<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
REGISTRATION STATEMENT
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
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L.A. T SPORTSWEAR, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1724902
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
1200 AIRPORT DRIVE
BALL GROUND, GEORGIA 30107
TELEPHONE: (770) 479-1877
(Address, including zip code, of principal executive offices)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Common Stock, no par value per share American Stock
Exchange
---------------
IF THIS FORM RELATES TO THE REGISTRATION OF A CLASS OF SECURITIES PURSUANT TO
SECTION 12(B) OF THE EXCHANGE ACT AND IS EFFECTIVE PURSUANT TO GENERAL
INSTRUCTION A.(C), PLEASE CHECK THE FOLLOWING BOX. [X]
IF THIS FORM RELATES TO THE REGISTRATION OF A CLASS OF SECURITIES PURSUANT TO
SECTION 12(G) OF THE EXCHANGE ACT AND IS EFFECTIVE PURSUANT TO GENERAL
INSTRUCTION A.(D), PLEASE CHECK THE FOLLOWING BOX. [ ]
SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS FORM RELATES:
NOT APPLICABLE
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Title of class
--------------
None
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The description of the Common Stock, no par value per share, included
under the caption "Description of Securities" set forth in the Prospectus,
dated January 25, 1994, included in the Registration Statement on Form S-1, as
amended of the Registrant (File No. 33-60452) declared effective by the
Securities and Exchange Commission (the "Commission") on January 25, 1994, is
hereby incorporated by reference.
ITEM 2. EXHIBITS
The following exhibits are filed with this Registration Statement.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
1 Articles of Incorporation of the Company
2 Bylaws of the Company
3 Specimen Common Stock Certificate
</TABLE>
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
L.A. T SPORTSWEAR, INC.
By: /s/ Isador E. Mitzner
--------------------------------------
Isador E. Mitzner,
Chairman and Chief Executive Officer
Date: January 13, 2000
3
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
1 Articles of Incorporation
2 Bylaws
3 Specimen Common Stock Certificate
</TABLE>
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EXHIBIT 1
ARTICLES OF INCORPORATION
OF
L.A. T SPORTSWEAR, INC.
I.
The name of the Corporation is L.A. T Sportswear, Inc.
II.
A. The authorized capital stock of the Corporation shall consist
of: (i) twenty-five million (25,000,000) shares of voting common stock without
par value; and (ii) five million (5,000,000) shares of preferred stock, the
terms, conditions, rights and limitations of which shall be determined in
accordance with Section B of this Article II.
B. The Board of Directors may determine the designation, par value,
preferences, qualifications, voting rights and powers, limitations and relative
rights of one or more series of preferred stock to be issued by the Corporation
from time to time upon such terms as the Board of Directors may adopt and upon
filing of an amendment to these Articles of Incorporation in accordance with
Section 14-2-602 of the Georgia Business Corporation Code, or any successor
statute authorizing the issuance of preferred stock.
C. Any action required or permitted to be taken at a meeting of the
shareholders may be taken without a meeting by written consent signed by
persons who would be entitled to vote at a meeting of shareholders having
voting power to cast not less than the minimum number of votes that would be
necessary to authorize or take the action at a meeting of the shareholders at
which all shareholders entitled to vote were present and voting, in accordance
with Section 14-2-704 of the Georgia Business Corporation Code, or any
successor statute.
III.
The street address of the registered office of the Corporation is 1200
Airport Road, Ball Ground, Georgia 30107, located in Cherokee County. The
registered agent of the Corporation at such office is Isador E. Mitzner.
IV.
The mailing address of the principal office of the Corporation is 1200
Airport Road, Ball Ground, Georgia 30107.
<PAGE> 2
V.
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of duty of care
or other duty as a director; provided, however, that to the extent required by
applicable law, this Article shall not eliminate or limit the liability of a
director (i) for any appropriation, in violation of his duties, of any business
opportunity of the Corporation, (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 the director derived an improper
personal benefit. If applicable law is amended to authorize corporate action
further eliminating or limiting the liability of directors, then the liability
of each director of the Corporation shall be eliminated or limited to the
fullest extent permitted by applicable law, as amended. Neither the amendment
or repeal of this Article, nor the adoption of any provision of these Articles
of Incorporation inconsistent with this Article, shall eliminate or reduce the
effect of this Article in respect of any acts or omissions occurring prior to
such amendment, repeal or adoption of an inconsistent provision.
VI.
In discharging the duties of their respective positions and in
determining what is believed to be in the best interests of the Corporation,
the Board of Directors, committees of the Board of Directors, and individual
directors, in addition to considering the effects of any action on the
Corporation or its shareholders, may consider the interests of the employees,
customers, suppliers, and creditors of the Corporation and its subsidiaries,
the communities in which offices or other establishments of the Corporation and
its subsidiaries are located, and all other factors such directors consider
pertinent; provided, however, that this Article shall be deemed solely to grant
discretionary authority to the directors and shall not be deemed to provide to
any constituency any right to be considered.
VII.
The Corporation may, to the fullest extent permitted by applicable law
as the same exists or may hereafter be in effect, indemnify its directors,
officers, employees and agents as set forth in the Bylaws of the Corporation.
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EXHIBIT 2
BYLAWS
OF
L.A. T SPORTSWEAR, INC.
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BYLAWS
OF
L.A. T SPORTSWEAR, INC.
TABLE OF CONTENTS
<TABLE>
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Page
<S> <C> <C>
ARTICLE I. DEFINITIONS .................................................................................. 1
ARTICLE II. GENERAL PROVISIONS REGARDING NOTICES.......................................................... 1
Section 1. NOTICES....................................................................................... 1
Section 2. WAIVER OF NOTICE.............................................................................. 2
ARTICLE III. SHAREHOLDERS' MEETINGS........................................................................ 3
Section 1. PLACE OF MEETING.............................................................................. 3
Section 2. ANNUAL MEETING................................................................................ 3
Section 3. SPECIAL MEETINGS.............................................................................. 4
Section 4. NOTICE TO SHAREHOLDERS........................................................................ 4
Section 5. FIXING OF RECORD DATE......................................................................... 5
Section 6. QUORUM AND VOTING REQUIREMENTS................................................................ 5
Section 7. PROXIES....................................................................................... 6
Section 8. INFORMAL ACTIONS BY SHAREHOLDERS.............................................................. 6
ARTICLE IV. DIRECTORS..................................................................................... 6
Section 1. GENERAL POWERS................................................................................ 6
Section 2. NUMBER, TENURE, QUALIFICATIONS................................................................ 7
Section 3. VACANCIES, HOW FILLED......................................................................... 7
Section 4. PLACE OF MEETING.............................................................................. 7
Section 5. COMPENSATION.................................................................................. 7
Section 6. REGULAR MEETINGS.............................................................................. 7
Section 7. SPECIAL MEETINGS.............................................................................. 7
Section 8. GENERAL PROVISIONS REGARDING NOTICE AND WAIVER................................................ 7
Section 9. QUORUM........................................................................................ 8
Section 10. MANNER OF ACTING............................................................................. 8
Section 11. COMMITTEES................................................................................... 8
Section 12. ACTION WITHOUT FORMAL MEETING................................................................ 8
Section 13. CONFERENCE CALL MEETINGS..................................................................... 9
ARTICLE V. OFFICERS...................................................................................... 9
Section 1. GENERALLY..................................................................................... 9
Section 2. POWERS AND DUTIES OF THE CHAIRMAN............................................................. 9
</TABLE>
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<TABLE>
Page
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Section 3. POWERS AND DUTIES OF THE VICE CHAIRMAN....................................................... 10
Section 4. POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER............................................. 10
Section 5. POWERS AND DUTIES OF THE CHIEF OPERATING OFFICER............................................. 10
Section 6. POWERS AND DUTIES OF THE CHIEF FINANCIAL OFFICER............................................. 10
Section 7. POWERS AND DUTIES OF THE PRESIDENT........................................................... 10
Section 8. POWERS AND DUTIES OF THE VICE PRESIDENT...................................................... 10
Section 9. POWERS AND DUTIES OF THE SECRETARY........................................................... 10
Section 10. POWERS AND DUTIES OF THE TREASURER.......................................................... 11
Section 11. ADDITIONAL OFFICERS......................................................................... 11
Section 12. GIVING OF BOND BY OFFICERS.................................................................. 11
Section 13. VOTING UPON STOCKS.......................................................................... 11
Section 14. COMPENSATION OF OFFICERS.................................................................... 11
ARTICLE VI. INDEMNIFICATION.............................................................................. 12
Section 1. DEFINITIONS FOR INDEMNIFICATION PROVISIONS................................................... 12
Section 2. MANDATORY INDEMNIFICATION AGAINST EXPENSES................................................... 12
Section 3. AUTHORITY FOR INDEMNIFICATION................................................................ 12
Section 4. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION........................................... 13
Section 5. SHAREHOLDER-APPROVED INDEMNIFICATION......................................................... 14
Section 6. ADVANCES FOR EXPENSES........................................................................ 14
Section 7. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS........................................... 15
Section 8. INSURANCE.................................................................................... 15
Section 9. EXPENSES FOR APPEARANCE AS WITNESS........................................................... 15
ARTICLE VII. FAIR PRICE REQUIREMENTS...................................................................... 15
Section 1. DEFINITIONS.................................................................................. 15
Section 2. ADDITIONAL BUSINESS COMBINATION APPROVAL..................................................... 18
Section 3. "INTERESTED SHAREHOLDER" DEFINED AND
EXCEPTION TO VOTE REQUIREMENT OF ARTICLE
VII, SECTION 2............................................................................... 19
Section 4. REPEAL OF ARTICLE VII AND LIMITATIONS........................................................ 20
ARTICLE VIII. BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS........................................... 21
Section 1. DEFINITIONS.................................................................................. 21
Section 2. BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS........................................... 22
Section 3. REPEAL OF ARTICLE VIII....................................................................... 23
ARTICLE IX. FISCAL YEAR.................................................................................. 23
ARTICLE X. ANNUAL STATEMENTS............................................................................ 24
</TABLE>
(ii)
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Page
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ARTICLE XII. CAPITAL STOCK................................................................................ 24
Section 1. FORM......................................................................................... 24
Section 2. TRANSFER..................................................................................... 25
Section 3. RIGHTS OF HOLDER............................................................................. 25
Section 4. LOST OR DESTROYED CERTIFICATES............................................................... 25
ARTICLE XII. SEAL......................................................................................... 25
ARTICLE XIII. REGISTERED OFFICE AND REGISTERED AGENT....................................................... 25
ARTICLE XIV. AMENDMENTS .................................................................................. 26
Section 1. AMENDMENTS GENERALLY......................................................................... 26
Section 2. BYLAW INCREASING QUORUM OR VOTING REQUIREMENTS............................................... 26
Section 3. AMENDMENT OF ARTICLES VII AND VIII........................................................... 27
</TABLE>
(iii)
<PAGE> 5
BYLAWS
OF
L.A. T SPORTSWEAR, INC.
