BYLAWS
OF
INNOVATIVE COATINGS CORPORATION
ARTICLE I. OFFICES
Section 1.01. Registered Office and Agent. The Corporation shall
have and continuously maintain a registered office and registered agent
in accordance with the provisions of Section 14-2-501 of the Georgia
Business Corporation Code.
Section 1.02 Other Offices. The Corporation may have offices at
such place or places within or without the State of Georgia as the Board
of Directors may from time to time appoint or the business of the
Corporation may require or make desirable.
ARTICLE II. SHAREHOLDERS MEETINGS
Section 2.01. Place of Meetings. All meetings of the Shareholders
shall be held at such place as may fixed from time to time by the Board
of Directors.
Section 2.02. Annual Meetings. An annual meeting of the
Shareholders shall be held on the last business day of the fifth month
following the close of each fiscal year or at such other time and sate
prior thereto and following the close of the fiscal year as shall be
determined by the Board of Directors for the purpose of electing
Directors and transacting such other business as may properly be brought
before the meeting.
Section 2.03. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed by
statute or the Articles of Incorporation, may be called by the Chairman
of the Board or the President; and shall be called by the Chairman of the
Board, the President, or the Secretary: (i) when so directed by the Board
of Directors, (ii) at the request in writing of any two or more
Directors, or (iii) at the written request of shareholders owning at
least twenty-five percent of the capital stock of the Corporation issued,
outstanding, and entitled to vote. Such request shall state the purpose
or purposes of the proposed meeting.
Section 2.04. Notice of Meetings. Except as otherwise required by
statute or the Articles of Incorporation, written notice of each meeting
of the shareholders, whether annual or special, shall be served either
personally or by mail, upon each shareholder of record entitled to vote
at such meeting, not less than 10 nor more than 60 days before such
meeting. If mailed, such notice shall be directed to a shareholder at
his post office address last shown on the records of the Corporation.
Notice of any special meeting of shareholders shall state the purpose or
purposes for which the meeting is called. Notice of any meeting of
shareholders shall not be required to be given to any shareholder who, in
person or by his attorney thereunto authorized, either before or after
such meeting, shall waive such notice by means of a signed writing.
Attendance of a shareholder at a meeting, either in person or by proxy,
shall of itself constitute waiver of notice and waiver of any and all
objections to the place of the meeting, the time of the meeting, and the
manner in which it has been called or convened, except when a shareholder
attends a meeting solely for the purpose of stating, at the beginning of
the meeting, any such objection or objections to the transaction of
business. Notice of any adjourned meeting need not be given otherwise
than by announcement at the meeting at which the adjournment is taken.
Section 2.05. Quorum. The holders of a majority of the stock
issued, outstanding, and entitled to vote, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
shareholders for the transaction of business, except as otherwise
provided by law, by the Articles of Incorporation, or by these Bylaws.
If, however, such majority shall not be present or represented at any
meeting of the shareholders, the shareholders entitled to vote thereat,
present in person or by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until the requisite amount of voting stock shall be present. At such
adjourned meeting at which a quorum shall be present in person or by
proxy, any business may be transacted that might have been transacted at
the meeting as originally called.
Section 2.06. Voting. At every meeting of the shareholders,
including meetings of shareholders for the election of Directors, any
shareholder having the right to vote shall be entitled to vote in person
or by proxy, but no proxy shall be voted after eleven months from its
date, unless said proxy provides for a longer period. Each shareholder
shall have one vote for each share of stock having voting power,
registered in his name on the books of the Corporation. If a quorum
exists, action on a matter (other than the election of Directors) by the
Shareholders is approved if the votes cast favoring the action exceed the
votes cast opposing the action, unless a greater number of affirmative
votes. Unless otherwise provided in the Articles of Incorporation, these
Bylaws, or the Georgia Business Corporation requires a greater number of
affirmative votes. Unless otherwise provided in the Articles of
Incorporation, Directors are 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.
Section 2.07. Conduct of Meetings. The Chairman of the Board of
Directors, or in his absence the President, or in their absence a person
appointed by the Board of Directors, shall preside at meetings of the
shareholders. The Secretary of the Corporation, or in the Secretary's
absence, any person appointed by the presiding Officer shall act as
Secretary for meetings of the shareholders. Meetings shall be governed by
the most recent edition of Roberts Rules of Order, or in accordance with
procedures prescribed by the Board, except to the extent that these
Bylaws are inconsistent therewith.
