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Exhibit 3.2
BYLAWS
OF
EMISSIONS TESTING, INC.
2. ARTICLE ONE
3. Offices
Section 1.1 PRINCIPAL OFFICE. The principal office for the business of
eMissions Testing, Inc. (the "Corporation"), shall be located at such place as
the Board of Directors may fix from time to time.
Section 1.2 OFFICE LOCATION. The Corporation may have other offices at
such place or places (within or without the State of Georgia) as the Board of
Directors may designate from time to time or the business of the Corporation may
require or make desirable.
Section 1.3 REGISTERED OFFICE. The registered office of the Corporation
shall be the office named in the articles of incorporation and may be changed at
any time by the Board of Directors by resolution and upon the filing of
appropriate documents in the office of the Secretary of State of Georgia.
4. ARTICLE TWO
5. Capital Stock
Section 2.1 CERTIFICATES. The Board of Directors may authorize the
issuance of some or all of the shares of any or all of the Corporation's classes
or series without issuing certificates to represent such shares. When shares are
represented by certificates, at a minimum, each share certificate shall state on
its face: (1) the name of the Corporation and that the Corporation is organized
under the laws of Georgia; (2) the name of the person to whom the shares are
issued; and (3) the number and class of shares and the designation of the
series, if any, that the certificate represents. Share certificates shall be
numbered consecutively and entered into the stock transfer books of the
Corporation as they are issued.
Section 2.2 SIGNATURES; TRANSFER AGENT; REGISTRAR. Each certificate shall
be signed, either manually or in facsimile, by the President, a Vice President,
the Secretary, or the Treasurer and may bear the corporate seal or its
facsimile. If the certificate is signed in facsimile, then it must be
countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or an employee of the Corporation. The transfer agent or
registrar may sign either manually or by facsimile. Share certificates exchanged
or returned shall be cancelled by the Secretary and placed in their original
place in the stock book.
When shares are not represented by certificates, within a reasonable time
after the issue or transfer of such shares, the Corporation shall send the
shareholder to whom such shares have been issued or transferred a written
statement of the information required to be on certificates, as specified above.
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Section 2.3 STOCK TRANSFER BOOKS. The Corporation shall keep at its
registered office or its principal office or at the principal office of its
transfer agent or registrar, wherever located, with a copy at the principal
office of the Corporation, a book or set of books, to be known as the stock
transfer books of the Corporation, containing in alphabetical order the name of
each shareholder of record, together with such shareholder s address and social
security number and the number of shares of each kind, class, or series of
capital stock held by the shareholder. The stock transfer books shall be
maintained in current condition. The stock transfer books, or the duplicate copy
thereof maintained at the principal office of the Corporation, shall be
available for inspection and copying by any shareholder authorized to make such
inspection pursuant to the Georgia Business Corporation Code (the "Code"), at
the sole cost of the person desiring to make such copy. The stock transfer books
may be inspected or copied either by such shareholder or by such shareholder's
duly authorized attorney or agent. The information contained in the stock
transfer books and share register may be stored on punch cards, magnetic tape,
magnetic discs, or other information storage devices relating to electronic data
processing equipment, provided that any such method, device, or system employed
shall be approved by the Board of Directors, and provided further that the same
is capable of reproducing all information contained therein, in legible and
understandable form, for inspection by any shareholder authorized by the Code or
for any other proper corporate purpose.
Section 2.4 REPLACEMENT CERTIFICATE. The Corporation may issue a new
certificate for its shares in place of any certificate theretofore issued and
alleged by its owner of record or such owner's authorized representative to have
been lost, stolen, or destroyed if the Corporation, transfer agent, or registrar
is not on notice that such certificate has been acquired by a bona fide
purchaser. A replacement certificate may be issued upon such owner s or
representative's compliance with all of the following conditions: (a) The owner
shall file with the Secretary of the Corporation and the transfer agent or the
registrar, if any, a request for the issuance of a new certificate, together
with an affidavit in form satisfactory to the Secretary and transfer agent or
registrar, if any, setting forth the time, place, and circumstances of the loss;
(b) the owner also shall file with the Secretary and the transfer agent or the
registrar, if any, a bond with good and sufficient security acceptable to the
Secretary and the transfer agent or the registrar, if any, conditioned to
indemnify and save harmless the Corporation and the transfer agent or the
registrar, if any, from any and all damage, liability, and expense of every
nature whatsoever resulting from the Corporation, the transfer agent, or the
registrar issuing a new certificate in place of the one alleged to have been
lost, stolen, or destroyed; and (c) the owner shall comply with such other
reasonable requirements as the Chairman of the Board, the President, the
Secretary, or the Board of Directors of the Corporation and the transfer agent
or the registrar shall deem appropriate under the circumstances. A new
certificate may be issued in lieu of any certificate previously issued that has
become defaced or mutilated upon surrender for cancellation of a part of the old
certificate sufficient, in the opinion of the Secretary and the transfer agent
or the registrar, to identify the owner of the defaced or mutilated certificate,
the number of shares represented thereby, and the number of the certificate and
its authenticity and to protect the Corporation and the transfer agent or the
registrar against loss or liability. When sufficient identification for such
defaced or mutilated certificate is lacking, a new certificate may be issued
upon compliance with all of the conditions set forth in this Section in
connection with the replacement of lost, stolen, or destroyed certificates.
