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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
May 10, 2024
SunLink Health Systems Inc.
(Exact Name of Registrant as Specified in Charter)
Georgia
001-12607
31-0621189
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
900 Circle 75 Parkway
Suite 690
Atlanta
,
Georgia
30339
(Address of Principal Executive Offices, and Zip Code)
(
770
)
933-7000
(Registrant's telephone number, including area code)
Not applicable.
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (see General Instruction A.2. below):
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class Trading Symbol(s) Name of each exchange on which registered
Common Stock, no par value SSY NYSE American
Preferred Share Purchase Rights
Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (17 CFR (s)230.405) or Rule
12b-2 of the Securities Exchange Act of 1934 (17 CFR (s)240.12b-2).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act.
Item 5.03. Amendment to Bylaws; Item 3.03 Material Modification to Rights of Security Holders .
As previously reported, on May 10, 2024, the Board of Directors (the "
Board
") of SunLink Health Systems, Inc. (the "
Company
") adopted the Company's Amended and Restated Bylaws (the "
Bylaws
") for the purpose of adding a new Section 2.15 to the Company's pre-existing
bylaws.
Section 2.15 of the Bylaws sets forth the procedures that a shareholder must
follow in order to submit a proposal of business for a shareholder vote or to
nominate a person for election to the Board at an annual or special meeting of
shareholders. Set forth below is a summary of these procedures.
Notice Requirements for Shareholder Proposals (Excluding Director Nominations)
. Section 2.15(a) of the Bylaws provides that no proposal for a shareholder
vote (other than director nominations which are described below) shall be
submitted by a shareholder (a "Shareholder Proposal") to the Company's
shareholders unless the shareholder submitting such proposal (the "Proponent")
shall have filed a written notice which includes, among other things:
(i) the name and business address of the Proponent (including each beneficial
owner, if any, on whose behalf the Shareholder Proposal is being made) and all
Persons (as defined in Section 2.15(a) of the Bylaws) acting in concert with
the Proponent (or such beneficial owner), and the name and address of all of
the foregoing as they appear on the Company's books (if they so appear);
(ii) the class and number of shares of the Company that are owned beneficially
and of record by the Proponent (including each beneficial owner, if any, on
whose behalf the Shareholder Proposal is being made) and the other Persons
identified in clause (i);
(iii) a description of the Shareholder Proposal containing all material
information relating thereto, including the information identified in Section
2.15(a)(iv) of the Bylaws;
(iv) a description of any agreement, arrangement or understanding with respect
to the Shareholder Proposal between or among the Proponent and each beneficial
owner, if any, on whose behalf the Shareholder Proposal is being made, any of
their respective affiliates or associates, and any others acting in concert
with any of the foregoing;
(v) a description of any agreement, arrangement or understanding (including
any derivative or short positions, profit interests, options, warrants,
convertible securities, stock appreciation or similar rights, hedging
transactions, and borrowed or loaned shares) that has been entered into as of
the date of such written notice by, or on behalf of, the Proponent and each
beneficial owner, if any, on whose behalf the Shareholder Proposal is being
made, the effect or intent of which is to mitigate loss to, manage risk or
benefit of share price changes for, or increase or decrease the voting power
of, the Proponent or such beneficial owner, with respect to the Company's
securities;
(vi) a representation that the Proponent is a holder of record of the capital
stock of the Company entitled to vote at the meeting, will so remain at the
time of the meeting, and intends to appear in person or by proxy at the
meeting to propose such business;
(vii) a representation whether the Proponent or any beneficial owner on whose
behalf the Shareholder Proposal is being made intends or is part of a group
which intends (a) to deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the Company's outstanding capital stock required
to approve or adopt the Shareholder Proposal or (b) otherwise to solicit
proxies from shareholders in support of such Shareholder Proposal; and
(viii) any other information relating to the Proponent and such beneficial
owner, if any, required to be disclosed in a proxy statement or other filing
in connection with solicitations of proxies for the Shareholder Proposal under
Section 14(a) of the Exchange Act.
The notice shall also include such other information as the Board reasonably
determines is necessary or appropriate to enable it and the shareholders of
the Company to consider the Shareholder Proposal. The information
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required by clauses (ii), (iv) and (v) above must be updated by the Proponent
and each beneficial owner, if any, on whose behalf the Shareholder Proposal is
being submitted not later than ten days following the record date for the
meeting to disclose such information as of the record date.
The presiding officer at any shareholders' meeting may determine that any
Shareholder Proposal was not made in accordance with procedures prescribed by
the Bylaws or otherwise is not in accordance with law, and if it is so
determined, such officer will declare so at the meeting and the Shareholder
Proposal will be disregarded. No provision of the Bylaws shall affect any
rights of a shareholder to request inclusion of proposals in the Company's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Notice Requirements for Director Nominations.
Section 2.15(b) of the Bylaws provides that only persons who are selected and
recommended by the Board or the committee of the Board designated to make
nominations, or who are nominated by shareholders in accordance with the
procedures set forth in such section, shall be eligible for election, or
qualified to serve, as directors. Nominations of individuals for election to
the Board at any annual meeting or any special meeting of shareholders at
which directors are to be elected may be made by any shareholder of the
Company entitled to vote for the election of directors at that meeting by
compliance with the procedures set forth in Section 2.15(b) of the Bylaws.
Nominations by shareholders shall be made by written notice (a "Nomination
Notice"), which, as to each individual nominated, shall set forth, among other
things: (i) the name, date of birth, business address and residence address of
such individual; (ii) the educational background and the business experience
during the past five years of such nominee, including the information
identified in Section 2.15(b) of the Bylaws; (iii) whether the nominee is or
has ever been at any time a director, officer or owner of 5% or more of any
class of capital stock, partnership interests or other equity interest of any
corporation, partnership or other entity; (iv) any directorships held by such
nominee in any public reporting company or any company registered as an
investment company under the Investment Company Act of 1940; (v) whether such
nominee has ever been convicted in a criminal proceeding or has ever been
subject to a judgment, order, finding or decree in the proceedings described
in Section 2.15(b) of the Bylaws; (vi) information regarding whether such
nominee is subject to any disqualifications described in Rule 506(d)(1)(i) to
(vii) under the Securities Act of 1933, as amended; (vii) any other
information relating to such nominee that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or
is otherwise required, in each case pursuant to Regulation 14A under the
Exchange Act; (viii) a written statement from the shareholder making the
recommendation stating why such recommended candidate meets the criteria and
would be able to fulfill the duties of a director; and (ix) a written
representation and agreement that (a) such nominee is not and will not become
a party to (1) any agreement, arrangement or understanding with, and has not
given any commitment or assurance to, any person or entity as to how such
nominee, if elected as a director of the Company, will act or vote on any
issue or question (a "Voting Commitment") that has not been disclosed to the
Company or (2) any Voting Commitment that could limit or interfere with such
nominee's ability to comply, if elected as a director of the Company, with
such nominee's fiduciary duties under applicable law, (b) such nominee is not
and will not become a party to any agreement, arrangement or understanding
with any person or entity other than the Company with respect to any direct or
indirect compensation, reimbursement or indemnification in connection with
service or action as a director that has not been disclosed therein, and (c)
such nominee, in such nominee's individual capacity and on behalf of any
person or entity on whose behalf the nomination is being made, would be in
compliance, if elected as a director of the Company, and will comply, with all
applicable corporate governance, conflict of interest, confidentiality and
stock ownership and trading policies and guidelines of the Company.
In addition, the Nomination Notice shall set forth, as to the Person
submitting the Nomination Notice, each beneficial owner, if any, on whose
behalf the nomination is made and any Person acting in concert with such
Persons, among other things: (i) the name and business address of such Person;
(ii) the name and address of each such Person as he or she appears on the
Company's books (if he or she so appears); (iii) the class and number of
shares of the Company that are owned beneficially and of record by each such
Person; (iv) a description of any agreement, arrangement or understanding with
respect to the nomination between or among such Persons, any of their
respective affiliates or associates, and any others acting in concert with any
of the foregoing; (v) a description of any agreement, arrangement or
understanding (including any derivative or short positions, profit interests,
options, warrants, convertible securities, stock appreciation or similar
rights, hedging transactions, and borrowed or loaned shares) that has been
entered into as of the date of such written notice by, or on behalf of, each
such Person, the effect or intent of which is to mitigate loss to, manage risk
or benefit of share price changes for, or increase or decrease the voting
power of, each such Person, with respect to securities of the Company; (vi) a
representation that the Person submitting the Nomination Notice is a holder of
record of stock of the Company entitled to vote at such meeting, will so
remain at the time of such meeting, and intends to appear in person or by
proxy at the meeting to make such nomination; (vii) a representation whether
any such Person intends or is part of a group which intends (a) to deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the Company's outstanding capital stock required to elect each nominee or (b)
otherwise to
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solicit proxies from shareholders in support of such nomination; and (viii)
any other information relating to such shareholder and such beneficial owner,
if any, required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for the
election of directors in an election contest pursuant to Section 14(a) of the
Exchange Act.
The information required by clauses (iii), (iv) and (v) above shall be updated
by the Person delivering such Nomination Notice and each beneficial owner, if
any, on whose behalf the Nomination Notice is being submitted not later than
ten days after the record date for the meeting to disclose such information as
of the record date. The Company may require any proposed nominee to furnish
such other information as it may reasonably require to determine the
eligibility or qualification of such proposed nominee to serve as a director
of the Company. A written consent to being named in a proxy statement as a
nominee, and to serve as a director if elected, signed by each nominee, shall
be filed with any Nomination Notice.
