SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
January 14, 1998
Date of report (Date of earliest event reported)
RUBY TUESDAY, INC.
(Exact Name of Registrant as Specified in Its Charter)
GEORGIA
(State or Other Jurisdiction of Incorporation)
1-12454 63-0475239
(Commission File Number) (I.R.S.Employer
Identification No.)
4721 Morrison Drive
P.O.Box 160266
Mobile, Alabama 36625
(Address of Principal Executive Offices) (Zip Code)
(334) 344-3000
(Registrant's Telephone Number)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Item 8. CHANGE IN FISCAL YEAR
At its January 14, 1998 Board meeting, the Board of Directors of Ruby
Tuesday, Inc. approved a change in its fiscal year. Previously, the
fiscal year ended on the first Saturday following May 30. The fiscal year
will now end on the first Sunday following May 30. The change will be
effective in fiscal year 1999. The 1999 fiscal year will begin June 7,
1998 and end June 6, 1999. The additional calendar day in fiscal year
1999 will be reported in the Company's 10-Q for the quarter ended
September 6, 1998.
The Company Bylaws, as amended, are filed as Exhibit 3.2 to this filing.
Signatures
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
RUBY TUESDAY, INC.
(Registrant)
1/28/98 /s/ J. Russell Mothershed
DATE J. RUSSELL MOTHERSHED
Senior Vice President and
Principal Accounting Officer
BYLAWS, AS AMENDED
OF
RUBY TUESDAY, INC.
As in effect January 14, 1998
[Revised to reflect the change (i) in name of Ruby Tuesday (Georgia), Inc.
to Ruby Tuesday, Inc. following and as a result of the merger of Ruby
Tuesday, Inc., a Delaware corporation, into Ruby Tuesday (Georgia), Inc.
effective March 9, 1996 and (ii) the amendment to Section 7.1, to change
the Company's fiscal year end, approved by the Board of Directors on
January 14, 1998.]
INDEX
Page
ARTICLE I OFFICES 1
ARTICLE II STOCKHOLDERS' MEETINGS 1
2.1 PLACE OF MEETINGS 1
2.2 ANNUAL MEETINGS 1
2.3 SPECIAL MEETINGS 1
2.4 MEETINGS WITHOUT NOTICE 1
2.5 VOTING 1
2.6 QUORUM 2
2.7 LIST OF STOCKHOLDERS 2
2.8 ACTION WITHOUT MEETING 2
ARTICLE III BOARD OF DIRECTORS 2
3.1 POWERS 2
3.2 NUMBER, QUALIFICATION AND TERM 2
3.3 COMPENSATION 3
3.4 MEETINGS AND QUORUM 3
3.5 EXECUTIVE COMMITTEE 4
3.6 OTHER COMMITTEES 4
3.7 CONFERENCE TELEPHONE MEETINGS 5
3.8 ACTION WITHOUT MEETING 5
ARTICLE IV OFFICERS 5
4.1 TITLES AND ELECTION 5
4.2 DUTIES 6
(a) Chairman of the Board of Directors 6
(b) Vice Chairman of the Board of Directors 6
(c) President 6
(d) Vice President 6
(e) Secretary 6
(f) Treasurer 7
4.3 Chief Executive Officer and Chief Operating Officer 7
4.4 Chief Financial Officer and Chief Accounting Officer 7
4.5 Delegation of Authority 7
4.6 Compensation 7
ARTICLE V RESIGNATIONS, VACANCIES AND REMOVALS 8
5.1 RESIGNATIONS 8
5.2 VACANCIES 8
(a) Directors 8
(b) Officers 8
5.3 REMOVALS 8
(a) Directors 8
(b) Officers 8
ARTICLE VI CAPITAL STOCK 9
6.1 CERTIFICATES OF STOCK 9
6.2 TRANSFER OF STOCK 9
6.3 STOCK TRANSFER RECORDS 9
6.4 RECORD DATES 9
6.5 LOST CERTIFICATES 10
ARTICLE VII FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC. 10
7.1 FISCAL YEAR 10
7.2 BANK DEPOSITS, CHECKS, ETC 10
ARTICLE VIII BOOKS AND RECORDS 10
8.1 PLACE OF KEEPING BOOKS 10
8.2 EXAMINATION OF BOOKS 10
ARTICLE IX NOTICES 11
9.1 REQUIREMENTS OF NOTICE 11
9.2 WAIVERS 11
ARTICLE X SEAL 11
ARTICLE XI POWERS OF ATTORNEY 11
ARTICLE XII INDEMNIFICATION OF DIRECTORS, OFFICERS, AND OTHER PERSONS 12
12.1 INDEMNIFIED ACTIONS 12
12.2 INDEMNIFICATION AGAINST 12
12.3 ADVANCES OF EXPENSES 12
12.4 RIGHT OF AGENT TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION 12
12.5 OTHER RIGHTS AND REMEDIES 12
12.6 INSURANCE OF AGENTS 13
12.7 CERTAIN DEFINITIONS 13
12.8 INDEMNIFICATION AND INSURANCE OF OTHER PERSONS 13
12.9 SURVIVAL OF INDEMNIFICATION 13
12.10 SAVINGS CLAUSE 13
ARTICLE XIII AMENDMENTS 14
RUBY TUESDAY, INC.
