As filed with the Securities and Exchange Commission on August 30, 1995
Registration No. 33-_____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FIRST GEORGIA HOLDING, INC.
(Exact name of Registrant as specified in its charter)
GEORGIA 58-1781773
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1703 Gloucester Street, Brunswick, Georgia 31520
(Address of principal executive offices and zip code)
FIRST GEORGIA HOLDING, INC.
1995 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Kathryn L. Knudson, Esq.
Powell, Goldstein, Frazer & Murphy
191 Peachtree Street, N.E., 16th Floor
Atlanta, Georgia 30303
(Name and address of agent for service)
(404) 572-6600
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
-------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- --------------------------------------------------------------------------------
Common 130,000 $8.00(2) $1,040,000(3) $358.62
Stock, shares
$1.00 par value
- --------------------------------------------------------------------------------
(1) Representing shares to be issued and sold by the Registrant
upon the exercise of options granted or to be granted under the First
Georgia Holding, Inc. 1995 Stock Incentive Plan (the "Plan"). This
Registration Statement also covers such indeterminable number of
additional shares as may become issuable to prevent dilution in the
event of a stock split, stock dividend, reclassification or other similar
transaction pursuant to the terms of the Plan.
(2) The average of the high and low prices of the Registrant's
Common Stock as reported by the Nasdaq National Market for August 29, 1995.
(3) The aggregate offering price is calculated solely for the purpose
of determining the registration fee pursuant to Rule 457(h)(1) under the
Securities Act of 1933, as amended.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of
the Instructions to the Registration Statement on Form S-8 will be sent
or given to employees of the Registrant as required by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-KSB for the
fiscal year ended September 30, 1994 (File No. 0-16657);
(2) The Registrant's Quarterly Report on Form 10-QSB for
the quarter ended December 31, 1994 (File No. 0-16657);
(3) The Registrant's Quarterly Report on Form 10-QSB for
the quarter ended March 31, 1995 (File No. 0-16657);
(4) The Registrant's Quarterly Report on Form 10-QSB for
the quarter ended June 30, 1995 (File No. 0-16657);
(5) The description of the Registrant's Common Stock
contained in the Registrant's Registration Statement filed pursuant to
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act")
(File No. 0-16657).
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment that indicates that all securities
offered hereby have been sold or that deregisters all such securities then
remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing
of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14-2-851 of the Georgia Business Corporation Code
provides that a corporation may indemnify its directors and officers
against civil and criminal liabilities. Directors and officers may be
indemnified against expenses if they acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interest of the
corporation, if they have not been adjudged liable on the basis of the
improper receipt of a personal benefit and, with respect to any criminal
action, if they had no reasonable cause to believe their conduct was
unlawful. A director or officer may be indemnified against expenses
incurred in connection with a derivative suit if he or she acted in good
faith and in a manner reasonably believed to be in or not opposed to the
best interest of the corporation, except that no indemnification may be
made without court approval if such person was adjudged liable for
negligence or misconduct in the performance of his or her duty to the
corporation. Statutory indemnification is not exclusive of any rights
provided by any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise.
The Registrant's Bylaws provide that directors and officers of the
Registrant will be indemnified by the Registrant against all actual
expenses and liabilities reasonably incurred in connection with service
for or on behalf of the Registrant to the extent they are successful on the
merits of the case. Indemnification is permitted, but not required, in all
other cases under the circumstances set forth in the Georgia Business
Corporation Code and described above. A director or officer will not be
entitled to indemnification if (i) such director or officer is adjudged guilty
of or liable for gross negligence in the performance of his or her duties;
(ii) such director or officer is adjudged guilty of or liable for willful
misconduct or criminal acts in connection with the performance of his or
her duties; or (iii) the action or suit giving rise to the director's or
officer's liability is settled in a way not meeting the requirements set forth
in the Registrant's Bylaws. The Bylaws also provide that the right of
directors and officers to indemnification is not exclusive of any other
right now possessed or hereafter acquired under any statute, agreement or
otherwise.
The Registrant's Articles of Incorporation provide that directors of
the Registrant will not be personally liable for monetary damages to the
Registrant or its shareholders for breaches of their fiduciary duty as
directors, except for (i) any appropriation, in violation of a director's
duties, of any business opportunity of the Registrant; (ii) any acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) liability arising in connection with a director
taking the types of actions described in Section 14-2-640(c), or any
successor section thereto, of the Official Code of Georgia Annotated
(pertaining to illegal distributions to shareholders); or (iv) any transaction
from which a director derives an improper material tangible personal
benefit. This provision applies only to claims against a director arising
out of his or her role as a director and not in any other capacity (such as
an officer or employee of the Registrant).
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Commission
such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference
into this Registration Statement pursuant to Item 601 of Regulation S-K:
EXHIBIT
NO. DESCRIPTION
4(a) Articles of Incorporation of the Registrant
(incorporated herein by reference to
Appendix B to the Proxy Statement and
Prospectus contained in the Registrant's
Registration Statement on Form S-4 as
filed with the Securities and Exchange
Commission on December 18, 1987
(Reg. No. 33-19150)).
4(b) Bylaws of the Registrant
5 Opinion of counsel with respect to the
securities being registered.
23(a) Consent of counsel (included in Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (see signature pages to this
Registration Statement).
ITEM 9 UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to
such information in the Registration Statement;
PROVIDED, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Brunswick, State of Georgia, on
this the 30th day of August, 1995.
FIRST GEORGIA HOLDING, INC.
By: HENRY S. BISHOP
Henry S. Bishop
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Henry S. Bishop and G. F. Coolidge, III
as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each of said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing required or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or their substitutes, could lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below on August 30, 1995 by
the following persons in the capacities indicated.
HENRY S. BISHOP President and Director (principal
Henry S. Bishop executive officer)
B. W. BOWIE Director
B. W. Bowie
TERRY DRIGGERS Director
Terry Driggers
ROY HODNETT Director
Roy Hodnett
HUBERT W. LANG, JR. Director
Hubert W. Lang, Jr.
E. RAYMOND MOCK Director
E. Raymond Mock
JAMES D. MOORE Director
James D. Moore
WILLIAM P. PORTMAN Director
William P. Portman
D. LAMONT SHELL Director
D. Lamont Shell
G. F. COOLIDGE, III Senior Vice President and Chief
G. F. Coolidge, III Financial Officer (principal financial and
accounting officer)
EXHIBIT INDEX
EXHIBIT PAGE
NO. DESCRIPTION NO.