(ADOPTED: JANUARY 24, 1994)
ARTICLE I.
DEFINITIONS
As used in these Bylaws, the terms set forth below when capitalized
shall have the meanings indicated, as follows:
"Articles of Incorporation" means the Articles of Incorporation of the
Corporation, as amended from time to time.
"Board" shall mean the Board of Directors of the Corporation.
"Chief Executive Officer" shall mean the President of the Corporation,
or such other officer as shall be designated by the Board as having the duties
of the Chief Executive Officer, as described in Section 4 of Article V of these
Bylaws.
"Code" shall mean the Georgia Business Corporation Code, as amended
from time to time.
"Corporation" shall mean L.A. T Sportswear, Inc., a Georgia
corporation.
"Secretary" shall mean the Secretary of the Corporation, or such other
officer as shall be designated by the Board as having the duties of the
corporate Secretary as described in Section 5 of Article V of these Bylaws.
"Secretary of State" shall mean the Secretary of State of
Georgia.
"Voting Group" shall have the meaning set forth in subsection (a) of
Section 6 of Article III of these Bylaws.
ARTICLE II.
GENERAL PROVISIONS REGARDING NOTICES
Section 1. NOTICES. Except as otherwise provided in the
Articles of Incorporation or these Bylaws, or as otherwise required
by applicable law:
(a) Any notice required by these Bylaws or by law shall be in writing
unless oral notice is reasonable under the circumstances.
(b) Notice may be communicated in person; by telephone, telegraph,
teletype, or other form of wire or wireless communication; or by mail or
private carrier. If these forms of personal notice are
<PAGE> 6
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.
(c) Written notice by the Corporation to any shareholder, 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; provided that if the
Corporation has more than 500 shareholders of record entitled to vote at a
meeting, it may utilize a class of mail other than first class if the notice of
the meeting is mailed, with adequate postage prepaid, not less than 30 days
before the date of the meeting.
(d) Written notice to the Corporation may be addressed to its
registered agent at its registered office or to the Corporation or its
Secretary at its principal office shown in its most recent annual registration
with the Secretary of State.
(e) Except as provided in subsection (c) of this Section 1, 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.
(f) Oral notice is effective when communicated if communicated in a
comprehensible manner.
(g) In calculating time periods for notice under these Bylaws, 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 2. WAIVER OF NOTICE. Except as otherwise provided or
required by the Articles of Incorporation, these Bylaws or
applicable law:
(a) A shareholder may waive any notice required to be given to such
shareholder, before or after the date and time stated in the notice. 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
Corporation's corporate records.
(b) A shareholder's attendance at a meeting:
(1) 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
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<PAGE> 7
(2) 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) Neither the business transacted nor the purpose of the meeting need
be specified in the waiver, except that any waiver by a shareholder of the
notice of a meeting of shareholders with respect to an amendment of the
Articles of Incorporation, a plan of merger or share exchange, a sale of assets
or any other action which would entitle the shareholder to exercise statutory
dissenter's rights under the Code and obtain payment for his shares shall not
be effective unless:
(1) Prior to the execution of the waiver, the shareholder shall have
been furnished the same material that under the Code would have
been required to be sent to the shareholder in a notice of the
meeting, including notice of any applicable dissenters' rights as
provided in the Code; or
(2) The waiver expressly waives the right to receive the material
required to be furnished.
(d) A director may waive any notice required to be given to such
director by the Code, the Articles of Incorporation, or these Bylaws before or
after the date and time stated in the notice. Except as provided by subsection
(e) of this Section 2, 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 Corporation's 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 III.
SHAREHOLDERS' MEETINGS
Section 1. PLACE OF MEETING. The Board may designate any place within
or outside the State of Georgia as the place of meeting for any annual or
special shareholders' meeting. A waiver of notice signed by all shareholders
entitled to vote at a meeting may designate any place within or outside the
State of Georgia as the place for the holding of such meeting. If no
designation is made, or if a special meeting be otherwise called, the place of
meeting shall be the principal office of the Corporation.
Section 2. ANNUAL MEETING. An annual meeting of the
shareholders shall be held on the 5th of May of each year, if not a legal
holiday (and if such is a legal holiday, then on the next following day not a
legal holiday), at such time and place as the Board shall determine, at which
time the shareholders shall elect a Board and transact such other business as
may be properly brought before the meeting. Notwithstanding the foregoing, the
Board may cause the annual meeting of shareholders to be held on such other
date in any year as the Board shall determine to be in the best interests of
the Corporation, and any business transacted at that meeting shall have the
same validity as if transacted on the date designated herein.
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Section 3. SPECIAL MEETINGS. Except to the extent otherwise prescribed
by statute or the Articles of Incorporation, special meetings of the
shareholders, for any purpose or purposes, may be called by the Chief Executive
Officer, or by the presiding officer of the Board, if any. The Chief Executive
Officer or the Secretary shall call a special meeting when: (1) requested in
writing by any two or more of the directors; or (2) requested in writing by
shareholders owning shares representing at least twenty-five percent (25%) of
all the votes entitled to be cast on any issue proposed to be considered at
such meeting. Any such written request shall be signed and dated and shall
state the purpose or purposes of the proposed meeting.
Section 4. NOTICE TO SHAREHOLDERS.
(a) Except as otherwise specifically provided in this Section 4,
requirements with respect to the giving of notice and waiver of notice shall be
governed by the provisions of Article II of these Bylaws.
(b) The Corporation shall give notice to each shareholder entitled to
vote thereat of the date, time and place of each annual and special
shareholders' meeting no fewer than ten (10) nor more than sixty (60) days
before the meeting date.
(c) Unless otherwise required by the Code with respect to meetings at
which specified actions will be considered (including but not limited to
mergers, certain share exchanges, certain asset sales by the Corporation, and
dissolution of the Corporation), notice of an annual meeting need not contain a
description of the purpose or purposes for which the meeting is called.
(d) Notice of a special meeting must include a description of the
purpose or purposes for which the meeting is called.
(e) Unless a new record date is set (or is required by law or by the
terms of these Bylaws to be set) therefor, notice of the date, time and place
of any adjourned meeting need not be given otherwise than by the announcement
at the meeting before adjournment. If a new record date for the adjourned
meeting is or must be fixed, however, notice of the adjourned meeting must be
given in accordance with these Bylaws as if such adjourned meeting were a
newly-called meeting.