Section 2.08. Written Consents. Any action required or permitted to
be taken at a meeting of the shareholders of the Corporation may be taken
without a meeting if written consent, selling forth the action so taken,
shall be signed by persons who would be entitled to vote at a meeting
those shares having voting power to cast not less than ft minimum number
(or numbers, in the case of voting by classes) of votes that would be
necessary to authorize or take such action at a meeting at which all
shares entitled to vote were present and voted. The rights set forth
herein shall be governed by and subject to the provisions of Section 14-
2-704 of the Georgia Business Corporation Code.
ARTICLE III. BOARD OF DIRECTORS
Section 3.01. Authority. Except as may be otherwise provided by any
legal agreements among shareholders, the property and business of the
Corporation shall be managed by its Board of Directors. In addition to
the powers and authority expressly conferred by these Bylaws, the Board
of Directors may exercise all powers of the Corporation and do all such
lawful acts and things as are not by law, by any legal agreement among
shareholders, by the Articles of Incorporation, or by these Bylaws
directed or required to be exercised or done by the shareholders.
Section 3.02. Number and Term. The Board of Directors shall consist
of that number of members to be fixed by resolution of the shareholders
from time to time. Each Director (whether elected at an annual meeting of
shareholders or otherwise) shall hold office until the annual meeting of
shareholders held next after this election, and until a successor shall
be elected and qualified, or until his earlier death, resignation,
incapacity to serve, or removal. Directors need not be shareholders.
Section 3.03. Vacancies. A vacancy on the Board of Directors shall
exist upon the death, resignation, removal, or incapacity to serve of any
Director; upon the increase in the number of authorized Directors; and
upon the failure of the shareholders to elect the full number of
Directors authorized. The remaining Directors shall continue to act, and
such vacancies may be filled by prior action of the Directors, may be
filled by the shareholders at any meeting held during the existence of
such vacancy.
Section 3.04. Place of Meetings. The Board of Directors may hold its
meetings at such place or places within or without the State of Georgia
as it may from time to time determine.
Section 3.05. Compensation of Directors. Directors may be allowed
such compensation for attendance at regular or special meetings of the
Board of Directors and of any special or standing committees thereof as
may from time to time determined by resolution of the Board of Directors.
Section 3.06. Resignation. Any Director may resign by giving written
notice to the Board of Directors. The resignation shall be effective on
receipt, unless the notice specifies a later time for the effective date
of such resignation, in which event the resignation shall be effective
upon the election and qualification of a successor. If the resignation
is effective at a future time, a successor may be elected before that
time to take office when the resignation becomes effective.
Section 3.07. Removal. The Shareholders may declare the position of
a Director vacant, and may remove such Director for cause at a special
meeting of the Shareholders called for such purpose, on the occurrence of
any of the following events: the Director has been declared of unsound
mind by a final order of court; the Director has been convicted of a
felony; the Director has failed to attend any meeting of the Board for at
least a year and a half; or the Director has been presented with one or
more written charges, has been given at least ten days' notice of a
hearing at which he may have legal counsel present, and has been given
opportunity for such a hearing at a meeting of the Shareholders. The
Shareholders may also declare the position of a Director vacant, and may
remove such Director without cause, by a vote of two-thirds of the votes
cast by the shares entitled to vote at a meeting at which a quorum is
present.
Section 3.08. Time of Meetings. Each newly elected Board of
Directors shall meet (i) at the place and time which shall have been
determined, in accordance with the provisions of these Bylaws, for the
holding of the regular meeting of the Board of Directors scheduled to be
held full following the annual meeting of the shareholders at which the
newly elected Board of Directors shaft have been elected, or (ii) if no
place and time shall have been fixed for the holding of such meeting of
the Board of Directors, then immediately following the close of such
annual meeting of shareholders and at the place thereof, or (iii) at
such time and place as shall be fixed by the written consent of all the
Directors of such newly elected Board of Directors. In any event no
notice of such meeting to the newly elected Directors shall be necessary
in order legally to constitute the meeting.