BYLAWS, AS AMENDED
ARTICLE I
OFFICES
The Corporation shall at all times maintain a registered office in
the State of Georgia and a registered agent at that address but may have
other offices located in or outside of the State of Georgia as the Board
of Directors may from time to time determine.
ARTICLE II
STOCKHOLDERS' MEETINGS
2.1 Place of Meetings. All meetings of stockholders shall be held
at such place or places in or outside of the State of Georgia as the Board
of Directors may from time to time determine or as may be designated in
the notice of meeting or waiver of notice thereof, subject to any
provisions of the laws of the State of Georgia.
2.2 Annual Meetings. The annual meeting of stockholders shall be
held on such date in the month of September each year and at such time as
shall be determined by the Board of Directors from time to time or with
respect to any particular annual meeting for the purpose of electing
directors and transacting such other business as may come properly before
the meeting. Written notice of the date, time and place of the annual
meeting shall be given by mail to each stockholder entitled to vote at his
address as it appears on the records of the Corporation not less than ten
(10) nor more than sixty (60) days prior to the scheduled date thereof,
unless such notice is waived as provided by Article IX of these Bylaws.
2.3 Special Meetings. A special meeting of stockholders may be
called at any time by the Board of Directors, the Chairman of the Board of
Directors or the President. Written notice of the time, place and
specific purposes of such meeting shall be given by mail to each
stockholder entitled to vote thereat at his address as it appears on the
records of the Corporation not less than ten (10) nor more than sixty (60)
days prior to the scheduled date thereof, unless such notice is waived as
provided in Article IX of these Bylaws.
2.4 Meetings Without Notice. Meetings of the stockholders may be
held at any time without notice when all the stockholders entitled to vote
thereat are present in person or by proxy.
2.5 Voting. At all meetings of stockholders, each stockholder
entitled to vote on the record date as determined under Article VI,
Section 6.4 of these Bylaws, or if not so determined, as prescribed under
the laws of the State of Georgia, shall be entitled to one vote for each
share of common stock, or such other number of votes prescribed in the
Articles of Incorporation for each share of stock other than common stock,
standing of record in his name, subject to any restrictions or
qualifications set forth in the Articles of Incorporation, and may vote
either in person or by proxy.
2.6 Quorum. At any meeting of stockholders, a majority of the
number of shares of stock outstanding and entitled to vote thereat,
present in person or by proxy, shall constitute a quorum, but a smaller
interest may adjourn any meeting from time to time, and the meeting may be
held as adjourned without further notice, subject to such limitation as
may be imposed under the laws of the State of Georgia. At any such
adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the originally scheduled
meeting.
When a quorum is present at any meeting, a majority of the number of
shares of stock entitled to vote present thereat shall decide any question
brought before such meeting, unless the question is one upon which a
different vote is required by express provision of the laws of the State
of Georgia, or the Articles of Incorporation or these Bylaws, in which
case such express provision shall govern.
2.7 List of Stockholders. At least one (1) day before every
meeting, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of and the
number of shares registered in the name of each stockholder, shall be
prepared by the Secretary or the transfer agent in charge of the stock
ledger of the Corporation. Such list shall be open for examination by any
stockholder at the time and place of the meeting. The stock ledger shall
be the only evidence as to who are the stockholders entitled to examine
such list or the books of the Corporation or to vote in person or by proxy
at such meeting.
