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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 20, 1996 (June 7, 1996)
-----------------------------
THE NETWORK CONNECTION, INC.
Georgia 1-13760 58-1712432
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(State or other (Commission File (IRS Employer
jurisdiction of No.) ID No.)
incorporation)
1324 Union Hill Road, Alpharetta, GA 30201
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(Address of principal executive offices)
(770) 751-0889
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Registrant's telephone number, including area code
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(Former name or former address, if changed since last report)
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ITEM 5 - OTHER EVENTS.
On June 7, 1996, the Company held its 1996 Annual Meeting of Stockholders
(the "Annual Meeting"). At the Annual Meeting, the following directors were
elected, with the effect being that their terms continued after the Annual
Meeting: Wilbur Riner (2,466,000 votes in favor and 700 votes against); James
Riner (2,486,109 votes in favor and 600 votes against); Bryan Carr (2,486,109
votes in favor and 600 votes against); Marc Doyle (2,485,109 votes in favor and
1,600 votes against); and James Newman (2,486,109 votes in favor and 600 votes
against).
The following additional matters were also voted on and approved at the
Annual Meeting, with the following vote tabulations being registered:
1. That the Corporation appoint Coopers & Lybrand L.L.P. as the
Corporation's independent auditors for the fiscal year ending December 31, 1996.
The following votes were cast: 2,483,096 in favor; 2,800 against; and 813
abstaining.
2. That the Corporation authorize and ratify an increase of the number of
shares of Common Stock underlying and available for the granting of options
under the Corporation's 1994 Employee Stock Option Plan, from the existing
200,000 shares of Common Stock to 700,000 shares of Common Stock. The following
votes were cast: 1,475,257 in favor; 72,873 against; 100 abstaining; and
938,479 broker non-votes.
3. That the Corporation authorize and ratify the Corporation's 1995 Stock
Option Plan for Non-Employee Directors, which Director's Plan contains 100,000
shares of Common Stock underlying and available for the granting of options
under such plan. The following votes were cast: 1,597,602 in favor; 76,131
against; 1,252 abstaining; and 811,724 broker non-votes.
4. That the Corporation authorize and ratify an amendment to the
Corporation's Articles of Incorporation and By-Laws to eliminate provisions
which permit stockholders to act by less than unanimous written consent. The
following votes were cast: 1,430,049 in favor; 79,969 against; 5,550
abstaining; and 971,141 broker non-votes.
5. That the Corporation's Articles of Incorporation be amended to have
the effect of requiring any elimination of reference to the By-Laws of the
Corporation as determining the manner in which Special Meetings of Stockholders
are called, to be approved by a vote of no less than 66.66% of outstanding
shares. The following votes were cast: 1,437,830 in favor; 72,425 against;
5,313 abstaining; and 971,141 broker non-votes.
6. That the Corporation authorize and ratify an amendment to the
Corporation's Articles of Incorporation to increase to 66.66% of the outstanding
shares, from a majority of the outstanding shares, the vote necessary to amend
the Corporation's Articles of Incorporation to permit stockholder action by less
than unanimous written consent. The following votes were cast: 1,436,139 in
favor; 73,179 against; 6,250 abstaining; and 971,141 broker non-votes.
7. That the Corporation authorize and ratify an amendment to the
Corporation's By-Laws to classify the Board of Directors into three classes, as
nearly equal in number as possible, each of which, after an interim arrangement,
will serve for three years, with one class being elected each year. The
following votes were cast: 1,477,730 in favor; 66,750 against; 3,750
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abstaining; and 938,479 broker non-votes.
8. That the Corporation authorize and ratify an amendment to the
Corporation's By-Laws which provides that directors may be removed only with
cause and the approval of the holders of at least 66.66% of the voting power of
each class or series of outstanding stock of the Corporation entitled to vote
generally in the election of directors. The following votes were cast:
1,421,818 in favor; 89,200 against; 4,550 abstaining; and 971,141 broker non-
votes.
9. That the Corporation authorize and ratify an amendment to the
Corporation's By-Laws that requires that special meetings of stockholders may
not be called by stockholders holding less than 66.66% of the voting power of
each class or series of outstanding stock entitled to vote thereon. The
following votes were cast: 1,419,032 in favor; 91,273 against; 5,063
abstaining; and 971,341 broker non-votes.
10. That the Corporation authorize and ratify an amendment to the
Corporation's By-Laws that increases the stockholder vote required to alter,
amend or repeal the amendments to the Corporation's By-Laws identified in the
fourth, seventh, eighth and ninth items of business referred to above, to at
least 66.66% of the voting power of each class or series of outstanding stock of
the Corporation entitled to vote thereon. The following votes were cast:
1,429,171 in favor; 89,023 against; 4,413 abstaining; and 964,096 broker non-
votes.
ITEM 7 - FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS
(a) FINANCIAL STATEMENTS
None.
(b) PRO FORMA FINANCIAL STATEMENTS
None.
(c) EXHIBITS
3.1 Second Amended And Restated Certificate of Incorporation of The
Network Connection, Inc.
3.2 Amended And Restated By-Laws of The Network Connection, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereto duly authorized.
THE NETWORK CONNECTION, INC.