Section 2.5 FRACTIONAL SHARE INTERESTS. The Corporation may (1) issue
fractions of a share or pay in money the value of fractions of a share; (2)
arrange for disposition of fractional shares by or for the account of the
shareholders; and (3) issue scrip in registered or bearer form entitling the
holder to receive a full share upon surrendering enough scrip to equal a full
share. Each certificate representing scrip must be conspicuously labeled "scrip"
and must contain the
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information required by the Code to be on share certificates. The holder of a
fractional share is entitled to exercise the rights of a shareholder, including
the right to vote, to receive dividends, and to participate in the assets of the
Corporation upon liquidation only if the scrip provides for such rights. The
Board of Directors may authorize the issuance of scrip subject to any condition
considered desirable.
Section 2.6 SHARE TRANSFERS AND REGISTRATION. Upon compliance with
provisions restricting the transferability of shares, if any, transfers of
capital stock of the Corporation by the registered holder thereof shall be
recorded on the stock transfer books of the Corporation only upon the written
request of such registered holder, or by such holder's attorney authorized to
effect such transfers by power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer agent or registrar, if any, and
upon surrender of the certificate or certificates for such shares properly
endorsed for transfer (if the shares are represented by certificates),
accompanied by such assurances as the Corporation, or such transfer agent or
registrar, may require as to the genuineness and effectiveness of each necessary
endorsement and satisfactory evidence of compliance with all applicable laws
relating to securities transfers and the collection of taxes. It shall be the
duty of the Corporation, or such transfer agent or registrar, to issue a new
certificate, cancel the old certificate, and record the transactions upon the
stock transfer books of the Corporation.
Section 2.7 REGISTERED SHAREHOLDERS. Except as otherwise required by law,
the Corporation shall be entitled to treat the person registered in the stock
transfer books as the owner of shares of capital stock of the Corporation as the
person exclusively entitled to receive notification, dividends, and
distributions, to vote and to otherwise exercise the rights, powers, and
privileges of ownership of such capital stock, and shall not be required to
recognize any adverse claim.
Section 2.8 RECORD DATE. The Board of Directors may fix a future date to
serve as the record date for one or more voting groups in order to determine the
shareholders entitled to notice of a shareholders' meeting, to demand a special
meeting, to vote, or to take any other shareholder action; provided, however,
that such future date shall not be more than seventy days before the meeting or
action requiring a determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided herein, such determination shall apply to any adjournment thereof,
unless the Board of Directors shall fix a new record date for the adjourned
meeting.
Section 2.9 VOTING RIGHTS. Each outstanding share, regardless of class,
shall be entitled to one vote, except as provided in subsections (b) and (c) of
O.C.G.A.ss.14-2-721 or any successor statute or unless otherwise provided in the
articles of incorporation.
6. ARTICLE THREE
7. Shareholders' Meetings
Section 3.1 DEFINITIONS. As used in these bylaws regarding the right to
notice of a meeting of shareholders or a waiver thereof or to participate or
vote thereat or to consent or dissent in writing in lieu of a meeting, as the
case may be, the term "share" or "shares" or "shareholder" or "shareholders"
refers to an outstanding share or shares of capital stock of the Corporation and
to a holder or holders of record of outstanding shares of capital stock of the
Corporation when the Corporation is authorized to issue only one class of
shares. Such reference also is intended to include any outstanding share or
shares and any holder or holders of record of
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outstanding shares of any class upon which or upon whom the articles of
incorporation confer such governance rights when there are two or more classes
or series of shares or upon which or upon whom the Code confers such governance
rights notwithstanding that the articles of incorporation may provide for more
than one class or series of shares, one or more of which are limited or denied
such rights thereunder.
Section 3.2 DATE AND TIME. The annual meeting of the shareholders of the
Corporation shall be held each fiscal year on the date and at the time
designated, from time to time, by the Board of Directors. If at any time the
Board of Directors shall fail to otherwise designate the date of an annual
meeting, then such annual meeting shall be held at 10:00 a.m., local time, on
the second Tuesday of the fourth month following the end of the fiscal year of
the Corporation, or, if such day is a legal holiday, the next following business
day. A special meeting shall be held on the date and at the time designated by
the person or persons calling such special meeting.
Section 3.3 PLACE. Annual and special meetings may be held within or
without the State of Georgia at such place as the Board of Directors may from
time to time designate or as may be specified in the notice of such meeting.