2.8 Action Without Meeting. Any action required by the laws of
the State of Georgia or the Articles of Incorporation to be taken at any
annual or special meeting of stockholders, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by all the
holders of outstanding shares of stock entitled to vote on such action.
ARTICLE III
BOARD OF DIRECTORS
3.1 Powers. The business and affairs of the Corporation shall be
carried on by or under the direction of the Board of Directors, which
shall have all the powers authorized by the laws of the State of Georgia,
subject to such limitations as may be provided by the Articles of
Incorporation or these Bylaws.
3.2 Number, Qualification and Term. The initial number of
directors shall be such as may be determined by the incorporator(s) and
thereafter the number of directors shall be not less than three (3) and
not more than twelve (12), the exact number within such minimum and
maximum limits to be fixed and determined from time to time by resolution
of a majority of the Board of Directors or by the affirmative vote of the
holders of at least 80% of all outstanding shares of capital stock
entitled to vote in the election of directors, voting together as a single
class, as provided in the Articles of Incorporation.
Directors shall be of full age, and no person shall be nominated for
the Board of Directors who shall have attained the age of seventy (70) on
or before the annual meeting of stockholders at which directors are
elected, provided, however, under special conditions in the best interests
of the Corporation, as determined by the Board of Directors or the
shareholders, a person may be nominated for the Board of Directors who has
attained the age of seventy (70) before such meeting. Directors need not
be residents of the State of Georgia.
The initial Board of Directors shall be elected by the incorporator.
Thereafter, Directors shall be elected at the annual meeting of
stockholders by a plurality of the votes cast at such election. Each
director shall serve until the election and qualification of his successor
or until his earlier death, resignation or removal as provided in the
Articles of Incorporation and these Bylaws. In case of an increase in the
number of directors between elections by the stockholders, the additional
directorships shall be considered vacancies and shall be filled in the
manner prescribed in Article V of these Bylaws.
The Board of Directors may, by majority vote, elect a Chairman of
the Board of Directors. The Chairman shall be a member of the Board and
shall preside at all meetings of the stockholders and of the Board of
Directors and shall have such other powers and perform such other duties
as the Board of Directors may prescribe from time to time.
3.3 Compensation. The Board of Directors, or a committee thereof,
may from time to time by resolution authorize the payment of fees or other
compensation to the directors for services as such to the Corporation,
including, but not limited to, fees for attendance at all meetings of the
Board of Directors or any committee thereof, and determine the amount of
such fees and compensation. Directors shall in any event be paid their
traveling expenses for attendance at all meetings of the Board of
Directors or any committee thereof. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor in amounts authorized
or otherwise approved from time to time by the Board of Directors or a
committee thereof.
3.4 Meetings and Quorum. Meetings of the Board of Directors may
be held either in or outside of the State of Georgia. A quorum shall be
one-third (1/3) of the number of directors then fixed in the manner
provided in Section 3.2 of this Article but not less than two (2)
directors. The act of a majority of the directors present at a meeting at
which there is a quorum shall be the act of the Board of Directors. If a
quorum is not present at any meeting, the Directors who are present may
adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is obtained, subject to such
limitation as may be imposed under the laws of the State of Georgia.
The Board of Directors shall, at the close of each annual meeting of
stockholders and without further notice other than these Bylaws, if a
quorum of directors is then present or as soon thereafter as may be
convenient, hold a regular meeting for the election of officers and the
transaction of any other business.
The Board of Directors may from time to time provide for the holding
of regular meetings with or without notice and may fix the times and
places at which such meetings are to be held. Meetings other than regular
meetings may be called at any time by the Chairman of the Board of
Directors or the President and must be called by the Chairman of the
Board, the President, the Secretary or an Assistant Secretary upon the
request of at least three (3) directors.
Notice of each meeting, other than a regular meeting (unless
required by the Board of Directors), shall be given to each director by
mailing the same to each director at his residence or business address at
least two (2) days before the meeting or by delivering the same to him
personally or by telephone, facsimile transmission or telegraph at least
one (1) day before the meeting unless, in case of exigency, the Chairman
of the Board of Directors, the President, the Secretary or an Assistant
Secretary, as the case may be, shall prescribe a shorter notice to be
given personally or by telephone, telegraph, cable or facsimile
transmission to all or any one or more of the directors at their
respective residences or places of business. Notice will be deemed to
have been given at the time it is mailed, postage-prepaid, or sent by
telegraph, cable or facsimile transmission, or given by telephone, as the
case may be.
