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EXHIBIT 4.2
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AMENDED AND RESTATED BYLAWS
OF
CRESCENT BANKING COMPANY
ARTICLE ONE
Offices and Agent
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Section 1.1. Registered Office and Agent. The Corporation shall maintain a
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registered office in the State of Georgia and shall have a registered agent
whose business office is identical to the registered office.
Section 1.2. Other Offices. In addition to its registered office, the
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Corporation may have offices at any other place or places, within or without the
State of Georgia, as the Board of Directors may from time to time select or as
the business of the Corporation may require or make desirable.
ARTICLE TWO
Shareholders' Meetings
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Section 2.1. Place of Meetings. Meetings of shareholders may be held at any
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place within or without the State of Georgia as set forth in the notice thereof
or in the event of a meeting held pursuant to waiver of notice, as set forth in
the waiver, or if no place is so specified, at the principal office of the
Corporation.
Section 2.2. Annual Meetings. The annual meeting of shareholders shall be
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held on a date and at a time to be determined by the Board of Directors, such
date to be no later than April 30 of each year for the purpose of electing
directors and transacting any and all business that may properly come before the
meeting. If the annual meeting of shareholders is not held within the period
specified in this Section 2.2, any business, including the election of
directors, that might properly have been acted upon at that meeting may be acted
upon at a special meeting in lieu of the annual meeting held pursuant to these
Bylaws or held pursuant to a court order.
Section 2.3. Special Meetings. As provided in the Articles of Incorporation,
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unless otherwise prescribed by law, special meetings of shareholders, for any
purpose or purposes, may be called only by (i) the Chairman of the Board of
Directors of the Corporation, (ii) the President of the Corporation, (iii) the
Secretary of the Corporation at the request in writing of a majority of the
Board of Directors, or (iv) the Secretary of the Corporation at the request in
writing of the holders of at least 66 and 2/3% of the outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors ("Voting Stock") that are not beneficially owned (as defined in the
Articles of Incorporation) by any Interested Shareholder (as defined in the
Articles of Incorporation).
Section 2.4. Notice of Meetings. Unless waived as contemplated in Section
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5.2, a notice of each meeting of shareholders stating the date, time and place
of the meeting shall be given not less than ten (10) days nor more than sixty
(60) days before the date thereof, by or at the direction of the President, the
Secretary, or the officer or persons calling the meeting, to each shareholder
entitled to vote at that meeting. In the case of an annual meeting, the notice
need not state the purpose or purposes of the meeting unless the Articles of
Incorporation or the Georgia Business Corporation Code (the "Corporation Code")
requires the purpose or purposes to be stated in the notice of the meeting. In
the case of a special meeting, including a special meeting in lieu of an annual
meeting, the notice of meeting shall state the purpose or purposes for which the
meeting is called.
Section 2.5. Voting Group. Voting group means all shares of one or more
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classes or series that are entitled to vote and be counted together collectively
on a matter at a meeting of shareholders. All shares entitled to vote generally
on the matter are for that purpose a single voting group.
Section 2.6. Quorum. With respect to shares entitled to vote as a separate
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voting group on a matter at a meeting of shareholders, the presence, in person
or by proxy, of a majority of the votes entitled to be cast on the matter by the
voting group shall constitute a quorum of that voting group for action on that
matter unless the Articles of Incorporation or the Corporation Code provides
otherwise. Once a share is represented for any purpose at a meeting, other than
solely to object to holding the meeting or to transacting business at the
meeting, it is deemed present for quorum purposes for the remainder of
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the meeting and for any adjournment of the meeting unless a new record date is
or must be set for the adjourned meeting pursuant to Section 8.7 of these
Bylaws.
Section 2.7. Vote Required for Action. If a quorum exists, action on a
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matter (other than the election of directors) by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the Articles of Incorporation, provisions of these
Bylaws validly adopted by the shareholders, or the Corporation Code requires a
greater number of affirmative votes. If the Articles of Incorporation or the
Corporation Code provide for voting by two or more voting groups on a matter,
action on that matter is taken only when voted upon by each of those voting
groups counted separately. Action may be taken by one voting group on a matter
even though no action is taken by another voting group entitled to vote on the
matter. With regard to the election of directors, unless otherwise provided in
the Articles of Incorporation, if a quorum exists, action on the election of
directors is taken by a plurality of the votes cast by the shares entitled to
vote in the election.
Section 2.8. Voting of Shares. Unless the Articles of Incorporation or the
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Corporation Code provides otherwise, each outstanding share having voting rights
shall be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. Voting on all matters shall be by voice vote or by show of hands
unless any qualified voter, prior to the voting on any matter, demands vote by
ballot, in which case each ballot shall state the name of the shareholder voting
and the number of shares voted by him, and if the ballot be cast by proxy, it
shall also state the name of the proxy.
Section 2.9. Proper Business at Annual Meetings. At any annual meeting of
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the shareholders, only such business shall be conducted as shall have been
properly brought before such meeting. To be properly brought before the annual
meeting, business must be specified in the notice of the meeting (or any
attachment thereto) given by or at the direction of the Board of Directors, or
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or otherwise properly brought before the meeting by a
shareholder. For business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a shareholder's notice must be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not less than 45 days prior to the month and day of that year
corresponding to the month and day of the previous year which the annual meeting
of shareholders was held (or at least 45 days prior to the date of the annual
meeting for that year if the date of such annual meeting has been publicly
announced by the Corporation at least 60 days in advance of such meeting date).