(Registrant)
Dated: June 20, 1996 By:/S/ BRYAN CARR
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Bryan Carr, Vice President
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SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
THE NETWORK CONNECTION, INC.
Original Certificate of Incorporation filed with the
Secretary of State on December 30, 1986. Such Certificate
is being restated, INTER ALIA, to eliminate the ability of
stockholders to act by less than unanimous written consent,
and to increase the vote of stockholders necessary to amend
certain provisions of the Amended and Restated Articles of
Incorporation.
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These restated Articles of Incorporation of The Network Connection,
Inc. (the "Corporation") were duly adopted by the directors and
shareholders of the Corporation in accordance with the provisions of
Sections 14-2-1003 and 14-2-1007 of the Georgia Business Corporation Code,
and restates, integrates and amends the provisions of the Corporation's
Articles of Incorporation as heretofore amended or supplemented. The
adoption of these Restated Articles of Incorporation does not result in any
reduction in the aggregate amount of the Corporation's capital. The
undersigned officers of the Corporation hereby certify and set forth as
follows:
ARTICLE I.
The name of the Corporation is The Network Connection, Inc. (the
"Corporation").
ARTICLE II.
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Business
Corporation Code of the State of Georgia.
ARTICLE III.
The Corporation is to have perpetual existence.
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ARTICLE IV.
The Registered Agent of the Corporation is Wilbur L. Riner and address
of the Corporation's Registered Office is 1324 Union Hill Road, Alpharetta,
Georgia 30201.
ARTICLE V.
The aggregate number of shares of capital stock which the Corporation
shall have authority to issue is TWELVE MILLION TWO HUNDRED FIFTY THOUSAND
(12,500,000) shares consisting of:
a) 10,000,000 shares of Common Stock, $.001 par value per share
(the "Common Stock"); and
b) 2,500,000 shares of Preferred Stock, $.01 par value per
share (the "Preferred Stock").
PART A
COMMON STOCK
1. GENERAL.
(a) Each share of Common Stock issued and outstanding shall be
identical in all respects one with the other, and no dividends shall
be paid on any shares of Common Stock unless the same dividend is paid
on all shares of Common Stock outstanding at the time of such payment.
(b) Except for and subject to those rights expressly granted to
the holders of the Preferred Stock, or except as may be provided by
the Delaware General Corporation Law, the holders of Common Stock
shall have exclusively all other rights of stockholders including, but
not by way of limitation, (i) the right to receive dividends, when, as
and if declared by the Board of Directors out of assets lawfully
available therefor, and (ii) in the event of any distribution of
assets upon liquidation, dissolution or winding up of the Corporation
or otherwise, the right to receive ratably and equally all the assets
and funds of the Corporation remaining after payment to the holders of
the Preferred Stock of the Corporation of the specific amounts which
they are entitled to receive upon such liquidation, dissolution or
winding up of the Corporation as herein provided.
(c) In the event that the holder of any share of Common Stock
shall receive any payment of any dividend on, liquidation of, or other
amounts payable with respect to, any shares of Common Stock, which he
is not then entitled to receive, he will forthwith deliver the same
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to the holders of shares of the Preferred Stock, and if in existence,
the holders of shares of the Preferred Stock (as their respective
interests may appear), as the case may be, in the form received, and
until it is so delivered will hold the same in trust for such holders.
(d) Each holder of shares of Common Stock shall be entitled to
one vote for each share of such Common Stock held by him, and voting
power with respect to all classes of securities of the Corporation
shall be vested solely in the Common Stock, other than as specifically
provided in the Corporation's Certificate of Incorporation, as it may
be amended, with respect to the Preferred Stock.
PART B
PREFERRED STOCK
Authority is hereby vested in the Board of Directors of the
Corporation to provide for the issuance of Preferred Stock and in
connection therewith to fix by resolution providing for the issue of such
series, the number of shares to be included and such of the preferences and
relative participating, optional or other special rights and limitations of
such series, including, without limitation, rights of redemption or
conversion into Common Stock, to the fullest extent now or hereafter
permitted by the Delaware General Corporation Law.
ARTICLE VI.
The board of directors is expressly authorized to adopt, amend or
repeal the by-laws of the Corporation.
ARTICLE VII.
Elections of directors need not be by written ballot unless the
by-laws of the Corporation shall otherwise provide.
ARTICLE VIII.
Except as provided by Section 14-2-702 of the Georgia Business
Corporation Code and the by-laws of the Corporation, special meetings of
the shareholders of the Corporation may only be called by the board of
directors of the Corporation or by the duly elected officers of the
Corporation.
ARTICLE IX.
All actions taken by the shareholders of the Corporation
by written consent and not at a meeting of shareholders must be taken
by no less than the unanimous written consent of all shareholders
entitled to act with respect
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to such matter under the provisions of the Georgia Business Corporation
Code.
ARTICLE X.
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Amended and Restated Articles of
Incorporation, in the manner now or hereafter prescribed by statute or by
these Amended and Restated Articles of Incorporation, and all rights
conferred upon stockholders herein are granted subject to this reservation.
The provisions of Article VIII and Article IX of these Amended and Restated
Articles of Incorporation shall not be amended by the stockholders of the
Corporation other than by a vote of no less than 66.66% of the outstanding
shares of the Corporation entitled to vote on such matters as provided by
the Georgia Business Corporation Code.