If the presiding officer at any shareholders' meeting determines that a
nomination was not made in accordance with the procedures prescribed by the
Bylaws, the presiding officer will so declare to the meeting and the defective
nomination will be disregarded.
Notice Deadlines
. Nomination Notices and Shareholder Proposals in connection with an annual
meeting shall be delivered to the Company's Corporate Secretary at the
principal executive office not less than 90 nor more than 120 calendar days
before the first anniversary of the date of the Company's notice of annual
meeting sent to shareholders in connection with the previous year's annual
meeting;
provided
that if no annual meeting was held in the previous year, or the date of the
annual meeting has been established to be more than 30 calendar days earlier
than, or 60 calendar days after, the anniversary of the previous year's annual
meeting, notice by a shareholder, to be timely, must be so received not later
than: (i) the 90th day prior to the annual meeting; or (ii) if later, the
close of business on the 10th day following the day on which public
announcement is first made of the date of the annual meeting. Nomination
Notices in connection with a special meeting at which directors are to be
elected shall be delivered to the Company's Secretary at the principal
executive office not later than the close of business on: (i) the 90th day
prior to such special meeting; or (ii) if later, the 10th day following the
day on which public announcement is first made of the date of the special
meeting and of the fact that directors are to be elected at such meeting.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number
Description
3(ii) Amendment No. 1 to Bylaws of SunLink Health Systems, Inc
.
104 Cover Page Interactive Data File - The cover page XBRL tags are embedded within the Inline XBRL document.
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 hereunto duly authorized.
SUNLINK HEALTH SYSTEMS, INC.
Date: May 23, 2024 /s/ Mark J. Stockslager.
Mark J. Stockslager.
Chief Financial Officer
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EXHIBIT 3(ii)
AMENDED AND RESTATED
BYLAWS
OF
SUNLINK HEALTH SYSTEMS, INC.
-------------------------------------------------------------------------------
Table of Contents
Page
ARTICLE 1 OFFICES AND AGENT
Section 1.1 Registered Office and Agent 1
Section 1.2 Other Offices 1
ARTICLE 2 MEETINGS OF SHAREHOLDERS
Section 2.1 Annual Meetings 1
Section 2.2 Special Meetings 1
Section 2.3 Place of Meetings 1
Section 2.4 Notice of Meetings 1
Section 2.5 Voting Group 2
Section 2.6 Quorum for Voting Groups 2
Section 2.7 Vote Required for Action 2
Section 2.8 Voting for Directors 2
Section 2.9 Voting of Shares 3
Section 2.10 Proxies 3
Section 2.11 Chairman of the Board; Conduct of Meetings 3
Section 2.12 Inspectors 4
Section 2.13 Adjournments 4
Section 2.14 Action by Shareholders Without a Meeting 4
Section 2.15 Shareholder Proposals and Director Nominations 4
ARTICLE 3 THE BOARD OF DIRECTORS
Section 3.1 General Powers 8
Section 3.2 Number, Election and Term of Office 9
Section 3.3 Removal 9
Section 3.4 Vacancies 10
Section 3.5 Compensation 10
Section 3.6 Committees 10
Section 3.7 Nominations 10
ARTICLE 4 MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Regular Meetings 11
Section 4.2 Special Meetings 11
Section 4.3 Place of Meetings 11
Section 4.4 Notice of Meetings 11
Section 4.5 Quorum 11
Section 4.6 Vote Required for Action 11
Section 4.7 Participation by Conference Telephone or Other Means of
Communication 12
Section 4.8 Adjournments 12
Section 4.9 Action by Directors Without a Meeting 12
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Table of Contents
(continued)
Page
ARTICLE 5 MANNER OF NOTICE TO AND WAIVER OF NOTICE BY SHAREHOLDERS AND DIRECTORS
Section 5.1 Manner of Notice 12
Section 5.2 Waiver of Notice 13
ARTICLE 6 OFFICERS
Section 6.1 Duties 14
Section 6.2 Appointment and Term 14
Section 6.3 Compensation 14
Section 6.4 Chairman of the Board 14
Section 6.5 Chief Executive Officer 14
Section 6.6 President 14
Section 6.7 Chief Financial Officer 15
Section 6.8 Secretary 15
Section 6.9 Bonds 15
ARTICLE 7 SHARES
Section 7.1 Authorization and Issuance of Shares 15
Section 7.2 Share Certificates 15
Section 7.3 Registered Owner 16
Section 7.4 Transfers of Shares 16
Section 7.5 Duty of Corporation to Register Transfer 16
Section 7.6 Lost, Stolen, or Destroyed Certificates 17
Section 7.7 Record Date with Regard to Shareholder Action 17
ARTICLE 8 DISTRIBUTIONS
Section 8.1 Authorization or Declaration 17
Section 8.2 Record Date with Regard to Distributions 17
ARTICLE 9
INDEMNIFICATION
Section 9.1 Definitions 17
Section 9.2 Basic Indemnification Arrangement 18
Section 9.3 Advances for Expenses 19
Section 9.4 Court-Ordered Indemnification and Advances for Expenses 19
Section 9.5 Determination of Reasonableness of Expenses 19
Section 9.6 Indemnification of Employees and Agents 20
Section 9.7 Liability Insurance 20
Section 9.8 Witness Fees 20
Section 9.9 Report to Shareholders 20
Section 9.10 No Duplication of Payments; Nonexclusive 20
Section 9.11 Subrogation 20
Section 9.12 Contract Rights 21
Section 9.13 Amendments 21
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ii
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Table of Contents
(continued)
Page
Section 9.14 Severability 21
ARTICLE 10 MISCELLANEOUS
Section 10.1 Inspection of Records 21
Section 10.2 Fiscal Year 21
Section 10.3 Corporate Seal 21
Section 10.4 Financial Statements 21
Section 10.5 Conflict with Articles of Incorporation 21
ARTICLE 11 AMENDMENTS
Section 11.1 Power to Amend Bylaws 22
ARTICLE 12 CERTAIN PROVISIONS OF GEORGIA LAW
Section 12.1 Fair Price Requirements 22
Section 12.2 Business Combinations 22
ARTICLE 13 EMERGENCY BYLAWS
Section 13.1 Emergency Bylaws 22
Section 13.2 Meetings 22
Section 13.3 Quorum 23
Section 13.4 Bylaws 23
Section 13.5 Liability 23
Section 13.6 Repeal or Change 23
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ARTICLE 1
OFFICES AND AGENT
Section 1.1 Bylaws.
These Amended and Restate Bylaws (the
Bylaws
) shall be the Bylaws of SunLink Health Systems, Inc. (the
Corporation
)
until amended or amended and restated pursuant to
Article 11
.
Section 1.2 Registered Office and Agent.
The Corporation
shall continuously maintain in the State of Georgia a registered office that
may be the same as any of the Corporations places of business. In addition,
the Corporation shall continuously maintain a registered agent whose business
office is identical with the registered office. The registered agent may be an
individual who resides in the State of Georgia, a domestic corporation or
nonprofit domestic corporation, or a foreign corporation or nonprofit foreign
corporation authorized to transact business in the State of Georgia.
Section 1.3 Other Offices.
In addition to having a registered office, the Corporation may have other
offices, located in or out of the State of Georgia, as the Corporations Board
of Directors
(
Board of Directors
)
may designate from time to time.
ARTICLE 2
MEETINGS OF SHAREHOLDERS
Section 2.1 Annual Meetings.
The Corporation shall hold a meeting of shareholders annually at a time
designated by the Board of Directors for the purpose of electing directors and
transacting any other business that may properly come before the shareholders.
If the Corporation does not hold an annual meeting as provided in this
Section 2.1
, any business, including the election of directors, that might properly have
been acted upon at an annual meeting may be acted upon by the shareholders at
a special meeting held in accordance with these Bylaws or in accordance with a
court order.
Section 2.2 Special Meetings.
Special meetings of shareholders may be called at any time by: (i) the Board
of Directors in accordance with
Section 4.6
; (ii) the Chairman of the Board of Directors; (iii) the Chief Executive
Officer of the Corporation; or (iv) the holders of twenty-five percent (25%)
of the votes entitled to be cast on any issue proposed to be considered at
such special meeting following delivery by such holders to the Secretary of
the Corporation of one or more signed and dated written requests setting forth
the purposes of such meeting. The business that may be transacted at any
special meeting of shareholders shall be limited to that proposed in the
notice of the special meeting given in accordance with
Section 2.4
(including related or incidental matters that may be necessary or appropriate
to effectuate the proposed business).
Section 2.3 Place of Meetings.
The Corporation may hold shareholders meetings, both annual and special, at
any place in or out of the State of Georgia except that the Corporation shall
hold any meeting at the place set forth in the notice of the meeting or, if
the meeting is held in accordance with a waiver of notice of the meeting, at
the place set forth in the waiver of notice. If no place is specified in the
notice or the waiver of notice, the Corporation shall hold the meeting at the
Corporations principal office.
Section 2.4 Notice of Meetings.