A shareholder's notice to the Secretary shall set forth as to each matter the
shareholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and record
address of the shareholder proposing such business, (iii) the class and number
of shares of the Corporation which are beneficially owned by the shareholder and
(iv) any material interest of such shareholder in such business. The chairman
of an annual meeting shall, if such facts warrant, determine and declare to the
meeting that such business was not properly brought before the meeting in
accordance with these provisions, and, if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Section 2.10. Proxies. A shareholder entitled to vote pursuant to Section
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2.8 may vote in person or by proxy pursuant to an appointment of proxy executed
in writing by the shareholder or by his attorney in fact. An appointment of
proxy shall be valid for only one meeting to be specified therein, and any
adjournments of such meeting, but shall not be valid for more than eleven months
unless expressly provided therein. Appointments of proxy shall be dated and
filed with the records of the meeting to which they relate. If the validity of
any appointment of proxy is questioned, it must be submitted to the secretary of
the meeting of shareholders for examination or to a proxy officer or committee
appointed by the person presiding at the meeting. The secretary of the meeting
or, if appointed, the proxy officer or committee, shall determine the validity
or invalidity of any appointment of proxy submitted and reference by the
secretary in the minutes of the meeting as to the regularity of an appointment
of proxy shall be received as prima facie evidence of the facts stated for the
purpose of establishing the presence of a quorum at the meeting and for all
other purposes.
Section 2.11. Presiding Officer. The Chairman, or in his absence, the Vice
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Chairman, shall serve as the chairman of every meeting of shareholders unless
another person is elected by shareholders to serve as chairman at the meeting.
The chairman shall appoint any persons he deems required to assist with the
meeting.
Section 2.12. Adjournments. Whether or not a quorum is present to organize a
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meeting, any meeting of shareholders (including an adjourned meeting) may be
adjourned by the holders of a majority of the voting shares represented at the
meeting to reconvene at a specific time and place, but no later than 120 days
after the date fixed for the original meeting unless the requirements of the
Corporation Code concerning the selection of a new record date have been met.
At any
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reconvened meeting within that time period, any business may be transacted that
could have been transacted at the meeting that was adjourned. If notice of the
adjourned meeting was properly given, it shall not be necessary to give any
notice of the reconvened meeting or of the business to be transacted, if the
date, time and place of the reconvened meeting are announced at the meeting that
was adjourned and before adjournment; provided, however, that if a new record
date is or must be fixed, notice of the reconvened meeting must be given to
persons who are shareholders of the new record date.
Section 2.13. Action of Shareholders Without a Meeting. As provided in the
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Articles of Incorporation, no action shall be taken by shareholders of the
Corporation except at an annual or special meeting of shareholders of the
Corporation and the right of shareholders to act by written consent in lieu of a
meeting is specifically denied.
ARTICLE THREE
The Board of Directors
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Section 3.1. General Powers. All corporate powers shall be exercised by or
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under the authority of, and the business and affairs of the Corporation shall be
managed by or under the direction of, the Board of Directors. In addition to
the powers and authority expressly conferred upon it by these Bylaws, the Board
of Directors may exercise all powers of the Corporation and do all lawful acts
and things that are not prohibited by law, by any legal agreement among
shareholders, by the Articles of Incorporation or by these Bylaws directed or
required to be exercised or done by the shareholders.
Section 3.2. Number, Election, Classification and Term of Office. As
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provided in the Articles of Incorporation, the Board of Directors shall consist
of not less than three nor more than twenty-one directors. The exact number of
directors shall be determined from time to time by resolution adopted by the
affirmative vote of a majority of the Board of Directors. The directors shall
be divided into four classes, designated Class I, Class II, Class III and Class
IV. Each of Class I, Class II and Class III shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors, excluding, for such purposes, the Class IV director. Class
IV shall consist of one director who shall be elected to serve a one year term,
such that the Class IV director shall stand for election at each of the
Company's annual meetings of shareholders. The initial directors designated in
the Articles of Incorporation as members of Class I shall hold office until the
annual meeting of shareholders to be held in 1991, the initial directors
designated in the Articles of Incorporation as members of Class II shall hold
office until the annual meeting of shareholders to be held in 1992, and the
initial directors designated in the Articles of Incorporation as members of
Class III shall hold office until the annual meeting of shareholders to be held
in 1993. At each annual meeting of shareholders, successors to the class of
directors whose term expires at that annual meeting shall be elected for a
three-year term, except for the Class IV director, who shall be elected for a
one-year term. Directors shall serve until the expiration of their terms and
until their successors have been elected and qualify, subject to the director's
prior death, resignation, disqualification or removal from office.
Section 3.3. Nomination Procedures. Only persons who are nominated in
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accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of shareholders by or at the direction of
the Board of Directors, by the Board of Directors or any nominating committee
thereof, or any person appointed by the Board of Directors for such purpose, or
by any shareholder of the Corporation entitled to vote for the election of
Directors at the meeting. With respect to any persons considered for nomination
for election as a Class IV director, the nominating party, whether the Board of
Directors or otherwise, shall consider the recommendation of the Board of
Directors of the Corporation's banking subsidiary, Crescent Bank & Trust
Company.
Such nominations, other than those made by or at the direction of the Board
of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not less than 45 days prior to the month and day of that year
corresponding to the month and day of the previous year on which the annual
meeting of shareholders was held (or at least 45 days prior to the date of the
annual meeting for that year if the date of such meeting has been publicly
announced by the Corporation at least 60 days in advance of such meeting date).