Whenever the Board of Directors shall fail to designate such place, the meeting
shall be held at the principal office of the Corporation in the State of
Georgia.
Section 3.4 CALL. Annual meetings may be called by the Board of Directors,
the Chairman of the Board, if any, the President, the Secretary, or by any
officer instructed by the directors to call the meeting. Special meetings,
including any special meeting in lieu of an annual meeting, may be called in
like manner, except that any such meeting also shall be called by the
Corporation upon the written request of any holder or holders of at least 25% of
all the votes entitled to be cast on any issue proposed to be considered at the
proposed special meeting.
Section 3.5 NOTICE. Written notice stating the place, day, and hour of
each meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten days (or not
less than any other such minimum period of days as may be prescribed by the
Code) nor more than sixty days before the date of the meeting, either personally
or by first class mail by or at the direction of the President, the Secretary,
or the officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. When a meeting is adjourned to a different
date, time, or place it shall not be necessary to give any notice of the new
date, time, or place if the new date, time, or place is announced at the meeting
before adjournment. If, however, a new record date is or must be fixed under the
Code, notice of the adjourned meeting shall be given to persons who are
shareholders as of the new record date.
Section 3.6 WAIVER OF NOTICE. A shareholder may waive any notice required
by the Code, the articles of incorporation, or these bylaws before or after the
date and time of the required notice. The waiver must be in writing, signed by
the shareholder entitled to notice, and delivered to the Corporation for
inclusion in the minutes or filing with the corporate records. No such waiver of
notice of a shareholders' meeting with respect to an amendment of the articles
of incorporation pursuant to O.C.G.A. ss.14-2-1003, a plan of merger or share
exchange pursuant to O.C.G.A. ss. 14-2-1103, a sale of assets pursuant to
O.C.G.A. ss. 14-2-1202, or any other action which would entitle the shareholder
to dissent pursuant to O.C.G.A. ss. 14-2-1302 or any successor statute shall be
effective unless the provisions of paragraphs (1) or (2) of subsection (c) of
O.C.G.A. ss. 14-2-706 or any successor statute are followed. Attendance at a
meeting waives objection (1) to notice or defective notice of a meeting unless
the shareholder at the beginning of
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the meeting objects to holding the meeting or transacting business at the
meeting and (2) to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
Section 3.7 SHAREHOLDERS' LIST. After fixing a record date for a meeting,
the Corporation shall prepare an alphabetical list of the names of all its
shareholders who are entitled to notice of a shareholders' meeting. The list
shall be arranged by voting group (and within each voting group by class or
series of shares) and show the address of and number of shares held by each
shareholder. The shareholders' list shall be available for inspection at the
time and place of the meeting by any shareholder or the shareholder's agent or
attorney.
Section 3.8 CONDUCT OF MEETING. Meetings of the shareholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting: the Chairman of the Board, if any, the Vice Chairman of the
Board, if any, the President, a Vice President, or, if none of the foregoing is
in office and present and acting, by a chairman of the meeting to be chosen by
the shareholders. The Secretary of the Corporation, or in the Secretary's
absence an Assistant Secretary, shall act as secretary of every meeting, but, if
neither the Secretary nor an Assistant Secretary is present, the chairman of the
meeting shall appoint a secretary of the meeting.
Section 3.9 PROXY REPRESENTATION. At any meeting of the shareholders, any
shareholder having the right to vote shall be entitled to vote in person or by
proxy. An appointment of a proxy is valid for eleven months, unless a longer
period is expressly provided in the appointment form.
Section 3.10 QUORUM AND ACTION OF SHAREHOLDERS. At all meetings of the
shareholders, a majority of the votes entitled to be cast on a matter by a
voting group shall constitute a quorum of that voting group for action on that
matter, unless the Code, the articles of incorporation, or a provision of these
bylaws approved by shareholders, as the same are now enacted or hereafter
amended, provides otherwise. Once a share is represented for any purpose at a
meeting, other than solely to object to holding the meeting or transacting
business at the meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is or must be set for that adjourned meeting. If a quorum exists,
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 Code, the articles of
incorporation, or a provision of these bylaws adopted by the shareholders under
O.C.G.A. ss.I14-2-1021 or any successor statute, requires a greater number of
affirmative votes.
Section 3.11 ADJOURNMENT OF MEETING. The holders of a majority of the
voting shares represented at a meeting, whether or not a quorum is present, may
adjourn such meeting from time to time.
Section 3.12 ACTION WITHOUT A MEETING. Any action required or permitted by
the Code to be taken at a shareholders' meeting may be taken without a meeting
if all the shareholders entitled to vote on such action, or the appropriate
percentage of shareholders designated in the articles of incorporation, sign one
or more written consents describing the action taken and the consents are
delivered to the Corporation for inclusion in the minutes or filing with the
corporate
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records. No such written consent shall be valid unless the provisions of
O.C.G.A. ss.14-2-704(b) or any successor statute are followed.