Notice of any meeting shall state the time and place of such
meeting, but need not state the purposes thereof unless otherwise required
by the laws of the State of Georgia, the Articles of Incorporation or the
Board of Directors.
3.5 Executive Committee. The Board of Directors, by resolution
adopted by a majority of the number of directors then fixed in the manner
provided in Section 3.2 of this Article, may provide for an Executive
Committee of three (3) or more directors and shall elect the members
thereof to serve during the pleasure of the Board of Directors. The
Executive Committee shall elect its own chairman, unless a chairman has
been designated by the Board of Directors. Special meetings of the
Executive Committee may be called by the chairman of the committee or by
the Board of Directors, and notice of meetings of the Executive Committee
shall be given by the chairman of the committee or by the Secretary, in
the manner provided in Section 3.4 of this Article for notice of meetings
of the Board of Directors.
The Board of Directors may at any time change the membership of the
Executive Committee, fill vacancies in it, designate alternate members to
replace any absent or disqualified members at any meeting of the Executive
Committee, or dissolve it.
During the intervals between the meetings of the Board of Directors,
the Executive Committee shall possess and may exercise any or all of the
powers of the Board of Directors in the management or direction of the
business and affairs of the Corporation to the extent authorized by
resolution adopted by a majority of the number of directors then fixed in
the manner provided in Section 3.2 of this Article, subject to such
limitations as may be imposed by the laws of the State of Georgia.
Except as inconsistent with these Bylaws or the resolution of the
Board of Directors from time to time, the Executive Committee may
determine its rules of procedure and the notice to be given of its
meeting, and it may appoint such sub-committees as it shall from time to
time deem necessary. A majority of the members of the Executive Committee
shall constitute a quorum. The Executive Committee shall keep minutes of
its meetings and shall report the same to the Board of Directors.
3.6 Other Committees. The Board of Directors may by resolution
provide for such other committees as it deems desirable and may
discontinue the same at its pleasure. Each such committee shall have the
powers and perform such duties, not inconsistent with law, as may be
assigned to it by the Board of Directors.
Each such committee shall elect its own chairman, unless a chairman
has been designated by the Board of Directors.
Except as inconsistent with these Bylaws or the resolution of the
Board of Directors from time to time, each such committee may determine
its rules of procedure and the notice to be given of its meeting, and it
may appoint such committees as it shall from time to time deem necessary.
Special meetings of any such committee may be called by the chairman of
that committee or by the Board of Directors, and notice of any meeting of
any such committee shall be given by the chairman of that committee or by
the Secretary in the manner provided in Section 3.4 of this Article for
notice of meetings of the Board of Directors. A majority of the members
of any such committee then in office shall constitute a quorum. Each such
committee shall keep minutes of its meetings and report the same to the
Board of Directors.
3.7 Conference Telephone Meetings. Any one or more members of the
Board of Directors or any committee thereof may participate in a meeting
by means of a conference telephone or similar communication equipment by
means of which all persons participating in the meeting can hear each
other, and such participation shall constitute presence in person at such
meeting.
3.8 Action Without Meeting. To the extent authorized by Georgia
law, 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 all members of the Board of Directors or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of the Board of Director or committee.
ARTICLE IV
OFFICERS
4.1 Titles and Election. The officers of the Corporation shall be
the Chairman of the Board of Directors, the Vice Chairman of the Board of
Directors, the President, one or more Vice Presidents, the Secretary and
the Treasurer, who shall have such authority and perform such duties as
may be prescribed by the Board of Directors or as otherwise provided in
these Bylaws.
The Board of Directors, in its discretion, may also at any time
elect or appoint such other officers as it may deem advisable, each of
whom shall have such authority and shall perform such duties as may be
prescribed or determined from time to time by the Board of Directors or,
if not prescribed or determined by the Board of Directors, as the Chairman
of the Board, the President or the then senior executive officer may
prescribe or determine.
The Board of Directors may assign such additional titles and duties
to one or more of the officers as it shall deem appropriate.
Any person may hold more than one office if the duties can be
consistently performed by the same person.