Such shareholder's notice shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or re-election as director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and number of
shares of the Corporation which are beneficially owned by the person and (iv)
any other information relating to the person that is required to be disclosed in
solicitations of proxies for election of Directors pursuant to Section 14(a)
under the Securities Exchange Act of 1934, as amended (the "Act"), and any other
applicable laws or rules or regulations of any governmental authority or of any
national securities exchange or similar body overseeing any trading market on
which shares of the corporation are traded, and (b) as to the shareholder giving
the notice (i) the name and record address of shareholder and (ii)
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the class and number of shares of the Corporation which are beneficially owned
by the shareholder. No person shall be eligible for election as a Director of
the Corporation unless nominated in accordance with the procedures set forth
herein. The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
Section 3.4. Removal. As provided in the Articles of Incorporation, the
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shareholders shall not have the right to remove any one or all of the directors
except for cause and by the affirmative vote of the holders of at least 66 and
2/3% of the outstanding shares of the Voting Stock that are not beneficially
owned (as defined in the Articles of Incorporation) by any Interested
Shareholder (as defined in the Articles of Incorporation).
Section 3.5. Vacancies. As provided in the Articles of Incorporation, if the
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number of directors is changed in accordance with the terms of the Articles of
Incorporation, any increase or decrease shall be apportioned among the classes
so as to maintain the number of directors in each class as nearly equal as
possible. Any vacancy on the Board of Directors that results from a newly
created directorship, and any other vacancy occurring on the Board of Directors,
shall be filled by the affirmative vote of a majority of the Board of Directors
then in office, although less than a quorum, or by a sole remaining director. A
director of any class elected by the Board of Directors to fill a vacancy shall
hold office until the next annual meeting of shareholders. A director of any
class elected by the shareholders to fill a vacancy shall hold office for a term
that shall coincide with the remaining term of that class. In no case will a
decrease in the number of directors shorten the term of any incumbent director.
The election of directors need not be by written ballot unless the Corporation's
Bylaws so require.
Section 3.6. Compensation. Unless the Articles of Incorporation provide
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otherwise, the Board of Directors may determine from time to time the
compensation, if any, directors may receive for their services as directors. A
director may also serve the Corporation in a capacity other than that of
director and receive compensation, as determined by the Board of Directors, for
services rendered in any other capacity.
Section 3.7. Directors Emeritus. From time to time, the Board of Directors
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may designate directors upon their retirement or resignation from the Board of
Directors to the honorary position of "Director Emeritus." Persons designated
as Directors Emeritus shall act in an advisory capacity with no voting or other
power in final decisions in matters concerning the business of the Corporation,
and shall not otherwise have any powers, duties or obligations as a director of
the Corporation. Any listing of directors that includes Directors Emeritus
shall clearly designate and distinguish them as such and indicate their advisory
status.
Section 3.8. Advisory Directors. From time to time, and at any time, the
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Board of Directors may designate certain persons as "Advisory Directors" or
"Community Directors." Persons designated as Advisory or Community Directors
shall act only in an advisory capacity and perform such functions on behalf of
the Corporation and its subsidiaries, including promotion of the Corporation's
interest in their local communities, and providing insight into such community
activities and the Corporation's services in such communities as the Corporation
or its officers may from time to time request. No such Advisory or Community
Directors will have any voting or other power in final decisions in matters
concerning the business of the Corporation. Any listing of directors that
includes Advisory or Community Directors shall clearly designate and distinguish
them as such and indicate their advisory status.
ARTICLE FOUR
Meetings of the Board of Directors
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Section 4.1. Regular Meetings. Regular meetings of the Board of Directors
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shall be held immediately after the annual meeting of shareholders or a special
meeting in lieu of the annual meeting. In addition, the Board of Directors may
schedule other meetings to occur at regular intervals throughout the year.
Section 4.2. Special Meetings. Special meetings of the Board of Directors
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may be called by or at the request of the Chairman of the Board or the President
or by any two directors in office at that time.
Section 4.3. Place of Meetings. Directors may hold their meetings at any
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place within or without the State of Georgia as the Board of Directors may from
time to time establish for regular meetings or as set forth in the notice of
special meetings or, in the event of a meeting held pursuant to waiver of
notice, as set forth in the waiver.
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Section 4.4. Notice of Meetings. No notice shall be required for any
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regularly scheduled meeting of the directors. Unless waived as contemplated in
Section 5.2, each director shall be given at least one day's notice (as set
forth in Section 5.1) of each special meeting stating the date, time, and place
of the meeting.
Section 4.5. Quorum. Unless a greater number is required by the Articles
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of Incorporation, these Bylaws, or the Corporation Code, a quorum of the Board
of Directors consists of a majority of the total number of directors that has
been prescribed by resolution of shareholders or of the Board of Directors
pursuant to Section 3.2.
Section 4.6. Vote Required for Action.
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(a) If a quorum is present when a vote is taken, the affirmative vote of a
majority of directors present is the act of the Board of Directors unless the
Corporation Code, the Articles of Incorporation, or these Bylaws require the
vote of a greater number of directors.
(b) A director who is present at a meeting of the Board of Directors or a
committee of the Board of Directors when corporate action is taken is deemed to
have assented to the action taken unless:
(1) He objects at the beginning of the meeting (or promptly upon his
arrival) to holding it or transacting business at the meeting;
(2) His dissent or abstention from the action taken is entered in the
minutes of the meeting; or
(3) He delivers written notice of his dissent or abstention to the
presiding officer of the meeting before its adjournment or to the
Corporation immediately after adjournment of the meeting.
The right of dissent or abstention is not available to a director who votes in
favor of the action taken.
Section 4.7. Participation by Conference Telephone. Any or all directors
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may participate in a meeting of the Board of Directors or of a committee of the
Board of Directors through the use of any means of communication by which all
directors participating may simultaneously hear each other during the meeting.