The Corporation shall notify shareholders 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. Unless the Georgia Business
Corporation Code, as amended (the
Code
),
or the Articles of Incorporation require otherwise, the Corporation shall
notify only those shareholders entitled to vote at the meeting who have not
waived, in accordance
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1
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with
Section 5.2
, the right to receive notice. In the case of an annual meeting, the notice
need not state the purposes of the meeting unless the Articles of
Incorporation or the Code provide otherwise. Notice of a special meeting shall
include a description of the purpose or purposes for which the meeting is
called. Notwithstanding the foregoing, as and to the extent permitted by
Section 14-2-705(f) of the Code, the Corporation need not provide any notice
required by this
Section 2.4
to a shareholder to whom: (i) notices of two (2) consecutive annual meetings;
or (ii) all (and at least two (2)) payments of dividends or interest on
securities or dividend reinvestment confirmations during a twelve (12) month
period have been mailed addressed to the shareholders address shown in the
Corporations current record of shareholders and have been returned as
undeliverable. Any action or meeting which shall be taken or held without
notice to any such shareholder shall have the same force and effect as if such
notice had been duly given. If any such shareholder shall deliver to the
Corporation written notice setting forth such shareholders then current
address, the requirement that notice be given to such shareholder shall be
reinstated. If the action taken by the Corporation requires the filing of a
document under any provision of the Code, the document need not state that
notice was not given to shareholders to whom notice was not required to be
given pursuant hereto.
Section 2.5 Voting Group.
The term
Voting Group
means all shares of one or more classes or series that, under the Code or the
Articles of Incorporation, are entitled to vote and be counted together
collectively on a matter at a meeting of shareholders. All shares entitled by
the Code or the Articles of Incorporation to vote generally on the matter are
for that purpose a single Voting Group.
Section 2.6 Quorum for Voting Groups.
Shares entitled to vote as a separate Voting Group may take action on a matter
at a meeting of shareholders only if a quorum of those shares exists with
respect to that matter. Unless the Code or the Articles of Incorporation
require otherwise, one-third (1/3) of the votes (as represented by person or
by proxy) entitled to be cast on the matter by the Voting Group constitutes a
quorum of that Voting Group for action on that matter. Once a share is
represented for any purpose at a meeting, other than solely to object to
holding the meeting or to transacting business at the meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for
that adjourned meeting as provided in
Section 7.7
.
Section 2.7 Vote Required for Action.
If a quorum exists, action on a matter (other than the election of directors)
by a Voting Group is approved if the votes cast within the Voting Group
favoring the action exceed the votes cast opposing the action, unless the
Code, the Articles of Incorporation, or Bylaws adopted by shareholders under
Section 14-2-1021 of the Code require a greater number of affirmative votes.
If the Code or the Articles of Incorporation provide for voting by a single
Voting Group on a matter, action on that matter is taken when voted upon by
that Voting Group as provided in this
Section 2.7
,
Section 2.5
and
Section 2.6
. If the Code or the Articles of Incorporation provide for voting by two or
more Voting Groups on a matter, action on that matter is taken only when voted
upon by each of those Voting Groups counted separately as provided in this
Section 2.7
,
Section 2.5
and
Section 2.6
. Action may be taken by one Voting Group on a matter even though no action is
taken by another Voting Group entitled to vote on the matter.
Section 2.8 Voting for Directors.
Unless otherwise provided in the Articles of Incorporation or the Code,
directors are elected in accordance with
Section 3.2
. Shareholders do not have a right to cumulate their votes for directors
unless the Articles of Incorporation so provide.
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Section 2.9 Voting of Shares.
Unless the Code or the Articles of Incorporation provide otherwise, each
outstanding share having voting rights is entitled to one vote on each matter
voted on at a meeting of shareholders.
Section 2.10 Proxies
.
(a)
A shareholder may vote his or her shares in person or by proxy. For a
shareholder to vote shares by proxy, a shareholder or his or her agent or
attorney in fact shall appoint a proxy to vote or otherwise act for the
shareholder by signing an appointment form or by an electronic transmission
that is suitable for the retention, retrieval and reproduction of information
by the recipient. An electronic transmission must contain or be accompanied by
information from which it can be determined that the shareholder, the
shareholders agent or the shareholders attorney in fact authorized the
electronic transmission. An appointment of proxy is effective when a signed
appointment form or electronic transmission of the appointment is received by
the inspector of election or the officer or agent of the Corporation
authorized to tabulate votes. An appointment is valid for eleven (11) months
unless the appointment form expressly provides for a longer period. Any copy,
facsimile transmission, or other reliable reproduction of the writing or
electronic transmission created pursuant to this
Section 2.10
may be substituted or used in lieu of the original writing or electronic
transmission for any and all purposes for which the original writing or
electronic transmission could be used, provided that such copy, facsimile
transmission, or other reproduction shall be a complete reproduction of the
entire original writing or electronic transmission.
(b)
An appointment of proxy is revocable or irrevocable as provided in the Code.
(c)
If any person questions the validity of an appointment of proxy, that person
shall submit the appointment form for examination to the secretary of the
shareholders meeting or to a proxy officer or committee appointed by the
presiding officer at the meeting. The secretary, proxy officer, or committee,
as the case may be, will determine the appointment forms validity. The
secretarys reference in the meetings minutes to the regularity of the
appointment of proxy will be
prima facie
evidence of the facts stated in the minutes for establishing a quorum at the
meeting and for all other purposes.
Section 2.11 Chairman of the Board; Conduct of Meetings.
The Chairman of the Board shall preside over every shareholders meeting unless
these Bylaws or the Board of Directors designate another person to preside at
a meeting. The person presiding at a meeting may appoint any persons he or she
deems necessary to assist with the meeting. The Board of Directors may adopt
by resolution such rules and regulations for the conduct of a meeting of
shareholders as it shall deem appropriate. Subject to such rules and
regulations as the Board of Directors may adopt, at any meeting of
shareholders, the person presiding at the meeting may establish the rules of
order and procedures governing the conduct of business at such meeting, and do
all such acts as, in the judgment of the presiding person, are appropriate for
the proper conduct of such meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the person
presiding at the meeting, may include, without limitation, the following: (i)
the establishment of an agenda or order of business for the meeting; (ii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation in the
meeting to shareholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the person presiding at the
meeting shall
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3
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determine; (iv) restrictions on entry to the meeting after the time fixed for
the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. The person presiding at any meeting of
shareholders, in addition to making any other determinations that may be
appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting whether any nomination or any other item
of business proposed to be brought before the meeting has been properly made
or properly brought before the meeting, as the case may be, and, if such
presiding person should so determine, shall so declare to the meeting that no
action shall be taken on such nomination or such other proposal, and such
nomination or such other proposal shall be disregarded and not be considered.
Section 2.12 Inspectors.
The Corporation shall appoint one or more inspectors to act at a meeting of
shareholders and to make a written report of the inspectors determinations.
Each inspector shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of the inspectors
ability. The inspector shall ascertain the number of shares outstanding and
the voting power of each, determine the shares represented at a meeting,
determine the validity of proxies and ballots, count all votes and determine
the result. An inspector may be an officer or employee of the Corporation.
Section 2.13 Adjournments.
Whether or not a quorum is present to organize a meeting, any meeting of
shareholders (including an adjourned meeting) may be adjourned by the holders
of a majority of the voting shares represented at the meeting to reconvene at
a specific time and place, but no later than one hundred twenty (120) days
after the date fixed for the original meeting unless the requirements of the
Code concerning the selection of a new record date have been met. At any
reconvened meeting within that time period, any business may be transacted
that could have been transacted at the meeting that was adjourned. If notice
of the adjourned meeting was properly given, it shall not be necessary to give
any notice of the reconvened meeting or of the business to be transacted, if
the date, time and place of the reconvened meeting are announced at the
meeting that was adjourned and before adjournment; provided, however, that if
a new record date is or must be fixed, notice of the reconvened meeting must
be given to persons who are shareholders as of the new record date.
Section 2.14 Action by Shareholders Without a Meeting.
Action required or permitted by the Code to be taken at a meeting of
shareholders may be taken without a meeting if the action is taken by all
shareholders entitled to vote on the action. The action must be evidenced by
one or more written consents bearing the date of signature and describing the
action taken, signed by all shareholders entitled to take action without a
meeting, and delivered to the Corporation for inclusion in the minutes for
filing with the corporate records.
Section 2.15 Shareholder Proposals and Director Nominations.