8. ARTICLE FOUR
9. Directors
Section 4.1 DEFINITIONS AND CORPORATE POWER AND AUTHORITY. 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, a board of directors
(herein referred to as the "Board of Directors," "Board," or "directors"
notwithstanding that only one director may legally constitute the Board),
subject to any limitation set forth in the articles of incorporation, or a
provision of these bylaws approved by shareholders, as the same are now enacted
or hereafter amended, or lawful agreements among the shareholders.
Section 4.2 QUALIFICATIONS AND NUMBER. Directors shall be natural persons
who are at least eighteen years of age. A director need not be a shareholder, a
citizen of the United States, or a resident of the State of Georgia. The Board
of Directors shall consist of not less than one nor more than seven members. The
Board of Directors or the shareholders may fix the number of directors or may
change the variable range for the size of the Board of Directors by fixing a
different minimum and maximum number of directors.
Section 4.3 ELECTION AND TERM. The initial directors shall hold office
until the first shareholders' meeting at which directors are elected, or until
the earlier of a director's death, resignation, incapacity to serve, or removal.
The terms of all other directors shall expire at the next annual shareholders'
meeting following a director's election or upon the earlier of such director's
death, resignation, incapacity to serve, or removal. Despite the expiration of a
director's term, such director shall continue to serve until a qualified
successor shall be elected. A decrease in the number of directors does not
shorten an incumbent director's term.
Section 4.4 VACANCIES. Unless the articles of incorporation or a provision
of these bylaws approved by shareholders, as the same are now enacted or
hereafter amended, provides otherwise, if a vacancy occurs on the Board of
Directors, including a vacancy resulting from an increase in the number of
directors, the shareholders or the Board of Directors may fill the vacancy,
whichever group shall act first. If the directors remaining in office do not
constitute a quorum of the Board, the directors may fill the vacancy by the
affirmative vote of a majority of all the directors remaining in office.
Section 4.5 QUORUM AND ACTION. A majority of the directors shall
constitute a quorum for the transaction of business unless the Code, the
articles of incorporation, or a provision of these bylaws approved by
shareholders, as the same are now enacted or hereafter amended, authorizes a
greater number. If a quorum is present when a vote is taken, the affirmative
vote of a majority of the directors present at a meeting is the act of the
Board, unless the articles of incorporation or a provision of these bylaws
approved by shareholders, as the same are now enacted or hereafter amended,
requires the vote of a greater number of directors.
Section 4.6 MEETINGS.
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(a) TIME. Meetings shall be held at such time as the Board shall
fix, except that the first meeting of a newly elected Board shall be held as
soon after its election as the directors may conveniently assemble.
(b) PLACE. Meetings shall be held at such place within or without
the State of Georgia as shall be determined by the Board.
(c) CALL. Meetings may be called by the Chairman of the Board, if
any, by the President, or by any two directors if the Board consists of three or
more directors, or by any director if the Board consists of fewer than three
directors.
(d) NOTICE, WAIVER OF NOTICE. Unless the articles of incorporation
provide otherwise, regular meetings of the Board of Directors may be held
without notice required of the date, time, place, or purpose of the meeting.
Notice of special meetings shall be given to directors at least two days before
such meetings, which notice shall specify the date, time, and place of the
meeting. The notice need not state the purpose of the special meeting. A
director may waive any notice required by the Code, the articles of
incorporation, or these bylaws before or after the date and time of the required
notice. The waiver must be in writing, signed by the director entitled to the
notice, and delivered to the Corporation for inclusion in the minutes or filing
with the corporate records. A director's attendance at or participation in a
meeting waives any required notice unless the director at the beginning of the
meeting (or promptly upon 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.
(e) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any, and
if present and acting, shall preside at all meetings. Otherwise, the President,
if present and acting, or any director chosen by the Board, shall preside. The
person presiding at the meeting shall designate a person to act as secretary of
the meeting, who may or may not be a director or officer of the Corporation.
Section 4.7 ACTION WITHOUT MEETING. Unless the articles of incorporation
or a provision of these bylaws provides otherwise, any action required or
permitted by the Code to be taken at a Board of Directors' meeting may be taken
without a meeting, if the action is taken by all members of the Board. The
action must be evidenced by one or more written consents describing the action
taken, signed by each director, and delivered to the Corporation for inclusion
in the minutes or filing with the corporate records.
Section 4.8 COMPENSATION. Directors may be allowed such compensation for
attendance at regular or special meetings of the Board of Directors and any
special or standing committees thereof as may be determined from time to time by
resolution of the Board of Directors.
Section 4.9 REMOVAL BY SHAREHOLDERS. At any shareholders' meeting with
respect to which notice of such purpose has been given, the shareholders may
remove one or more directors from office, with or without cause, by a majority
of the votes entitled to be cast unless the articles of incorporation or a
provision of these bylaws approved by shareholders, as the same are now enacted
or hereafter amended, provides otherwise.