(f) If any corporate action proposed to be considered at a meeting of
shareholders would or might give rise to statutory dissenters' rights under the
Code, the notice of such meeting shall state that the meeting is to include
consideration of such proposed corporate action, and that the consummation of
such action will or might give rise to such dissenters' rights, and shall
include the description of such statutory dissenters' rights required by the
Code.
(g) If any corporate action which would give rise to statutory
dissenters' rights under the Code is taken by written consent of shareholders
without a meeting, or is taken at a meeting with respect to which less than all
shareholders were entitled to receive notice, or is otherwise taken without a
vote of shareholders, the Corporation shall cause notice thereof, including the
information concerning statutory dissenters' rights contemplated by paragraph
(b) above, to be given, not more than ten (10) days after the adoption of such
action by shareholder vote at a meeting or by written consent to those
shareholders who did not execute such written consent or who were not entitled
to receive notice of such meeting, or to all shareholders if such action was
otherwise taken without a vote of shareholders.
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Section 5. FIXING OF RECORD DATE.
(a) For the purpose of determining shareholders entitled to notice of
or to vote at any meeting of shareholders, or shareholders entitled to demand a
special meeting of shareholders, or shareholders entitled to take any other
action, the Board may fix in advance (but not retroactively from the date the
Board takes such action) a date as the record date for any such determination
of shareholders, such date in any case to be not more than seventy (70) days
prior to the meeting or action requiring such determination of shareholders. If
no record date is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders, the close of business on the
last business day before the first notice of such meeting is delivered to
shareholders shall be the record date. If no record date is fixed for
determining shareholders entitled to take action without a meeting, the date
the first shareholder signs the consent shall be the record date for such
purpose. If no record date is fixed for determining shareholders entitled to
demand a special meeting, or to take other action, the date of receipt of
notice by the Corporation of demand for such meeting, or the date on which such
other action is to be taken by the shareholders, shall be the record date for
such purpose.
(b) A separate record date may be established for each Voting Group
entitled to vote separately on a matter at a meeting.
(c) 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 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.
(d) For the purpose of determining shareholders entitled to a
distribution by the Corporation (other than one involving a purchase,
redemption or other acquisition of the Corporation's shares), the record date
shall be the date fixed for such purpose by the Board, or if the Board does not
fix such a date, the date on which the Board authorizes such distribution.
Section 6. QUORUM AND VOTING REQUIREMENTS.
(a) Except as otherwise provided by the Articles of Incorporation or
the Code:
(i) A "Voting Group" with respect to any given matter means all
shares of one or more class or series which, under the
Articles of Incorporation or the Code, are entitled to vote
and be counted together collectively on that matter, and
unless specified otherwise in the Articles of Incorporation,
the Code or these Bylaws, all shares entitled to vote on a
given matter shall be deemed to be a single voting group for
purposes of that matter.
(ii) Except as provided in paragraph (d) of this Section or
otherwise set forth in the Articles of Incorporation or in a
designation of rights and preferences, each outstanding
share, regardless of class, is entitled to one vote on each
matter voted on at a shareholders' meeting.
(iii) A majority of the votes entitled to be cast on the matter by
a Voting Group constitutes a quorum of that Voting Group for
action on that matter.
-5-
<PAGE> 10
(iv) The presence of a quorum of each Voting Group entitled to
vote thereon shall be the requisite for transaction of
business on a given matter.
(v) Action on a matter other than election of directors is
approved by a Voting Group if a quorum of such Voting Group
exists and the number of votes cast within such Voting Group
in favor of such action exceeds the number of votes cast
within such Voting Group against such action.
(vi) Except as otherwise provided in these Bylaws, all shares
entitled to vote for election of directors shall vote thereon
as a single Voting Group, and directors shall be elected by a
plurality of votes cast by shares entitled to vote in the
election in a meeting at which a quorum of such Voting Group
is present.
(b) Once a share is represented for any purpose other than solely to
object to holding a meeting or transacting business at the meeting, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is, or is required by law
or these Bylaws to be, set for that adjourned meeting.
(c) If a quorum for transaction of business shall not be present at a
meeting of shareholders, the shareholders entitled to vote thereat, present in
person or by proxy, shall have the power to adjourn the meeting from time to
time, until the requisite amount of voting stock shall be present. No notice
other than announcements at the meeting before adjournment shall be required of
the new date, time or place of the adjourned meeting, unless a new record date
for such adjourned meeting is, or is required by law or these Bylaws to be,
fixed. At such adjourned meeting (for which no new record date is, or is
required to be, set) at which a quorum shall be present in person or by proxy,
any business may be transacted that might have been transacted at the meeting
originally called.
Section 7. PROXIES. At every meeting of the shareholders, any
shareholder having the right to vote shall be entitled to vote in person or by
proxy, but no proxy shall be: (i) effective unless given in writing and signed,
either personally by the shareholder or his attorney-in-fact; or (ii) effective
until received by the Secretary or other officer or agent authorized to
tabulate votes; or valid after eleven months from its date, unless said proxy
expressly provides for a longer period.
Section 8. INFORMAL ACTIONS BY SHAREHOLDERS. The shareholders
may take actions by unanimous written consent without a meeting as
and in the manner authorized by the Articles of Incorporation or the
Code.
ARTICLE IV.
DIRECTORS
Section 1. GENERAL POWERS. All corporate powers of the Corporation
shall be exercised by or under the authority of, and the business and affairs
of the Corporation managed under the direction of, its Board, subject to any
limitation set forth in the Articles of Incorporation, or any amendment to
these Bylaws approved by the shareholders of the Corporation, or any otherwise
lawful agreement among the shareholders of the Corporation.
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<PAGE> 11
Section 2. NUMBER, TENURE, QUALIFICATIONS. The Board shall
consist of not less than two (2) and not more than thirteen (13)
members, the precise number of seats to be fixed by resolution of the Board of
Directors from time to time. If the Board by resolution votes to increase its
membership at any time other than in conjunction with a meeting of the
shareholders at which the additional members are to be elected by the
shareholders, the Board may elect persons to fill the new increased seats in
the same manner as vacancies are filled under Section 3 of this Article IV.
Each member of the Board shall hold office until the annual meeting of
shareholders held next after his election and until his successor has been duly
elected and has qualified, or until his earlier resignation, removal from
office, or death. Directors shall be natural persons who are eighteen (18)
years of age or older, but need not be shareholders or residents of Georgia
unless the Articles of Incorporation require otherwise.
Section 3. VACANCIES, HOW FILLED. If any vacancy shall occur in the
membership of the Board by reason of the resignation, removal or death of a
director, the remaining directors shall continue to act, and such vacant seat
may be filled by the affirmative vote of the majority of the directors then in
office, though less than a quorum, and if not therefore filled by action of the
directors, may be filled by the shareholders at any meeting held during the
existence of such vacancy. A director elected to fill a vacant seat shall be
elected for the unexpired term of his predecessor in office.
Section 4. PLACE OF MEETING. The Board may hold its meetings
at such place or places within or without the State of Georgia as it
may from time to time determine.
Section 5. COMPENSATION. Directors may be allowed such compensation for
attendance at regular or special meetings of the Board and of any special or
standing committees thereof as may be from time to time determined by
resolution of the Board.
Section 6. REGULAR MEETINGS. A regular annual meeting of the Board
shall be held, without other notice than this Bylaw, immediately after, and at
the same place as, the annual meeting of shareholders. The Board may provide,
by resolution, the time and place within or without the State of Georgia, for
the holding of additional regular meetings without other notice than such
resolution.
Section 7. SPECIAL MEETINGS. Special meetings of the Board may
be called by the Chief Executive Officer or the presiding officer of
the Board, if different from the Chief Executive Officer, on not less than two
(2) days' notice to each director by mail, telegram, cablegram or other form of
wire or wireless communication, or personal delivery or other form of
communication authorized under the circumstances by the Code, and shall be
called by the Chief Executive Officer or the Secretary in like manner and on
like notice on the written request of any two (2) or more members of the Board.
Such notice shall state the time, date and place of such meeting, but need not
describe the purpose of the meeting. Any such special meeting shall be held at
such time and place as shall be stated in the notice of the meeting.
Section 8. GENERAL PROVISIONS REGARDING NOTICE AND WAIVER. Except as
otherwise expressly provided in this Article IV, matters relating to notice to
directors and waiver of notice by directors shall be governed by the provisions
of Article II of these Bylaws.
Section 9. QUORUM. At all meetings of the Board, unless otherwise
provided in the Articles of Incorporation or other provisions of these Bylaws,
the presence of a majority of the Directors shall constitute a quorum for the
transaction of business. In the absence of a quorum a majority of the Directors
present at
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any meeting may adjourn from time to time until a quorum be had. Notice of the
time and place of any adjourned meeting need only be given by announcement at
the meeting at which adjournment is taken.