Section 3.09. Notice of Meetings. Regular meetings of the Board of
Directors may be held at such time and place within or without the State
of Georgia as shall from time to time be determined by the Board of
Directors by resolution, and such resolution shall constitute notice
thereof. No further notice shall be required in order legally to
constitute such regular meeting.
Section 3.10. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President on
not less than two days' notice by mail, telegram, cablegram, or personal
delivery to each Director and shall be called by the Chairman of the
Board, the President, or the Secretary in like manner and on like notice
on the written request of any two or more Directors delivered to such
Officer of the Corporation. Any such special meeting shall be held at
such time and place within or without the State of Georgia as shall be
stated in the notice of meeting.
Section 3.11. Notice - Purpose of Meeting. No notice of any special
meeting of the Board of Directors need state the purposes thereof, and
such notice shall be sufficient if it states the time and place of such
meeting and the person or persons calling such meeting, provided it is
received not less than two days prior to such meeting.
Section 3.12. Quorum. At all meetings of the Board of Directors, the
presence of a majority of the authorized number of Directors shall be
necessary and sufficient to constitute a quorum for the transaction of
business. The act of a majority of the Directors present at any meeting
at which there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by law, by the Articles
of Incorporation or by these Bylaws. In the absence of a quorum, a
majority of the Directors present at any meeting may adjourn the meeting
from time to time until a quorum be had. Notice of my adjourned meeting
need only be given by announcement at the meeting at which the
adjournment is taken.
Section 3.13. Telephonic Participation. Directors may
participate in meetings of the Board of Directors through use of
conference telephone or similar communications equipment, provided all
Directors participating in the meeting can bear one another, Such
participation shall constitute personal presence at the meeting, and
consequently shall be counted toward the required quorum and in any vote.
Section 3.14. Conduct of Meetings. The Chairman of the Board, or in
his absence the President, and in their absence the Vice President, if
any, named by the Board of Directors, shall preside at meetings of the
Board of Directors. The Secretary of the Corporation, or in the
Secretary's absence any person appointed by the presiding Officer, shall
art as Secretary for meetings of the Board of Directors. Meetings shall
be governed by the most recent edition of Robert's Rules of Order, or in
accordance with procedures prescribed by the Board, except to the extent
that these Bylaws are inconsistent therewith.
Section 3.15. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if, prior to such
action, a written consent thereto is signed by all members of the Board
or of such committee, as the case may be, and such written consent is
filed with the minutes of the proceedings of the Board or committee.
ARTICLE IV. COMMITTEES
Section 4.01. Executive Committee. The Board of Directors may by
resolution adopted by a majority of the entire Board, designate an
Executive Committee of three or more Directors. Each member of the
Executive Committee shall hold office until the first meeting of the
Board of Directors after the annual meeting of the shareholders next
following his election and until his successor member of the Executive
Committee is elected, or until his death, resignation, removal, or until
he shall cease to be a Director.
Section 4.02. Executive Committee-Powers. During the intervals
between the meetings of the Board of Directors, the Executive Committee
may exercise all the powers of the Board of Directors in the management
of the business affairs of the Corporation, including all powers
specifically granted to the Board of Directors by these Bylaws or by the
Articles of Incorporation, and may authorize the seal of the Corporation
to be affixed to all papers which may require it; provided, however, that
the Executive Committee shall not have the power to amend or repeal any
resolution of the Board of Directors that by its terms shall not be
subject to amendment or repeal by the Executive Committee, and the
Executive Committee shall not have the authority of the Board of
Directors in reference to (1) amending the Articles of Incorporation; (2)
adopting or approving a plan of merger or consolidation; (3) adopting,
amending, or repealing the Bylaws of the Corporation; (4) the filling of
vacancies on the Board of Directors or on any Committees; (5) approving
or proposing to Shareholders action that the Georgia Business Corporation
Code requires to be approved by Shareholders; (6) the sale, lease,
exchange or other disposition of all or substantially all the property
and assets of the Corporation or a revocation of any such dissolution.
Section 4.03. Executive Committee-Meetings. The Executive Committee
shall meet from time to time on call of the Chairman of the Board, the
President, or of any two or more members of the Executive Committee.