4(a) Articles of Incorporation of the Registrant
(incorporated herein by reference to Appendix B
to the Proxy Statement and Prospectus contained
in the Registrant's Registration Statement on Form
S-4 as filed with the Securities and Exchange
Commission on December 18, 1987 (Reg. No. 33-19150)).
4(b) Bylaws of the Registrant 9
5 Opinion of counsel with respect to the securities
being registered. 10
23(a) Consent of counsel (included in Exhibit 5). 11
23(b) Consent of KPMG Peat Marwick LLP, independent
accountants. 12
24 Power of Attorney (see signature pages to this
Registration Statement).
EXHIBIT 4(b)
Changes from Meeting of September 19, 1994:
BY-LAWS
FIRST GEORGIA HOLDING, INC.
INDEX
PAGE
ARTICLE ONE-OFFICES........................................ 4
ARTICLE TWO- SHAREHOLDERS' MEETING......................... 4
2.1 Annual Meeting................................... 4
2.2 Special Meetings................................. 4
2.3 Place............................................ 4
2.4 Notice........................................... 4
2.5 Quorum........................................... 5
2.6 Proxies; Required Vote........................... 5
2.7 Presiding Officer and Secretary.................. 5
2.8 Shareholder List................................. 5
2.9 Action in Lieu of Meeting........................ 5
ARTICLE THREE-DIRECTORS.................................... 6
3.1 Management....................................... 6
3.2 Number of Directors.............................. 6
3.3 Vacancies........................................ 6
3.4 Election of Directors........................... 6
3.5 Removal.......................................... 6
3.6 Resignation...................................... 6
3.7 Compensation..................................... 7
3.8 Honorary and Advisory Directors.................. 7
3.9 Retirement Age of Directors...................... 7
ARTICLE FOUR-COMMITTEES.................................. 7
4.1 Executive Committee............................. 8
4.2 Other Committees................................ 8
4.3 Removal......................................... 9
ARTICLE FIVE-MEETINGS OF THE BOARD OF DIRECTORS........... 9
5.1 Time and Place.................................. 9
5.2 Regular Meetings................................ 9
5.3 Special Meetings................................ 9
5.4 Content and Waiver of Notice.................... 9
5.5 Quorum; Participation by Telephone.............. 9
5.6 Action in Lieu of Meeting....................... 10
5.7 Interested Directors and Officers............... 10
ARTICLE SIX-OFFICERS, AGENTS, AND EMPLOYEES............... 10
6.1 General Provisions.............................. 10
6.2 Powers and Duties of the Chairman of the
Board and the President......................... 11
6.3 Powers and Duties of Vice Presidents............ 12
6.4 Powers and Duties of the Secretary.............. 12
6.5 Powers and Duties of the Treasurer.............. 12
6.6 Appointment, Powers and Duties of
Assistant Secretaries........................... 12
6.7 Appointment, Powers and Duties of
Assistant Treasurers............................ 13
6.8 Delegation of Duties............................ 13
ARTICLE SEVEN-CAPITAL STOCK............................... 13
7.1 Certificates.................................... 13
7.2 Shareholder List................................ 14
7.3 Transfer of Shares............................. 14
7.4 Record of Dates................................ 14
7.5 Registered Owner............................... 15
7.6 Transfer Agent and Registrars.................. 15
7.7 Lost Certificates.............................. 15
7.8 Fractional Shares or Scrip..................... 15
ARTICLE EIGHT-BOOKS AND RECORDS; SEAL; ANNUAL STATEMENTS. 16
8.1 Inspections of Books and Records................ 16
8.2 Seal............................................ 17
8.3 Annual Statements............................... 17
ARTICLE NINE-IDENTIFICATION............................... 17
9.1 Permissive Indemnification...................... 17
9.2 Permissive Indemnification-Derivative Actions... 18
9.3 Mandatory Indemnification....................... 18
9.4 Standard of Conduct............................. 18
9.5 Expenses Advanced............................... 18
9.6 Indemnification Not Exclusive................... 19
9.7 Insurance....................................... 19
9.8 Shareholder Notification........................ 19
9.9 Survival of Indemnification..................... 20
ARTICLE TEN-NOTICES; WAIVERS OF NOTICE.................... 20
10.1 Notices......................................... 20
10.2 Waivers of Notice............................... 20
ARTICLE ELEVEN-EMERGENCY POWERS........................... 20
11.1 Bylaws.......................................... 20
11.2 Lines of Succession............................. 21
11.3 Head Office..................................... 21
11.4 Period of Effectiveness......................... 21
11.5 Notices......................................... 21
11.6 Officers as Directors Pro Tempore............... 21
11.7 Liability of Officers, Directors and Agents..... 21
ARTICLE TWELVE-CHECKS, NOTES, DRAFTS, ETC.................. 21
ARTICLE THIRTEEN-AMENDMENTS................................ 22
BY LAWS
OF
FIRST GEORGIA HOLDING, INC.
ARTICLE ONE
OFFICES
The corporation shall at all times maintain its
principal office in Brunswick, Georgia, its registered
office in the State of Georgia and its registered
agent at that address, but it may have other offices
within or outside the State of Georgia as the Board of
Directors may determine.
ARTICLE TWO
SHAREHOLDERS' MEETINGS
2.1 Annual Meeting. A meeting of shareholders
of the corporation shall be held annually, within six
(6) months after the end of each fiscal year of the
corporation. The annual meeting shall be held at such
time and place and on such date as the Directors shall
determine from time to time and as shall be specified
in the notice of the meeting.
2.2 Special Meetings. Special meetings of the
shareholders may be called at any time by the
corporation's Board of Directors, its President, and
by the corporation upon the written request of any
three or more shareholders, owning an aggregate of not
less than twenty-five percent of the outstanding
capital stock of the corporation. Special meetings
shall be held at such a time and place and on such
date as shall be specified in the notice of the
meeting.
2.3 Place. Annual or special meetings of
shareholders may be held within or without the State
of Georgia.
2.4 Notice. Notice of annual or special
shareholders meetings stating the place,day, and hour
of the meeting shall be given in writing not less than
ten (10) nor more than fifty (50) days before the date
of the meeting, either mailed to the last known
address or personally given to each shareholder.