Section 10. MANNER OF ACTING. Except as expressly otherwise provided by
the Articles of Incorporation or other provisions of these Bylaws, 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. A director who is present at a
meeting when corporate action is taken is deemed to have assented to the action
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 does not vote in favor of the action taken and 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.
Section 11. COMMITTEES.
(a) Except as otherwise provided by the Articles of Incorporation, the
Board may create one or more committees and appoint members of the Board to
serve on them. Each committee may have one or more members, who serve at the
pleasure of the Board.
(b) The provisions of these Bylaws and of the Code which govern
meetings, action without meetings, notice and waiver of notice, and quorum and
voting requirements of the Board, shall apply as well to committees created
under this Section 11 and their members.
(c) To the extent specified by the Articles of Incorporation, these
Bylaws and the resolution of the Board creating such committee, each committee
may exercise the authority of the Board, provided that a committee may not:
(1) Approve, or propose to shareholders for approval, action
required by the Code to be approved by shareholders;
(2) Fill vacancies on the Board or on any of its committees;
(3) Exercise any authority which the Board may have to amend the
Articles of Incorporation;
(4) Adopt, amend, or repeal bylaws; or
(5) Approve a plan of merger not requiring shareholder approval.
Section 12. ACTION WITHOUT FORMAL MEETING. Except as expressly
otherwise provided in the Articles of Incorporation, any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting if written consent thereto (which may take the
form of one or more counterparts) is signed by all members of the Board or of
such committee, as the case may be, and such written consent is filed with the
minutes of the proceedings of the Board or committee.
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A consent executed in accordance herewith has the effect of a meeting vote and
may be described as such in any document.
Section 13. CONFERENCE CALL MEETINGS. Members of the Board, or any
committee of the Board, may participate in a meeting of the Board or committee
by means of conference videophone, television or telephone or similar
communications equipment by means of which all persons participating in the
meeting can simultaneously hear each other during the meeting, and
participation in a meeting pursuant to this Section shall constitute presence
in person at such meeting.
ARTICLE V.
OFFICERS
Section 1. GENERALLY. The officers of the Corporation shall be a
Chairman, one or more Vice Chairmen, a Chief Executive Officer, a Chief
Operating Officer, a Chief Financial Officer, a President, one or more Vice
Presidents, a Secretary and a Treasurer, and such additional officers, if any,
as shall be elected by the Board of Directors pursuant to the provisions of
Section 11 of this Article V. The Chairman, one or more Vice Chairmen, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, the President, one or more Vice Presidents, the Secretary and the
Treasurer, shall be elected by the Board of Directors at its first meeting
after each annual meeting of the shareholders. The failure to hold such
election shall not of itself terminate the term of office of any officer. Any
number of offices may be held simultaneously by the same person, except that
the person serving as Chief Financial Officer may not serve simultaneously as
the Chief Executive Officer. The Chairman and any Vice Chairman shall be
Directors of the Corporation. All other officers may, but need not, the
Directors. Any officer may resign at any time upon written notice to the
Corporation.
Any officers, agents and employees shall be subject to removal, with or
without cause, at any time by the Board of Directors. The removal of an officer
without cause shall be without prejudice to this contract rights, if any. The
election or appointment of an officer shall not of itself create contract
rights. All agents and employees other than officers elected by the Board of
Directors shall also be subject to removal, with or without cause, at any time
by the officers appointing them.
Any vacancy caused by the death of any officer, his resignation,
his removal, or otherwise, may be filled by the Board of Directors, and any
officer so elected shall hold office at the pleasure of the Board of Directors.
In addition to the powers and duties of the officers of the Corporation
as set forth in these Bylaws, the officers shall have such authority and shall
perform such duties as from time to time may be determined by the Board of
Directors.
Section 2. POWERS AND DUTIES OF THE CHAIRMAN. The Chairman shall
preside at all meetings of the shareholders and of the Board of Directors at
which he shall be present and shall have such other duties as may from time to
time be assigned by these Bylaws or by the Board of Directors.
Section 3. POWERS AND DUTIES OF THE VICE CHAIRMAN. The Vice Chairman or
Chairman shall have such powers and perform such duties as may from time to
time be assigned by the Board of Directors or the Chairman. In the absence of
the Chairman, the Vice Chairman (or if more than one, one
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of the Vice Chairmen as designated by the Board of Directors) shall preside at
all meetings of the shareholders and the Board of Directors at which he shall
be present.
Section 4. POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER. The Chief
Executive Officer shall be the chief executive officer of the Corporation and,
subject to the control of the Board of Directors, shall have general charge and
control of all its business and affairs and shall perform all duties incident
to the office of the Chief Executive Officer; he may sign and execute, in the
name of the Corporation, all authorized deeds, mortgages, bonds, notes and
other evidence of indebtedness, contracts or other instruments, except in cases
in which the signing and execution thereof shall have been expressly excluded
from the Chief Executive Officer and delegated to some other officer or agent
of the Corporation by the Board of Directors. In the absence or disability of
the Chairman and all Vice-Chairmen, the Chief Executive Officer shall preside
at all meetings of the shareholders and shall have such other powers and
perform such other duties as may from time to time be assigned by him by these
Bylaws or by the Board of Directors.
Section 5. POWERS AND DUTIES OF THE CHIEF OPERATING OFFICER.
The Chief Operating Officer shall be the principal operating officer of the
Corporation with authority as such, and at the request of the Chief Executive
Officer or in his absence or disability to act, shall perform the duties and
exercise the functions of the Chief Executive Officer, and when so acting shall
have such other powers and perform such other duties as may from time to time
be assigned to him by the Board of Directors or Chief Executive Officer.
Section 6. POWERS AND DUTIES OF THE CHIEF FINANCIAL OFFICER. The Chief
Financial Officer shall be the chief accounting officer of the Corporation; he
shall see that the books of account and other accounting records of the
Corporation are kept in proper form and accurately; and, in general, he shall
perform all the duties incident to the office of Chief Financial Officer of the
Corporation and such other duties as may be from time to time assigned to him
by the Board of Directors or the Chief Executive Officer.
Section 7. POWERS AND DUTIES OF THE PRESIDENT. The President shall act
as a general executive officer of the Corporation and shall have such other
powers and perform such other duties as may from time to time be assigned to
him by these Bylaws or by the Board of Directors or by the Chief Executive
Officer.
Section 8. POWERS AND DUTIES OF THE VICE PRESIDENT. Each Vice President
shall perform all duties incident to the office of Vice President and shall
have such other powers and perform such other duties as may from time to time
be assigned to him by these Bylaws or by the Board of Directors or the Chief
Executive Officer.
Section 9. POWERS AND DUTIES OF THE SECRETARY. The Secretary shall keep
the minutes of any meetings of the Board of Directors and the minutes of all
meetings of the shareholders in books provided for that purpose; he shall
attend to the giving or serving of all notices of the Corporation; he shall
have custody of the corporate seal of the Corporation and shall affix the same
to such documents and other papers as the Board of Directors or the Chief
Executive Officer shall authorize and direct; he shall have charge of the stock
certificate books, transfer books and stock ledgers and such other books and
papers as the Board of Directors or the Chief Executive Officer shall direct,
all of which shall at all reasonable times be open to the examination of any
Director, upon application, at the office of the Corporation during business
hours; he shall be the custodian of the general books and records of the
Corporation maintained in
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the ordinary course of business or otherwise; and he shall perform all duties
incident to the office of Secretary and shall also have such other powers and
shall perform such other duties as may from time to time be assigned to him by
these Bylaws or the Board of Directors or the Chief Executive Officer.
Section 10. POWERS AND DUTIES OF THE TREASURER. The Treasurer shall
have custody of, and when proper shall pay out, disburse or otherwise dispose
of, all funds and securities of the Corporation which may have come into this
hands; he may endorse on behalf of the Corporation for collection checks, notes
and other obligations and shall deposit the same to the credit of the
Corporation in such bank or depository or depositaries as the Board of
Directors may designate; he shall sign all receipts and vouchers for payments
made to the Corporation; he shall enter or cause to be entered regularly in the
books of the Corporation kept for the purpose full and accurate accounts of all
moneys received or paid or otherwise disposed of by him and whenever required
by the Board of Directors or the Chief Executive Officer shall render
statements of such accounts; and he shall perform all duties incident to the
office of Treasurer and shall also have such other powers and shall perform
such other duties as may from time to time be assigned to him by these Bylaws
or by the Board of Directors or the Chief Executive Officer.