The officers of the Corporation shall initially be elected as soon
as convenient by the Board of Directors and thereafter, in the absence of
earlier deaths, resignations or removals, shall be elected at the first
meeting of the Board of Directors following each annual meeting of
stockholders. Each officer shall hold office at the pleasure of the Board
of Directors except as may otherwise be approved by the Board of
Directors, or until his earlier resignation, removal or other termination
of his employment.
The Board of Directors may require any officer or other employee or
agent to give bond for the faithful performance of his duties in such form
and with such sureties as the Board may require.
4.2 Duties. Subject to such extension, limitations, and other
provisions as the Board of Directors may from time to time prescribe or
determine, the following officers shall have the following powers and
duties:
(a) Chairman of the Board of Directors. The Chairman of
the Board of Directors shall be a director and, when present, shall
preside at all meetings of the stockholders and of the Board of
Directors and shall have such other powers and perform such other
duties as the Board of Directors may prescribe from time to time.
(b) Vice Chairman of the Board of Directors. The Vice
Chairman of the Board of Directors shall be a director and, in the
absence of the Chairman of the Board, shall preside at all meetings
of the stockholders and of the Board of Directors and shall have
such other powers and perform such other duties as the Board of
Directors may prescribe from time to time.
(c) President. The President shall exercise the powers and
authority and perform all of the duties commonly incident to his
office and shall perform such other duties as the Board of
Directors shall specify from time to time. In the absence or
disability of the Chairman of the Board, the President shall
perform those duties of the Chairman of the Board not assigned to
the Vice-Chairman of the Board, unless otherwise provided by the
Board of Directors.
(d) Vice President. The Vice President or Vice Presidents
shall perform such duties and have such powers as may be assigned
to them from time to time by the Board of Directors, the Chairman
of the Board or the President. Any Vice President may have the
title of Executive Vice President, Senior Vice President, Assistant
Vice President or such other title deemed appropriate by the Board
of Directors from time to time.
In the absence or disability of the President, the Vice
Presidents in order of seniority may, unless otherwise determined by
the Board of Directors or the Chairman of the Board, exercise the
powers and perform the duties pertaining to the office of the
President.
(e) Secretary. The Secretary, or in his absence an
Assistant Secretary, shall keep the minutes of all meetings of
stockholders and of the Board of Directors and any committee
thereof, cause all notices to be duly given to and served on the
stockholders and directors, attend to such correspondence as may be
assigned to him, keep or cause to be kept in safe custody the seal
and corporate records of the Corporation and affix such seal to all
such instruments properly executed as may require it, have general
charge of the stock transfer books of the Corporation and shall in
general perform all duties incident to his office, and shall have
such other duties and powers as may be prescribed or determined
from time to time by the Board of Directors, the Chairman of the
Board or the President.
In the absence or disability of the Secretary, the Assistant
Secretary, or if there he more than one, the Assistant Secretaries
in the order determined by the Board of Directors, or if no such
determination has been made, in the order of their election, shall
perform the duties and exercise the powers of the Secretary. Each
Assistant Secretary also shall perform such other duties and have
such other powers as may be assigned to him from time to time by the
Board of Directors, the Chairman of the Board or the President.
(f) Treasurer. The Treasurer shall have the care and
custody of and be responsible for the monies, funds, securities,
financial records and other valuable papers of the Corporation
(other than his own bond, if any, which shall be in the custody of
the President); shall keep full and accurate accounts of receipts
and disbursements and shall render account thereof whenever
required by the Board of Directors, the Chairman of the Board or
the President; shall have and perform, under the supervision of the
Board of Directors, the Chairman of the Board and the President all
the powers and duties commonly incident to his office; shall
deposit or cause to be deposited all funds of the Corporation in
such bank or banks, trust company or trust companies, or with such
firm or firms doing a banking business as may be designated by the
Board of Directors, the Chairman of the Board or the President; may
endorse for deposit or collection all checks, notes, and similar
instruments payable to the Corporation or to its order; and shall
have such other duties as may be prescribed or determined from time
to time by the Board of Directors, the Chairman of the Board or the
President.
In the absence or disability of the Treasurer, the Assistant
Treasurer, or if there be more than one, the Assistant Treasurers in
the order determined by the Board of Directors, or if no such
determination has been made, in the order of their election, shall
perform the duties and exercise the powers of the Treasurer and such
other duties as may be assigned to them from time to time by the
Board of Directors, the Chairman of the Board or the President.