(d)
No proposal for a shareholder vote (other than director nominations which are
described in
Section 2.15(b)
) shall be submitted by a shareholder (a
Shareholder Proposal
) to the Corporations shareholders unless the shareholder submitting such
proposal (the
Proponent
) shall have filed a written notice setting forth with particularity:
(i) the name and business address of the Proponent (including each beneficial
owner, if any, on whose behalf the Shareholder Proposal is being made) and all
natural persons, corporations, partnerships, trusts or any other type of legal
entity or recognized ownership vehicle (collectively,
Persons
) acting in concert with the Proponent (or such beneficial owner);
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(ii) the name and address of the Proponent (including each beneficial owner,
if any, on whose behalf the Shareholder Proposal is being made) and the other
Persons identified in clause (i), as they appear on the Corporations books (if
they so appear);
(iii) the class and number of shares of the Corporation that are owned
beneficially and of record by the Proponent (including each beneficial owner,
if any, on whose behalf the Shareholder Proposal is being made) and the other
Persons identified in clause (i);
(iv) a description of the Shareholder Proposal containing all material
information relating thereto, including (A) the text of the Shareholder
Proposal (including the text of any resolutions proposed for consideration
and, in the event that such Shareholder Proposal includes a proposal to amend
these Bylaws, the language of the proposed amendment), (B) the reasons for
submission of such Shareholder Proposal at the meeting and (C) any material
interest in such Shareholder Proposal of each Proponent (and each beneficial
owner, if any, on whose behalf the proposal is being made) and the other
Persons identified in clause (i);
(v) a description of any agreement, arrangement or understanding with respect
to the Shareholder Proposal between or among the Proponent and each beneficial
owner, if any, on whose behalf the Shareholder Proposal is being made, any of
their respective affiliates or associates, and any others acting in concert
with any of the foregoing;
(vi) a description of any agreement, arrangement or understanding (including
any derivative or short positions, profit interests, options, warrants,
convertible securities, stock appreciation or similar rights, hedging
transactions, and borrowed or loaned shares) that has been entered into as of
the date of such written notice by, or on behalf of, the Proponent and each
beneficial owner, if any, on whose behalf the Shareholder Proposal is being
made, whether or not such instrument or right shall be subject to settlement
in underlying shares of capital stock of the Corporation, the effect or intent
of which is to mitigate loss to, manage risk or benefit of share price changes
for, or increase or decrease the voting power of, the Proponent or such
beneficial owner, with respect to securities of the Corporation;
(vii) a representation that the Proponent is a holder of record of the capital
stock of the Corporation entitled to vote at such meeting and will so remain
at the time of such meeting, and intends to appear in person or by proxy at
the meeting to propose such business;
(viii) a representation whether such Proponent or any beneficial owner on
whose behalf the Shareholder Proposal is being made intends or is part of a
group which intends (A) to deliver a proxy statement and/or form of proxy to
holders of at least the percentage of the Corporations outstanding capital
stock required to approve or adopt the Shareholder Proposal or (B) otherwise
to solicit proxies from shareholders in support of such Shareholder Proposal;
(ix) any other information relating to such shareholder and such beneficial
owner, if any, required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for the
proposal pursuant to and in
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accordance with Section 14(a) of the Securities Exchange Act of 1934, as
amended (the
Exchange Act
), and the rules and regulations promulgated thereunder; and
(x) such other information as the Board of Directors reasonably determines is
necessary or appropriate to enable the Board of Directors and shareholders of
the Corporation to consider the Shareholder Proposal.
Without limiting the foregoing, the information required by clauses (iii),
(v), and (vi) of this
Section 2.15(a)
shall be updated by the Proponent and each beneficial owner, if any, on whose
behalf the Shareholder Proposal is being submitted not later than ten (10)
days after the record date for the meeting to disclose such information as of
the record date. The presiding officer at any shareholders meeting may
determine that any Shareholder Proposal was not made in accordance with the
procedures prescribed in these Bylaws or is otherwise not in accordance with
law, and if it is so determined, such officer shall so declare at the meeting
and the Shareholder Proposal shall be disregarded. Notwithstanding anything in
these Bylaws to the contrary, no provision of these Bylaws shall affect any
rights of shareholders to request inclusion of proposals in the Corporations
proxy statement pursuant to Rule 14a-8 of the Exchange Act.
(b) Only persons who are selected and recommended by the Board of Directors
or the committee of the Board of Directors designated to make nominations, or
who are nominated by shareholders in accordance with the procedures set forth
in this
Section 2.15(b)
, shall be eligible for election, or qualified to serve, as directors.
Nominations of individuals for election to the Board of Directors at any
annual meeting or any special meeting of shareholders at which directors are
to be elected may be made by any shareholder of the Corporation entitled to
vote for the election of directors at that meeting by compliance with the
procedures set forth in this
Section 2.15(b)
. Nominations by shareholders shall be made by written notice (a
Nomination Notice
), which shall set forth:
(i) as to each individual nominated: (A) the name, date of birth, business
address and residence address of such individual, (B) the educational
background and the business experience during the past five (5) years of such
nominee, including his or her principal occupations and employment during such
period, the name and principal business of any corporation or other
organization in which such occupations and employment were carried on, and
such other information as to the nature of his or her responsibilities and
level of professional competence as may be sufficient to permit assessment of
his or her prior business experience, (C) whether the nominee is or has ever
been at any time a director, officer or owner of five percent (5%) or more of
any class of capital stock, partnership interests or other equity interest of
any corporation, partnership or other entity, (D) any directorships held by
such nominee in any company with a class of securities registered pursuant to
Section 12 of the Exchange Act or subject to the requirements of Section 15(d)
of the Exchange Act or any company registered as an investment company under
the Investment Company Act of 1940, as amended, (E) whether such nominee has
ever been convicted in a criminal proceeding or has ever been subject to a
judgment, order, finding or decree of any federal, state or other governmental
entity, concerning any violation of federal, state or other law, or any
proceeding in bankruptcy, which conviction, order, finding, decree or
proceeding may be material to an evaluation of the ability or integrity of the
nominee, (F) whether such nominee
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is subject to any disqualifications described in Rule 506(d)(1)(i) to (viii)
under the Securities Act of 1933, as amended, and, if so, a description in
writing of all matters triggering such disqualification; (G) any other
information relating to such nominee that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or
is otherwise required, in each case pursuant to and in accordance with
Regulation 14A under the Exchange Act, (H) a written statement from the
shareholder making the recommendation stating why such recommended candidate
meets the criteria and would be able to fulfill the duties of a director, and
(I) a written representation and agreement (in the form provided by the
Secretary upon written request) that (1) such nominee is not and will not
become a party to (i) any agreement, arrangement or understanding with, and
has not given any commitment or assurance to, any person or entity as to how
such nominee, if elected as a director of the Corporation, will act or vote on
any issue or question (a
Voting Commitment
) that has not been disclosed to the Corporation or (ii) any Voting Commitment
that could limit or interfere with such nominees ability to comply, if elected
as a director of the Corporation, with such nominees fiduciary duties under
applicable law, (2) such nominee is not and will not become a party to any
agreement, arrangement or understanding with any person or entity other than
the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a
director that has not been disclosed therein, and (3) such nominee, in such
nominees individual capacity and on behalf of any person or entity on whose
behalf the nomination is being made, would be in compliance, if elected as a
director of the Corporation, and will comply, with all applicable corporate
governance, conflict of interest, confidentiality and stock ownership and
trading policies and guidelines of the Corporation, and
(ii) as to the Person submitting the Nomination Notice, each beneficial owner,
if any, on whose behalf the nomination is made and any Person acting in
concert with such Persons: (A) the name and business address of such Person,
(B) the name and address of each such Person as they appear on the
Corporations books (if they so appear), (C) the class and number of shares of
the Corporation that are owned beneficially and of record by each such Person,
(D) a description of any agreement, arrangement or understanding with respect
to the nomination between or among such Persons, any of their respective
affiliates or associates, and any others acting in concert with any of the
foregoing, (E) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options,
warrants, convertible securities, stock appreciation or similar rights,
hedging transactions, and borrowed or loaned shares) that has been entered
into as of the date of such written notice by, or on behalf of, each such
Person, whether or not such instrument or right shall be subject to settlement
in underlying shares of capital stock of the Corporation, the effect or intent
of which is to mitigate loss to, manage risk or benefit of share price changes
for, or increase or decrease the voting power of, each such Person, with
respect to securities of the Corporation, (F) a representation that the Person
submitting the Nomination Notice is a holder of record of stock of the
Corporation entitled to vote at such meeting and will so remain at the time of
such meeting, and intends to appear in person or by proxy at the meeting to
make such nomination, (G) a representation whether any such Person intends or
is part of a group which intends
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(1) to deliver a proxy statement and/or form of proxy to holders of at least
the percentage of the Corporations outstanding capital stock required to elect
each nominee or (2) otherwise to solicit proxies from shareholders in support
of such nomination, and (H) any other information relating to such shareholder
and such beneficial owner, if any, required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for the election of directors in an election contest
pursuant to and in accordance with Section 14(a) of the Exchange Act and the
rules and regulations promulgated thereunder. A written consent to being named
in a proxy statement as a nominee, and to serve as a director if elected,
signed by each nominee, shall be filed with any Nomination Notice. Without
limiting the foregoing, the information required by clauses (ii)(C), (D), (E)
and (F) of this Section 2.15(b) shall be updated by the Person delivering such
Nomination Notice and each beneficial owner, if any, on whose behalf the
Nomination Notice is being submitted not later than ten (10) days after the
record date for the meeting to disclose such information as of the record
date. The Corporation may require any proposed nominee to furnish such other
information as it may reasonably require to determine the eligibility or
qualification of such proposed nominee to serve as a director of the
Corporation. If the presiding officer at any shareholders meeting determines
that a nomination was not made in accordance with the procedures prescribed by
these Bylaws or any nominee is otherwise not eligible or qualified to serve as
a director, such officer shall so declare to the meeting and the defective
nomination shall be disregarded.
(c) Nomination Notices and Shareholder Proposals in connection with an annual
meeting shall be delivered to the Secretary of the Corporation at the
principal executive office of the Corporation not less than ninety (90) nor
more than one-hundred twenty (120) calendar days before the first anniversary
of the date of the Corporations notice of annual meeting sent to shareholders
in connection with the previous years annual meeting; provided that if no
annual meeting was held in the previous year, or the date of the annual
meeting has been established to be more than thirty (30) calendar days earlier
than, or sixty (60) calendar days after, the anniversary of the previous years
annual meeting, notice by a shareholder, to be timely, must be so received not
later than (i) the ninetieth (90th) day prior to the annual meeting or (ii) if
later, the close of business on the tenth (10th) day following the day on
which public announcement is first made of the date of the annual meeting.