Section 11. ADDITIONAL OFFICERS. The Board of Directors may from time
to time elect such other officers (who may but need not be Directors),
including Controllers, Assistant Treasurers, Assistant Secretaries and
Assistant Financial Officers, as the Board may deem advisable and such officers
shall have such authority and shall perform such duties as may from time to
time be assigned to them by the Board of Directors or the Chief Executive
Officer.
The Board of Directors may from time to time by resolution delegate to
any Assistant Treasurer or Assistant Treasurers any of the powers or duties
herein assigned to the Treasurer; and any similarly delegate to any Assistant
Secretary or Assistant Secretaries any of the powers or duties herein assigned
to the Secretary.
Section 12. GIVING OF BOND BY OFFICERS. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish
bonds to the Corporation for the faithful performance of their duties, in such
amounts and with such conditions and security as the Board shall require.
Section 13. VOTING UPON STOCKS. Unless otherwise ordered by the Board
of Directors, the Chief Executive Officer, the Chief Operating Officer, the
Chief Financial Officer, the President or any Vice President shall have full
power and authority on behalf of the Corporation to attend and to act and to
vote, or in the name of the Corporation to execute proxies to vote, at any
meetings of shareholders of any corporation in which the Corporation may hold
stock, and at any such meetings shall possess and may exercise, in person or by
proxy, any and all rights, powers and privileges incident to the ownership of
such stock. The Board of Directors may from time to time, by resolution, confer
like powers upon any other person or persons.
Section 14. COMPENSATION OF OFFICERS. The officers of the Corporation
shall be entitled to receive such compensation for their services as shall from
time to time be determined by the Board of Directors.
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ARTICLE VI.
INDEMNIFICATION
Section 1. DEFINITIONS FOR INDEMNIFICATION PROVISIONS. As used
in this Article VI, the term:
(1) "Corporation" includes any domestic or foreign predecessor
entity of the "Corporation" (as defined in Article I of these
Bylaws) in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the
transaction.
(2) "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. 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.
(3) "expenses" include attorneys' fees.
(4) "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.
(5) "party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(6) "proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or
informal.
Section 2. MANDATORY INDEMNIFICATION AGAINST EXPENSES. Unless otherwise
provided by the Articles of Incorporation, to the extent that a director has
been successful, on the merits or otherwise, in the defense of any proceeding
to which he was a party, or in defense of any claim, issue, or matter therein,
because he is or was a director of the Corporation, the Corporation shall
indemnify the director against reasonable expenses incurred by him in
connection therewith.
Section 3. AUTHORITY FOR INDEMNIFICATION.
(a) Except as provided in subsections (d) and (e) of this Section 3, or
as otherwise provided in the Articles of Incorporation, the Corporation shall
indemnify or obligate itself to indemnify an individual made a party to a
proceeding because he is or was a director, against liability incurred in the
proceeding if he acted in a manner he believed in good faith to be in or not
opposed to the best interests of the Corporation and, in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful.
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(b) A party'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 (a) of this Section 3.
(c) The termination of a proceeding by judgment, order, settlement,
or conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director or person did not meet the standard of
conduct set forth in subsection (a) of this Section 3.
(d) The Corporation may not indemnify a director under this Section
3:
(1) In connection with a proceeding by or in the right of the
Corporation in which the director was adjudged liable to
the Corporation; or
(2) In connection with any other proceeding in which he was
adjudged liable on the basis that personal benefit was
improperly received by him.
(e) Indemnification permitted under this Section 3 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 4. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) The Corporation shall not indemnify a director under Section 3
of this Article VI unless a determination has been made in the specific case
that indemnification of the director is permissible in the circumstances
because he has met the standard of conduct set forth in subsection (a) of such
Section 3.
(b) The determination required by subsection (a) hereof shall be
made:
(1) By the Board by majority vote of a quorum consisting of
directors not at the time parties to the proceeding;
(2) If a quorum cannot be obtained under paragraph (1) of this
subsection (b), by majority vote of a committee duly designated
by the Board (in which designation directors who are parties
may participate), consisting solely of two or more directors
not at the time parties to the proceeding;
(3) By special legal counsel:
(A) Selected by the Board or its committee in the
manner prescribed in paragraph (1) or (2) of this subsection;
or
(B) If a quorum of the Board cannot be obtained under
paragraph (1) of this subsection and a committee cannot be
designated under paragraph (2) of this subsection, selected by
majority vote of the full Board (in which directors who are
parties may participate); or
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination.
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(c) Authorization of indemnification or an obligation to indemnify
with respect to another person who is not a director and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, as set forth in subsection
(b) hereof, except that if such determination is made by special legal counsel,
authorization of indemnification and evaluation as to reasonableness of
expenses shall be made by those entitled to select counsel under paragraph (3)
of subsection (b) of this Section 4.
Section 5. SHAREHOLDER-APPROVED INDEMNIFICATION.
(a) Without regard to any limitations contained in any other
section of this Article VI, the Corporation may, if authorized by its
shareholders by a majority of votes which would be entitled to be cast in a
vote to amend the Corporation's Articles of Incorporation (which authorization
may take the form of an amendment to the Articles of Incorporation or a
contract, resolution or bylaw approved or ratified by the requisite shareholder
vote), indemnify or obligate itself to indemnify a director made a party to a
proceeding, including a proceeding brought by or in the right of the
Corporation.
(b) The Corporation shall not indemnify a director under this
Section 5 for any liability incurred in a proceeding in which the director is
adjudged liable to the Corporation or is subjected to injunctive relief in
favor of the Corporation:
(1) For any appropriation, in violation of his duties, of any
business opportunity of the Corporation;
(2) For acts or omissions which involve intentional misconduct or a
knowing violation of law;
(3) For any type of liability for unlawful distribution under
Section 14-2-832 of the Code, or any successor statute; or
(4) For any transaction from which he received an improper personal
benefit.
(c) Where approved or authorized in the manner described in
subsection (a) of this Section 5, the Corporation may advance or reimburse
expenses incurred in advance of final disposition of the proceeding only if:
(1) The director furnishes the Corporation a written affirmation of
his good faith belief that his conduct does not constitute
behavior of the kind described in subsection (b) of this
Section 5; and
(2) The director 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 under this Section 5.
Section 6. ADVANCES FOR EXPENSES.
(a) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding if:
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(1) The director furnishes the Corporation a written affirmation of
his good faith belief that he has met the standard of conduct
set forth in subsection (a) of Section 3 of this Article VI;
and
(2) The director 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 under this Article.
(b) The undertaking required by paragraph (2) of subsection (a) of
this Section 6 must be an unlimited general obligation of the director but need
not be secured and may be accepted without reference to financial ability to
make repayment.
Section 7. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS. Except
as otherwise provided in the Articles of Incorporation, an officer of the
Corporation who is not a director is entitled to mandatory indemnification
under Section 14-2-852 of the Code and to apply for court ordered
indemnification under Section 14-2-854 of the Code, to the same extent as a
director. An officer, employee or agent of the Corporation who is not a
director shall be indemnified under the standards and procedures set forth in
Sections 3, 4 and 5 of this Article VI, consistent with public policy, and may
receive advancement of expenses under the procedures in Section 6, if such
advancement is authorized by the Board of Directors, in its discretion.
Section 8. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of an individual who is or was a director, officer,
employee, or agent of the Corporation or who, while a director, officer,
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 this Article VI or applicable
law.
Section 9. EXPENSES FOR APPEARANCE AS WITNESS. Nothing contained in
this Article VI shall be deemed to limit the Corporation's power to pay or
reimburse expenses incurred by a director or officer in connection with his
appearance as a witness in a proceeding at a time when he has not been made a
named defendant or respondent to the proceeding.
ARTICLE VII.
FAIR PRICE REQUIREMENTS
Section 1. DEFINITIONS.
As used in this Article VII, the term:
(1) "Affiliate" means a person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled By or is Under Common
Control With a specified person.
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(2) "Announcement Date" means the date of the first general public
announcement of the proposal of the Business Combination.
(3) "Associate," when used to indicate a relationship with any
person, means:
(A) Any corporation or organization, other than the
Corporation or a subsidiary of the Corporation, of which such person is an
officer, director, or partner or is the Beneficial Owner of ten percent (10%)
or more of any class of equity securities;
(B) Any trust or other estate in which such person has a
beneficial interest of ten percent (10%) or more or as to which such
person serves as trustee or in a similar fiduciary capacity; and
(C) Any relative or spouse of such person, or any relative of
such spouse, who has the same home as such person.
(4) "Beneficial Owner" means a person shall be considered to be the
beneficial owner of any equity securities:
(A) Which such person or any of such person's Affiliates or
Associates owns, directly or indirectly;
(B) Which such person or any of such person's Affiliates or
Associates, directly or indirectly, has:
(i) The right to acquire, whether such right is
exercisable immediately or only after the passage of time,
pursuant to any agreement, arrangement, or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise; or
(ii) The right to vote pursuant to any agreement,
arrangement, or understanding; or
(C) Which are owned, directly or indirectly, by any other
person with which such person or any of such person's Affiliates or
Associates has any agreement, arrangement, or understanding for the
purpose of acquiring, holding, voting, or disposing of equity
securities.