10. ARTICLE FIVE
11. Committees
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Section 5.1 MEMBERS. The Board of Directors may create one or more
committees and appoint members to serve on them. Each committee may have one or
more directors, who shall serve at the pleasure of the Board of Directors.
Section 5.2 AUTHORITY. To the extent specified by the Board of Directors,
each committee may exercise the authority of the Board of Directors under
O.C.G.A. ss. 14-2-801 or any successor statute. A committee shall not, however:
(1) approve or propose to shareholders action that the Code requires to be
approved by shareholders; (2) fill vacancies on the Board of Directors or on any
of its committees; (3) amend articles of incorporation pursuant to O.C.G.A.
14-2-1002 or any successor statute; (4) adopt, amend, or repeal bylaws; or (5)
approve a plan of merger not requiring shareholder approval.
Section 5.3 MEETINGS. Committees shall meet from time to time on call of
the Chairman of the Board, if any, the President, or of any one or more members
of the particular committee. The requirements for meetings, action without
meetings, notices, and waivers of notice of the Board of Directors shall apply
to any committee which the Board shall establish. A committee shall keep a
record of its proceedings and shall report these proceedings to the Board of
Directors at the meeting thereof held next after the action has been taken. 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.
Section 5.4 QUORUM AND VOTING. The quorum and voting requirements of the
Board of Directors also shall apply to any committee which the Board shall
establish.
Section 5.5 REMOVAL. The Board of Directors shall have power to remove any
member of any committee at any time, with or without cause, to fill vacancies,
and to dissolve any such committee.
12. ARTICLE SIX
13. Officers
Section 6.1 SELECTION. The Board of Directors at each annual meeting
shall, and at any regular or special meeting may, elect or appoint a President,
a Secretary, and a Treasurer and may elect or appoint a Chairman of the Board,
one or more Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, and such other officers, assistant officers, and agents as
they may determine. The President may, but need not, be a director. Any two or
more offices may be held simultaneously by the same person. Unless otherwise
provided in the resolution of election or appointment, all officers shall be
elected for a term of office running until the meeting of the Board of Directors
following the next annual meeting of shareholders and until their successors
have been duly elected or appointed and qualified or until their earlier
resignation, removal from office, or death. All officers, assistant officers,
and agents of the Corporation shall have such authority, powers, duties,
functions, and privileges as provided for herein and as the Board may determine
from time to time. The Board may designate, elect, or appoint a chief operating
officer and/or a chief executive officer, each of whom shall be deemed a Vice
President unless elected to any other office.
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Section 6.2 CHAIRMAN OF THE BOARD. If a Chairman of the Board is elected
by the directors, the Chairman shall preside at all meetings of shareholders and
directors, and, unless otherwise provided by law, when the signature of the
President is required the Chairman shall possess the same power as the President
to sign all certificates, contracts, and other instruments of the Corporation.
The Chairman shall have such other powers and duties as the Board may prescribe
from time to time. In the event of the disability of the President, the Chairman
shall exercise all the powers and discharge all the duties of the President.
Section 6.3 PRESIDENT. The President shall, in the absence of a Chairman
of the Board, preside at all meetings of the shareholders and directors. The
immediate supervision of the affairs of the Corporation shall be vested in the
President. It shall be the President's duty to attend to the business of the
Corporation and maintain strict supervision over all of its affairs and
interests. The President shall keep the Board of Directors fully advised about
the affairs and conditions of the Corporation, and shall manage and operate the
business of the Corporation pursuant to and in accordance with such policies as
may be prescribed from time to time by the Board of Directors. The President
shall, subject to the approval of the Board, hire and fix the compensation of
all employees and agents of the Corporation (other than the officers listed in
this Article 6, unless such power is delegated to the President by the Board of
Directors), and any persons thus hired shall be removable at the President's
pleasure. Unless the Board of Directors by resolution shall otherwise provide,
the President may delegate in writing such of the President's powers as the
President deems appropriate to other officers, employees, and agents of the
Corporation.
Section 6.4 VICE PRESIDENT. The Vice President (or Vice Presidents, in the
order designated by the Board) shall, in the absence or disability of the
President (and the Chairman of the Board, if one is elected by the Board of
Directors) perform the duties and exercise the powers of the President, and
shall perform such other duties as shall from time to time be imposed upon any
Vice President by the Board or delegated to a Vice President by the President.
The Board may by resolution supplement the title of any Vice President in any
manner.
Section 6.5 SECRETARY. It shall be the duty of the Secretary to keep a
record of the proceedings of all meetings of the shareholders and the Board of
Directors; to keep the stock transfer books of the Corporation; to notify the
shareholders and directors of meetings as provided by these bylaws or the Code;
to have custody of the seal of the Corporation; to affix such seal to any
instrument requiring the same; to attest the signature or certify the incumbency
or signature of any officer of the Corporation; and to perform such other duties
as the Chairman of the Board, the President, or the Board of Directors may
prescribe. Any Assistant Secretary, if elected, shall perform the duties of the
Secretary during the absence or disability of the Secretary and shall perform
such other duties as the Chairman of the Board, the President, the Secretary, or
the Board of Directors may prescribe.