Notice of any special meeting of shareholders shall
state the purpose or purposes for which the meeting is
called. The notice of any meeting at which amendments
to or restatements of the articles of incorporation,
merger or consolidation of the corporation, or the
disposition of corporate assets requiring shareholder
approval are to be considered shall state such
purpose, and shall further comply with all
requirements of law. Notice of a meeting may be
waived by an instrument in writing executed before or
after the meeting. The waiver need not specify the
purpose of the meeting
4
or the business transacted, unless one of the purposes
of the meeting concerns a plan or merger or
consolidation, in which event the waiver shall comply
with the further requirements of law concerning such
waivers. Attendance at such meeting in person or by
proxy shall constitute a waiver of notice thereof.
2.5 Quorum. At all meetings of shareholders a
majority of the outstanding shares of stock shall
constitute a quorum for the transaction of business,
and no resolution or business shall be transacted
without the favorable vote of the holders of a
majority of the shares represented at the meeting and
entitled to vote. A lesser number may adjourn from
day to day, and shall announce the time and place to
which the meeting is adjourned.
2.6 PROXIES; REQUIRED VOTE. At every meeting of
the shareholders, including meetings of shareholders
for the election of Directors, any shareholder having
the right to vote shall be entitled to vote in person
or by proxy, but no proxy shall be voted after eleven
months from its date, unless said proxy provides for a
longer period. Each shareholder shall have one vote
for each share of stock having voting power,
registered in his name on the books of the
corporation. If a quorum is present, the affirmative
vote of the majority of the shares represented at the
meeting and entitled to vote on the subject matter
shall be the act of the shareholders, except as
otherwise provided by law, by the Articles of
Incorporation or by these By-laws.
2.7 Presiding Officer and Secretary. At every
meeting of shareholders, the Chairman or the President
, or, if such officers shall not be present, then the
person appointed by one of them shall preside. The
Secretary or an Assistant Secretary, or if such
officers shall not be present, the appointee of the
presiding officer of the meeting, shall act as
secretary of the meeting.
2.8 Shareholder List. The officer or agent having
charge of the stock transfer books of the corporation
shall produce for inspection of any shareholder at,
and continuously during, every meeting of the
shareholders, a complete alphabetical list of
shareholders showing the address and share holdings of
each shareholder. If the record of shareholders
readily shows such information, it may be produced in
lieu of such a list.
2.9 Action in Lieu of Meeting. Any action to be
taken at a meeting of the shareholders of the
corporation, or any action that may be taken at a
meeting of the shareholders, may be taken without a
meeting if a consent in writing setting forth the
action so taken shall be signed by all of the
shareholders entitled to vote with respect to the
subject matter thereof and upon compliance with any
further requirements of law pertaining to such
consents.
ARTICLE THREE
DIRECTORS
3.1 Management. Subject to these By-laws, or any
lawful agreement between the shareholders, the full
and entire management of the affairs and business of
the corporation shall be vested in the Board of
Directors, which shall have and may exercise all of
the powers that may be exercised or performed by the
corporation.
3.2 Number of Directors. The Board of Directors
shall consist of no fewer than seven and no more than
fifteen members.
3.3 Vacancies. The Directors may fill the place
of any Director which may become vacant prior to the
expiration of such
Director's term, such appointment by the Directors to
continue until the expiration of the term of the
Director whose place has become vacant.
3.4 Election of Directors. The Board of
Directors, when it consists of nine or more members,
shall be divided into three (3) classes, Class I,
Class II, and Class III, which shall be as nearly
equal in number as possible. Each Director in Class I
shall be elected to an initial term of one (1) year,
each Director in Class II shall be elected to an
initial term of two (2) years and each Director in
Class III shall be elected to an initial term of three
(3) years, and each Director shall serve until the
election and qualification of his successor or until
his or her earlier resignation, death, or removal from
office. Upon the expiration of the initial terms of
office for each Class of Directors, the Directors of
each Class shall be elected for terms of three (3)
years, to serve until the election and qualification
of their successors or until their earlier
resignation, death, or removal from office.
3.5 Removal. Any Director may be removed from
office, at a meeting with respect to which notice of
such purpose is given (a) without cause, only upon the
affirmative vote of the holders of at least two-thirds
of the issued and outstanding shares of the
corporation, and (b) with cause, only upon the
affirmative vote of the holders of a majority of the
issued and outstanding shares of the corporation.
3.6 Resignation. Any Director may resign at any
time either orally at any meeting of the Board of
Directors or by so advising the Chairman of the Board
or the President or by giving written notice to the
corporation. A Director who resigns may postpone the
effectiveness of his or her resignation to a future
date or upon the occurrence of a future event
specified in a written tender of resignation. If no
time of effectiveness is specified therein, a
resignation shall be effective upon tender.
A vacancy shall be deemed to exist at the time a
resignation is tendered, and the Board of Directors or
the shareholders may, then or thereafter, elect a
successor to take office when the resignation by its
terms becomes effective.
3.7 Compensation. Directors may be allowed such
compensation for their services as Directors as may
from time to time be fixed by vote of the Board of
Directors.
3.8 Honorary and Advisory Directors. When a
Director of the corporation retires under the
retirement policies of the corporation as established
from time to time by the board of Directors, such
Director automatically shall become an Honorary
Director of the corporation following his retirement.
The Board of Directors of the corporation following
also may appoint any individual an Honorary Director,
Director Emeritus, or member of any advisory board
established by the Board of Directors. Any individual
automatically becoming an Honorary Director or
appointed an Honorary Director, Director Emeritus, or
member of an advisory board as provided in Section
3.7, but such individual may not vote at any meeting
of the Board of Directors or be counted in determining
a quorum as provided in Section 5.5 and shall not have
any responsibility or be subject to any liability
imposed upon a Director, or otherwise be deemed a
Director.
3.9 Retirement Age of Directors. No person 75
years of age or above shall be eligible for election,
reelection, appointment or reappointment to the Board
of the Corporation. No Director shall serve as such
beyond the annual meeting of the Corporation
immediately following the Director becoming aged 75,
except that a Director serving on the date these
Bylaws are amended may complete the term as a
Director. Such person having reached the age of 75
shall automatically become a Director Emeritus. A
Director of the Corporation may opt to retire at age
70, and shall automatically become a Director
Emeritus.
ARTICLE FOUR
COMMITTEES
4.1 Executive Committee. (a) The Board of
Directors may, by resolution adopted by a majority of
the entire Board, designate an Executive Committee
consisting of two or more Directors. Each Executive
Committee shall hold office until the first meeting of
the Board of Directors after the annual meeting of
shareholders and until the member's successor is
elected and qualified, or until the member's death,
resignation or removal, or until the member shall
cease to be a director.