ARTICLE XI.
No director of the Corporation shall be liable to the Corporation or
its shareholders for monetary damages for breach of fiduciary duty as a
director, except for liability (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 types of liability set forth under Section 14-2-832 of the
Business Corporation Code of the State of Georgia, or (iv) for any
transaction from which the director derived an improper personal benefit.
ARTICLE XII.
Except as may otherwise be specifically provided in this Amended and
Restated Certificate of Incorporation, no provision of this Amended and
Restated Certificate of Incorporation is intended by the Corporation to be
construed as limiting, prohibiting, denying or abrogating any of the
general or specific powers or rights conferred under the Business
Corporation Code upon the Corporation, upon its shareholders, bondholders
and security holders, and upon its directors, officers and other corporate
personnel, including, in particular, the power of the Corporation to
furnish indemnification to directors and officers in the capacities defined
and prescribed by the Business Corporation Code and the defined and
prescribed rights of said persons to indemnification as the same are
conferred under the Business Corporation Code. The Corporation shall, to
the fullest extent permitted by the laws of the State of Georgia,
including, but not limited to Section 14-2-851 et.seq. of the Business
Corporation Code of the State of Georgia, as the same may be amended and
supplemented, indemnify any and all persons
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whom it shall have power to indemnify under said Section or otherwise under
Georgia law from and against any and all of the expenses, liabilities or
other matters referred to or covered by said Section. The indemnification
provisions contained in the Georgia Business Corporation Code shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any By-Law, agreement, resolution of shareholders or
disinterested directors, or otherwise, and shall continue as to a person
who has ceased to be a director, officer, employee or agent, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall inure to the benefit of the heirs, executors
and administrators of such person.
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IN WITNESS WHEREOF, the undersigned hereunto sign their names and affirm
that the statements made herein are true and correct under the penalties of
perjury this ____ day of June, 1996.
/s/ Barbara L. Riner
________________________________
Barbara L. Riner, President
ATTEST:
/s/ James E. Riner
_______________________________
James E. Riner, Secretary
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AMENDED AND RESTATED
BY-LAWS OF
THE NETWORK CONNECTION, INC.
(A Georgia Corporation)
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of the Corporation
shall be located in Alpharetta, Georgia.
SECTION 2. REGISTERED OFFICE AND AGENT. The registered office of the
Corporation in the State of Georgia is 1324 Union Hill Road, Alpharetta, Georgia
30201. The registered agent shall be Wilbur L. Riner.
SECTION 3. OTHER OFFICES. The Corporation may also have an office or
offices other than said principal office at such place or places, either within
or without the State of Georgia, as the Board of Directors shall from time to
time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at such place as
may be fixed from time to time by the Board of Directors, or at such other
place, either within or without the State of Georgia, as shall be designated
from time to time by the Board of Directors.
SECTION 2. ANNUAL MEETING. The annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting, shall be designated from time
to time by the Board of Directors.
SECTION 3. SPECIAL MEETINGS. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time by the Board of
Directors or the Chairman of the Board, if one shall have been elected, or the
Vice-Chairman of the Board, if one shall have been elected, or the President,
or, upon written demand, specifying the purpose of the meeting, by the holders
of at least sixty-six and two-thirds percent (66 and 2/3%) of the voting power
of each class or series of outstanding stock entitled to vote
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on the matter to be considered at the special meeting.
SECTION 4. NOTICE OF MEETINGS. Notice of the place, date and hour of
holding of each annual and special meeting of the stockholders and, unless it is
the annual meeting, the purpose or purposes thereof, shall be given personally
or by mail in a postage prepaid envelope, not less than ten nor more than sixty
days before the date of such meeting, to each shareholder entitled to vote at
such meeting, and, if mailed, it shall be directed to such shareholder at his
address as it appears on the record of stockholders, unless he shall have filed
with the Secretary of the Corporation a written request that notices to him be
mailed at some other address, in which case it shall be directed to him at such
other address. Any such notice for any meeting other than the annual meeting
shall indicate that it is being issued at the direction of the Board of
Directors, the Chairman of the Board, the Vice-Chairman of the Board, the
President or the Secretary, whichever shall have called the meeting. Notice of
any meeting of stockholders shall not be required to be given to any shareholder
who shall attend such meeting in person or by proxy and shall not, prior to the
conclusion of such meeting, protest the lack of notice thereof, or who shall,
either before or after the meeting, submit a signed waiver of notice, in person
or by proxy. Unless the Board of Directors shall fix a new record date for an
adjourned meeting, notice of such adjourned meeting need not be given if the
time and place to which the meeting shall be adjourned were announced at the
meeting at which the adjournment is taken.
SECTION 5. QUORUM. At all meetings of the stockholders the holders of a
majority of the shares of the Corporation issued and outstanding and entitled to
vote thereat shall be present in person or by proxy to constitute a quorum for
the transaction of business, except as otherwise provided by statute. In the
absence of a quorum, the holders of a majority of the shares present in person
or by proxy and entitled to vote may adjourn the meeting from time to time. At
any such adjourned meeting at which a quorum may be present any business may be
transacted which might have been transacted at the meeting as originally called.