Section 6.6 TREASURER. The Treasurer shall keep, or cause to be kept, the
financial books and records of the Corporation, and shall faithfully account for
the Corporation's funds, financial assets, and other assets entrusted to the
Treasurer's care and custody. The Treasurer shall make such reports as may be
necessary to keep the Chairman of the Board, the President, and the Board of
Directors informed at all times as to the financial condition of the
Corporation, and shall perform such other duties as the Chairman of the Board,
the President, or the Board of Directors may prescribe. The Treasurer shall
maintain the money and other assets of the Corporation in the name and to the
credit of the Corporation in such depositories as the Treasurer may choose or as
may be designated by the Board of Directors. The Treasurer may provide for
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the investment of the money and other assets of the Corporation consistent with
the needs of the Corporation to disburse such money and assets in the course of
the Corporation's business. The Treasurer shall perform the duties of the
Secretary of the Corporation in the absence or disability of the Secretary and
any Assistant Secretary. Any Assistant Treasurer, if elected, shall perform the
duties of the Treasurer during the absence or disability of the Treasurer, and
shall perform such other duties as the Chairman of the Board, the President, the
Treasurer, or the Board of Directors may prescribe.
Section 6.7 SALARIES AND BONDS. The Board of Directors shall fix the
compensation of all officers of the Corporation, unless pursuant to a resolution
of the Board the authority to fix such compensation is delegated to the
President or to a committee of the Board. The fact that any officer also is a
director shall not preclude such officer from receiving a salary or from voting
upon the resolution providing the same. The Board of Directors may, in its sole
discretion, require bonds from any or all of the officers and employees of the
Corporation for the faithful performance of their duties and conduct while in
office.
Section 6.8 DISALLOWED PAYMENTS. Any payments made to an officer of the
Corporation, such as commission, bonus, interest, rent, or entertainment expense
incurred by such officer, 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. It shall be
the duty of the directors, as a Board, to enforce payment by the officer of each
such amount disallowed. In lieu of payment by the officer, subject to the
determination of the directors, proportionate amounts may be withheld from
future compensation payments until the amount owed to the Corporation has been
recovered.
Section 6.9 REMOVAL. The Board of Directors may remove any officer at any
time with or without cause.
14. ARTICLE SEVEN
15. Indemnification
Section 7.1 AUTHORITY TO INDEMNIFY.
(a) Except as provided in subsections (b) and (c) of this Section
7.1, and subject to the provisions of Section 7.4 of these bylaws, the
Corporation shall indemnify an individual made a party to a proceeding because
such individual is or was a director against liability incurred in the
proceeding, if such director acted in a manner such director believed in good
faith to be in or not opposed to the best interests of the Corporation and, in
the case of any criminal proceeding, such director had no reasonable cause to
believe the conduct was unlawful.
(b) The Corporation may not indemnify a director under this Section
7.1:
(1) In connection with a proceeding by or in the right of the
Corporation in which the director was adjudged liable to
the Corporation; or
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(2) In connection with any other proceeding in which the
director was adjudged liable on the basis that personal
benefit was improperly received by the director.
(c) Indemnification permitted under Section 7.1 in connection with a
proceeding by or in the right of the Corporation is limited to reasonable
expenses incurred in connection with the proceeding.
Section 7.2 MANDATORY INDEMNIFICATION. Unless otherwise provided in the
articles of incorporation, to the extent that a director has been successful, on
the merits or otherwise, in the defense of any proceeding to which the director
was a party, or in defense of any claim, issue, or matter therein, because that
individual is or was a director of the Corporation, the Corporation shall
indemnify the director against reasonable expenses incurred by the director in
connection therewith.
Section 7.3 ADVANCE FOR EXPENSES.
(a) The Corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding if:
(1) The director furnishes the Corporation a written
affirmation of such director's good faith belief that such
director has met the standard of conduct set forth in
subsection (a) of Section 7.1 of these bylaws; and
(2) The director furnishes the Corporation a written undertaking,
executed personally or on the director's behalf, to repay any
advances if it is ultimately determined that the director is
not entitled to indemnification under Section 7.1.
(b) The undertaking required by paragraph (2) of subsection (a) of
this Section 7.3 must be an unlimited general obligation of the director, but
need not be secured and may be accepted without reference to financial ability
to make repayment.
Section 7.4 DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) The Corporation shall not indemnify a director under Section 7.1
of these bylaws unless authorized thereunder and a determination has been made
in the specific case that indemnification of the director is required in the
circumstances because the director has met the standard of conduct set forth in
subsection (a) of Section 7.1.