Section 4.8. Action by Directors Without a Meeting. Unless the Articles of
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Incorporation or these Bylaws provide otherwise, any action required or
permitted to be taken at any meeting of the Board of Directors or any action
that may be taken at a meeting of a committee of the Board of Directors may be
taken without a meeting if the action is taken by all the members of the Board
of Directors (or of the committee as the case may be). The action must be
evidenced by one or more written consents describing the action taken, signed by
each director (or each director serving on the committee, as the case may be),
and delivered to the Corporation for inclusion in the minutes or filing with the
corporate records.
Section 4.9. Adjournments. Whether or not a quorum is present to organize
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a meeting, any meeting of directors (including an adjourned meeting) may be
adjourned by a majority of the directors present, to reconvene at a specific
time and place. At any reconvened meeting any business may be transacted that
could have been transacted at the meeting that was adjourned. If notice of the
adjourned meeting was properly given, it shall not be necessary to give any
notice of the reconvened meeting or of the business to be transacted, if the
date, time and place of the reconvened meeting are announced at the meeting that
was adjourned.
Section 4.10. Committee of the Board of Directors. The Board of Directors by
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resolution may designate from among its members an executive committee and one
or more other committees, each consisting of one or more directors all of whom
serve at the pleasure of the Board of Directors. Except as limited by the
Corporation Code, each committee shall have the authority set forth in the
resolution establishing the committee. The provisions of this Article Four as to
the Board of Directors and its deliberation shall be applicable to any committee
of the Board of Directors.
ARTICLE FIVE
Manner of Notice and Waiver as to Shareholders and Directors
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Section 5.1. Procedure. Whenever these Bylaws require notice to be given to any
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shareholder or director, the notice shall be given in accordance with this
Section 5.1. Notice under these Bylaws shall be in writing unless oral notice
is reasonable under the circumstances. Any notice to directors may be written
or oral. Notice may be communicated in person, by
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telephone, telegraph, teletype, telecopy, or other form of wire or wireless
communication; or by mail or private carrier. If these forms of personal notice
are impracticable, notice may be communicated by a newspaper of general
circulation in the area where published, or by radio, television, or other form
of public broadcast communication. Written notice to the shareholders, if in a
comprehensible form, is effective when mailed, if mailed with first-class
postage prepaid and correctly addressed to the shareholder's address shown in
the Corporation's current record of shareholders. Except as provided above,
written notice, if in a comprehensible form, is effective at the earliest of the
following:
(1) When received or when delivered, properly addressed, to the
addressee's last known principal place of business or residence;
(2) Five days after its deposit in the mail, as evidenced by the postmark,
if mailed with first-class postage prepaid and correctly addressed; or
(3) on the date shown on the return receipt, if sent by registered or
certified mail, return receipt requested, and the receipt is signed by
or on behalf of the addressee.
Oral notice is effective when communicated if communicated in a comprehensible
manner. In calculating time periods for notice, when a period of time measured
in days, weeks, months, years, or other measurement of time is prescribed for
the exercise of any privilege or the discharge of any duty, the first day shall
not be counted but the last day shall be counted.
Section 5.2. Waiver.
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(a) A shareholder may waive any notice before or after the date and time
stated in the notice. Except as provided below in (b), the waiver must be in
writing, be signed by the shareholder entitled to the notice, and be delivered
to the Corporation for inclusion in the minutes or filing with the corporate
records.
(b) A shareholder's attendance at a meeting (i) waives objection to lack of
notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting' business
at the meeting; and (ii) waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder objects to considering the matter
when it is presented.
(c) Unless required by the Corporation Code, neither the business
transacted nor the purpose of the meeting need be specified in the waiver.
(d) A director may waive any notice before or after the date and time
stated in the notice. Except as provided below in (e), the waiver must be in
writing, signed by the director entitled to the notice, and delivered to the
Corporation for inclusion in the minutes , or filing with the corporate records.
(e) A director's attendance at or participation in a meeting waives any
required notice to him of the meeting unless the director at the beginning of
the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting.
ARTICLE SIX
Officers
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Section 6.1. Number. The officers of the Corporation shall consist of a
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Chairman of the Board, a Vice Chairmen of the Board, a President, one or more
Vice Presidents, a Secretary and a Treasurer and any other officers as may be
appointed by the Board of Directors or appointed by a duly appointed officer
pursuant to this Article Six. The Board of Directors shall from time to time
create and establish the duties of the other officers. Any two or more offices
may be held by the same person.
Section 6.2. Election and Term. All officers shall be appointed by the
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Board of Directors or by a duly appointed officer pursuant to this Article Six
and shall serve at the pleasure of the Board of Directors or the appointing
officers as the case may be. All officers, however appointed, may be removed
with or without cause by the Board of Directors and any officer appointed by
another officer may also be removed by the appointing officer with or without
cause.
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Section 6.3. Compensation. The compensation of all officers of the
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appointed by the Board of Directors shall be fixed by the Board of Directors.
Section 6.4. Chairman of the Board. The Chairman of the Board of Directors
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shall call to order meetings of the shareholders, the Board of Directors and the
Executive Committee and shall act as chairman of such meetings. The Chairman of
the Board shall perform such other duties as the directors may direct from time
to time.
Section 6.5. Vice Chairman of the Board. The Vice Chairman of the Board
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shall have such authority and shall perform such duties as may be prescribed
from time to time by the Board of Directors or Chairman of the Board.
Section 6.6. President. The President shall be the chief executive officer
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of the Corporation and shall have general supervision of the business of the
Corporation. He shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall perform such other
duties as may from time to time be delegated to him by the Board of Directors.
Section 6.7. Vice Presidents. In the absence or disability of the President,
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or at the direction of the President, the Vice President, if any, shall perform
the duties and exercise the powers of the President. If the Corporation has more
than one Vice President the one designated by the Board of Directors shall act
in lieu of the President. Vice Presidents shall perform whatever duties and have
whatever powers the Board of Directors may from time to time assign.