SECTION 6. ORGANIZATION. At each meeting of the stockholders, the
Chairman of the Board, if one shall have been elected, shall act as chairman of
the meeting. In the absence of the Chairman of the Board or if one shall not
have been elected, the Vice-Chairman of the Board, or in his absence or if one
shall not have been elected, the President shall act as chairman of the
meeting. The Secretary, or in his absence or inability to act, the person whom
the chairman of the meeting shall appoint secretary of the meeting, shall act as
secretary of the meeting and keep the minutes thereof.
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SECTION 7. ORDER OF BUSINESS. The order of business at all meetings of
the stockholders shall be determined by the chairman of the meeting.
SECTION 8. VOTING. Except as otherwise provided by statute or the
Articles of Incorporation, each holder of record of shares of the Corporation
having voting power shall be entitled at each meeting of the stockholders to one
vote for each share standing in his name on the record of stockholders of the
Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of
Article V of these By-Laws as the record date for the determination of the
stockholders who shall be entitled to notice of and to vote at such
meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice thereof
shall be given.
Each shareholder entitled to vote at any meeting of the share-holders may
authorize another person or persons to act for him by a proxy signed by such
shareholder or his attorney-in-fact. Any such proxy shall be delivered to the
secretary of such meeting at or prior to the time designated in the order of
business for so delivering such proxies. Except as otherwise provided by
statute or the Articles of Incorporation or these By-Laws, any corporate action
to be taken by vote of the stockholders shall be authorized by a majority of the
votes cast at a meeting of stockholders by the holders of shares present in
person or represented by proxy and entitled to vote on such action. Unless
required by statute, or determined by the chairman of the meeting to be
advisable, the vote on any question need not be by ballot. On a vote by ballot,
each ballot shall be signed by the shareholder acting, or by his proxy, if there
be such proxy, and shall state the number of shares voted.
SECTION 9. LIST OF STOCKHOLDERS. A list of stockholders as of the record
date, certified by the Secretary of the Corporation or by the transfer agent for
the Corporation, shall be produced at any meeting of the stockholders upon the
request of any shareholder made at or prior to such meeting.
SECTION 10. INSPECTORS. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act or on the request of any shareholder entitled to vote at such
meeting, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors.
Each inspector, before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector at such meeting with
strict
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impartiality and according to the best of his ability. The inspectors shall
determine the number of shares outstanding and the voting power of each, the
number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
results, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting or any
shareholder entitled to vote thereat, the inspector shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by him. No director or candidate for the office
of director shall act as an inspector of an election of directors. Inspectors
need not be stockholders.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed under the direction of the Board of Directors. The Board of
Directors may exercise all such authority and powers of the Corporation and do
all such lawful acts and things as are not by statute or the Articles of
Incorporation directed or required to be exercised or done by the stockholders.
SECTION 2. NUMBER, QUALIFICATIONS, ELECTION AND TERM OF OFFICE. The
number of directors shall be five (5) until such time as the Board of Directors
changes the number of directors in accordance with the provisions of this
Section 2. The Board shall initially consist of three classes of directors.
There shall be one Class A director, one Class B director and one Class C
director. Beginning with the 1997 Annual Meeting of Stockholders, the Class A
director shall be elected, to hold office until the third Annual Meeting of
Stockholders to occur subsequent to the Annual Meeting at which such director
was elected and until his successor shall have been elected and qualified, or
until his death, or until he shall have resigned, or have been removed, as
hereinafter provided in these By-Laws. Beginning with the 1998 Annual Meeting
of Stockholders, the Class B director shall be elected, to hold office until the
third Annual Meeting of Stockholders to occur subsequent to the Annual Meeting
at which such director was elected and until his successor shall have been
elected and qualified, or until his death, or until he shall have resigned, or
have been removed, as hereinafter provided in these By-Laws. Beginning with the
1999 Annual Meeting of Stockholders, the Class C director shall be elected, to
hold office until the third Annual Meeting of Stockholders to occur subsequent
to the Annual Meeting at which such director was elected and until his successor
shall have been elected and qualified, or until his death, or until he shall
have resigned, or have been removed, as hereinafter provided in these By-Laws.
The Board of Directors can
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determine to change the number of directors constituting the Board of Directors,
which number shall not be less than three (3) nor more than nine (9), provided
that no decrease in the number of directors shall have the effect of shortening
the term of any incumbent director. Any decrease in the number of directors
shall be effective at the time of the next succeeding Annual Meeting of
Stockholders at which the election of the director whose position is being
eliminated would have been considered, unless there shall be vacancies in the
Board of Directors, in which case such decrease may become effective at any time
prior to the next such succeeding Annual Meeting of Stockholders to the extent
of the number of such vacancies. In the event of any increase or decrease in
the number of directors, the number of additional directors and the number of
eliminated directors shall be apportioned among the three classes of directors
in a manner which results, to the extent possible, in an equal number of
directors being included in each such class. At each meeting of the
stockholders for the election of directors at which a quorum is present, the
persons receiving a plurality of the votes cast at such election shall be
elected director. All the directors shall be at least eighteen years of age.
Directors need not be stockholders.
SECTION 3. PLACE OF MEETINGS. Meetings of the Board of Directors shall be
held at the principal office of the Corporation in the State of Georgia or at
such other place, within or without such State, as the Board of Directors may
from time to time determine or as shall be specified in the notice of any such
meeting.