(b) The determination described in Section 7.4(a) above shall be
made:
(1) By the Board of Directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding; or
(2) If a quorum cannot be obtained under paragraph (1) of this
subsection, by majority vote of a committee duly designated by
the Board of Directors (in which designation directors who are
parties may participate), consisting solely of two or more
directors not at the time parties to the proceeding; or
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(3) By special legal counsel:
(i) Selected by the Board of Directors or its committee in the
manner prescribed in paragraphs (1) or (2) of this
subsection (b); or
(ii) If a quorum of the Board of Directors cannot be obtained
under paragraph (1) of this subsection (b) and a committee
cannot be designated under paragraph (2) of this
subsection, selected by majority vote of the full Board of
Directors (in which selection directors who are parties may
participate); or
(4) By the shareholders, but 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.
(c) Authorization of indemnification or an obligation to indemnify
and evaluation as to reasonableness of expenses shall be made in the same manner
as the determination that indemnification is required, except that if the
determination that indemnification is required is made by special legal counsel,
evaluation as to reasonableness of expenses shall be made by those entitled
under paragraph (3) of subsection (b) of this bylaw provision to select counsel.
Section 7.5 INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS. Unless the
articles of incorporation provide otherwise:
(a) An officer of the Corporation who is not a director is entitled
to mandatory indemnification under Section 7.2 of these bylaws to the same
extent as a director; and
(b) The Corporation may, in the discretion of the Board of
Directors, indemnify and advance expenses to an officer, employee, or agent, who
is not a director, to the extent the Board deems appropriate, consistent with
public policy.
Section 7.6 DIRECTOR'S EXPENSES AS A WITNESS. This Article Seven does not
limit the Corporation's power to pay or reimburse expenses incurred by a
director in connection with such director's appearance as a witness in a
proceeding at a time when such director has not been made a named defendant or
respondent to the proceeding.
16. ARTICLE EIGHT
17. Notices
(a) Except as otherwise specifically provided in these bylaws,
whenever under the provisions of these bylaws notice is required to be given to
any shareholder, director, or officer, it shall be in writing unless oral notice
is reasonable under the circumstances. Notice may be communicated in person; by
telephone, telegraph, teletype, or other form of wire or wireless communication;
or by mail or private carrier. If these forms of personal notice are
impracticable, notice may be communicated by a newspaper of general circulation
in the area where published, or by radio, television, or other form of public
broadcast communication.
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(b) Written notice to a shareholder, if in comprehensible form, is
effective when mailed, if mailed with first-class postage prepaid and
Corporation's current record of shareholders. If the Corporation has more than
500 shareholders of record entitled to vote at a meeting, however, the
Corporation may utilize a class of mail other than first class if the notice of
the meeting is mailed, with adequate postage pre paid, not less than thirty days
before the date of the meeting.
(c) Except as provided in subsection (b) of this Article Eight,
written notice, if in comprehensible form, is effective at the earliest of the
following: (1) when received, or when delivered, properly addressed, to the
addressee's last known principal place of business or residence; (2) five days
after its deposit in the mail, as evidenced by the postmark or such longer
period as may be provided in the articles of incorporation or bylaws, if mailed
with first-class postage prepaid and correctly addressed; or (3) on the date
shown on the return receipt, if sent by registered or certified mail, return
receipt requested, and the receipt is signed by or on behalf of the addressee.
Oral notice is effective when communicated if communicated in a comprehensible
manner.
18. ARTICLE NINE
19. Amendments
(a) Unless the articles of incorporation or the Code provides
otherwise, or the shareholders in amending or repealing a particular bylaw
provide expressly that the Board of Directors may not amend or repeal that
bylaw, the Board of Directors may amend the bylaws if the voting requirements
provided in Section 4.5 of these bylaws are satisfied, except as provided below.
The shareholders also may amend or repeal the Corporation's bylaws or adopt new
bylaws if the voting requirements in Section 3.10 of these bylaws are satisfied.
Unless the articles of incorporation or a provision of these bylaws provides
otherwise, a bylaw that fixes a greater quorum or voting requirement for the
Board of Directors may be adopted, amended, or repealed by the shareholders only
by the affirmative vote of a majority of the votes entitled to be cast or only
by a majority of the entire Board of Directors. A bylaw adopted or amended by
the shareholders that fixes a greater quorum or voting requirement for the Board
of Directors may provide that it may be amended or repealed only by a specified
vote of either the shareholders or the Board of Directors.
(b)A provision of these bylaws limiting the authority of the Board of
Directors, establishing staggered terms for directors, or fixing a greater
quorum or voting requirement for shareholders (except as provided in O.C.G.A.
ss.ss. 14-2-1020, 14-2-1113 or 14-2-1133 or any successor provisions) shall be
adopted, amended, or repealed only by the shareholders. The shareholders may
provide by resolution that any bylaw provision repealed or amended by them may
not be repealed or amended by the Board of Directors.