(b) During the intervals between the meetings of
the Board of Directors, the Executive Committee may
exercise all the authority of the Board of Directors;
provided, however, that the Executive Committee shall
not have the power to amend or repeal any resolution
of the Board of Directors that by its terms shall not
be subject to amendment or repeal by the Executive
Committee, and the Executive Committee shall not have
the authority of the Board of Directors in reference
to (i) the amendment of the Articles of Incorporation
or By-laws of the corporation; (ii) the adoption of a
plan of merger or consolidation; (iii) the sale,
lease,
exchange or other disposition of all or substantially
all the property and assets of the corporation; or
(iv) a voluntary
dissolution of the corporation of the revocation of
any such voluntary dissolution.
(c) The Executive Committee shall meet from time
to time on call of the Chairman of the Board or the
President or of any two or more members of the
Executive Committee. Meetings of the Executive
Committee may be held at such place or places, within
or without the State of Georgia, as the Executive
Committee shall determine or as may be specified or
fixed in the respective notices or waivers of such
meetings. The Executive Committee may fix its own
rules of procedure, including provision for notice of
its meetings. It shall keep a record of its
proceedings and shall report these proceedings to the
Board of Directors at the meeting thereof held next
after they have been taken, and 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.
(d) The Executive Committee shall act by majority
vote of its members; provided, however, that contracts
or transactions of and by the corporation in which
officers or Directors of the corporation are
interested shall require the affirmative vote of a
majority of the disinterested members of the Executive
Committee at a meeting of the Executive Committee at
which the material facts as to the interest and as to
the contract or transaction are disclosed or known to
the members of the Executive Committee prior to the
vote.
(e) Members of the Executive Committee may
participate in committee proceedings by means of
conference telephone or similar communications
equipment by means of which all persons participating
in the proceedings can hear each other, and such
participation shall constitute presence in person at
such proceedings.
(f) The Board of Directors, by resolution adopted
in accordance with paragraph (a) of this section, may
designate one or more Directors as alternate members
of the Executive Committee who may act in the place
and stead of any absent member or members at any
meeting of said committee.
4.2 Other Committees. The Board of Directors, by
resolution adopted by a majority of the entire Board,
may designate one or more of the Directors of the
corporation, which shall have such name or names and
shall have and may exercise such powers of the Board
of Directors, except the powers denied to the
Executive Committee, as may be determined from time to
time by the Board of Directors. Such committees shall
provide for their own rules of procedure, subject to
the same restrictions thereon as provided above for
the Executive Committee.
4.3 Removal. The Board of Directors shall have
power at any time to remove any member of any
committee, with or without cause, and to fill
vacancies in and to dissolve any such committee.
ARTICLE FIVE
MEETINGS OF THE BOARD OF DIRECTORS
5.1 Time and place. Meetings of the Board of
Directors may be held at any place either within or
without the State of Georgia. Each newly elected
Board of Directors shall meet immediately following
the close of the annual meeting of shareholders and at
the place thereof, or such newly elected Board of
Directors may hold such meeting at such place and time
as shall be fixed by the consent in writing of all the
Directors. In any such case, no notice of such
meeting to the newly elected Directors shall be
necessary in order legally to constitute the meeting.
5.2 Regular Meetings. Regular meetings of the
Board of Directors may be held without notice at such
time and place, within or without the State of
Georgia, as shall be determined by the Board of
Directors from time to time.
5.3 Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman of the
Board or the President on not less than three days'
notice by mail, telegram, cablegram, personal delivery
or telephone to each Director and shall be called by
the Chairman of the Board or the President in like
manner and on like notice on the written request of
any two or more Directors. Any such special meeting
shall be held at such time and place, within or
without the State of Georgia, as shall be stated in
the notice of the meeting.
5.4 Content and waiver of notice. No notice of any
meeting of the Board of Directors need state the
purposes thereof. Notice of any meeting may be waived
by an instrument in writing executed before or after
the meeting. Attendance in persons at any such
meeting shall constitute a waiver of notice thereof.
5.5 Quorum; Participation by Telephone. At all
meetings of the Board of Directors, the presence of a
majority of the authorized number of Directors shall
be necessary and sufficient to constitute a quorum for
the transaction of business. Directors may
participate in any meeting by means of conference
telephone or similar communications equipment by means
of which all persons participating in the meeting can
hear each other, and participation in a meeting by
means of such communications
equipment shall constitute the presence in person at
such meeting. Except as may be otherwise specifically
provided by law, the Articles of Incorporation or
these By-laws, all resolutions adopted and all
business transacted by the Board of Directors shall
require the affirmative vote of a majority of the
Directors present at the meeting. In the absence of a
quorum, a majority of the Directors present at any
meeting may adjourn the meeting at which the
adjournment is taken.
5.6 Action in Lieu of Meeting. Any action
required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereto is
signed by all members of the Board of Directors or of
such committee, as the case may be, and such written
consent is filed with the minutes of the proceedings
of the Board of Directors and upon compliance with any
further requirements of law pertaining to such
consents.
5.7 Interested Directors and Officers. An
interested Director or officer is one who is a party
to a contract or transaction with the corporation or
who is an officer or Director of, or has a financial
interest in, another corporation, partnership or
association which is a party to a contract or
transaction with the corporation. Contracts and
transactions between the corporation and one or more
interested Directors of officers shall not be void or
voidable solely because of the involvement or vote of
such interested persons as long as (a) the contract or
transaction is approved in good faith by the Board of
Directors or appropriate committee, by the affirmative
votes of majority of disinterested Directors, even if
the disinterested Directors be less than a quorum, at
a meeting of the Board or committee at which the
material facts as to the interested person or persons
and the contract or transaction has been disclosed to
them; or
(c) the contract or transaction is fair as to the
corporation as of the time it is authorized, approved
or ratified by the Board, committee, or shareholders.
Interested Directors may be counted in determining
the presence of a quorum at a meeting of the Board or
committee which authorizes the contract or
transaction.
ARTICLE SIX
OFFICERS, AGENTS, AND EMPLOYEES
6.1 General Provisions. The Officers of the
corporation shall be a President, a Secretary, and a
Treasurer, and may include a Chairman of the Board,
one or more Vice Presidents, one or more Assistant
Secretaries, and one or more Assistant Treasurers.