Nomination Notices in connection with a special meeting at which directors are
to be elected shall be delivered to the Secretary of the Corporation at the
principal executive office of the Corporation not later than the close of
business on (i) the ninetieth (90th) day prior to such special meeting or (ii)
if later, the tenth (10th) day following the day on which public announcement
is first made of the date of the special meeting and of the fact that
directors are to be elected at such meeting.
ARTICLE 3
THE BOARD OF DIRECTORS
Section 3.1 General Powers.
All corporate powers shall be exercised by or under the authority of, and the
business and affairs of the Corporation shall be managed under the direction
of, the Board of Directors and those committees of the Board of Directors
established pursuant to
Section 3.6
of these Bylaws, subject to any limitation set forth in the Articles of
Incorporation,
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Bylaws approved by the shareholders, or agreements among the shareholders that
are otherwise lawful.
Section 3.2 Number, Election and Term of Office.
The number of directors of the Corporation shall be no less than three (3) and
no greater than seven (7) and may be fixed by resolution of the Board of
Directors from time to time. The initial number of directors shall be six (6).
The number of directors shall not be divided into classes if the number of
directors is five (5) or fewer. If there are more than five (5) directors, the
directors shall be divided into two classes: Class I and Class II, each
consisting, as nearly equal in number as possible, of one-half (1/2)
of the total number of directors constituting the entire Board of Directors.
At the annual meeting of shareholders held during the year immediately
following the year in which directors are initially elected as Class I
directors, the terms of the initial Class I directors shall expire and a new
Class I shall be elected for a term expiring at the third annual meeting of
shareholders following their election and upon the election and qualification
of their respective successors and at the annual meeting of shareholders held
during the second year following the year in which directors are initially
elected as Class II directors, the terms of the initial Class II directors
shall expire and a new Class II shall be elected for a term expiring at the
third annual meeting of shareholders following their election and upon the
election and qualification of their respective successors. At each succeeding
annual meeting of shareholders, successors to the Class of directors whose
term expires at such annual meeting of shareholders shall be elected for a
two-year term. Each director serving as a Class I or Class II director shall
hold office until the expiration of the term for such Class as set forth in
this
Section 3.2
and until such directors successor is elected and qualified, or until the
earlier death, resignation or removal of such director.
Except as provided in
Section 3.4
, directors shall be elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present.
The number of directors may be increased or decreased from time to time as
provided herein or by amendment to these Bylaws; provided, however, that no
decrease in the number of directors shall have the effect of shortening the
term of an incumbent director. In the event of any increase or decrease in the
authorized number of directors, each director then serving shall continue as a
director of the Class of which he or she is a member until the expiration of
his or her current term, or his or her earlier resignation, retirement,
disqualification, removal from office or death, and the newly created or
eliminated directorships resulting from such increase or decrease shall be
apportioned by the Board of Directors among the three Classes of directors so
as to maintain such Classes as nearly equal as possible; provided, however,
that any such additional directors elected by the Board of Directors shall
serve only for a term expiring at the next meeting of the shareholders called
for the purpose of electing directors. Each director shall serve until his
successor is elected and qualified or until his earlier resignation,
retirement, disqualification, removal from office, or death.
Section 3.3 Removal.
Directors may be removed from the Board of Directors only for cause and only
by the affirmative vote of at least a majority of all votes entitled to be
cast in the election of such directors. If the director was elected by a
Voting Group of shareholders, only the shareholders of that Voting Group may
participate in the vote to remove the director. The shareholders may remove a
director only at a special meeting called for the purpose of removing the
director, and the meeting notice must state that the purpose, or one of the
purposes, of the meeting is removal of the director. For purposes of this
Section 3.3
,
cause
shall mean only: (i) conviction of a felony; (ii) declaration of unsound mind
by an order of a court; (iii) gross dereliction of duty; (iv) commission of an
action involving moral turpitude; or (v) commission of
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an action which constitutes intentional misconduct or a knowing violation of
law if such action results in an improper substantial personal benefit and a
material injury to the Corporation.
Section 3.4 Vacancies.
All vacancies and any newly created directorship resulting from any increase
in the authorized number of directors may be filled (i) by a majority of the
directors then in office or (ii) by the shareholders. Each director chosen in
accordance with this
Section 3.4
shall hold office until the next election of the Class for which such director
shall have been chosen, and until such directors successor is elected and
qualified, or until the directors earlier resignation, retirement,
disqualification, removal from office or death; provided, however that a
director chosen in accordance with this
Section 3.4
to fill a newly-created directorship shall hold office only until the next
election of directors by the shareholders and until such directors successor
is elected and qualified, or until the directors earlier resignation,
retirement, disqualification, removal from office or death. Even if the
directors remaining in office constitute fewer than a quorum of the Board of
Directors, the directors may fill the vacancy by the affirmative vote of a
majority of all the directors remaining in office. If the vacant office was
held by a director elected by a Voting Group of shareholders, only the holders
of shares of that Voting Group or the remaining directors elected by that
Voting Group are entitled to vote to fill the vacancy.
Section 3.5 Compensation.
Unless the Articles of Incorporation provide otherwise, the Board of Directors
may determine from time to time the compensation, if any, that directors may
receive for their services as directors. A director may also serve the
Corporation in a capacity other than that of director and receive compensation
determined by the Board of Directors for services rendered in such other
capacity.
Section 3.6 Committees.
The Board of Directors by resolution may create one or more committees and
appoint members of the Board of Directors to serve on such committees at the
discretion of the Board of Directors. Except as limited by the Code, each
committee will have the authority set forth in the resolution establishing
such committee or in such committees charter as approved by the Board of
Directors.
Section 3.7 Nominations.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors. Nominations of persons for
election as directors of the Corporation may be made at a meeting of
shareholders (i) by or at the direction of the Board of Directors or by any
committee or person appointed by the Board of Directors or (ii) by any
shareholder of the Corporation entitled to vote for the election of directors
at the meeting who complies with the notice procedures set forth in this
Section 3.7
. Any nomination other than those governed by clause (i) of the preceding
sentence shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a shareholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation
not less than 50 days nor more than 75 days prior to the meeting; provided,
however, that in the event that less than 60 days' notice or prior public
disclosure of the date of meeting is given or made to shareholders, notice by
the shareholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such shareholder's
notice to the Secretary shall set forth (a) as to each person whom the
shareholder proposes to nominate for election as a director (i) the name, age,
business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of any
shares of the Corporation which are beneficially owned by such person and (iv)
any other information relating to such person that is required to be disclosed
in solicitations for proxies for election of directors pursuant to any then
existing rule or
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regulation promulgated under the Securities Exchange Act of 1934, as amended;
and (b) as to the shareholder giving the notice (i) the name and record
address of such shareholder and (ii) the class and number of shares of the
Corporation which are beneficially owned by such shareholder. The Corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of such
proposed nominee to serve as a director. No person shall be eligible for
election as a director unless nominated as set forth herein.
ARTICLE 4
MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Regular Meetings.
The Board of Directors shall hold a regular meeting on the same day as or
immediately after an annual shareholders meeting or a special shareholders
meeting held in lieu of an annual meeting. In addition, the Board of Directors
may schedule and hold other meetings at regular intervals throughout the year.
Section 4.2 Special Meetings.
The Board of Directors shall hold a special meeting upon the call of the
Chairman of the Board, the Chief Executive Officer or President or any two (2)
directors.
Section 4.3 Place of Meetings.
The Board of Directors may hold meetings, both regular and special, at any
place in or out of the State of Georgia. Regular meetings shall be held at the
place established from time to time for regular meetings. Special meetings
shall be held at the place set forth in the notice of the meeting or, if the
special meeting is held in accordance with a waiver of notice of the meeting,
at the place set forth in the waiver of notice.
Section 4.4 Notice of Meetings.
Unless the Articles of Incorporation provide otherwise, the Corporation is not
required to give notice of the date, time, place, or purpose of a regular
meeting of the Board of Directors. Unless the Articles of Incorporation
provide otherwise, the Corporation shall give each member of the Board of
Directors at least one (1) days prior notice of the date, time, and place of a
special meeting of the Board of Directors. Notices of special meetings shall
comply with
Section 5.1
and may be waived in accordance with
Section 5.2
.
Section 4.5 Quorum.
Unless the Code, the Articles of Incorporation, or these Bylaws require a
greater number, a quorum of the Board of Directors consists of a majority of
the total number of directors that has been initially fixed in the Articles of
Incorporation or that has been later prescribed by resolution of the
shareholders or of the Board of Directors in accordance with
Section 3.2
.
Section 4.6 Vote Required for Action
.
(a)
If a quorum is present when a vote is taken, the affirmative vote of a
majority of directors present is the act of the Board of Directors unless the
Code, the Articles of Incorporation, or these Bylaws require the vote of a
greater number of directors.
(b)
A director who is present at a meeting of the Board of Directors or a
committee of the Board of Directors when corporate action is taken is deemed
to have assented to the action taken unless:
(i)
he or she objects at the beginning of the meeting (or promptly upon his or her
arrival) to holding it or transacting business at the meeting;
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(ii)
his or her dissent or abstention from the action taken is entered in the
minutes of the meeting; or
(iii)
he or she delivers written notice of his or her dissent or abstention to the
presiding officer of the meeting before its adjournment or to the Corporation
immediately after adjournment of the meeting.