(5) "Business Combination" means:
(A) Any merger of the Corporation or any subsidiary with:
(i) Any Interested Shareholder; or
(ii) Any other corporation, whether or not itself an
Interested Shareholder, which is, or after the merger would be,
an Affiliate of an Interested Shareholder that was an
Interested Shareholder prior to the consummation of the
transaction;
(B) Any share exchange with (i) any Interested Shareholder or
(ii) any other corporation, whether or not itself an Interested
Shareholder, which is, or after the share exchange would be, an
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Affiliate of an Interested Shareholder that was an Interested
Shareholder prior to the consummation of the transaction;
(C) Any sale, lease, transfer, or other disposition, other than
in the ordinary course of business, in one transaction or in a series
of transactions in any 12-month period, to any Interested Shareholder
or any Affiliate of any Interested Shareholder, other than the
Corporation or any of its subsidiaries, of any assets of the
Corporation or any subsidiary having, measured at the time the
transaction or transactions are approved by the board of directors of
the Corporation, an aggregate book value as of the end of the
Corporation's most recently ended fiscal quarter of ten percent (10%)
or more of the net assets of the Corporation as of the end of such
fiscal quarter;
(D) The issuance or transfer by the Corporation, or any
subsidiary, in one transaction or a series of transactions in any
12-month period, of any equity securities of the Corporation or any
subsidiary which have an aggregate market value of five percent (5%) or
more of the total market value of the outstanding common and preferred
shares of the Corporation whose shares are being issued to any
Interested Shareholder or any Affiliate of any Interested Shareholder,
other than the Corporation or any of its subsidiaries, except pursuant
to the exercise of warrants or rights to purchase securities offered
pro rata to all holders of the Corporation's Voting Shares or any other
method affording substantially proportionate treatment to the holders
of Voting Shares;
(E) The adoption of any plan or proposal for the liquidation or
dissolution of the Corporation in which anything other than cash will
be received by an Interested Shareholder or any Affiliate of any
Interested Shareholder; or
(F) Any reclassification of securities, including any reverse
stock split, or recapitalization of the Corporation, or any merger of
the Corporation with any of its subsidiaries, or any share exchange
with any of its subsidiaries, which has the effect, directly or
indirectly, in one transaction or a series of transactions in any
12-month period, of increasing by five percent (5%) or more the
proportionate amount of the outstanding shares of any class or series
of equity securities of the Corporation or any subsidiary which is
directly or indirectly beneficially owned by any Interested Shareholder
or any Affiliate of any Interested Shareholder.
(6) "Continuing Director" means any member of the board of
directors who is not an Affiliate or Associate of an Interested Shareholder or
any of its Affiliates, other than the Corporation or any of its subsidiaries,
and who was a director of the Corporation prior to the Determination Date, and
any successor to such Continuing Director who is not an Affiliate or an
Associate of an Interested Shareholder or any of its Affiliates, other than the
Corporation or its subsidiaries, and is recommended or elected by a majority of
all of the Continuing Directors.
(7) "Control," including the terms "Controlling," "Controlled By,"
and "Under Common Control With," means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a person, whether through the ownership of voting securities, by contract, or
otherwise, and the beneficial ownership of shares representing ten percent
(10%) or more of the votes entitled to be cast by the Corporation's Voting
Shares shall create an irrebuttable presumption of control.
(8) "Determination Date" means the date on which an Interested
Shareholder first became an Interested Shareholder.
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(9) "Fair Market Value" means:
(A) In the case of securities, the highest closing sale price,
during the period beginning with and including the Determination Date
and for 29 days prior to such date, of such a security on a principal
United States securities exchange registered under the Securities
Exchange Act of 1934 on which such securities are listed, or, if such
securities are not listed on any such exchange, the highest closing
sales price or, if none is available, the average of the highest bid
and asked prices reported with respect to such a security, in each case
during the 30-day period referred to above, on the National Association
of Securities Dealers, Inc., Automatic Quotation System, or any system
then in use, or, if no such quotations are available, the fair market
value on the date in question of such a security as determined in good
faith at a duly called meeting of the board of directors by a majority
of all of the Continuing Directors, or, if there are no Continuing
Directors, by the entire board of directors; and
(B) In the case of property other than securities, the fair
market value of such property on the date in question as determined in
good faith at a duly called meeting of the board of directors by a
majority of all of the Continuing Directors, or, if there are no
Continuing Directors, by the entire board of directors of the
Corporation.
(10) "Interested Shareholder" means any person, other than the
Corporation, its subsidiaries, Isador Mitzner, David Keller or any of their
Affiliates, that:
(A) Is the Beneficial Owner of ten percent (10%) or more of the
voting power of the outstanding Voting Shares of the Corporation; or
(B) Is an Affiliate of the Corporation and, at any time within
the two-year period immediately prior to the date in question, was the
Beneficial Owner of ten percent (10%) or more of the voting power of
the then outstanding Voting Shares of the Corporation.
For the purpose of determining whether a person is an Interested Shareholder,
the number of Voting Shares deemed to be outstanding shall not include any
unissued Voting Shares which may be issuable pursuant to any agreement,
arrangement, or understanding, or upon exercise of conversion rights, warrants,
or options, or otherwise.
(11) "Net Assets" means the amount by which the total assets of the
Corporation exceed the total debts of the Corporation.
(12) "Voting Shares" means shares entitled to vote generally in the
election of directors.
Section 2. ADDITIONAL BUSINESS COMBINATION APPROVAL.
In addition to any vote otherwise required by law or the Articles of
Incorporation of the Corporation, a Business Combination shall be:
(1) Unanimously approved by the Continuing Directors, provided
that the Continuing Directors constitute at least three members of the
board of directors at the time of such approval; or
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(2) Recommended by at least two-thirds of the Continuing
Directors and approved by a majority of the votes entitled to be cast
by holders of Voting Shares, other than Voting Shares beneficially
owned by the Interested Shareholder who is, or whose Affiliate is, a
party to the Business Combination.
Section 3. "INTERESTED SHAREHOLDER" DEFINED AND EXCEPTION TO VOTE
REQUIREMENT OF ARTICLE VII, SECTION 2.
(a) As used in this Article VII, Section 3, the term "Interested
Shareholder" refers to the Interested Shareholder which is party to, or an
Affiliate of which is party to, the Business Combination in question, other
than Isador Mitzner, David Keller or any of their Affiliates.
(b) The vote required by Section 2 of this Article VII does not
apply to a Business Combination if each of the following conditions is met:
(1) The aggregate amount of the cash, and the Fair Market Value
as of five days before the consummation of the Business Combination of
consideration other than cash, to be received per share by holders of
any class of common shares or any class or series of preferred shares
in such Business Combination is at least equal to the highest of the
following:
(A) The highest per share price, including any
brokerage commissions, transfer taxes, and soliciting
dealers' fees, paid by the Interested Shareholder for any
shares of the same class or series acquired by it:
(i) Within the two-year period immediately
prior to the Announcement Date; or
(ii) In the transaction in which it became
an Interested Shareholder, whichever is higher;
(B) The Fair Market Value per share of such class or
series as determined on the Announcement Date or as determined
on the Determination Date, whichever is higher; or
(C) In the case of shares other than common shares,
the highest preferential amount per share to which the holders
of shares of such class or series are entitled in the event of
any voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation, provided that this subparagraph
shall only apply if the Interested Shareholder has acquired
shares of such class or series within the two-year period
immediately prior to the Announcement Date;
(2) The consideration to be received by holders of any class or
series of outstanding shares is to be in cash or in the same for as the
Interested Shareholder has previously paid for shares of the same class
or series. If the Interested Shareholder has paid for shares of any
class or series of shares with varying forms of consideration, the form
of consideration for such class or series of shares shall be either
cash or the form used to acquire the largest number of shares of such
class or series previously acquired by it;
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<PAGE> 24
(3) After the Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business Combination:
(A) Unless approved by a majority of the Continuing
Directors, there shall have been:
(i) No failure to declare and pay at the
regular date therefor any full periodic dividends,
whether or not cumulative, on any outstanding
preferred shares of the Corporation;
(ii) No reduction in the annual rate of
dividends paid on any class of common shares, except
as necessary to reflect any subdivision of the shares;
(iii) An increase in such annual rate of
dividends as is necessary to reflect any
reclassification, including any reverse share split,
recapitalization, reorganization, or any similar
transaction which has the effect of reducing the number
of outstanding shares; and
(iv) No increase in the Interested Share holder's
percentage ownership of any class or series of shares
of the Corporation by more than one percent (1%) in any
12-month period;
(B) The provisions of divisions (i) and (ii) of
subparagraph (A) of this paragraph shall not apply if the
Interested Shareholder or an Affiliate or Associate of the
Interested Shareholder did not vote as a director of the
Corporation in a manner inconsistent with divisions (i) and
(ii) of subparagraph (A) of this paragraph and the Interested
Shareholder, within ten (10) days after any act or failure to
act inconsistent with divisions (i) and (ii) of subparagraph
(A) of this paragraph, notified the board of directors of the
Corporation in writing that the Interested Shareholder
disapproved thereof and requested in good faith that the board
of directors rectify the act or failure to act; and
(4) After the Interested Shareholder has become an Interested
Shareholder, the Interested Shareholder has not received the benefit,
directly or indirectly, except proportionately as a shareholder, of any
loans, advances, guarantees, pledges, or other financial assistance or
any tax credits or other tax advantages provided by the Corporation or
any of its subsidiaries, whether in anticipation of or in connection
with such Business Combination or otherwise.