Section 6.8. Secretary. The Secretary shall be responsible for preparing
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minutes of the acts and proceedings of all meetings of shareholders and, unless
a secretary has been designated for such purpose, of the Board of Directors and
any committees thereof. He shall have authority to give all notices required by
law or these Bylaws. He shall be responsible for the custody of the corporate
books, records, contracts and other documents. The Secretary may affix the
corporate seal to any lawfully executed documents and shall sign any instruments
as may require his signature. The Secretary shall authenticate records of the
Corporation. The Secretary shall perform whatever additional duties and have
whatever additional powers the Board of Directors may from time to time assign
him. In the absence or disability of the Secretary or at the direction of the
President, any assistant secretary may perform the duties and exercise the
powers of the Secretary.
Section 6.9. Treasurer. Treasurer shall be responsible for the custody of
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all funds and securities belonging to the Corporation and for the receipt,
deposit or disbursement of funds and securities under the direction of the Board
of Directors. The Treasurer shall cause to be maintained full and true accounts
of all receipts and disbursements and shall make reports of the same to the
Board of Directors and the President upon request. The Treasurer shall perform
all duties as may be assigned to him from time to time by the Board of
Directors.
Section 6.10. Bonds. The Board of Directors by resolution may require any
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or all of the officers, agents or employees of the Corporation to give bonds to
the Corporation, with sufficient surety or sureties, conditioned on the faithful
performance of the duties of their respective offices or positions, and to
comply with any other conditions as from time to time may be required by the
Board of Directors.
ARTICLE SEVEN
Distributions and Shares Dividends
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Section 7.1. Authorization or Declaration. Unless the Articles of
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Incorporation provide otherwise, the Board of Directors from time to time in its
discretion may authorize or declare distributions or share dividends in
accordance with the Corporation Code.
Section 7.2. Record Date with Regard to Distributions and Share Dividends.
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For the purpose of determining shareholders entitled to a distribution (other
than one involving a purchase, redemption, or other acquisition of the
Corporation's shares) or a share dividend the Board of Directors may fix a date
as the record date. If no record date is fixed by the Board of Directors, the
record date shall be determined in accordance with the provisions of the
Corporation Code.
ARTICLE EIGHT
Shares
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Section 8.1. Authorization and Issuance of Shares. In accordance with the
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Corporation Code, the Board of Directors may authorize shares of any class or
series provided for in the Articles of Incorporation to be issued for any
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consideration valid under the provisions of the Corporation Code. To the extent
provided in the Articles of Incorporation, the Board of Directors shall
determine the preferences, limitations, and relative rights of the shares.
Section 8.2. Share Certificates. The interest of each shareholder in the
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Corporation shall be evidenced by a certificate or certificates representing
shares of the Corporation which shall be in such form as the Board of Directors
from time to time may adopt. Share certificates shall be numbered consecutively,
shall be in registered form, shall indicate the date of issuance, the name of
the Corporation and that it is organized under the laws of the State of Georgia,
the name of the shareholder, and the number and class of shares and the
designation of the series, if any, represented by the certificate. Each
certificate shall be signed by any one of the Chairman of the Board, the
President, a Vice President, the Secretary, or the Treasurer. The corporate
seal need not be affixed.
Section 8.3. Rights of Corporation with Respect to Registered Owners.
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Prior to due presentation for transfer of registration of its shares, the
Corporation may treat the registered owner of the shares as the person
exclusively entitled to vote the shares, to receive any share dividend or
distribution with respect to the shares, and for all other purposes; and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in the shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by law.
Section 8.4. Transfers of Shares. Transfers of shares shall be made upon the
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transfer books of the Corporation, kept at the office of the transfer agent
designated to transfer the shares, only upon direction of the person named in
the certificate, or by an attorney lawfully constituted in writing; and before a
new certificate is issued, the old certificate shall be surrendered for
cancellation or, in the case of a certificate alleged to have been lost, stolen,
or destroyed, the requirements of Section 8.6 of these Bylaws shall have been
met.
Section 8.5. Duty of Corporation to Register Transfer. Notwithstanding any
----------------------------------------
of the provisions of Section 8.4 of these Bylaws, the Corporation is under a
duty to register the transfer of its shares only if:
(a) the certificate is endorsed by the appropriate person or persons ; and
(b) reasonable assurance is given that the endorsement or affidavit is
genuine and effective; and
(c) the Corporation either has no duty to inquire into adverse claims or
has discharged that duty; and
(d) the requirements of any applicable law relating to the collection of
taxes have been met; and
(e) the transfer in fact is rightful or is to a bona fide purchaser.
Section 8.6. Lost, Stolen or Destroyed Certificates. Any person claiming
--------------------------------------
a share certificate to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in the manner required by the Board of Directors and, if
the Board of Directors requires, shall give the Corporation a bond of indemnity
in form and amount, and with one or more sureties satisfactory to the Board of
Directors, as the Board of Directors may require, whereupon an appropriate new
certificate may be issued in lieu of the one alleged to have been lost, stolen
or destroyed.
Section 8.7 Fixing of Record Date with regard to Shareholder Action. For
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the purpose of determining shareholders entitled to notice of a shareholders'
meeting, to demand a special meeting, to vote, or to take any other action, the
Board of Directors may fix a future date as the record date, which date shall be
not more than seventy (70) days prior to the date on which the particular
action, requiring a determination of shareholders, is to be taken. A
determination of shareholders entitled to notice of or to vote at a
shareholders' meeting is effective for any adjournment of the meeting unless the
Board of Directors fixes a new record date, which it must do if the meeting is
adjourned to a date more than 120 days after the date fixed for the original
meeting. If no record date is fixed by the Board of Directors, the record date
shall be determined in accordance with the provisions of the Corporation Code.