The right to dissent or abstain is not available to a director who votes in
favor of the action taken.
Section 4.7 Participation by Conference Telephone or Other Means of
Communication
.
Any or all
directors may participate in a meeting of the Board of Directors or of a
committee of the Board of Directors through the use of any means of
communication by which all directors participating may simultaneously hear
each other during the meeting. A director participating in a meeting by this
means shall be deemed to be present in person at the meeting.
Section 4.8 Adjournments.
A majority of the directors present at a meeting may adjourn the meeting from
time to time. This right to adjourn exists whether or not a quorum is present
at the meeting and applies to regular as well as special meetings, including
any meetings that are adjourned and reconvened. If a meeting of the Board of
Directors is adjourned to a different date, time, or place, the Corporation is
not required to give notice of the new date, time, or place or of the business
to be transacted, if the new date, time, or place is announced at the meeting
before adjournment. At the meeting reconvened after adjournment, the Board of
Directors may transact any business that could have been transacted at the
meeting that was adjourned.
Section 4.9 Action by Directors Without a Meeting.
Any action required or permitted by the Code to be taken at any meeting of the
Board of Directors (or a committee of the Board of Directors) may be taken
without a meeting if the action is taken by all of the members of the Board of
Directors (or the committee, as the case may be). The action must be evidenced
by one or more written consents or by electronic transmission describing the
action taken, signed by each of the directors (or each of the directors
serving on the committee, as the case may be), and delivered to the
Corporation for inclusion in the minutes or filing with the corporate records.
ARTICLE 5
MANNER OF NOTICE TO AND WAIVER OF NOTICE
BY SHAREHOLDERS AND DIRECTORS
Section 5.1 Manner of Notice
.
(a)
Whenever these Bylaws require notice to be given to any shareholder or
director, the notice must comply with this
Section 5.1
in addition to any other Section of these Bylaws concerning notice and any
provision in the Articles of Incorporation.
(b)
Notice to shareholders shall be in writing. Notice to a director shall be in
writing unless oral notice is reasonable under the circumstances.
(c)
Notice may be communicated in person; by telephone, telegraph, electronic
transmission, teletype, facsimile, or other form of wire or wireless
communication; or by mail, e-mail or private carrier. If these forms of
personal notice are impracticable, notice may be communicated by a newspaper
of general circulation in the area where published, or by radio, television,
or other form of public broadcast communication. Unless otherwise provided in
the Code, the Articles of Incorporation, or these Bylaws, notice by e-mail,
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facsimile or electronic transmission, telegraph, or teletype shall be deemed
to be notice in writing.
(d)
Written notice to shareholders, if in comprehensible form, is effective when
mailed, if mailed with first-class postage prepaid and correctly addressed to
the shareholders address shown in the Corporations current record of
shareholders; provided, however, that if the Corporation has more than five
hundred (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 meeting is
mailed, with adequate postage prepaid, not less than thirty (30) days before
the date of the meeting.
(e)
Except as provided in
Section 5.1(d)
, written notice, if in a comprehensible form, is effective at the earliest of
the following unless otherwise required by law:
(i)
when received, or when delivered, properly addressed, to the addressees last
known principal place of business or residence;
(ii)
five (5) days after its deposit in the mail, as evidenced by the postmark, or
such longer period as provided in the Articles of Incorporation or these
Bylaws, if mailed with first-class postage prepaid and correctly addressed; or
(iii)
on the date shown on the return receipt, if sent by registered or certified
mail, or overnight delivery, 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, when a period of time measured in
days, weeks, months, years, or other measurement of time is prescribed for the
exercise of any privilege or the discharge of any duty, the first day shall
not be counted but the last day shall be counted.
Section 5.2 Waiver of Notice.
(h)
A shareholder may waive any notice required by the Code, Articles of
Incorporation or these Bylaws, before or after the date and time stated in the
notice. Except as provided in
Section 5.2(b)
, the waiver must be in writing or by electronic transmission, be signed by
the shareholder entitled to the notice, and be delivered to the Corporation
for inclusion in the minutes or filing with the corporate records.
(i)
A shareholders attendance at a meeting:
(i)
waives objection to lack of notice or defective notice of the meeting, unless
the shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting; and
(ii)
waives objection to consideration of a particular matter at the meeting that
is not within the purpose or purposes described in the meeting notice, unless
the shareholder objects to considering the matter when it is presented.
(j)
A shareholders waiver of notice is not required to specify the business
transacted or the purpose of the meeting unless required by the Code or these
Bylaws.
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(k)
A director may waive any notice before or after the date and time stated in
the notice. Except as provided in
Section 5.2(e)
, the waiver must be in writing or by electronic transmission, signed by the
director entitled to the notice, and delivered to the Corporation for
inclusion in the minutes or filing with the corporate records.
(l)
A directors attendance at or participation in a meeting waives any required
notice to him or her of the meeting unless the director at the beginning of
the meeting (or promptly upon his or her 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 6
OFFICERS
Section 6.1 Duties.
The officers of the Corporation may include a Chairman of the Board, Chief
Executive Officer, Chief Financial Officer, President and Secretary and any
other officers as may be appointed by the Board of Directors, as it
determines, in its sole discretion, to be necessary or desirable. The officers
will have the authority and will perform the duties as set forth in these
Bylaws. The other officers that are appointed will have the authority and will
perform the duties as established by the Board of Directors from time to time.
Section 6.2 Appointment and Term.
The Board of Directors appoints the individuals who will serve as officers of
the Corporation. An individual may simultaneously hold more than one office.
Any officer appointed in accordance with this
Article 6
may appoint one (1) or more officers or assistant officers. All officers serve
at the pleasure of the Board of Directors. The Board of Directors may remove
with or without cause any officer.
Section 6.3 Compensation.
The Board of Directors or a committee thereof will fix the compensation, if
any, of all corporate officers.
Section 6.4 Chairman of the Board.
The Chairman of the Board shall preside at all meetings of shareholders and
the Board of Directors. The Chairman of the Board shall have such other powers
and duties as may be delegated to him or her from time to time by the Board of
Directors.
Section 6.5 Chief Executive Officer.
The Chief Executive Officer shall be primarily responsible for the general
management of the business affairs of the Corporation and for implementing
policies and directives of the Board of Directors. The Chief Executive Officer
shall also preside at all meetings of shareholders and the Board of Directors
during the absence or disability of the Chairman of the Board. Unless the
Articles of Incorporation, these Bylaws, or a resolution of the Board of
Directors provides otherwise, the Chief Executive Officer may execute and
deliver on behalf of the Corporation any contract, conveyance, or similar
document not requiring approval by the Board of Directors or shareholders as
provided in the Code. The Chief Executive Officer shall have any other
authority and will perform any other duties that the Board of Directors may
delegate to him or her from time to time.
Section 6.6 President.
In the absence of the Chairman of the Board and the Chief Executive Officer,
or if there is none, the President shall preside at meetings of the
shareholders and Board of Directors. The President shall assume and perform
the duties of the Chairman of the Board in the absence or disability of the
Chairman of the Board and the Chief Executive Officer or whenever the offices
of the Chairman of the Board and the Chief Executive Officer are vacant. The
President will have any other authority and will perform any other duties that
the Board of Directors may delegate to him or her from time to time.
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Section 6.7 Chief Financial Officer.
The Chief Financial Officer shall render statements of the financial affairs
of the Corporation in such form and as often as required by the Board of
Directors, Chief Executive Officer or the President. The Chief Financial
Officer will have responsibility for the custody of all funds and securities
belonging to the Corporation and for the receipt, deposit, or disbursement of
funds and securities under the direction of the Board of Directors. The Chief
Financial Officer will cause to be maintained true accounts of all receipts
and disbursements and will make reports of these to the Board of Directors,
upon its request, and to the Chief Executive Officer or the President, upon
his or her request. The Chief Financial Officer will have any other authority
and will perform any other duties that the Board of Directors may delegate to
him or her from time to time.
Section 6.8 Secretary.
The Secretary will have responsibility for preparing minutes of the acts and
proceedings of all meetings of the shareholders, of the Board of Directors,
and of any committees of the Board of Directors, as directed by the
chairperson of a particular committee. The Secretary will have authority to
give all notices required by the Code, other applicable law, or these Bylaws.
The Secretary will have responsibility for the custody of the corporate books,
records, contracts, and other corporate documents. The Secretary will have
authority to affix the corporate seal to any lawfully executed document and
will sign any instruments that require his or her signature. The Secretary
will authenticate records of the Corporation. The Secretary will have any
other authority and will perform any other duties that the Board of Directors
may delegate to him or her from time to time. In the case of absence or
disability of the Secretary, or at the direction of the Chief Executive
Officer or the President, any assistant secretary has the authority and may
perform the duties of the Secretary.
Section 6.9 Bonds.
The Board of Directors by resolution may require any or all of the officers,
agents, or employees of the Corporation to give bonds to the Corporation, with
sufficient surety or sureties, conditioned on the faithful performance of the
duties of their respective offices or positions, and to comply with any other
conditions that from time to time may be required by the Board of Directors.
ARTICLE 7
SHARES
Section 7.1 Authorization and Issuance of Shares.
The Board of Directors may authorize shares of any class or series provided
for in the Articles of Incorporation to be issued for consideration deemed
valid under the provisions of the Code, including fractional shares of any
class or series as provided. In addition, before the Corporation issues the
shares authorized by the Board of Directors, the Board of Directors must
determine that the consideration received or to be received for shares to be
issued is adequate. To the extent provided in the Articles of Incorporation,
the Board of Directors will determine the preferences, limitations, and
relative rights of such shares before their issuance.