The officers shall be elected by the Board of
Directors at the first meeting of the shareholders in
each year or shall be appointed
as provided in these By-laws. The Board of Directors
may elect other officers, agents, and employees, who
shall have such authority and perform such duties as
may be prescribed by the Board of Directors. All
officers shall hold office until the meeting of the
Board of Directors following the next annual meeting
of the shareholders after their election or
appointment and until their successors shall have been
elected or appointed and shall have qualified. Any
two or more offices may be held by the same person,
except the offices of President and Secretary. Any
officer, agent or employee of the corporation may be
removed by the Board of Directors with or without
cause. Removal without cause shall be without
prejudice to such person's contract rights, if any,
but the election or appointment of any person as an
officer, agent or employee of the corporation shall
not of itself create contract rights. The
compensation of officers,agents, and employees elected
by the Board of Directors shall be fixed by the Board
of Directors or by a committee thereof, and this power
may also be delated to any officer, agent or employee
as to persons under his direction or control
The Board of Directors may require any officer, agent,
or employee to give security for the faithful
performance of his duties.
6.2 Powers and Duties of the Chairman of the Board
and the President. The powers and duties of the
Chairman of the Board and the President, subject to
the supervision and control of the Board of Directors,
shall be those usually appertaining to their
respective offices and whatever other powers and
duties are prescribed by these By-laws or by the Board
of Directors.
(a) The Chairman of the Board shall, in the absence
of the President, preside at all meetings of the Board
of Directors and at all meetings of the shareholders.
(b) The President shall, unless otherwise provided
by the Board of Directors, be the chief executive
officer of the corporation. The President shall
preside at all meetings of the Board of Directors and
at all meetings of the shareholders. The President
shall have general charge of the business and affairs
of the corporation and shall keep the Board of
Directors fully advised. He or she shall employ and
discharge employees and agents of the corporation,
except such as shall be elected by the Board of
Directors, and he may delegate these powers. He or
she shall have such powers and perform such duties as
generally pertain to the office of the President, as
well as such further powers and duties as may be
prescribed by the Board of Directors. The President
may vote the shares or other securities of any other
domestic or foreign corporation of any type or kind
which may at any time be owned by the corporation, may
execute
any shareholders' or other consents in respect thereof
and may in his or her discretion delegate such powers
by executing proxies, or otherwise, on behalf of the
corporation. The Board of Directors by resolution
from time to time, may confer like powers upon any
other person or persons.
6.3 Powers and Duties of Vice Presidents. Each Vice
President shall have such powers and perform such
duties as the Board of Directors or the President may
prescribe and shall perform such other duties as may
be prescribed by these By-laws. In the absence or
inability to act of the President, unless the Board of
Directors shall otherwise provide, the Vice President
who has served in that capacity for the longest time
and who shall be present and able to act, shall
perform all duties and may exercise any of the powers
of the President. The performance of any such duty by
a Vice President shall be conclusive evidence of his
or her power to act.
6.4 Powers and Duties of the Secretary. The
secretary shall have charge of the minutes of all
proceedings of the shareholders and of the Board of
Directors and shall keep the minutes of all their
meetings at which he or she is present. Except as
otherwise provided by these By-laws, the secretary
shall attend to the giving of all notices to
shareholders and Directors. He or she shall have
charge of the seal of the corporation, shall attend to
its use on all documents the execution of which on
behalf of the corporation under its seal is duly
authorized and shall attest the same by his or her
signature whenever required. The Secretary shall have
charge of the record of shareholders of the
corporation, of all written requests by shareholders
that notices be mailed to them at an address other
than their addresses on the record of shareholders,
and of such other books and papers as the Board of
Directors may direct. Subject to the control of the
Board of Directors, the Secretary shall have all such
powers and duties as generally are incident to the
position of Secretary or as may be assigned to the
Secretary by the President or the Board of Directors.
6.5 Powers and Duties of the Treasurer. The
Treasurer shall have charge of all funds and
securities of the corporation, shall endorse the same
for deposit or collection when necessary and deposit
the same to the credit of the corporation in such
banks or depositaries as the Board of Directors may
authorize. The Treasurer may endorse all commercial
documents requiring endorsements for or on behalf of
the corporation and may sign all receipts and all
commercial documents requiring endorsements for or on
behalf of the corporation and may sign all receipts
and vouchers for payment made to the corporation. The
Treasurer shall have all such powers and duties as
generally are incident
to the position of Treasurer or as may be assigned to
the Treasurer by the President or by the Board of
Directors.
6.6 Appointment, Powers, and Duties of assistant
Secretaries. Assistant Secretaries may be appointed
by the President or elected by the Board of Directors.
In the absence or inability of the Secretary to act,
any Assistant Secretary may perform all the duties and
exercise all the powers of the Secretary. The
performance of any such duty shall be conclusive
evidence of the Assistant Secretary's power to act.
An Assistant Secretary shall also perform such other
duties as the Secretary or the Board of Directors may
assign to him or her.
6.7 Appointment, Powers and Duties of Assistant
Treasurers.
Assistant Treasurers may be appointed by the President
or elected by the Board of Directors. In the absence
or inability of the Treasurer to act, an Assistant
Treasurer may perform all the duties and exercise all
the powers of the Treasurer. The performance of any
such duty shall be conclusive evidence of the
Assistant Treasurer's power to act. An Assistant
Treasurer shall also perform such other duties as the
Treasurer or the Board of Directors may assign to him
or her.
6.8 Delegation of Duties. In case of the absence of
any officer of the corporation, or for any other
reason that the Board of Directors may deem
sufficient, the Board of Directors(or in the case of
Assistant Secretaries or Assistant Treasurers only,
the President) may confer for the time being the
powers and duties, or any of them, of such officer
upon any other officer provided that the powers and
duties of the President may not be conferred upon the
Secretary, and vice versa), or elect or appoint any
new officer to fill a vacancy created by death,
resignation, retirement, or termination of any
officer. In such
latter event such new officer shall serve until the
next annual election of officers.
ARTICLE SEVEN
CAPITAL STOCK
7.1 Certificates. (a) The interest of each
shareholder shall be evidenced by a certificate or
certificates representing shares of the corporation
which shall be in such form as the Board of Directors
may from time to time adopt and shall be numbered and
shall be entered in the books of the corporation as
they are issued. Each certificate representing shares
shall set forth upon the face thereof the following:
(i) the name of this corporation;
(ii) that the corporation is organized under
the laws of the State of Georgia;
(iii) the name or names of the person or persons
to whom the certificate is issued;
(iv) the number and class of shares, and the
designation of the series, if any, which the
certificate represents;
(v) the par value of each share represented by
such certificate, or a statement that the shares are
without par value; and
(vi) if any shares represented by the
certificate are nonvoting shares, a statement or
notation to that effect; and, if the shares
represented by the certificate are subordinate to
shares of any other class or series with respect to
dividends or amounts payable on liquidation, the
certificate shall further set forth on either the face
or back thereof a clear and concise statement to that
effect.