20. ARTICLE TEN
21. Miscellaneous
Section 10.1 INSPECTION OF RECORDS BY SHAREHOLDERS.
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(a) A shareholder is entitled to inspect and copy, during regular
business hours at the Corporation's principal office, any of the following
records of the Corporation if the shareholder gives the Corporation written
notice of the shareholder's demand at least five business days before the date
on which the shareholder wishes to inspect and copy such records:
(1) The Corporation's articles or restated articles of incorporation
and all amendments currently in effect;
(2) The Corporation's bylaws or restated bylaws and all amendments
currently in effect;
(3) Resolutions adopted by either the shareholders or the Board of
Directors increasing or decreasing the number of directors, the
classification of directors, if any, and the names and residence
addresses of all members of the Board of Directors;
(4) Resolutions adopted by the Board of Directors creating one or
more classes or series of shares, and fixing their relative
rights, preferences, and limitations, if shares issued pursuant
to such resolutions are outstanding and any resolutions
adopted by the Board of Directors that affect the size of the
Board of Directors;
(5) The minutes of all shareholders' meetings, executed waivers of
notice of meetings, and executed written consents evidencing all
action taken by shareholders without a meeting, for the past
three years;
(6) All written communications to shareholders generally within the
past three years, including the financial statements furnished
for the past three years under O.C.G.A. ss. 14-2-1620;
(7) A list of the names and business addresses of the Corporation s
current directors and officers; and
(8) The Corporation's most recent annual registration as delivered
to the Secretary of State.
(b)A shareholder is entitled to inspect and copy, during regular business
hours at a reasonable location specified by the Corporation, any of the
following records of the Corporation if the shareholder meets the requirements
of subsection (c) of this Section 10.1 and gives the Corporation written notice
of the shareholder's demand at least five business days before the date on which
the shareholder wishes to inspect and copy such records:
(1) Excerpts from minutes of any meeting of the Board of Directors,
records of any action of a committee of the Board of Directors
while acting in place of the Board of Directors on behalf of the
Corporation, minutes of any meeting of the shareholders, and
records of action taken by the shareholders or Board of
Directors without a meeting, to the extent not subject to
inspection under subsection (a) of this Section 10.1;
(2) Accounting records of the Corporation; and
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(3) The record of shareholders.
(c)A shareholder may inspect and copy the records described in subsection
(b) of this Section 10.1 only if: (1) The shareholder's demand is made in good
faith and for a proper purpose that is reasonably relevant to the shareholder's
legitimate interest as a shareholder; (2) the shareholder describes with
reasonable particularity the shareholder's purpose and the records the
shareholder desires to inspect; (3) the records are directly connected with the
shareholder's purpose; and (4) the records are to be used only for the stated
purpose.
Section 10.2 FISCAL YEAR. The fiscal year of the Corporation shall be
fixed from time to time by resolution of the Board of Directors.
Section 10.3 SEAL. The corporate seal shall be in such form as the Board
of Directors may determine from time to time.
Section 10.4 FINANCIAL STATEMENTS. The Board of Directors may appoint the
Treasurer or other fiscal officer or the Secretary or any other officer to cause
to be prepared and furnished to shareholders entitled thereto any special
financial notice or any financial statements which may be required by any
provision of law.
Section 10.5 APPOINTMENT OF AGENTS. The Chairman of the Board, if any, the
President or any Vice President or any other officer authorized by the Board
shall be authorized and empowered in the name 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 and 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, and 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 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, if any, the President, or a Vice President, or any other
officer designated by the Board, and the corporate seal shall be affixed
thereto. Any substitution, revocation, or cancellation shall be signed in like
manner. Any agent, representative, attorney, or proxy, when so authorized by the
instrument appointing such person, may substitute or delegate such person's
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, and 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 10.6 CONTRACTS, DEEDS, AND LOANS. All contracts, deeds, mortgages,
pledges, promissory notes, security documents, transfers, and other written
instruments binding upon the Corporation shall be executed on behalf of the
Corporation by the Chairman of the Board, if any, the President, any Vice
President, or by such officers or agents as the Board of Directors or the
President (unless the Board of Directors shall otherwise provide) may designate
from time to time. Any such instrument required to be given under the seal of
the Corporation may be sealed and attested by the Secretary or any Assistant
Secretary of the Corporation.
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Section 10.7 CHECKS AND DRAFTS. Checks and drafts of the Corporation shall
be signed by such officer or officers or such other employees or persons as the
Board of Directors may from time to time designate. The Board of Directors may
provide by resolution for the authority of officers, employees, and other
persons to deal with banks and other financial institutions on behalf of the
Corporation.
IN WITNESS WHEREOF, the undersigned Secretary does acknowledge that the
Bylaws were adopted as the Bylaws of the Corporation by action of the Board of
Directors as of May 5, 2000.
/s/ KAREN VICKERS
--------------------------------
Secretary
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