Section 7.2 Share Certificates.
Shares of the Corporations capital stock may be certificated or uncertificated,
as provided under the Code. The interest of each shareholder may be evidenced
by a certificate or certificates representing shares of the Corporation which,
if any, shall be in such form as Board of Directors may from time to time
adopt. Share certificates, if any, shall be numbered consecutively, shall be
in registered form shall indicate the date of issuance, the name of the
Corporation and that it is organized under the laws of the State of Georgia,
the name of the shareholder, and the number and class of shares and the
designation of the series, if any, represented by the certificate. Each
certificate shall be signed by any one of the Chairman of the
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Board, the Chief Executive Officer, the President, the Chief Financial Officer
or the Secretary; provided, however, that where a certificate is signed
(either manually or by facsimile) by a transfer agent, or registered by a
registrar, the signatures of those officers may be facsimiles. If a
certificate is signed in facsimile, then it must be countersigned by a
transfer agent or registered by a registrar other than the Corporation itself
or an employee of the Corporation. The transfer agent or registrar may sign
either manually or by facsimile. The corporate seal need not be affixed. The
interest of a shareholder in the Corporation also may be evidenced by
registration in the holders name in uncertificated, book-entry form on the
books of the Corporation in accordance with a direct registration system
approved by the Securities and Exchange Commission and by any securities
exchange or automated quotation system on which the shares of the Corporations
stock may from time to time be quoted or listed.
Section 7.3 Registered Owner.
The Corporation may treat the registered owner of any share of capital stock
of the Corporation as the person exclusively entitled to vote that share and
to receive any dividend or other distribution with respect to that share and
as the exclusive owner of that share for all other purposes. Accordingly, the
Corporation is not required to recognize any other persons equitable, or
other, claim to or interest in that share, whether or not the Corporation has
express or other notice of the claim or interest, except as provided otherwise
by law.
Section 7.4 Transfers of Shares.
The Board of Directors shall have power and authority to make all rules and
regulations as they may deem expedient concerning the transfer and
registration of shares of the Corporation. Transfer of shares shall be in
accordance with such rules and regulations. The Board of Directors shall have
authority to appoint a transfer agent and/or a registrar for the shares of its
capital stock, and to empower them or either of them in such manner and to
such extent as it may deem best, and to remove such agent or agents from time
to time, and to appoint another agent or other agents. Transfers of shares
shall be made upon the transfer books of the Corporation, kept at the office
of the transfer agent designated to transfer the shares, only upon direction
of the registered owner, or by an attorney lawfully constituted in writing.
With respect to certificated shares, before a new certificate is issued, the
old certificate shall be surrendered for cancellation or, in the case of a
certificate alleged to have been lost, stolen, or destroyed, the requirements
of
Section 7.6
shall have been met. Upon transfer of uncertificated shares, the record of
such persons stock shall be cancelled and shares shall be transferred to the
person entitled thereto upon the issuance of a certificate or electronic
transfer of such shares.
Section 7.5 Duty of Corporation to Register Transfer.
Notwithstanding any provision in
Section 7.4
, the Corporation is not under a duty to register the transfer of a share
unless:
(a)
the certificate representing that share is endorsed by the appropriate person
or persons;
(b)
reasonable assurance is given that the endorsement or affidavit (in the case
of a lost, stolen, or destroyed certificate) is genuine and effective;
(c)
the Corporation either has no duty to inquire into adverse claims or has
discharged that duty;
(d)
the requirements of any applicable law relating to the collection of taxes for
the proposed transfer have been met; and
(e)
the transfer is in fact rightful or is to a bona fide purchaser.
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Section 7.6 Lost, Stolen, or Destroyed Certificates.
Any person claiming a share certificate has been lost, stolen, or destroyed
must make an affidavit or affirmation of that fact in the manner prescribed by
the Board of Directors. In addition, if the Board of Directors requires, the
person must give the Corporation a bond of indemnity in a form and amount, and
with one or more sureties, satisfactory to the Board of Directors. Once the
person has satisfactorily completed these steps, the Corporation will issue an
appropriate new certificate to replace the certificate alleged to have been
lost, stolen or destroyed.
Section 7.7 Record Date with Regard to Shareholder Action.
If not otherwise fixed under Section 14-2-703 or 14-2-707 of the Code, the
record date for determining shareholders entitled to notice of and entitled to
vote at an annual or special shareholders meeting is the close of business on
the day before the first notice is delivered to shareholders. The Board of
Directors may fix a future date as the record date in order to determine the
shareholders entitled to notice of a shareholders meeting, to demand a special
meeting, to vote, or to take any other action (except an action provided for in
Section 8.2
). Any future date fixed as a record date may not be more than seventy (70)
days before the date on which the meeting is to be held or the action
requiring a determination of shareholders is to be taken. A determination of
shareholders entitled to notice of or to vote at a shareholders meeting is
effective for any adjournment of the meeting unless the Board of Directors
fixes a new record date, which it must do if the meeting is adjourned to a
date more than one hundred twenty (120) days after the date fixed for the
original meeting. If the Board of Directors does not fix a future date as a
record date, the Corporation will determine the record date in accordance with
the Code.
ARTICLE 8
DISTRIBUTIONS
Section 8.1 Authorization or Declaration.
Subject to any restriction in the Articles of Incorporation, the Board of
Directors from time to time in its discretion may authorize or declare and the
Corporation may make distributions to the shareholders in accordance with the
Code.
Section 8.2 Record Date With Regard to Distributions.
The Board of Directors may fix a future date as the record date in order to
determine shareholders entitled to a distribution (other than one involving a
purchase, redemption, or other reacquisition of the Corporations shares). If
the Board of Directors does not fix a future date as the record date, the
Corporation will determine the record date in accordance with the Code.
ARTICLE 9
INDEMNIFICATION
Section 9.1 Definitions.
As used in this
Article 9
, the term:
(a)
Corporation
includes any domestic or foreign predecessor entity of the Corporation in a
merger or other transaction in which the predecessors existence ceased upon
consummation of the transaction.
(b)
Director
or
Officer
means an individual who is or was a director or officer, respectively, of the
Corporation or who, while a director or officer of the Corporation, is or was
serving at the Corporations request as a director, officer, partner, trustee,
employee, or agent of another domestic or foreign corporation, partnership,
joint venture, trust, employee benefit plan, or other entity. A Director or
Officer is considered to be serving an employee benefit plan at the
Corporations request if his or her duties to the Corporation also impose
duties on, or otherwise involve services by, the director or
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officer to the plan or to participants in or beneficiaries of the plan.
Director
or
Officer
includes, unless the context otherwise requires, the estate or personal
representative of a director or officer.
(c)
Disinterested Director
or
Disinterested Officer
means a Director or Officer, respectively who at the time of an evaluation
referred to in
Section 9.5(b)
is not:
(i)
A party to the Proceeding; or
(ii)
An individual having a familial financial, professional, or employment
relationship with the person whose indemnification or advance for expenses is
the subject of the decision being made with respect to the Proceeding, which
relationship would, in the circumstances, reasonably be expected to exert an
influence on the Directors or Officers judgment when voting on the decision
being made.
(d)
Expenses
includes counsel fees.
(e)
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.
(f)
Party
includes an individual who was, is, or is threatened to be made a named
defendant or respondent in a Proceeding.
(g)
Proceeding
means any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, arbitrative or investigative and
whether formal or informal.
(h)
Reviewing Party
shall mean the person or persons making the determination as to reasonableness
of expenses pursuant to
Section 9.5
, and shall not include a court making any determination under this
Article 9
or otherwise.
Section 9.2 Basic Indemnification Arrangement
.
(i)
The Corporation shall indemnify an individual who is a Party to a Proceeding
because he or she is or was a Director or Officer against Liability incurred
in the Proceeding; provided, however that the Corporation shall not indemnify
a Director or Officer under this
Article 9
for any Liability incurred in a Proceeding in which the Director or Officer is
adjudged liable to the Corporation or is subjected to injunctive relief in
favor of the Corporation:
(i)
For any appropriation, in violation of his or her 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 Code; or
(iv)
For any transaction from which he or she received an improper personal benefit.
(j)
If any person is entitled under any provision of this
Article 9
to indemnification by the Corporation for some portion of Liability incurred
by him or her,
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but not the total amount thereof, the Corporation shall indemnify such person
for the portion of such Liability to which he or she is entitled.
Section 9.3 Advances for Expenses
.
(k)
The Corporation shall, before final disposition of a Proceeding, advance funds
to pay for or reimburse the reasonable expenses incurred by a Director or
Officer who is a Party to a Proceeding because he or she is a Director or
Officer if he or she delivers to the Corporation:
(i)
A written affirmation of his or her good faith belief that his or her conduct
does not constitute behavior of the kind described in
Section 9.2(a)
above; and
(ii)
His or her written undertaking (meeting the qualifications set forth below in
Section 9.3(b)
) to repay any funds advanced if it is ultimately determined that he or she is
not entitled to indemnification under this
Article 9
or the Code.
(l)
The undertaking required by
Section 9.3(a)(ii)
above must be an unlimited general obligation of the proposed indemnitee but
need not be secured and shall be accepted without reference to the financial
ability of the proposed indemnitee to make repayment. If a Director or Officer
seeks to enforce his or her rights to indemnification in a court pursuant to
Section 9.4
below, such undertaking to repay shall not be applicable or enforceable unless
and until there is a final court determination that he or she is not entitled
to indemnification, as to which all rights of appeal have been exhausted or
have expired.