(b) Each certificate shall be signed by the
President or a Vice President and the Secretary or an
Assistant Secretary and may be sealed with the seal of
the corporation or a facsimile thereof. If a
certificate is countersigned by a transfer agent or
registered by a registrar, other than the corporation
itself or an employee of the corporation, the
signature of any such officer of the corporation may
be a facsimile. In case any officer or officers who
shall have signed, or whose facsimile signature or
signatures shall have been used on, any such
certificate or certificates shall cease to be such
officer or officers of the corporation, whether
because of death, resignation or otherwise, before
such certificate or certificates shall have been
delivered by the corporation, such certificate or
certificates may nevertheless be delivered as though
the person or persons who signed such certificate or
certificates or whose facsimile signatures shall have
been used thereon had not ceased to be such officer or
officers.
7.2 Shareholder List. The corporation shall keep
or cause to be kept a record of the shareholders of
the corporation which readily shows, in alphabetical
order or by alphabetical index, and by classes or
series of stock, if any, the names of the shareholders
entitled to vote, with the address of and the number
of shares held by each. Said record shall be
presented and kept open at all meetings of the
shareholders.
7.3 Transfer of Shares. Transfers of stock shall
be made on the books of the corporation only by the
person named in the
certificate, or by power of attorney lawfully
constituted in writing, and upon surrender of the
certificate, or in the case of a certificate alleged
to have been lost, stolen or destroyed upon compliance
with the provisions of Section 7.7 of these By-laws.
7.4 Record Dates. (a) For the purpose of
determining shareholders entitled to notice of or to
vote at any meeting of
shareholders or any adjournment thereof, or entitled
to receive payment of any dividend, or in order to
make a determination of
shareholders for any other proper purpose, the Board
of Directors may provide that the stock transfer books
shall be closed for a stated period but not to exceed
fifty days. If the stock transfer books shall be
closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for a least
ten days immediately preceding such meeting.
(b) In lieu of closing the stock transfer books,
the Board of Directors may fix in advance a date as
the record date for any such determination of
shareholders, such date to be not more than fifty days
and, in case of a meeting of shareholders, not less
than ten days, prior to the date on which the
particular action requiring such determination of
shareholders is to be taken.
7.5 Registered Owner. The corporation shall be
entitled to treat the holder of record of any share of
stock of the corporation as the person entitled to
vote such share, to receive any dividend or other
distribution with respect to such share, and for all
other purposes and accordingly shall not be bound to
recognize any equitable or other claim or interest in
such share on the part of any other person, whether or
not it shall have express or other notice thereof,
except as otherwise provided by law.
7.6 Transfer Agent and Registrars. The Board of
directors may appoint one or more transfer agents and
one or more registrars and may require each stock
certificate to bear the signature or signatures of a
transfer agent or a registrar or both.
7.7 Lost Certificates. Any person claiming a
certificate of stock to be lost, stolen, or destroyed
shall make an affidavit or affirmation of the fact in
such manner as the Board of Directors may require and,
if the Directors so require, shall give the
corporation a bond of indemnity in form and amount and
with one or more sureties satisfactory to the Board of
Directors,whereupon an appropriate new certificate may
be used in lieu of the certificate alleged to have
been lost, stolen or destroyed.
7.8 Fractional Shares or Scrip. The corporation
may, when and if authorized so to do by its Board of
Directors, issue certificates for fractional shares or
scrip in order to effect share transfers, share
distributions or reclassifications, mergers,
consolidations, or reorganizations, mergers,
consolidations or reorganizations. Holders of
fractional shares shall be entitled, in proportion to
their fractional holdings, to exercise voting rights,
receive dividends and participate in any
of the assets of the corporation in the event of
liquidation. Holders of scrip shall not, unless
expressly authorized by the Board of Directors, be
entitled to exercise any right of a shareholder of the
corporation, including voting rights, dividend rights
or the right to participate in any assets of the
corporation in the event of liquidation. In lieu of
issuing fractional shares or scrip, the corporation
may pay in cash the fair value of fractional interests
as determined by the Board of Directors; and the Board
of Directors may adopt resolutions regarding rights
with respect to fractional shares or scrip as it may
deem appropriate, including without limitation the
right for persons entitled to receive fractional
shares to sell such fractional shares or purchase such
additional fractional shares as may be needed to
acquire one full share, or sell such fractional shares
or scrip for the account of such persons.
ARTICLE EIGHT
BOOKS AND RECORDS; SEAL; ANNUAL STATEMENTS
8.1 Inspection of Books and Records. (a) Any
person who shall have been a shareholder of record for
at least six months immediately preceding his demand
or who shall be the holder of record of, or authorized
in writing by the holders of record of, at least five
(5%) percent of the outstanding shares of any class or
series of the corporation, upon written demand stating
the purpose thereof, shall have the right to examine
in person or by agent or attorney, at any reasonable
time or times, for any proper purpose, the books and
records of account, minutes and record of
shareholders and to make extracts therefrom.
(b) Any inspection authorized above may be denied
to shareholder or other person upon his refusal to
furnish an affidavit that such inspection is for a
proper purpose and is not desired for a purpose which
is in the interest of a business or object other then
the business of the corporation, that he has not
within the five years preceding the date of the
affidavit sold or offered for sale, and does not now
intend to sell or offer for sale, any list of
shareholders of the corporation or any other
corporation and that he has not within said five-year
period aided or abetted any other person to procure
any list of shareholders for that purpose. The
initiation of a tender offer or other offer to
purchase shares shall not be deemed a proper purpose
hereunder.
(c) If the Secretary or a majority of the
corporation's Board of Directors or Executive
Committee members find that the request is proper, the
Secretary shall notify the shareholder within thirty
days after receipt of said request of the time, which
shall not be more than thirty days after such
notification, and place at which the inspection may be
conducted.
(d) If said request is found by the secretary,
the Board of Directors or the Executive Committee to
be improper, the Secretary shall so notify the
requesting shareholder within thirty days after
receipt of the request. The Secretary shall specify
in said notice the basis for the rejection of the
shareholder's request.