4.3 Chief Executive Officer and Chief Operating Officer. In its
discretion, the Board of Directors may designate either the Chairman of
the Board or the President to serve as the Chief Executive Officer or the
Chief Operating Officer, or both, of the Corporation.
The Chief Executive Officer shall, subject to the direction and
control of the Board of Directors, have general supervision, direction and
control of the business and officers of the Corporation and have the
powers and duties otherwise customary to the office.
The Chief Operating Officer shall, subject to the direction and
control of the Board of Directors, have general supervision, management
and control of the operations and personnel of the Corporation and the
powers and duties otherwise customary to the office.
4.4 Chief Financial Officer and Chief Accounting Officer. In its
discretion, the Board of Directors may at any time designate any officer
as the Chief Financial Officer, the Chief Accounting Officer, or both, of
the Corporation.
4.5 Delegation of Authority. The Board of Directors may at any
time delegate the powers and duties of any officer for the time being to
any other officer, director or employee.
4.6 Compensation. The compensation of the officers shall be fixed
by the Board of Directors or a committee thereof and the fact that any
officer is a director shall not preclude him from receiving compensation
or from voting upon the resolution providing the same.
ARTICLE V
RESIGNATIONS, VACANCIES AND REMOVALS
5.1 Resignations. Any director or officer may resign at any time
by giving written notice thereof to the Board of Directors, the Chairman
of the Board, the President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if the time be not
specified, upon receipt thereof; and unless otherwise specified therein,
the acceptance of any resignation shall not be necessary to make it
effective.
5.2 Vacancies.
(a) Directors. Any vacancy in the Board of Directors
caused by reason of death, incapacity, resignation, removal,
increase in the authorized number of directors or otherwise may be
filled by a majority vote of the remaining directors though less
than a quorum, or by the sole remaining director.
Any director so elected by the Board of Directors shall serve
until the next annual meeting of stockholders at which directors of
the class in which such director serves are to be elected and until
the election and qualification of his successor or until his earlier
death, resignation or removal as provided in the Articles of
Incorporation or these Bylaws. The Board of Directors also may
reduce their authorized number by the number of vacancies in the
Board, provided such reduction does not reduce the Board to less
than the minimum authorized by the laws of the State of Georgia or
the Articles of Incorporation, or to less than the number of
directors then in office.
(b) Officers. The Board of Directors may at any time or
from time to time fill any vacancy among the officers of the
Corporation.
5.3 Removals.
(a) Directors. The entire Board of Directors, or any
individual member thereof, may be removed only as provided in the
Articles of Incorporation.
(b) Officers. Subject to the provisions of any validly
existing agreement, the Board of Directors may at any meeting
remove from office any officer, with or without cause, and may
elect or appoint a successor.
ARTICLE VI
CAPITAL STOCK
6.1 Certificates of Stock. Every stockholder shall be entitled to
a certificate or certificates for shares of the capital stock of the
Corporation in such form as may be prescribed or authorized by the Board
of Directors, duly numbered and setting forth the number and kind of
shares represented thereby. Such certificates shall be signed by the
Chairman of the Board, the Vice-Chairman of the Board, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary. If and to the extent permitted by
Georgia law, any or all of such signatures may be in facsimile if the
certificate is 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.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on a certificate has ceased to
be such officer, transfer agent or registrar before the certificate has
been issued, such certificate may nevertheless be issued and delivered by
the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
6.2 Transfer of Stock. Shares of the capital stock of the
Corporation shall be transferable only upon the books of the Corporation
upon the surrender of the certificate or certificates properly assigned
and endorsed for transfer.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar and one or more co-registrars and may
make or authorize such agents to make all such rules and regulations
deemed expedient concerning the issue, transfer and registration of shares
of stock. If the Corporation has a transfer agent or registrar acting on
its behalf, the signature of any officer or representative thereof may be
in facsimile.
6.3 Stock Transfer Records. Unless the Corporation has a stock
transfer agent to keep such records, the Secretary shall keep a stock book
or books containing the names, alphabetically arranged, with the address
of every stockholder showing the number of shares of each kind, class or
series of stock held of record.
The person in whose name shares of stock stand on the books of the
Corporation shall be deemed by the Corporation to be the owner thereof for
all purposes.
6.4 Record Dates. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board
of Directors shall fix in advance a record date which, in the case of a
meeting, shall not be less than ten (10) nor more than sixty (60) days
prior to the scheduled date of such meeting and which, in the case of any
other action, shall be not more than sixty (60) days prior to any such
action permitted by the laws of the State of Georgia.