Meetings of the Executive Committee may be held at such place or places,
within or without the State of Georgia, as the Executive Committee shall
determine or as may be specified or fixed in the respective notices of
such meetings. The executive Committee may fix its own rules of
procedure, including provision for notice of its meetings, shall keep a
record of its proceedings, and shall report these proceedings to the
Board of Directors at the meeting thereof held next after such meeting of
the Executive Committee. All such proceedings shall be subject to
revision or alteration by the Board of Directors except to the extent
that action shall have been taken pursuant to or in reliance upon such
proceedings prior to any such revision or alteration. The Executive
Committee shall act by majority vote of its members.
Section 4.04. Executive Committee-Alternate Members. The Board of
Directors, by resolution adopted in accordance with Section 4.01, may
designate one or more Directors as alternate members of any such
committee, who may act in the place and stead of any absent member or
members at any meeting of such committee.
Section 4.05. Other Committees. The Board of Directors, by
resolution adopted by a majority of the entire Board, may designate one
or more additional committees, each committee to consist of three or more
of the Directors of the Corporation, which shall have such name or names
and shall have and may exercise such powers of the Board of Directors in
the management of the business and affairs of the Corporation, except the
powers denied to the Executive Committee, as may be determined from time
to time by the Board of Directors.
Section 4.06. Removal of Committee Members. The Board of Directors
shall have power at any time to remove any or all of the members of any
committee, with or without cause, and to fill vacancies in and to
dissolve any such committee.
ARTICLE V. OFFICERS
Section 5.01. Election of Officers. The Board of Directors, at its
first meeting after each annual meeting of shareholders, shall elect a
President and may elect such other of the following Officers: a Chairman
of the Board, on or more Vice Presidents (one of whom may be designated
Executive Vice President), a Secretary, and a Treasurer. The Board of
Directors at any time and from time to time may appoint such other
Officers as it shall deem necessary, including one or more Assistant Vice
Presidents, one or more Assistant Treasurers, and one or more Assistant
Secretaries, who shall hold their offices for such terms as shall be
determined by the Board of Directors, and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board
of Directors or the Chairman of the Board.
Section 5.02. Compensation. The salaries of the Officers of the
Corporation shall be fixed by the Board of Directors, except that the
Board of Directors may delegate to any Officer or Officers the power to
fix the compensation of any Officer appointed in accordance with the
second sentence of Section 5.01 of these Bylaws.
Section 5.03. Term. Removal. Resignation. Each Officer of the
Corporation shall hold office until his successor is chosen or until his
earlier resignation, death, removal, or termination of his office. Any
Officer may be removed with or without cause by a majority vote of the
Board of Directors whenever in its judgment the best interests of the
Corporation will be served thereby. Any Officer may resign by giving
written notice to the Board of Directors. The resignation shall be
effective upon receipt, or at such time as may be specified in such
notice.
Section 5.04. Chairman of the Board. The Chairman of the Board,
when one is elected, may be declared by the Board to be the Chief
Executive Officer of the Corporation and if so, shall have general and
active management of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into
effect. He shall be ex officio a member of all standing committees,
unless otherwise provided in the resolution appointing the same. The
Chairman of the Board shall call meetings of the shareholders, the Board
of Directors, and the Executive Committee to order and shall act as
chairman of such meetings.
Section 5.05. President. When no Chairman of the Board has been
elected, or if a Chairman has been elected and not declared to be the
Chief Executive Officer, or in the event of the death or disability of
the Chairman of the Board or at his request, the President shall have all
of the powers and perform the duties of the Chairman of the Board. The
President shall also have such powers and perform such duties as are
specifically imposed upon him by law and as may be assigned to him by the
Board of Directors or the Chairman of the Board. The President shall be
ex officio a member of all standing committees, unless otherwise provided
in the resolution appointing such committees. In the absence of a
Chairman of the Board serving as Chief Executive Officer, the President
shall call meetings of the shareholders, the Board of Directors, and the
Executive Committee to order and shall act as chairman of such meetings.
If no other Officers are elected, the President shall also have all of
the powers and perform the duties of Secretary and Treasurer.