(e) The Secretary, the Board of Directors, and the
Executive Committee shall at all times be entitled to
rely on the corporate records in making any
determination hereunder.
8.2 Seal. The corporate seal shall be in such form
as the Board of Directors may from time to time
determine. In the event it is inconvenient to use
such a seal at any time, the signature of the
corporation followed by the word "Seal" enclosed in
parentheses or scroll shall be deemed the seal of the
corporation.
8.3 Annual Statements. Not later then four months
after the close of each fiscal year, and in any case
prior to the next annual meeting of shareholders, the
corporation shall prepare:
(a) A balance sheet showing in reasonable
detail the financial condition of the corporation as
of the close of its fiscal year, and
(b) A profit and loss statement showing the
results of its operations during its fiscal year.
Upon written request, the corporation promptly shall
mail any shareholder of record a copy of its most
recent balance sheet and profit and loss statement.
ARTICLE NINE
INDEMNIFICATION
9.1 Permissive indemnification- Non-derivative
Actions.
Under the circumstances prescribed in Sections 9.3 and
9.4, the corporation shall indemnify and hold harmless
any persons 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 or investigative (other than
an action by or in the right of the corporation) by
reason of the fact that the person is or was a
director, officer, employee, or agent of the
corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid
in settlement actually and reasonably incurred by the
person in connection with such action, suit, or
proceeding if the person acted in a manner he or she
reasonably believed to be in or not opposed to the
best
interests of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not,
of itself create a presumption that (a) the person did
not act in a manner which he or she reasonably
believed to be in or not opposed to the best interests
of the corporation, and with respect to any criminal
action or proceeding, (b) that the person had
reasonable cause to believe that his or her conduct
was unlawful.
9.2 Permissive Indemnification-Derivative Actions.
Under the circumstances prescribed in Sections 9.3
and 9.4, the corporation shall indemnify and hold
harmless any person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor
by reason of the fact that the person is or was a
director, officer, employee, or agent of the
corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including
attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or
settlement of such action or suit if the person acted
in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests
of the corporation except that no indemnification
shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be
liable to the corporation, unless and only to the
extent that the court in which action or suit was
brought shall determine upon application that, despite
the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses
which the court shall deem proper.
9.3 Mandatory indemnification. To the extent that
a director, officer, employee, or agent of the
corporation has been successful on the merits or
otherwise in defense of any action, suit, or
proceeding referred to in Sections 9.1 and 9.2, or in
defense of any claim, issue or matter therein, such
person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
9.4 Standard of Conduct. Except as provided in
Section 9.3 and except as may be ordered by a court,
any indemnification under Sections 9.1 and 9.2 shall
be made by the corporation only as authorized in the
specific case upon a determination that
indemnification of the director, officer, employee, or
agent is proper in the circumstances because such
person has met the applicable standard of conduct set
forth in Sections 9.1 and 9.2.
Such a determination shall be made (a) by the Board of
Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or
proceeding, or (b) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested
directors so directs, by the firm of independent legal
counsel then employed by the corporation, in a written
opinion, or (c) by the affirmative vote of a majority
of the shares entitled to vote thereon.
9.5 Expenses Advanced. Expenses incurred in
defending a civil or criminal action, suit or
proceeding shall be paid by the corporation in advance
of the final deposition of such action, suit or
proceeding upon receipt of an undertaking by or on
behalf of the director, officer, employee, or agent to
repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the
corporation as authorized in this Article Nine.
9.6 Indemnification Not Exclusive. The
indemnification and advancement of expenses provided
by or granted pursuant to this Article Nine shall not
be deemed exclusive of any other rights, in respect of
indemnification or otherwise, to which those seeking
indemnification or advancement of expenses may be
entitled under any by-law, resolution, or agreement
either specifically or in general terms approved by
the affirmative vote of the holders of a majority of
the shares entitled to vote thereon taken at a meeting
the notice of which specified that such by-law,
resolution or agreement would be placed before the
stockholders, both as to action by a director,
officer, employee or agent in his or her official
capacity and as to action in another capacity while
holding such office or position; except that no such
other rights, in respect to indemnification or
otherwise, may be provided or granted to a director,
officer, employee, or agent pursuant to this Section
9.6 by the corporation for liability for (a) any
appropriation, in violation of his duties of any
business opportunity of the corporation; (b) acts or
omissions not in good faith or which involve
intentional misconduct of a knowing violation of law;
(c) the types of liability set forth in Section 14-2-
154 of the Georgia Business Corporation Code dealing
with illegal or unauthorized (i) distributions of
corporate assets, whether as dividends or in
liquidation of the corporation, or otherwise, (ii)
repurchases of stock or (iii) commencement of
business; or (d) any transaction from which the
director derived an improper personal benefit.
9.7 Insurance. The corporation may purchase and
maintain insurance on behalf of any person who is or
was a director,
officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a
director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or
other enterprise, against any liability
asserted against him and incurred by him in any such
capacity, or
arising out of his status as such, whether or not the
corporation
would have the power to indemnify him against such
liability under the provisions of this Article Nine.
9.8 Shareholder Notification. If any expenses or
other amounts are paid by way of indemnification,
otherwise than by court order or action by the
stockholders or by an insurance carrier pursuant to
insurance maintained by the corporation, the
corporation shall, not later than the next annual
meeting of stockholders unless such meeting is held
within three (3) months from the date of such payment,
and, in any event, within 15 months from the date of
such payment, send in accordance with Section 14-2-113
of the Official Code of Georgia annotated to its
stockholders of record at the time entitled to vote
for the election of directors a statement specifying
the persons paid, the amounts paid, and the nature and
status at the time of such payment of the litigation
or threatened litigation.
9.9 Survival of Indemnification. The
indemnification and advancement of expenses provided
by or granted pursuant to this Article Nine shall
continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure
to the benefit of the heirs, executors, and
administrators of such a person.
ARTICLE TEN
NOTICES: WAIVERS OF NOTICE
10.1 Notices. Except as otherwise specifically
provided in these by-laws, whenever under the
provision of these By -laws notice is required to be
given to any shareholder, Director, or officer, it
shall not be construed to mean personal notice, but
such notice may be given by personal notice, by
telegram or cablegram, or by mail by depositing the
same in the post office or letter box in a postage
prepaid sealed wrapper, addressed to such shareholder,
Director or officer at such address as appears on the
books of the corporation, and such notice shall be
deemed to be given at the time when the same shall be
thus sent or mailed.