SECTION 4. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such time and place as the Board of Directors may fix. If any
day fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business day. Notice
of regular meetings of the Board of Directors need not be given except as
otherwise required by statute or these By-Laws.
SECTION 5. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman or by a majority of the directors.
SECTION 6. NOTICE OF MEETING. Notice of each special meeting of the Board
of Directors (and of each regular meeting for which notice shall be required)
shall be given by the Secretary as hereinafter provided in this Section 6, in
which notice shall be stated the time and place of the meeting. Except as
otherwise required by these By-Laws, such notice need not state the purposes of
such meeting. Notice of each such meeting shall be mailed, postage prepaid, to
each director, addressed to him at his residence or usual place of business, by
first-class mail, at least five days before the day on which such meeting is to
be held, or
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shall be sent addressed to him at such place by telegraph, cable, telex,
telecopier or other similar means, or be delivered to him personally or be given
to him by telephone, or other similar means, at least forty-eight hours before
the time at which such meeting is to be held. Notice of any such meeting need
not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him.
SECTION 7. QUORUM AND MANNER OF ACTING. A majority of the entire Board
of Directors shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, and, except as otherwise expressly required
by statute or the Articles of Incorporation or these By-Laws, the act of a
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. Each director shall have one vote
on each matter for which directors are entitled to vote. In the absence of a
quorum at any meeting of the Board of Directors, a majority of the directors
present thereat may adjourn such meeting to another time and place. Notice of
the time and place of any such adjourned meeting shall be given to the directors
unless such time and place were announced at the meeting at which the
adjournment was taken. At any adjourned meeting at which a quorum is present,
any business may be transacted which might have been transacted at the meeting
as originally called. The directors shall act only as a Board and the
individual directors shall have no power as such.
SECTION 8. ORGANIZATION. At each meeting of the Board of Directors, the
Chairman of the Board, if one shall have been elected, shall act as the Chairman
of the meeting, or if one shall not have been elected, the Vice-Chairman of the
Board, or in his absence, or if one shall not have been elected, the President,
if he or she is a director (or, in his absence, another director chosen by a
majority of the directors present) shall act as Chairman of the meeting and
preside thereat. The Secretary (or, in his absence, any person -- who shall be
an Assistant Secretary, if any of them shall be present at such meeting --
appointed by the chairman) shall act as secretary of the meeting and keep the
minutes thereof.
SECTION 9. RESIGNATIONS. Any director of the Corporation may resign at
any time by giving written notice of his resignation to the Board of Directors
or the Chairman of the Board or the Vice-Chairman of the Board or the President
or the Secretary. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
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SECTION 10. VACANCIES. Subject to any expressed provision of the Articles
of Incorporation, any vacancy in the Board of Directors, whether arising from
death, resignation, removal (with or without cause), an increase in the number
of directors or any other cause, may be filled by the vote of a majority of the
directors then in office, though less than a quorum, or by the stockholders at
the next annual meeting thereof or at a special meeting thereof. Stockholders
of the Company may not apply to request that the Georgia Court of Chancery
summarily order an election to be held to fill vacancies in the Board of
Directors. Each director so elected shall hold office until the next meeting of
the stockholders in which the election of directors is in the regular order of
business and until his successor shall have been elected and qualified.
SECTION 11. REMOVAL OF DIRECTORS. Except as otherwise provided by
statute, any director may be removed, for cause, by the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 and 2/3%) of the voting
power of each class or series of outstanding stock entitled to vote generally in
the election of directors at a special meeting therefor.
SECTION 12. COMPENSATION. The Board of Directors shall have authority to
fix the compensation, including fees and reimbursement of expenses, of directors
for services to the Corporation in any capacity.
SECTION 13. COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the entire Board of Directors, designate one or more
committees, including an executive committee, each committee to consist of two
or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent member at any meeting of the committee. Except to the extent
restricted by statute or the Articles of Incorporation, each such committee, to
the extent provided in the resolution creating it, shall have and may exercise
all the authority of the Board of Directors. Each such committee shall serve at
the pleasure of the Board of Directors and have such name as may be determined
from time to time by resolution adopted by the Board of Directors. Each
committee shall keep regular minutes of its meetings and report the same to the
Board of Directors.
SECTION 14. ACTION BY CONSENT. Unless restricted by the Articles of
Incorporation, any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board of Directors or such committee consent in writing to the adoption
of a resolution authorizing the action. The resolution and the written consents
thereto by the members of the Board of Directors or such committee shall be
filed with the minutes of the proceedings of the Board of Directors or such
committee.
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SECTION 15. TELEPHONIC MEETING. Unless restricted by the Articles of
Incorporation or by statute, any one or more members of the Board of Directors
or any committee thereof may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence in
person at a meeting.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER AND QUALIFICATIONS. The officers of the Corporation
shall be elected by the Board of Directors and shall include the Chairman of the
Board, President, one or more Vice-Presidents, the Secretary, and the
Treasurer. If the Board of Directors wishes, it may also elect as officers of
the Corporation a Vice-Chairman of the Board and may elect other officers
(including one or more Assistant Treasurers and one or more Assistant
Secretaries, as may be necessary or desirable for the business of the
Corporation. Any two or more offices may be held by the same person. Each
officer shall hold office until the first meeting of the Board of Directors
following the next annual meeting of the stockholders, and until his successor
shall have been elected and shall have qualified, or until his death, or until
he shall have resigned or have been removed, as hereinafter provided in these
By-Laws.