A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
6.5 Lost Certificates. In case of loss, mutilation or destruction
of a stock certificate, a duplicate certificate may be issued upon such
terms as may be determined or authorized by the Board of Directors, the
Chairman of the Board or the President.
ARTICLE VII
FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC.
7.1 Fiscal Year. The fiscal year of the Corporation shall end on
the first Sunday following May 30 each year.
7.2 Bank Deposits, Checks, Etc The funds of the Corporation shall
be deposited in the name of the Corporation or of any division thereof in
such banks or trust companies in the United States or elsewhere as may be
designated from time to time by the Board of Directors, or by such officer
or officers as the Board of Directors may authorize to make such
designations.
All checks, drafts or other orders for the withdrawal of funds from
any bank account shall be signed by such person or persons as may be
designated from time to time by the Board of Directors. The signatures on
checks, drafts or other orders for the withdrawal of funds may be in
facsimile if authorized in the designation.
ARTICLE VIII
BOOKS AND RECORDS
8.1 Place of Keeping Books. The books and records of the
Corporation may be kept in or outside of the State of Georgia, as the
Board of Directors may from time to time determine.
8.2 Examination of Books. Except as may otherwise be provided by
the laws of the State of Georgia, the Articles of Incorporation or these
Bylaws, the Board of Directors shall have power to determine from time to
time whether and to what extent and at what times and places and under
what conditions any of the accounts, records and books of the Corporation
are to be open to the inspection of any stockholder. No stockholder shall
have any right to inspect any account or book or document of the
Corporation except as prescribed by law or authorized by express
resolution of the stockholders or of the Board of Directors.
ARTICLE IX
NOTICES
9.1 Requirements of Notice. Whenever notice is required to be
given by statute, the Articles of Incorporation or these Bylaws, it shall
not mean personal notice unless so specified, but such notice may be given
in writing by depositing the same in a post office, letter box, or mail
chute postage prepaid and addressed to the person to whom such notice is
directed at the address of such person on the records of the Corporation,
and such notice shall be deemed given at the time when the same shall be
thus mailed.
9.2 Waivers. Any stockholder, director or officer may, in writing
delivered via first class mail, hand-delivery or facsimile transmission or
by telegram or cable, at any time waive any notice or other formality
required by statute, the Articles of Incorporation or these Bylaws. Such
waiver of notice, whether given before or after any meeting or action,
shall be deemed equivalent to notice. Presence of a stockholder either in
person or by proxy at any meeting of stockholders and presence of any
director at any meeting of the Board of Directors shall constitute a
waiver of such notice as may be required by any statute, the Articles of
Incorporation or these Bylaws.
ARTICLE X
SEAL
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall determine from time to time and may consist of a
facsimile thereof or the words "Corporate Seal" or "Seal" enclosed in
parentheses.
In the absence of the Secretary, any other officer of the
Corporation may affix and attest the seal of the Corporation to any
instrument requiring it, unless otherwise provided by resolution of the
Board of Directors.
ARTICLE XI
POWERS OF ATTORNEY
The Board of Directors may authorize one or more of the officers of
the Corporation to execute powers of attorney delegating to named
representatives or agents power to represent or act on behalf of the
Corporation, with or without power of substitution.
In the absence of any action by the Board of Directors, any officer
of the Corporation may execute for and on behalf of the Corporation
waivers of notice of meetings of stockholders and proxies for such
meetings of any company in which the Corporation may hold voting
securities.
ARTICLE XII
INDEMNIFICATION OF DIRECTORS, OFFICERS, AND OTHER PERSONS
12.1 Indemnified Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, and whether external or internal to the
Corporation (including a judicial action or suit brought by or in the
right of the Corporation), by reason of the fact that he is or was a
director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise (all
such persons being referred to hereafter as an "Agent"), against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall
have been adjudged liable to the Corporation or subjected to injunctive
relief in favor of the Corporation: (a) for any appropriation, in
violation of his duties, of any business opportunity of the Corporation;
(b) for acts or omissions which involve intentional misconduct or a
knowing violation of law; (c) for unlawful distributions pursuant to
Section 14-2-832 of the Georgia Business Corporation Code; or (d) for any
transaction from which he received an improper personal benefit.