ARTICLE NINE
Indemnification
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Section 9.1. Certain Definitions. As used in this Article, the term:
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<PAGE>
(a) "Corporation" includes any domestic or foreign predecessor entity of
this Corporation in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
(b) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other enterprise. Directors of
the Corporation who are serving as directors, officers, employees or agents of
Crescent Bank and Trust Company or any other wholly owned subsidiary of the
Corporation shall be considered to be serving at the Corporation's request and
shall be considered a "director" for the purposes of this Article. A director
is considered to be serving an employee benefit plan at the Corporation's
request if his duties to the Corporation also impose duties on, or otherwise
involve services by, him to the plan or to participants in or beneficiaries of
the plan. "Director" includes, unless the context requires otherwise, the
estate or personal representative of a director.
(c) "Expenses" includes attorneys' fees.
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding.
(e) "Officer" means an individual who is or was an officer of the
Corporation or an individual who, while an officer of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other enterprise. Officers of
the Corporation who are serving as directors, officers, employees or agents of
Crescent Bank and Trust Company or any other wholly owned subsidiary of the
Corporation shall be considered to be serving at the Corporation's request and
shall be considered an "officer" for the purposes of this Article. An officer is
considered to be serving an employee benefit plan at the Corporation's request
if his duties to the Corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the plan.
"Officer" includes, unless the context requires otherwise, the estate or
personal representative of an officer.
(f) "Party" includes an individual who was, is, or is threatened to be made
a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, or investigative and
whether formal or informal.
(h) "Reviewing Party" shall mean the person or persons making the
entitlement determination pursuant to Section 9.4 of this Article, and shall not
include a court making any determination under this Article or otherwise.
Section 9.2. Basic Indemnification Arrangement.
---------------------------------
(a) To the extent that a director or officer has been successful, on the
merits or otherwise, in the defense of any proceeding to which he was a party,
or in defense of any claim, issue, or matter therein, because he is or was a
director or officer, the Corporation shall indemnify the director or officer
against reasonable expenses incurred in connection therewith. Except as provided
in subsections 9.2(d) and 9.2(e) below, the Corporation shall in addition
indemnify an individual who is made a party to a proceeding because he is or was
a director or officer against liability incurred by him in the proceeding if he
acted in a manner he believed in good faith to be in or not opposed to the beat
interests of the Corporation and, in the case of any criminal proceeding, he had
no reasonable cause to believe his conduct was unlawful.
(b) A person's conduct with respect to an employee benefit plan for a
purpose he believed in good faith to be in the interests of the participants in
and beneficiaries of the plan is conduct that satisfies the requirement of
subsection 9.2(a).
(c) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, be determinative that the proposed indemnitee did not meet the standard
of conduct set forth in subsection 9.2(a).
(d) The Corporation shall not indemnify a person under this Article in
connection with (i) a proceeding by or in the right of the Corporation in which
such person was adjudged liable to the Corporation, or (ii) any proceeding in
which such person was adjudged liable on the basis that he improperly received a
personal benefit; unless in either case, and then only the
<PAGE>
extent that, a court of competent jurisdiction acting pursuant to Section 9.5 of
this Article or Section 14-2-854 of the Georgia Business Corporation Code,
determines that, in view of the circumstances of the case, such person is fairly
and reasonably entitled to indemnification.
(e) Indemnification permitted under this Article in connection with a
proceeding by or in the right of the Corporation is limited to reasonable
expenses incurred in connection with the proceeding.
Section 9.3. Advance for Expenses.
--------------------
(a) The Corporation shall pay for or reimburse the reasonable expenses
incurred by a director or officer as a party to a proceeding in advance of final
disposition of the proceeding if:
(i) Such person furnishes the Corporation a written affirmation of
his good faith belief that he has met the standard of conduct
set forth in subsection 9.2(a) above; and
(ii) Such person furnishes the Corporation a written undertaking
(meeting the qualifications set forth below in subsection
9.3(b)), executed personally or on his behalf, to repay any
advances if it is ultimately determined that he is not entitled
to indemnification under this Article or otherwise.
(b) The undertaking required by subsection 9.3(a)(ii) above must be an
unlimited general obligation of the proposed indemnitee but need not be secured
and shall be accepted without reference to financial ability to make payment.
Section 9.4 Authorization of and Determination of Entitlement to
----------------------------------------------------
Indemnification.
---------------
(a) The Corporation acknowledges that indemnification of a director or
officer under Section 9.2 has been pre-authorized by the Corporation in the
manner described in subsection 9.4(b) below. Nevertheless, the Corporation
shall not indemnify a director or officer under Section 9.2 unless a separate
determination has been made in the specific case that indemnification of such
person is permissible in the circumstances because he has met the standard of
conduct set forth in subsection 9.2(a); provided, however, that regardless of
the result or absence of any such determination, and unless limited by the
Articles of Incorporation of the Corporation, to the extent that a director or
officer has been successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party, or in defense of any claim, issue or matter
therein, because he is or was a director or officer, the Corporation shall
indemnify such person against reasonable expenses incurred by him in connection
therewith.