SECTION 2. RESIGNATIONS. Any officer of the Corporation may resign at any
time by giving written notice of his resignation to the Board of Directors or
the Chairman of the Board or the Vice-Chairman of the Board, if one shall be
elected, or the President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt. Unless
otherwise specified therein, the acceptance of any such resignation shall not be
necessary to make it effective.
SECTION 3. REMOVAL. Any officer of the Corporation may be removed, either
with or without cause, at any time, by the Board of Directors at any meeting
thereof.
SECTION 4. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be the
chief executive officer of the Corporation and shall be a member of the Board
and, if present, shall preside at each meeting of the Board of Directors or the
stockholders. He shall perform all duties incident to the office of Chairman
and chief executive officer, and shall perform such other duties as may from
time to time be assigned to him by the Board of Directors.
SECTION 5. VICE-CHAIRMAN OF THE BOARD. The Vice-Chairman of the Board, if
one shall have been elected, shall be a member of the
<PAGE>
Board, an officer of the Corporation and, if present, shall preside at each
meeting of the Board of Directors if no Chairman of the Board has been
elected or if the Chairman of the Board is absent, or is unable or refuses to
act. He shall advise and counsel the Chairman of the Board and the
President, and, in the President's absence, other executives of the
Corporation, and shall perform such other duties as may from time to time be
assigned to him by the Board of Directors.
SECTION 6. THE PRESIDENT. The President shall be the chief operating
officer of the Corporation. He shall, in the absence of the Chairman of the
Board and the Vice-Chairman of the Board or if either shall not have been
elected, preside at each meeting of the Board of Directors (if he/she is a
director) or the stockholders. He shall perform all duties incident to the
office of President and chief operating officer and such other duties as may
from time to time be assigned to him by the Board of Directors.
SECTION 7. VICE-PRESIDENT. Each Vice-President shall perform all such
duties as from time to time may be assigned to him by the Board of Directors or
the President. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Vice-President, or if there shall
be more than one, the Vice-Presidents in the order determined by the Board of
Directors (or if there be no such determination, then the Vice-Presidents in the
order of their election), shall perform the duties of the President, and, when
so called, shall have the power of and be subject to the restrictions placed
upon the President in respect of the performance of such duties.
SECTION 8. TREASURER. The Treasurer shall
(a) have charge and custody of, and be responsible for, all the funds
and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositaries as may be designated by the Board of
Directors or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investments of its funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board of Directors
may require, an account of the financial condition of the Corporation; and
<PAGE>
(g) in general, perform all duties incident to the office of the
Treasurer and such other duties as from time to time may be assigned to
him by the Board of Directors.
SECTION 9. SECRETARY. The Secretary shall
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board of Directors, the
committees of the Board of Directors and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and
affix and attest the seal to all certificates for shares of the Corporation
(unless the seal of the Corporation on such certificates shall be a
facsimile, as hereinafter provided) and affix and attest the seal to all
other documents to be executed on behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly
kept and filed; and
(e) in general, perform all duties incident to the office of the
Secretary and such other duties as from time to time may be assigned to him
by the Board of Directors.
SECTION 10. THE ASSISTANT TREASURER. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties as from time to time may be
assigned by the Board of Directors.
SECTION 11. THE ASSISTANT SECRETARY. The Assistant Secretary, or if there
be more than one, the Assistant Secretaries in the order determined by the Board
of Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties as from time to time may be
assigned by the Board of Directors.
SECTION 12. OFFICERS' BONDS OR OTHER SECURITY. If required by the Board
of Directors, any officer of the Corporation shall give a bond or other security
for the faithful performance of his duties, in such amount and with such surety
or sureties as the
<PAGE>
Board of Directors may require.
SECTION 13. COMPENSATION. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board of Directors. An officer of the Corporation shall not be prevented
from receiving compensation by reason of the fact that he is also a director of
the Corporation.
ARTICLE V
SHARES, ETC.
SECTION 1. SHARE CERTIFICATES. Each owner of shares of the Corporation
shall be entitled to have a certificate, in such form as shall be approved by
the Board of Directors, certifying the number of shares of the Corporation owned
by him. The certificates representing shares shall be signed in the name of the
Corporation by the Chairman of the Board or the Vice-Chairman of the Board or
the President or a Vice-President and by the Secretary, an Assistant Secretary,
the Treasurer or an Assistant Treasurer, and sealed with the seal of the
Corporation (which seal may be a facsimile, engraved or printed); provided,
however, that where any such certificate is countersigned by a transfer agent,
or is registered by a registrar (other than the Corporation or one of its
employees), the signatures of the Chairman of the Board, Vice-Chairman of the
Board, President, Vice-President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer upon such certificates may be facsimiles, engraved or
printed. In case any officer who shall have signed any such certificate shall
have ceased to be such officer before such certificate shall be issued, it may
nevertheless be issued by the Corporation with the same effect as if such
officer were still in office at the date of their issue. When the Corporation
is authorized to issue shares of more than one class, there shall be set forth
upon the face or back of the certificate, (or the certificate shall have a
statement that the Corporation will furnish to any shareholder upon request and
without charge) a full statement of the designation, relative rights,
preferences, and limitations of the shares of each separate class, or of the
different shares within each class, authorized to be issued and, if the
Corporation is authorized to issue any class of preferred shares in series, the
designation, relative rights, preferences and limitations of each such series 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.