Section 5.06. Vice Presidents. The Vice Presidents shall perform
such duties as are generally performed by vice presidents. The Vice
Presidents shall perform such other duties and exercise such other powers
as the Board of Directors, the Chairman of the Board, or the President
shall request or delegate. The Assistant Vice Presidents shall have such
powers, and shall perform such duties, as may be prescribed from time to
time by the Board of Directors, the Chairman of the Board, or the
President.
Section 5.07. Secretary. The Secretary shall attend all meetings
of the Board of Directors, all meetings of the shareholders, and record
all votes and the 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 give, or cause to be given, any notice required to be
given of any meetings of the shareholders and of the Board of Directors,
the Chairman of the Board, or the President, under whose supervision he
shall be. The Assistant Secretary or Assistant Secretaries shall, in the
absence or disability of the Secretary, or at the Secretary's request,
perform the duties and exercise the powers and authority herein granted
to the Secretary.
Section 5.08. Treasurer. The Treasurer shall have charge and be
responsible for all funds, securities, receipts, and disbursements of the
Corporation, and shall deposit or cause to be deposited, in the name of
the Corporation, all monies or other valuable effects in such banks,
trust companies, or other depositories as shall from time to time be
selected by the Board of Directors; he shall render to the Chairman of
the Board, the President, and to the Board of Directors, whenever
requested, an account of the financial condition of the Corporation, and
in general, he shall perform all the duties incident to the office of a
treasurer of a Corporation, and such other duties as may be assigned to
him by the Board of Directors, the Chairman of the Board, or the
President.
Section 5.09. Vacancy in Office. 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 delegate, for
the time being, any or all of the powers or duties of such Officer to any
Officer or to any Director.
ARTICLE VI. CAPITAL STOCK
Section 6.01. Share Certificates. The interest of each shareholder
shall be evidenced by a certificate or certificates representing shares
of stock of the Corporation which shall be in such form as the Board of
Directors may from time to time adopt. The certificates shall be
consecutively numbered, and the issuance of shares shall be duly recorded
in the books of the Corporation as they are issued. Each certificate
shall indicate the holder's name, the number of shares, the class of
shares and series, if any, represented thereby, a statement that the
Corporation is organized under the laws of the State of Georgia, and the
par value of each share or a statement that the shares are without par
value. Each certificate shall be signed by (i) the Chairman of the
Board, the President, or a Vice President and (ii) the Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary, if such officer or
officers have been elected or appointed by the Corporation, and shall be
sealed with the seal of the Corporation; provided, however, that if such
certificate is signed by a transfer agent, or by a transfer clerk acting
on behalf of the Corporation, and a registrar, the signature of any
Officer of the Corporation, whether because of death, resignation, or
otherwise, prior to the delivery of such share certificate by the
Corporation, such certificate may nevertheless be delivered as though the
person who signed whose facsimile signatures shall have been used thereon
had not ceased to be such Officer or Officers.
Section 6.02. Shareholder Records. The Corporation shall keep a
record of the shareholders of the Corporation which readily indicates in
alphabetical order or by alphabetical index, and by classes of stock, the
names of the shareholders entitled to vote, the addresses of such
shareholders, and the number of shares held by such shareholder. Said
records shall be presented at all meetings of the shareholders.
Section 6.03. Stock Transfer Books. Transfers of stock shall be
made on the books of the Corporation only by the person named in the
certificate, or by attorney lawfully constituted in writing, and upon
surrender of the certificate therefore, or in the case of a certificate
alleged to have been lost, stolen or destroyed, upon compliance with the
provisions of Section 6.07 of these Bylaws.
Section 6.04. Determination of Shareholders.
(a) For the purpose of determining shareholders entitled to
notice of or to vote at any meetings of shareholders or any adjournment
thereof, or entitled to receive payment of any dividend, or in order to
make a determination of shareholders for any other proper purpose, the
Board of Directors may provide that stock transfer books shall be closed
for a stated period not to exceed fifty days. If the stock transfer
books shall be closed for the purpose of determining shareholders
entitled to notice or to vote at a meeting of shareholders, such books
shall be closed for at least ten days immediately preceding such meeting.
(b) In lieu of closing stock transfer books, the Board of
Directors may fix in advance a date as the record date for any such
determination of shareholders, such date to be not more than fifty days
and, in case of a meeting of shareholders, not less than ten days, prior
to the date on which the particular action requiring such determination
of shareholders is to be taken.