Section 4. REPEAL OF ARTICLE VII AND LIMITATIONS.
(a) This Article VII shall be irrevocable except that it may be
repealed by the affirmative vote of at least two-thirds of the Continuing
Directors.
(b) The requirement of Section 2 of this Article VII shall not apply to
Business Combinations with an Interested Shareholder or its Affiliates if,
during the three-year period immediately preceding the consummation of the
Business Combination, the Interested Shareholder has not at any time during
such period:
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<PAGE> 25
(1) Ceased to be an Interested Shareholder; or
(2) Increased its percentage ownership of any class or series of
common or preferred shares of the Corporation by more than one
percent (1%) in any 12-month period.
ARTICLE VIII.
BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS
Section 1. DEFINITIONS.
For purposes of this Article VIII, the definitions contained in Article
VII, Section 1 shall be applicable with the following exceptions:
(1) For purposes of this part, a person shall not be considered
to be the "Beneficial Owner," as that term is defined Article VII,
Section 1, of:
(A) Stock tendered pursuant to a tender or exchange
offer made by such person or any of such person's Affiliates or
Associates until such tendered stock is accepted for purchase
or exchange; or
(B) Any equity securities which such person or such
person's Affiliates or Associates have the right to vote
pursuant to any agreement, arrangement, or understanding if the
agreement, arrangement, or understanding to vote such stock
arises solely from a revocable proxy or consent given
in response to a proxy or consent solicitation made to ten
or more persons;
(2) For purposes of this part, "Business Combination" means:
(A) Any merger or consolidation of the Corporation or
any subsidiary with (i) any Interested Shareholder; or (ii) any
other corporation, whether or not itself an Interested
Shareholder, which is, or after the merger or consolidation
would be, an Affiliate of an Interested Shareholder that was an
Interested Shareholder prior to the consummation of the
transaction other than as a result of the Interested
Shareholder's ownership of the Corporation's voting stock;
(B) Any sale, lease, transfer, or other disposition,
other than in the ordinary course of business, in one
transaction or in a series of transactions, to any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder, other than the Corporation or any of its
subsidiaries, of any assets of the Corporation or any
subsidiary having, measured at the time the transaction or
transactions are approved by the board of directors of the
Corporation, an aggregate book value as of the end of the
Corporation's most recently ended fiscal quarter of ten percent
(10%) or more of the Net Assets of the Corporation as of the
end of such fiscal quarter;
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<PAGE> 26
(C) The issuance or transfer by the Corporation, or
any subsidiary, in one transaction or a series of transactions,
of any equity securities of the Corporation or any subsidiary
which have an aggregate market value of five percent (5%) or
more of the total market value of the outstanding common and
preferred shares of the Corporation whose shares are being
issued to any Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder, other than the
Corporation or any of its subsidiaries, except pursuant to the
exercise of warrants or rights to purchase securities offered
pro rata to all holders of the Corporation's Voting Shares or
any other method affording substantially proportionate
treatment to the holders of Voting Shares, and except pursuant
to the exercise or conversion of securities exercisable for or
convertible into shares of the Corporation, or any subsidiary,
which securities were outstanding prior to the time that any
Interested Shareholder became such;
(D) The adoption of any plan or proposal for the
liquidation or dissolution of the Corporation;
(E) Any reclassification of securities, including any
reverse stock split, or recapitalization of the Corporation, or
any merger or consolidation of the Corporation with any of its
subsidiaries, which has the effect, directly or indirectly, of
increasing by five percent (5%) or more the proportionate
amount of the outstanding shares of any class or series of
equity securities of the Corporation or any subsidiary which is
directly or indirectly beneficially owned by any Interested
Shareholder or any Affiliate of any Interested Shareholder;
(F) Any receipt by the Interested Shareholder, or any
Affiliate or Associate of the Interested Shareholder, other
than in the ordinary course of business, of the benefit,
directly or indirectly (except proportionately as a shareholder
of the Corporation), of any loans, advances, guarantees,
pledges, or other financial benefits or assistance or any tax
credits or other tax advantages provided by or through the
Corporation or any of its subsidiaries; and
(G) Any share exchange with (i) any Interested
Shareholder or (ii) any other corporation, whether or not
itself an Interested Shareholder, which is, or after the share
exchange would be, an Affiliate of an Interested Shareholder
that was an Interested Shareholder prior to the consummation of
the transaction; and
(3) For purposes of this Article VIII, the presumption of
control created by paragraph (7) of Article VII, Section 1 shall not
apply where such person holds voting stock, in good faith and not for
the purpose of circumventing this Article VIII, as an agent, bank,
broker, nominee, custodian, or trustee for one or more owners who do not
individually or as a group have Control of the Corporation.
Section 2. BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS.
(a) The Corporation shall not engage in any Business Combination
with any Interested Shareholder for a period of five years (5) following the
time that such shareholder became an Interested Shareholder, unless:
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(1) Prior to such time, the Corporation's board of directors
approved either the Business Combination or the transaction which
resulted in the shareholder becoming an Interested Shareholder;
(2) In the transaction which resulted in the shareholder
becoming an Interested Shareholder, the Interested Shareholder became
the Beneficial Owner of at least ninety percent (90%) of the voting
stock of the Corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of shares
outstanding those shares owned by: (A) persons who are directors or
officers, their Affiliates, or Associates; (B) subsidiaries of the
Corporation; and (C) any employee stock plan under which participants
do not have the right (as determined exclusively by reference to the
terms of such plan and any trust which is part of such plan) to
determine confidentially the extent to which shares held under such
plan will be tendered in a tender or exchange offer; or
(3) Subsequent to becoming an Interested Shareholder, such
shareholder acquired additional shares resulting in the Interested
Shareholder being the Beneficial Owner of at least ninety percent (90%)
of the outstanding voting stock of the Corporation, excluding for
purposes of determining the number of shares outstanding those shares
owned by (A) persons who are directors or officers of the Corporation,
their Affiliates, or Associates; (B) subsidiaries of the Corporation;
and (C) any employee stock plan under which participants do not have
the right (as determined exclusively by reference to the terms of such
plan and any trust which is part of such plan) to determine
confidentially the extent to which shares held under such plan will be
tendered in a tender or exchange offer, and the Business Combination
was approved at an annual or special meeting of shareholders by the
holders of a majority of the voting stock entitled to vote thereon,
excluding from said vote, for the purpose of this paragraph only, the
voting stock beneficially owned by the Interested Shareholder or by (A)
persons who are directors or officers of the Corporation, their
Affiliates, or Associates; (B) subsidiaries of the Corporation; and (C)
any employee stock plan under which participants do not have the right
(as determined exclusively by reference to the terms of such plan and
any trust which is part of such plan) to determine confidentially the
extent to which shares held under such plan will be tendered in a
tender or exchange offer.
(b) The restrictions contained in this Section 2 shall not apply if
a shareholder: (1) becomes an Interested Shareholder inadvertently; (2) as soon
as practicable divests sufficient shares so that the shareholder ceases to be
an Interested Shareholder; and (3) would not, at any time within the five-year
period immediately prior to a Business Combination between the Corporation and
such shareholder, have been an Interested Shareholder but for the inadvertent
acquisition.
Section 3. REPEAL OF ARTICLE VIII.
This Article VIII shall be irrevocable except that it may be repealed
by the affirmative vote of at least two-thirds of the Continuing Directors.
ARTICLE IX.
FISCAL YEAR
The fiscal year of the Corporation shall be established by the Board
or, in the absence of Board action establishing such fiscal year, by the Chief
Executive Officer.