SECTION 2. BOOKS OF ACCOUNT AND RECORD OF STOCKHOLDERS. There shall be
kept correct and complete books and records of account of all the business and
transactions of the Corporation. There shall also be kept, at the office of the
Corporation, or at the office of its transfer agent, a record containing the
names and addresses of all stockholders of the Corporation, the number of
<PAGE>
shares held by each, and the dates when they became the holders of record
thereof.
SECTION 3. TRANSFER OF SHARES. Transfers of shares of the Corporation
shall be made on the records of the Corporation only upon authorization by the
registered holder thereof, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary or with a transfer agent,
and on surrender of the certificate or certificates for such shares properly
endorsed or accompanied by a duly executed stock transfer power and the payment
of all taxes thereon. The person in whose name shares shall stand on the record
of stockholders of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation. Whenever any transfer of shares shall be
made for collateral security and not absolutely and written notice thereof shall
be given to the Secretary or to a transfer agent, such fact shall be noted on
the records of the Corporation.
SECTION 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more transfer
agents and one or more registrars and may require all certificates for shares of
stock to bear the signature of any of them.
SECTION 5. REGULATIONS. The Board of Directors may make such additional
rules and regulations, not inconsistent with these By-Laws, as it may deem
expedient concerning the issue, transfer and registration of certificates for
shares of the Corporation.
SECTION 6. FIXING OF RECORD DATE. The Board of Directors may fix, in
advance, a date not more than fifty nor less than ten days before the date when
fixed for the holding of any meeting of the stockholders or before the last day
on which the consent or dissent of the stockholders may be effectively expressed
for any purpose without a meeting, as the time as of which the stockholders
entitled to notice of and to vote at such meeting or whose consent or dissent is
required or may be expressed for any purpose, as the case may be, shall be
determined, and all persons who were stockholders of record of voting shares at
such time, and no others, shall be entitled to notice of and to vote at such
meeting or to express their consent or dissent, as the case may be. The Board
of Directors may fix, in advance, a date not more than fifty nor less than ten
days preceding the date fixed for the payment of any dividend or the making of
any distribution or the allotment of rights to subscribe for securities of the
Corporation, or for the delivery of evidences of rights or evidences of
interests arising out of any change, conversion or exchange of shares or other
securities, as the record date for the determination of the stockholders
entitled to receive any such dividend, distribution, allotment, rights or
interests, and in such case only the stockholders of record at the time so fixed
shall be entitled to receive such dividend, distribution, allotment, rights or
interests.
<PAGE>
SECTION 7. LOST, DESTROYED OR MUTILATED CERTIFICATES. The holder of any
certificate representing shares of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of such certificate, and the
Corporation may issue a new certificate in the place of any certificate
theretofore issued by it which the owner thereof shall allege to have been lost
or destroyed or which shall have been mutilated. The Board of Directors may, in
its discretion, require such owner or his legal representatives to give to the
Corporation a bond in such sum, limited or unlimited, and in such form and with
such surety or sureties as the Board of Directors in its absolute discretion
shall determine, to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such
certificate, or the issuance of such new certificate.
ARTICLE VI
INDEMNIFICATION
Except as may otherwise be specifically provided in the Articles of
Incorporation, no provision of the Articles of Incorporation is intended by the
Corporation to be construed as limiting, prohibiting, denying or abrogating any
of the general or specific powers or rights conferred under the Business
Corporation Code upon the Corporation, upon its stockholders, bondholders and
security holders, and upon its directors, officers and other corporate
personnel, including, in particular, the power of the Corporation to furnish
indemnification to directors and officers in the capacities defined and
prescribed by the Business Corporation Code and the defined and prescribed
rights of said persons to indemnification as the same are conferred under the
Business Corporation Code. The Corporation shall, to the fullest extent
permitted by the laws of the State of Georgia, including, but not limited to
Section 14-2-851 et.seq. of the Business Corporation Code of the State of
Georgia, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said Section or otherwise
under Georgia law from and against any and all of the expenses, liabilities or
other matters referred to or covered by said Section. The indemnification
provisions contained in the Georgia Business Corporation Code shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any By-Law, agreement, resolution of stockholders or disinterested
directors, or otherwise, and shall continue as to a person who has ceased to be
a director, officer, employee or agent, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall inure to the benefit of the heirs, executors and administrators of such
person.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Subject to statute and the Articles of
<PAGE>
Incorporation, dividends upon the shares of the Corporation may be declared by
the Board of Directors at any regular or special meeting. Dividends may be paid
in cash, in property or in shares of the Corporation, unless otherwise provided
by statute or the Articles of Incorporation.
SECTION 2. RESERVES. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors may, from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may think
conducive to the interests of the Corporation. The Board of Directors may
modify or abolish any such reserves in the manner in which it was created.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed, and once fixed, may thereafter be changed, by resolution of the
Directors.