Section 6.05. Shareholder Rights. The Corporation shall be
entitled to treat the holder of any share of stock of the Corporation as
the person entitled to vote such share and to receive any dividend or
other distribution with respect to such share, and for all other purposes
and accordingly shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
Section 6.06. Transfer Agent. The Board of Directors may appoint
one or more transfer agents and one or more registrars and may require
each stock certificate to bear the signature or signatures of a transfer
agent or a registrar or both.
Section 6.07. Replacement Certificates. Any person claiming a
certificate of stock to be lost, stolen, or destroyed shall make an
affidavit or affirmation of the fact in such manner as the Board of
Directors may require and shall, if the Directors so require, give the
Corporation a bond of indemnity. Such bond shall be in form and amount
satisfactory to the Board of Directors, and shall be with one or more
sureties, whereupon an appropriate new certificate may be issued in lieu
of the one alleged to have been lost, stolen or destroyed.
ARTICLE VII. MISCELLANEOUS
Section 7.01. Inspection of Books. The Board of Directors shall
have power to determine which accounts and books of the Corporation, if
any, shall be open to the inspection of the shareholders, execept with
respect to such accounts, books, and records as may by law be
specifically open to inspection by the shareholders, and shall have power
to fix reasonable rules and regulations not in conflict with the
applicable law, if any, for the inspection of records, accounts, and
books which by law or by determination of the Board of Directors shall be
open to inspection, and the shareholders' rights to this respect are and
shall be restricted and limited accordingly.
Section 7.02. Fiscal Year. The fiscal year of the Corporation
shall be fixed from time to time by resolution of the Board of Directors.
Section 7.03. Seal. The corporate seal shall be in such form as
the Board of Directors may from time to time determine. In the event it
is inconvenient to use such seal at any time, the signature of the
Corporation followed by the word "SEAL" or "CORPORATE SEAL" enclosed in
parenthesis or scroll, shall be deemed to be the seal of the Corporation.
Section 7.04. Annual Statements. Not later than four months after
the close of each fiscal year, and in any case prior to the next annual
meeting of shareholders, the Corporation shall prepare:
(1) a balance sheet showing in reasonable detail the financial
condition of the Corporation as of the close of its fiscal year, and
(2) a profit and loss statement showing the results of its
operation during its fiscal year.
Upon written request, the Corporation promptly shall mail to any
shareholder of record a copy of the most recent such balance sheet and
profit and loss statement.
Section 7.05. Appointment of Agents. The Chairman of the Board,
the President, or any Vice President shall be authorized and empowered in
the name of and as the act and deed of the Corporation to name and
appoint general and special agents, representatives, and attorneys to
represent the Corporation in the United States or in any foreign country
or countries; to name and appoint attorneys and proxies to vote any
shares of stock in any other Corporation at any time owned or held of
record by the Corporation; to prescribe, limit, and define the powers and
duties of such agents, representatives, attorneys, and proxies; and to
make substitution, revocation, or cancellation in whole or in part of any
power or authority conferred on any such agent, representative, attorney,
or proxy. All powers of attorney or other instruments under which such
agents, representatives, attorneys, or proxies shall be so named and
appointed shall be signed and executed by the Chairman of the Board, the
President, or a Vice President, and the corporate seal shall be affixed
thereto. Any substitution, revocation, or cancellation shall be signed
in like manner, provided always that any agent, representative, attorney,
or proxy, when so authorized by the instrument appointing him, may
substitute or delegate his powers in whole or in part and revoke and
cancel such substitutions or delegations. No special authorization by
the Board of Directors shall be necessary in connection with the
foregoing, but this Bylaw shall be deemed to constitute full and complete
authority to the Officers above designated to do all the acts and things
as they deem necessary or incidental thereto or in connection therewith.
Section 7.06. Indemnification.