12.2 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article XII, to the extent
that an Agent has been successful on the merits or otherwise in defense of
any proceeding or in defense of any claim, issue or matter therein, such
Agent shall be indemnified against all expenses incurred in connection
therewith.
12.3 Advances of Expenses. Expenses incurred in defending or
investigating any action, suit, proceeding or investigation shall be paid
by the Corporation in advance of the final disposition of such matter, if
the Agent shall provide the Corporation with (i) a written affirmation of
his good faith belief that his conduct does not constitute behavior of the
kind described in any of the clauses (a) through (d) of Section 12.1, and
(ii) a written undertaking, executed personally or on his behalf, to repay
any advances if it is ultimately determined that he is not entitled to
indemnification under Section 12.1.
12.4 Right of Agent to Indemnification Upon Application; Procedure
Upon Application. Any indemnification under Sections 12.1 and 12.2 hereof
or advance under Section 12.3 hereof shall be made promptly and in any
event within forty-five (45) days after receipt of the written request of
the Agent, unless the Agent is not entitled to such indemnification or
advance pursuant to the terms of such sections. The right to
indemnification or advances as granted by this Article XIl shall be
enforceable by the Agent in any court of competent jurisdiction if the
Corporation denies the claim, in whole or in part, or if no disposition of
such claim is made within forty-five (45) days of the Agent's request.
The Agent's expenses incurred in connection with successfully establishing
his right to indemnification, in whole or in part, in any such proceeding
shall also be indemnified by the Corporation.
12.5 Other Rights and Remedies. The indemnification provided by
this Article XII shall not be deemed exclusive of any other rights to
which an Agent seeking indemnification may be entitled under any
agreement, vote of stockholders or disinterested directors, court order or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. It is the policy of the
Corporation that indemnification of Agents shall be made to the fullest
extent permitted by law. All rights to indemnification under this
Article XII shall be deemed to be provided by a contract between the
Corporation and the Agent who serves in such capacity at any time while
these Bylaws and other relevant provisions of the Georgia Business
Corporation Code and other applicable law, if any, are in effect. Any
repeal or modification thereof shall not affect any rights or obligations
then existing.
12.6 Insurance of Agents. To the extent permitted by Georgia law,
the Corporation may purchase and maintain insurance on behalf of any
person who is or was an Agent 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 Article XII.
12.7 Certain Definitions. For purposes of this Article XII,
references to the "Corporation" shall include, in addition to the
resulting or surviving corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power to
indemnify its directors, officers and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this Article XII with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued; references to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed a
person with respect to any employee benefit plan; and references to
"serving at the request of the Corporation" shall include any service as a
director or officer of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to any
employee benefit plan, its participants, or beneficiaries.
12.8 Indemnification and Insurance of Other Persons. The
provisions of this Article XII shall not be deemed to preclude the
Corporation from either indemnifying or purchasing and maintaining
insurance on behalf of, or both, any person who is not an Agent but whom
the Corporation has the power or obligation to indemnify or insure under
the provisions of the Georgia Business Corporation Code or otherwise. The
Corporation may, in its sole discretion, indemnify or insure, or both, an
employee, trustee or other agent as permitted by the Georgia Business
Corporation Code. The Corporation shall indemnify or insure any employee,
trustee or other agent where required by law.
12.9 Survival of Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Article XII shall continue as to a person who has ceased to be an Agent
and shall inure to the benefit of the heirs, executors and administrators
of such Agent.
12.10 Savings Clause. If this Article XII or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify each Agent against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether internal or
external, including a grand jury proceeding and an action or suit brought
by or in the right of the Corporation, to the full extent permitted by any
applicable portion of this Article XII that shall not have been
invalidated or by any other applicable law.
ARTICLE XIII
AMENDMENTS
Unless otherwise provided by law, the Articles of Incorporation or
another provision of these Bylaws, these Bylaws may be amended or repealed
either:
(a) at any meeting of stockholders at which a quorum is
present by vote of the holders of a majority of the number of
shares of stock entitled to vote present in person or by proxy at
such meeting as provided in Article II, Sections 2.4 and 2.5 of
these Bylaws, or
(b) at any meeting of the Board of Directors by a majority
vote of the directors then in office;
provided the notice of such meeting of stockholders or directors or waiver
of notice thereof contains a statement of the substance of the proposed
amendment or repeal.