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ARTICLE X.
ANNUAL STATEMENTS
No later than 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:
(1) A balance sheet showing in reasonable detail the financial
condition of the Corporation as of the close of the fiscal
year; and
(2) A profit and loss statement showing the results of its
operation during the fiscal year.
Upon written request, the Corporation shall mail promptly to any
shareholder of record a copy of the most recent such balance sheet and profit
and loss statement. If prepared for other purposes, the Corporation shall also
furnish upon written request a statement of sources and applications of funds
and a statement of changes in shareholders' equity for the fiscal year. If
financial statements are prepared by the Corporation on the basis of generally
accepted accounting principles, the annual financial statements must also be
prepared, and disclose that they are prepared, on that basis. If financial
statements are prepared otherwise than on the basis of generally accepted
accounting principles, they must so disclose and must be prepared on the same
basis as other reports or statements prepared by the Corporation for the use of
others.
If the annual financial statements are reported upon by a
public accountant, his report must accompany them. If not, the statements must
be accompanied by a statement of the Chief Executive Officer or the person
responsible for the Corporation's accounting records:
(1) Stating his reasonable belief whether the statements were
prepared on the basis of generally accepted accounting
principles and, if not, describing the basis of preparation;
and
(2) Describing any respects in which the statements were not
prepared on a basis of accounting consistent with the
statements prepared for the preceding year.
ARTICLE XII.
CAPITAL STOCK
Section 1. FORM.
Except as otherwise provided for in paragraph (b) of this
Section 1, the interest of each shareholder shall be evidenced by a certificate
representing shares of stock of the Corporation, which shall be in such form as
the Board 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
shall exhibit the holder's name, the number of shares and class of shares and
series, if any, represented thereby, the name of the Corporation and a
statement that the Corporation is organized under the laws of the State of
Georgia. Each certificate shall be signed by one or more officers of the
Corporation specified by resolution of the Board, but in the absence of such
specifications, shall be valid if executed by the Chief Executive Officer or
any Deputy or Assistant
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<PAGE> 29
thereto, and such execution is countersigned by the Secretary, or any Deputy or
Assistant thereto. Each stock certificate may but need not be sealed with the
seal of the Corporation.
If authorized by resolution of the Board, the Corporation may
issue some or all of the shares of any or all of its classes or series without
certificates. The issuance of such shares shall not affect shares already
represented by certificates until they are surrendered to the Corporation.
Within a reasonable time after the issuance or transfer of any shares not
represented by certificates, the Corporation shall send to the holder of such
shares a written statement setting forth, with respect to such shares (i) the
name of the Corporation as issuer and the Corporation's state of incorporation,
(ii) the name of the person to whom such shares are issued, (iii) the number of
shares and class of shares and series, if any, and (iv) the terms of any
restrictions on transfer which, were such shares represented by a stock
certificate would be required to be noted on such certificate, by law, by the
Articles of Incorporation or these Bylaws, or by any legal agreement among the
shareholders of the Corporation.
Section 2. TRANSFER. Transfers of stock shall be made on the
books of the Corporation only by the person named in the certificate, or, in
the case of shares not represented by certificates, the person named in the
Corporation's stock transfer records as the owner of such shares, or, in either
case, by attorney lawfully constituted in writing. In addition, with respect to
shares represented by certificates, transfers shall be made only upon surrender
of the certificate therefor, or in the case of a certificate alleged to have
been lost, stolen or destroyed, upon compliance with the provisions of Section
4, Article XI of these Bylaws.
Section 3. RIGHTS OF HOLDER. The Corporation shall be entitled to treat
the holder of record of any share of the Corporation as the person entitled to
vote such share (to the extent such share is entitled to vote), to receive any
distribution with respect to such share, and for all other purposes and
accordingly shall not be bound to recognize any equitable or other claim to 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.
Section 4. LOST OR DESTROYED 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 may require and shall if
the Board so requires, give the Corporation a bond of indemnity in the form and
amount and with one or more sureties satisfactory to the Board, whereupon an
appropriate new certificate may be issued in lieu of the one alleged to have
been lost, stolen or destroyed.
ARTICLE XII.
SEAL
The corporate seal shall be in such forms as shall be specified in the
minutes of the organizational meeting of the Corporation, or as the Board may
from time to time determine. If the form including the Corporation's name and
state of incorporation shall be unavailable, the person authorized to impress
the seal may write or type the words "Corporate Seal" in lieu of such form. A
facsimile seal may be used on any certificate representing a security issued by
the Corporation.
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<PAGE> 30
ARTICLE XIII.
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation shall be located in the State
of Georgia and the registered agent shall be determined from time to time by
the offices of the Corporation any such changes to be evidenced by filing with
the Secretary of State a notice of such change, in accordance with Section
14-2-502 of the Code, or any successor statute.
The Corporation may have other offices at such places within or without
the State of Georgia as the Board may from time to time designate or the
business of the Corporation may require or make desirable.
ARTICLE XIV.
AMENDMENTS
Section 1. AMENDMENTS GENERALLY.
Except as otherwise provided in these Bylaws or in subsection
(c) of this Section 1, or in the Articles of Incorporation or by applicable
law, the Board may amend or repeal any provision of these Bylaws or adopt any
new bylaw, unless the shareholders have adopted, amended or repealed a
particular bylaw provision and, in doing so, have expressly reserved to the
shareholders the right of amendment or repeal therefor.
The Corporation's shareholders have the right to amend or
repeal any provision of these Bylaws, or to adopt new Bylaw provisions, even
though such provisions may also be adopted, amended or repealed by the Board.
Any provision of these Bylaws limiting the authority of the
Board or establishing staggered terms for directors may be adopted, amended or
repealed only by the shareholders.
Section 2. BYLAW INCREASING QUORUM OR VOTING REQUIREMENTS.
Except as provided in Articles VII and VIII of these Bylaws,
any bylaw which sets a greater quorum or voting requirement for shareholders
(or Voting Groups of shareholders) than the minimum required by the Code may
not be adopted, amended or repealed by the Board.
Except as otherwise provided in the Articles of Incorporation
or these Bylaws, a bylaw that fixes a greater quorum or voting requirement for
the Board than the minimum required by the Code:
(1) May be adopted, amended, or repealed by the shareholders only
by the affirmative vote of a majority of the votes entitled to
be cast; and
(2) May be adopted, amended, or repealed by the directors only by a
majority of the entire Board after shareholder approval for the
action has been obtained as herein provided.
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<PAGE> 31
(c) A bylaw adopted or amended by the shareholders that fixes a
greater quorum or voting requirement for the Board may be amended or repealed
only by the specified vote of the shareholders.
Section 3. AMENDMENT OF ARTICLES VII AND VIII.
Articles VII and VIII of these Bylaws may only be amended as
provided therein.
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<PAGE> 1
EXHIBIT 3
================================================================================
COMMON STOCK [LOGO] COMMON STOCK
NUMBER L.A. T SPORTSWEAR, INC. SHARES
INCORPORATED UNDER THE LAWS CUSIP 501733 10 9 -06-
OF THE STATE OF GEORGIA
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT
IS THE OWNER OF
COUNTERSIGNED:
BY TRUST COMPANY BANK
(Atlanta, Georgia) Transfer Agent And Registrar
Authorized Signature
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, OF
L.A. T SPORTSWEAR, INC., transferable on the books of the Corporation by the
owner hereof in person or by duly authorized attorney upon surrender of this
certificate of stock.
CERTIFICATE OF STOCK
Dated:
/s/ David B. Dermer [SEAL] /s/ Isador E. Mitzner
Secretary President
================================================================================
<PAGE> 2
L.A. T SPORTSWEAR, INC.
The record holder of this Certificate may obtain from the Secretary of
the Corporation, upon request and without charge, a full statement of the
designation, relative rights, preferences and limitations of the shares of each
class authorized to be issued and the designation, relative rights, preferences
and limitations of each series of preferred shares authorized to be issued so
far as the same have been fixed and the authority of the Board of Directors to
designate and fix the relative rights, preferences and limitations of other
series.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM- as tenants in common UNIF GIFT MIN ACT-_________Custodian_______
TEN ENT- as tenants by the entireties (Cust) (Minor)
JT TEN- as joint tenants with
right of survivorship and under Uniform Gifts to Minors
not as tenants in common Act__________________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value received,_____________________hereby sell, assign and transfer
units
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares
- -------------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and affirm
-----------------------------------------------
Attorney to transfer said stock on the books of the within-named Corporation
with full force of substitution in the premises.
Dated
---------------------.
X________________________________________________
X________________________________________________
NOTICE- THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATSOEVER.
SIGNATURES(S) GUARANTEED:____________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
NOTHERN BANK NOTE COMPANY
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