(a) Under the circumstances prescribed in this Section 7.06, the
Corporation shall indemnify and hold harmless any person who was or is a
party or is threatened to be made a party of any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, and whether formal or informal (a
"Proceeding"), by reason of the fact that he is or was a Director or
Officer of the Corporation, or, while a Director or Officer, is or was
serving at the request of the Corporation as an officer, director,
partner, joint venturer, trustee, employee, or agent of another foreign
or domestic Corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against the obligation to pay a
judgment, settlement, penalty, fine or reasonable expenses (including
attorney's fees) actually and reasonably incurred by him in connection
with such Proceeding, if he had no reasonable cause to believe his
conduct was unlawful. Notwithstanding the above, the indemnification
permitted hereunder in connection with a Proceeding by or in the right of
the Corporation is limited to reasonable expenses (including attorney's
fees) incurred in connection with the Proceeding.
(b) The termination of any 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 meet the standard of conduct set forth in Section 7.06(a).
(c) Notwithstanding the foregoing, the Corporation shall not
indemnify any Director or Officer in connection with any Proceeding (i)
by or in the right of the Corporation in which said person was adjudged
liable to the Corporation, or (ii) in which he was adjudged liable on the
basis that personal benefit was improperly received by him.
(d) To the extent that a Director or Officer has been successful,
on the merits or otherwise, in the defense of any Proceeding to which he
was a party because he is or was a Director or Officer, or in the defense
of any claim, issue or matter therein, the Corporation shall indemnify
him against expenses (including attorney's fees) actually and reasonably
incurred by him in connection therewith.
(e) Except as provided in paragraph (d) of this Section 7.06 and
except as may be ordered by a court, the Corporation shall not indemnify
any Director or Officer unless authorized hereunder and a determination
has been made that indemnification of the Director or Officer is proper
in the circumstances because he has met the applicable standard of
conduct set forth in Section 7.06(a). Such determination shall be made
in accordance with Section 14-2-855 of the Georgia Business Corporation
Code, as amended.
(f) Reasonable expenses (including attorney's fees) incurred by a
Director or Officer who is a party to a Proceeding shall be paid by the
Corporation in advance of the final disposition of such Proceeding if (i)
the Director or Officer furnishes the Corporation a written affirmation
of his good faith belief that he has met the standard of conduct set
forth in Section 7.06(a), and (ii) the Director or Officer furnishes the
Corporation a written undertaking to repay any advances if it is
ultimately determined that he is not entitled to indemnification.
(g) The indemnification provided by this Section 7.06 shall not be
deemed exclusive of any other right to which the persons indemnified
hereunder shall be entitled and shall inure to the benefit of the heirs,
executors, or administrators of such persons.
(h) The Corporation may purchase and maintain insurance on behalf
of any person who is or was a Director or Officer of the Corporation, or
is or was serving at the request of the Corporation as a director,
officer, partner, joint venturer, trustee, employee benefit plan or other
enterprise, against any liability asserted against him and 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 Section 7.06.
(i) If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or by an insurance carrier
pursuant to insurance maintained by the Corporation, the Corporation
shall, not later than the next annual meeting of the shareholders, unless
such meeting is held within three months from the date of such payment,
and, in any event, within fifteen months from the date of such payment,
send by first class mail to its shareholders of record at the time
entitled to vote for the election of Directors, a statement specifying
the persons paid, the amounts paid, and the nature and status at the time
of such payment of the litigation or threatened litigation.
Section 7.07. Reimbursement from Officers. Any payments made to an
Officer of the Corporation such as salary, commission, bonus, interest,
rent, or entertainment expense incurred by him, which shall be disallowed
in whole or in part as a deductible expense by the Internal Revenue
Service, shall be reimbursed by such Officer to the Corporation to the
full extent of such disallowance. In lieu of payment by the Officer,
subject to the determination of the Board of Directors, proportionate
amounts may be withheld from his future compensation payments until the
amount owed to the Corporation has been recovered.
Section 7.08. Reimbursement of Personal Expenses. Each Officer
and Director of the Corporation shall be required from time to time to
bear personally incidental expenses related to his responsibilities as an
officer an director which expenses unless specifically authorized shall
not be subject to reimbursement by the Company.
ARTICLE VIII. AMENDMENTS
Section 8.01. Amendment. The Bylaws of the Corporation may be
altered or amended and new Bylaws may be adopted by the shareholders at
any annual or special meeting of the shareholders or by the Board of
Directors at any regular or special meeting of the Board of Directors;
provided, however, that, if such action is to be taken at a meeting of
the shareholders, notice of the general nature of the proposed change in
the Bylaws shall have been given in the notice of the meeting.
