Incorporation shall remain in
effect during such emergency, and upon termination of such emergency, the
provisions of this Article shall cease to be operative.
2. Meetings. During any emergency, a meeting of the Board of
Directors or any committee thereof may be called by any director, or by the
chief executive officer, president, any vice president, the secretary or the
treasurer (the "Designated Officers") of the Corporation. Notice of the time and
place of the meeting shall be given by any available means of communication by
the person calling the meeting to such of the directors and/or designated
officers as may be feasible to reach. Such notice shall be given at such time in
advance of the meeting as, in the judgment of the person calling the meeting,
circumstances permit.
3. Quorum. At any meeting of the Board of Directors or any
committee thereof called in accordance with this Article, the presence or
participation of two directors, one director and a designated officer, or two
designated officers shall constitute a quorum for the transaction of business.
4. Liability. Corporate action taken in good faith in accordance
with the emergency Bylaws may not be used to impose liability on a director,
officer, employee or agent of the Corporation.
5. Repeal or Change. The provisions of this Article shall be
subject to repeal or change by further action of the Board of Directors or by
action of shareholders, but no such repeal or change shall modify the provisions
of the immediately proceeding Section of this Article with regard to action
taken prior to the time of such repeal or change.
-14-