(b) The determination referred to in subsection 9.4(a) above shall made, at
the election of the Board of Directors:
(i) by the Board of Directors of the Corporation by majority vote
of a quorum consisting of directors not at the time parties to
the proceeding;
(ii) if a quorum cannot be obtained under subdivision (i), by
majority vote of a committee duly designated by the Board of
Directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at
the time parties to the proceeding;
(iii) by special legal counsel:
(1) selected by the Board of Directors or its committee in the
manner prescribed in subdivision (i) or (ii); or
(2) if a quorum of the Board of Directors cannot be obtained
under subdivision (i) and a committee cannot be designated
under subdivision (ii), selected by a majority vote of the
full Board of Directors (in which selection directors who
are parties may participate); or
(iv) by the shareholders; provided that shares owned by or voted
under the control of directors or officers who are at the time
parties to the proceeding may not be voted on the
determination.
(c) As acknowledged above, the Corporation has pre-authorized the
indemnification of directors and officers hereunder, subject to a case-by-case
determination that the proposed indemnitee met the applicable standard of
conduct under
<PAGE>
subsection 9.2(a). Consequently, no further decision need or shall be made on a
case-by-case basis as to the authorization of the Corporation's indemnification
of directors and officers hereunder. Nevertheless, evaluation as to
reasonableness of expenses of a director or officer in the specific case shall
be made in the same manner as the determination that indemnification is
permissible, as described in subsection 9.4(b) above, except that if the
determination is made by special legal counsel, evaluation as to reasonableness
of expenses shall be made by those entitled under subsection 9.4(b)(iii) to
select counsel.
(d) The Reviewing Party acting pursuant to subsections 9.4(b) or 9.4(c)
above shall act expeditiously and reasonably upon an application for
indemnification or advancement of expenses, and shall cooperate in the
procedural steps required to obtain court-ordered indemnification or advancement
of expenses under Section 9.5 below.
Section 9.5. Court-Ordered Indemnification and Advances for Expenses.
-------------------------------------------------------
Unless this Corporation's Articles of Incorporation provide otherwise, a
director or officer who is a party to a proceeding may apply for indemnification
or advances for expenses to the court conducting the proceeding or to another
court of competent jurisdiction. For purposes of this Article, the Corporation
hereby consents to personal jurisdiction and venue in any court in which is
pending a proceeding to which a director or officer is a party. Regardless of
any determination by the Reviewing Party that the proposed indemnitee is not
entitled to indemnification or advancement of expenses or as to the
reasonableness of expenses, and regardless of any failure by the Reviewing Party
to make a determination as to such entitlement or the reasonableness of
expenses, such court's review shall be a de novo review, and its determination
shall be binding, on the questions of whether:
(i) The applicant is entitled to mandatory indemnification under the
final clause of subsection 9.4(a) above (in which case the
Corporation shall pay the indemnitee's reasonable expenses incurred
to obtain court-ordered indemnification);
(ii) The applicant is fairly and reasonably entitled to indemnification
in view of all the relevant circumstances, whether or not he met the
standard of conduct set forth in subsection 9.2(a) above or was
adjudged liable as described in subsection 9.2(d) above (but if he
was adjudged so liable, any court-ordered indemnification shall be
limited to reasonable expenses incurred by the indemnitee, including
reasonable expenses incurred to obtain court-ordered
indemnification, unless the Articles of Incorporation of this
Corporation or a Bylaw, contract or resolution approved or ratified
by the shareholders pursuant to Section 9.7 provides otherwise); or
(iii) In the case of advances for expenses, the applicant is entitled
pursuant to the Articles of Incorporation, Bylaws or applicable
resolution or agreement to payment for or reimbursement of his
reasonable expenses incurred as a party to a proceeding in advance
of final disposition of the proceeding (in which case the
Corporation shall pay the applicant's reasonable expenses incurred
to obtain court-ordered advancement of expenses).
In any claim brought by the proposed indemnitee seeking court-ordered
indemnification or advancement of expenses, the failure of the Reviewing Party
to act in accordance with Section 9.4(d) may properly be considered by the court
in assessing the expenses of the proposed indemnitee.
Section 9.6. Indemnification of Employees and Agents. Unless this
---------------------------------------
Corporation's Articles of Incorporation provide otherwise, the Corporation may
indemnify and advance expenses under this Article to an employee or agent of the
Corporation, Crescent Bank and Trust Company or any other wholly owned
subsidiary of the Corporation who is not a director or officer to the same
extent as to a director or officer, or to any lesser extent (or greater extent
if permitted by law), determined by the Board of Directors.
Section 9.7. Shareholder Approved Indemnification.
------------------------------------
(a) If authorized by the Articles of Incorporation or a Bylaw, contract or
resolution approved or ratified by the shareholders of the Corporation by a
majority of the votes entitled to be cast, the Corporation may indemnify or
obligate itself to indemnify a person made a party to a proceeding, including a
proceeding brought by or in the right of the Corporation, without regard to the
limitations in other sections of this Article. The Corporation shall not
indemnify a person under this Section 9.7 for any liability incurred in a
proceeding in which the person is adjudged liable to the Corporation or is
subjected to injunctive relief in favor of the Corporation;
(i) for any appropriation, in violation of his duties, of any
business opportunity of the Corporation;
<PAGE>
(ii) for acts or omissions which involve intentional misconduct or a
knowing violation of law;
(iii) for the types of liability set forth in Section 14-2-832 of the
Georgia Business Corporation Code; or
(iv) for any transaction from which he received an improper personal
benefit.
(b) Where approved or authorized in the manner described in subsection
9.7(a) above, the Corporation may advance or reimburse expenses incurred in
advance of final disposition of the proceeding only if:
(i) the proposed indemnitee furnishes the Corporation a written
affirmation of his good faith belief that his conduct does not
constitute behavior of the kind described in subsection
9.7(a)(i)- (iv) above; and
(ii) the proposed indemnitee furnishes the Corporation a written
undertaking, executed personally, or on his behalf, to repay
any advances if it is ultimately determined that he is not
entitled to indemnification.