SECTION 4. CHECKS, NOTES, DRAFTS ETC. All checks, notes, drafts or other
orders for the payment of money of the Corporation shall be signed, endorsed or
accepted in the name of the Corporation by such officer, officers, person or
persons as from time to time may be designated by the Board of Directors or by
an officer or officers authorized by the Board of Directors to make such
designation.
SECTION 5. EXECUTION OF CONTRACTS, DEEDS, ETC. The Board of Directors may
authorize any officer or officers, agent or agents, in the name and on behalf of
the Corporation to enter into or execute and deliver any and all deeds, bonds,
mortgages, contracts and other obligations or instruments, and such authority
may be general or confined to specific instances.
SECTION 6. VOTING OF STOCKS IN OTHER CORPORATIONS. Unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board, the
Vice-Chairman of the Board, the President or any Vice-President, from time to
time, may (or may appoint one or more attorneys or agents to) cast the votes
which the Corporation may be entitled to cast as a shareholder or otherwise in
any other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of the shares or other securities of
such other corporations, or to consent in writing to any action by any such
other corporation. In the event one or more attorneys or agents are appointed,
the Chairman of the Board, the Vice-Chairman of the Board, the President or any
Vice-President may instruct the person or persons so appointed as to the manner
of casting such votes or giving such consent. The Chairman of the Board, the
Vice-Chairman of the Board, the President or any Vice-President may, or may
<PAGE>
instruct the attorneys or agents appointed to, execute or cause to be executed
in the name and on behalf of the Corporation and under its seal or otherwise,
such written proxies, consents, waivers or other instruments as may be necessary
or proper in the premises.
SECTION 7. RELATED PARTY TRANSACTIONS. The Corporation shall not engage
in any transaction with any of its directors, officers or shareholders owning,
directly or indirectly, 5% of the shares of Common Stock of the Corporation,
unless such transaction has been approved by both a majority of the entire Board
of Directors, as well as by a majority of the independent outside directors or
by a majority of the Corporation's Disinterested Stockholders. As used herein,
the term "Disinterested Stockholder" shall mean any record holder of Common
Stock of the Corporation who is not: (i) an officer, director or employee, or
former officer, director or employee, of the Corporation or any subsidiary or
affiliate (as that term is defined in the Securities Act of 1933, as amended,
and the regulations promulgated thereunder) of the Corporation; (ii) an
affiliate of any such present or former officer, director or employee of the
Corporation; or (iii) a holder, directly or indirectly of five (5%) percent or
more of any class or series of voting securities of the Corporation or any
affiliate thereof.
ARTICLE VIII
FORCE AND EFFECT OF BY-LAWS
These By-Laws are subject to the provisions of the Georgia Business
Corporation Code and the Corporation's Articles of Incorporation, as it may be
amended from time to time. If any provision in these By-Laws is inconsistent
with a provision in that Act or the Articles of Incorporation, the provision of
that Act or the Articles of Incorporation shall govern. Wherever in these
By-Laws references are made to more than one incorporator, director, or
shareholder, they shall, if this is a sole incorporator, director, shareholder
corporation, be construed to mean the solitary person; an all provision dealing
with the quantum of majorities or quorums shall be deemed to mean the action by
the one person constituting the corporation.
ARTICLE IX
AMENDMENTS
These By-Laws may be amended or repealed or new By-Laws may be adopted at
an annual or special meeting of stockholders at which a quorum is present or
represented, by the vote of the holders of shares entitled to vote thereon
provided that notice of the proposed amendment or repeal or adoption of new
By-Laws is contained in the notice of such meeting. These By-Laws may also be
amended or repealed or new By-Laws may be adopted by the Board at any regular or
special meeting of the Board of Directors; provided that Article VII, Section 7
of these By-Laws may only be amended or
<PAGE>
repealed, or new By-Laws adopted which have the effect of amending or repealing
Article VII, Section 7 of these By-Laws, by the vote of the holders of a
majority of the outstanding capital stock, or by unanimous written consent of
the holders of the outstanding shares of capital stock, entitled to vote thereon
which is held by Disinterested Stockholders, and Article II, Section 3 of these
By-Laws and Article III, Section 11 of these By-Laws, may only be amended or
repealed, or new By-Laws adopted which have the effect of amending or repealing
Article II, Section 3 or Article III, Section 11 of these By-Laws, by the vote
of the holders of not less than sixty-six and two-thirds (66 and 2/3%) of the
outstanding shares of capital stock, or by unanimous written consent of the
holders of the outstanding shares of capital stock, entitled to vote thereon.
If any By-Law regulating an impending election of directors is adopted, amended
or repealed by the Board of Directors, there shall be set forth in the notice of
the next meeting of the stockholders for the election of directors the By-Law so
adopted, amended or repealed, together with a concise statement of the changes
made. By-Laws adopted by the Board of Directors may be amended or repealed by
the stockholders.
ARTICLE X
GEORGIA BUSINESS CORPORATION CODE
All of the provisions of Part 2 of Article 11 of Chapter 2 of Title 14 of
the Georgia Business Corporation Code, relating to Fair Price Requirements, and
Part 3 of that same Article, relating to Business Combinations with Interested
Stockholders, are incorporated herein and are specifically applicable to the
Corporation.