10.2 Waiver of Notice. Except as otherwise
provided in these By-laws, when any notice is required
to be given by law, by the Articles of Incorporation
or by these By-laws, a written waiver thereof, signed
by the person entitled to notice, whether before or
after the time stated therein, shall be deemed
equivalent to notice. In the case of a shareholder,
such waiver of notice may be signed by the
shareholder's attorney or proxy duly appointed in
writing.
ARTICLE ELEVEN
EMERGENCY POWERS
11.1 By-Laws. The Board of Directors may adopt
emergency by-laws, subject to repeal or change by
action of the shareholders, which shall,
notwithstanding any provision of law, the Articles of
Incorporation or these By-laws, be operative during
any emergency in the conduct of the business of the
corporation resulting from an attack on the United
States or on a locality in which the corporation
conducts its business or customarily holds meeting of
its Board of Directors or its shareholders, or during
any nuclear or atomic disaster, or during the
existence of any catastrophe, or other similar
emergency condition, as a result of which a quorum of
the Board of Directors or a standing committee thereof
cannot readily be convened for action. The emergency
by-laws may make any provision that may be practical
and necessary for the circumstances of the emergency.
11.2 Lines of Succession. The Board of Directors,
either before or during any such emergency, may
provide, and from time to time modify, lines of
succession in the event that during such an emergency
any or all officers or agents of the corporation shall
for any reason be rendered incapable of discharging
their duties.
11.3 Head Office. The Board of Directors, either
before or during any such emergency, may (effective
during the emergency) change the head office or
designate several alternative head offices or regional
offices, or authorize the officers to do so.
11.4 Period of Effectiveness. To the extent not
inconsistent with any emergency by-laws so adopted,
these By-laws shall remain in effect during any such
emergency and upon its termination, the emergency by-
laws shall cease to be operative.
11.5 Notices. Unless otherwise provided in
emergency by-laws, notice of any meeting of the Board
of Directors during any such emergency may be given
only to such of the Directors as it may be feasible to
reach at the time, and by such means as may be
feasible at the time, including publication, radio or
television.
11.6 Officers as Directors Pro Tempore. To the
extent required to constitute a quorum at any meeting
of the Board of Directors during any such emergency,
the officers of the corporation who are present shall,
unless otherwise provided in emergency by-laws, be
deemed, in order of rank and within
the same rank in order of seniority, Directors for
such meeting.
11.7 Liability of Officers, Directors, and Agents.
No officer, Director, agent or employee acting in
accordance with any emergency by-law shall be liable
except for willful misconduct. No officer, Director,
agent or employee shall be liable for any action by
him or her in good faith in such an emergency in
furtherance of the ordinary business affairs of the
corporation even though not authorized by the by-laws
then in effect.
ARTICLE TWELVE
CHECKS, NOTES, DRAFTS, ETC.
Checks, notes, drafts, acceptance, bills of
exchange and other orders or obligations for the
payment of money shall be signed by such officer or
officers or person or persons as the Board of
Directors by resolution shall from time to time
designate.
ARTICLE 13
AMENDMENTS
The By-laws of the corporation may be altered or
amended and new by-laws may be adopted by the
shareholders at any annual or special meeting of the
shareholders or by the Board of Directors at any
regular or special meeting of the Board of Directors;
provided, however, that, if such action is to be taken
at a meeting of the shareholders, notice of the
general nature of the proposed change in the By-laws
shall be given in the notice of meeting. The
shareholders may provide by resolution that any By-law
provision repealed, amended, adopted, or altered by
them may not be repealed, amended, adopted, or altered
by the Board of Directors. Except as otherwise
provided in the Articles of Incorporation, action by
the shareholders with respect to By-laws shall be
taken by an affirmative vote of a majority of all
shares entitled to elect Directors, and action by the
Board of Directors with respect to By-laws shall be
taken by an affirmative vote of a majority of all
Directors then holding office.
EXHIBIT 5
Powell, Goldstein, Frazer & Murphy
191 Peachtree Street, N.E.
Atlanta, GA 30303
(404) 572-6600
August 30, 1995
First Georgia Holding, Inc.
1703 Gloucester Street
Brunswick, Georgia 31521
Re: Registration Statement on Form S-8
First Georgia Holding, Inc.
1995 Stock Incentive Plan
Ladies and Gentlemen:
We have served as counsel for First Georgia Holding, Inc., a
Georgia corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended, pursuant to a
Registration Statement on Form S-8 (the "Registration Statement"), of
an aggregate of 130,000 shares (the "Shares") of common stock, $1.00
par value, of the Company, to be offered and sold by the Company
pursuant to the First Georgia Holding, Inc. 1995 Stock Incentive Plan
(the "Plan").
We have examined and are familiar with originals or copies
(certified, photostatic or otherwise identified to our satisfaction) of such
documents, corporate records and other instruments relating to the
incorporation of the Company and the authorization of the shares to be
issued pursuant to the Plan as we have deemed necessary and
advisable. In such examinations, we have assumed the genuineness of
all signatures on all originals and copies of documents we have
examined, the authenticity of all documents submitted to us as originals
and the conformity to original documents of all certified, conformed or
photostatic copies. As to questions of fact material and relevant to our
opinion, we have relied upon certificates or representations of Company
officials and of appropriate governmental officials.
We express no opinion as to matters under or involving the laws
of any jurisdiction other than the corporate law of the State of Georgia.
Based upon and subject to the foregoing and having regard for
such legal considerations as we have deemed relevant, it is our opinion
that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares payment
therefor as provided in the Plan and as contemplated by
the Registration Statement, such Shares will be legally
and validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY
EXHIBIT 23(b)
The Board of Directors
First Georgia Holding, Inc.:
We consent to incorporation by reference in the registration statement
on Form S-8 of First Georgia Holding, Inc. Stock Incentive Plan of our
report dated November 4, 1994, relating to the consolidated balance
sheets of First Georgia Holding, Inc. and subsidiary as of September 30,
1994, and 1993, and the related consolidated statements of operations,
stockholders' equity, and cash flows for each of the years in the three-
year period ended September 30, 1994, which report appears in the
September 30, 1994 annual report on Form 10-K of First Georgia
Holding, Inc.
KPMG PEAT MARWICK LLP
Atlanta, Georgia
August 28, 1995