Section 9.8. Liability Insurance. The Corporation may purchase and
-------------------
maintain insurance on behalf of a director or officer or an individual who is or
was an employee or agent of the Corporation or who, while an employee or agent
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise against liability asserted against or incurred by him in
that capacity or arising from his status as a director, officer, employee, or
agent, whether or not the Corporation would have power to indemnify him against
the same liability under Section 9.2, Section 9.3 or Section 9.4 above.
Section 9.9. Witness Fees. Nothing in this Article shall limit the
------------
Corporation's power to pay or reimburse expenses incurred by a person in
connection with his appearance as a witness in a proceeding at a time when he s
not been made a named defendant or respondent in the proceeding.
Section 9.10. Report to Shareholders. If the Corporation indemnifies or
----------------------
advances expenses to a director in connection with a proceeding by or in the
right of the Corporation, the Corporation shall report the indemnification or
advance, in writing, to the shareholders with or before the tics of the next
shareholders' meeting.
Section 9.11. Security for Indemnification Obligations. The Corporation
----------------------------------------
may at any time and in any manner, at the discretion of the Board of Directors,
secure the Corporation's obligations to indemnify or advance expenses to a
person pursuant to this Article.
Section 9.12. No Duplication of Payments. The Corporation shall not be
--------------------------
liable under this Article to make any payment to a person hereunder to the
extent such person has otherwise actually received payment (under any insurance
policy, agreement or otherwise) of the amounts otherwise payable hereunder.
Section 9.13. Subrogation. In the event of payment under this Article, the
-----------
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the indemnitee, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Corporation effectively to
bring suit to enforce such rights.
Section 9.14. Contract Rights. The right to indemnification and
---------------
advancement of expenses conferred hereunder to directors and officers shall be a
contract right and shall not be affected adversely to any director or officer by
any amendment of these Bylaws with respect to any action or inaction occurring
prior to such amendment; provided, however, that this provision shall not confer
upon any indemnitee or potential indemnitee (in his capacity an such) the right
to consent or object to any subsequent amendment of these Bylaws.
Section 9.15. Non-exclusivity, Etc. The rights of a director or officer
---------------------
hereunder shall be in addition to any other rights with respect to
indemnification, advancement of expenses or otherwise that he may have under
contract or the Georgia Business Corporation Code or otherwise.
<PAGE>
Section 9.16. Severability. To the extent that the provisions of this
------------
Article are held to be inconsistent with the provisions of Part 5 of Article 8
of the Georgia Business Corporation Code, such provisions of such Code shall
govern. In the event that any of the provisions of this Article (including any
provision within a single section, subsection, division or sentence) is held by
a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, the remaining provisions of this Article shall remain enforceable
to the fullest extent permitted Bylaw.
ARTICLE TEN
Miscellaneous
-------------
Section 10.1. Inspection of Books and Records. The Board of Directors
-------------------------------
shall have power to determine which accounts, books and records of the
Corporation shall be opened to the inspection of shareholders, except those as
may by law specifically be made open to inspection, and shall have power to fix
reasonable rules and regulations not in conflict with the applicable law for the
inspection of accounts, books and records which by law or by determination of
the Board of Directors shall be open to inspection. Without the prior approval
of the Board of Directors in their discretion, the right of inspection set forth
in Section 14-2-1602(c) of the Corporation Code shall not be available to any
shareholder owning two (2%) percent or less of the shares outstanding.
Section 10.2. Fiscal Year. The Board of Directors is authorized to fix
-----------
the fiscal year of the Corporation and to change the same from time to time as
it deems appropriate.
Section 10.3. Corporate Seal. If the Board of Directors determines that
--------------
there should be a corporate seal for the Corporation, it shall be in the form as
the Board of Directors may from time to time determine.
Section 10.4. Annual Financial Statements. In accordance with the
---------------------------
Corporation Code, the Corporation shall prepare and provide to shareholders such
financial statements as may be required by the Corporation Code.
Section 10.5. Conflict with Articles of Incorporation. In the event that
---------------------------------------
any provision of these Bylaws conflicts with any provision of the Articles of
Incorporation, the Articles of Incorporation shall govern.
ARTICLE ELEVEN
Amendments
----------
Section 11.1. Power to Amend Bylaws. The Board of Directors shall have
---------------------
concurrent power with the shareholders as set forth in the Articles of
Incorporation to make, alter, amend, change, add to or repeal the Bylaws of the
Corporation. The Board of Directors may amend the Bylaws of the Corporation
upon the affirmative vote of the number of directors required, under the terms
of the Bylaws, to take action of the Board of Directors; provided, however, that
any amendment, addition or repeal of any provision of the Bylaws regarding
indemnification of the directors, officers, employees or agents of the
Corporation shall require the affirmative vote of a majority of the
Disinterested Directors (as defined in the Articles of Incorporation).
Shareholders may not amend the Bylaws of the Corporation except upon the
affirmative vote of the holders of at least 66 and 2/3% of the outstanding
shares of Voting Stock that are not beneficially owned (as defined in the
Articles of Incorporation) by any Interested Shareholder (as defined in the
Articles of Incorporation), except that the affirmative vote of the holders of
only a majority of the outstanding shares entitled to vote generally in the
election of directors shall be required to approve any amendment to the Bylaws
approved by the Board of Directors if two-thirds (2/3) of the directors then in
office are Disinterested Directors (as defined in the Articles of
Incorporation).
ARTICLE TWELVE
Statutory Business Combination Provision
----------------------------------------
Section 12. 1. Business Combinations. All of the requirements of Part 3 of
---------------------
Article 11 of the Corporation Code shall apply to the Corporation.
