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.
EMPLOYEE STOCK PURCHASE 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 25,000 $8.00(2) $200,000(3) $100
Stock, shares(1)
$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 Employee Stock Purchase 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 & 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 25,000 (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. Employee Stock Purchase
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