Section 9.4 Court-Ordered Indemnification and Advances for Expenses.
A Director or Officer who is a Party to a Proceeding shall have the rights to
court-ordered indemnification and advances for expenses as provided in the
Code.
Section 9.5 Determination of Reasonableness of Expenses
.
(m)
The Corporation acknowledges that indemnification of, and advancement of
expenses to, a Director or Officer under
Section 9.2
has been pre-authorized by the Corporation as permitted by Section 14-2-859(a)
of the Code, and that pursuant to authority exercised under Section 14-2-856
of the Code, no determination need be made for a specific Proceeding that
indemnification of the Director or Officer is permissible in the circumstances
because he or she has met a particular standard of conduct. Nevertheless,
except as set forth in
Section 9.5(b)
below, evaluation as to reasonableness of expenses of a Director or Officer
for a specific Proceeding shall be made as follows:
(i)
If there are two (2) or more Disinterested Directors, by the Board of
Directors by a majority vote of all Disinterested Directors (a majority of
whom shall for such purpose constitute a quorum) or by a majority of the
members of a committee of two or more Disinterested Directors appointed by
such a vote;
(ii)
If there are fewer than two (2) Disinterested Directors, by the Board of
Directors (in which determination directors who do not qualify as
Disinterested Directors may participate); or
(iii)
By the shareholders, but shares owned by or voted under the control of a
Director or Officer who at the time does not qualify as a Disinterested
Director or Disinterested Officer may not be voted on the determination.
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(n)
Notwithstanding the requirement under
Section 9.5(a)
that the Reviewing Party evaluate the reasonableness of Expenses claimed by
the proposed indemnitee, any Expenses claimed by the proposed indemnitee shall
be deemed reasonable if the Reviewing Party fails to make the evaluation
required by
Section 9.5(a)
within sixty (60) days following the later of;
(i)
the Corporations receipt of the affirmative undertaking required by
Section 9.3(a)
; or
(ii)
the Corporations receipt of invoices for specific expenses to be reimbursed or
advance.
Section 9.6 Indemnification of Employees and Agents.
The Corporation may indemnify and advance Expenses under this
Article 9
to an employee or agent of the Corporation who is not a Director or Officer to
the same extent and subject to the same conditions that a Georgia corporation
could, without shareholder approval under Section 14-2-856 of the Code,
indemnify and advance Expenses to a director, or to any lesser extent (or
greater extent if permitted by law) determined by the Board of Directors, in
each case consistent with public policy.
Section 9.7 Liability Insurance.
The Corporation may purchase and maintain insurance on behalf of an individual
who is a Director, Officer, employee or agent of the Corporation or who, while
a Director, Officer, employee or agent of the Corporation, serves at the
Corporations request as a Director, Officer, partner, trustee, employee or
agent of another domestic or foreign corporation, partnership, joint venture,
trust, employee benefit plan, or other entity against Liability asserted
against or incurred by him or her in that capacity or arising from his or her
status as a Director, Officer, employee, or agent, whether or not the
Corporation would have power to indemnify or advance Expenses to him or her
against the same Liability under this
Article 9
or the Code.
Section 9.8 Witness Fees.
Nothing in this
Article
9
shall limit the Corporations power to pay or reimburse Expenses incurred by a
person in connection with his or her appearance as a witness in a Proceeding
at a time when he or she is not a Party.
Section 9.9 Report to Shareholders.
To the extent and in the manner required by the Code from time to time, if the
Corporation indemnifies or advances Expenses to a director or officer in
connection with a Proceeding by or in the right of the Corporation, the
Corporation shall report the indemnification or advance to the shareholders.
Section 9.10 No Duplication of Payments; Nonexclusive.
The Corporation shall not be liable under this
Article 9
to make any payment to a person hereunder to the extent such person has
otherwise actually received payment (under any insurance policy, agreement or
otherwise) of the amounts otherwise payable hereunder. The rights of a
Director or Officer hereunder shall be in addition to any other rights with
respect to indemnification, advancement of Expenses or otherwise that he or
she may have under contract or the Code or otherwise.
Section 9.11 Subrogation.
In the event of payment under this
Article 9
, the Corporation shall be subrogated to the extent of such payment to all of
the rights of recovery of the indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Corporation
effectively to bring suit to enforce such rights.
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Section 9.12 Contract Rights.
The right to indemnification and advancement of Expenses conferred hereunder
to Directors and Officers shall be a contract right and shall not be affected
adversely to any
Director or Officer by any amendment of these Bylaws with respect to any
action or inaction occurring prior to such amendment; provided, however, that
this provision shall not confer upon any indemnitee or potential indemnitee
(in his or her capacity as such) the right to consent or object to any
subsequent amendment of these Bylaws.
Section 9.13 Amendments.
It is the intent of the Corporation to indemnify and advance Expenses to its
Directors and Officers to the fullest extent permitted by the Code, as amended
from time to time. To the extent that the Code is hereafter amended to permit
a Georgia corporation to provide to its Directors and Officers greater rights
to indemnification or advancement of Expenses than those specifically set
forth hereinabove, this
Article 9
shall be deemed amended to require such greater indemnification or more
liberal advancement of Expenses to the Corporations Directors and Officers, in
each case consistent with the Code as so amended from time to time. No
amendment, modification or rescission of this
Article 9
, or any provision hereof, the effect of which would diminish the rights to
indemnification or advancement of Expenses as set forth herein shall be
effective as to any person with respect to any action taken or omitted by such
person prior to such amendment, modification or rescission.
Section 9.14 Severability.
To the extent that the provisions of this
Article 9
are held to be inconsistent with the provisions of Article 8, Part 5, of the
Code, such provisions of such Code shall govern. In the event that any of the
provisions of this
Article 9
(including any provision within a single section, subsection, division or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions of this
Article 9
shall remain enforceable to the fullest extent permitted by law.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Inspection of Records.
The Board of Directors may determine what corporate records, other than those
specifically required by the Code to be made open to inspection, will be made
open to the right of inspection by the shareholders. In addition, the Board of
Directors may fix reasonable rules not in conflict with the Code regarding the
inspection of corporate records that are required by the Code or are permitted
by determination of the Board of Directors to be made open to inspection. The
right of inspection granted in Section 14-2-1602(c) of the Code is not
available to any shareholder owning two percent (2%) or less of the shares
outstanding, unless the Board of Directors in its discretion grants prior
approval for the inspection to the shareholder.
Section 10.2 Fiscal Year.
The Board of Directors may determine the fiscal year of the Corporation and
may change the fiscal year from time to time as the Board of Directors deems
appropriate.
Section 10.3 Corporate Seal.
If the Board of Directors determines that the Corporation should have a
corporate seal for the Corporation, the corporate seal will be in the form the
Board of Directors from time to time determines.
Section 10.4 Financial Statements.
In accordance with the Code, the Corporation shall prepare and provide to the
shareholders such financial statements as may be required by the Code.
Section 10.5 Conflict with Articles of Incorporation.
In the event that any provision of these Bylaws conflicts with any provision
of the Articles of Incorporation, the provision in the Articles of
Incorporation will govern.
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ARTICLE 11
AMENDMENTS
Section 11.1 Power to Amend Bylaws.
Subject, in each case, to the Articles of Incorporation and the Code:
(a)
the Board of Directors shall have power to alter, amend or repeal these Bylaws
or adopt new Bylaws, except in circumstances in which: (i) the Articles of
Incorporation or the Georgia Business Corporation Code reserve such power
exclusively to the shareholders in whole or in part; or (ii) if the
shareholders, in amending or repealing a particular Bylaw, provide expressly
that the Board of Directors may not amend or repeal such Bylaw;
(b)
any Bylaws adopted by the Board of Directors may be altered, amended or
repealed, and new Bylaws may be adopted, by the shareholders; and
(c)
Article 12
shall be amended only in the manner provided by relevant provisions of the Code.
ARTICLE 12
CERTAIN PROVISIONS OF GEORGIA LAW
Section 12.1 Fair Price Requirements.
None of the requirements of Article 11, Part 2, of the Code included in
Sections 14-2-1110 through 1113 (and any successor provisions thereto) shall
be applicable to the Corporation in connection with any business combination,
as defined therein, with any interested shareholder, as defined therein.
Section 12.2 Business Combinations.
None of the requirements of Article 11, Part 3, of the Code included in
Sections 14-2-1131 through 1133 (and any successor provisions thereto) shall
be applicable to the Corporation in connection with any business combination,
as defined therein, with any interested shareholder, as defined therein.
ARTICLE 13
EMERGENCY BYLAWS
Section 13.1 Emergency Bylaws.
This
Article 13
shall be operative during any emergency resulting from some catastrophic event
that prevents a quorum of the Board of Directors or any committee thereof from
being readily assembled (an
Emergency
),
notwithstanding any different or conflicting provisions set forth elsewhere in
these Bylaws or in the Articles of Incorporation. To the extent not
inconsistent with the provisions of this
Article 13
, the bylaws set forth elsewhere herein and the provisions of the Articles of
Incorporation shall remain in effect during such Emergency, and upon
termination of such Emergency, the provisions of this
Article 13
shall cease to be operative.
Section 13.2 Meetings.
During any Emergency, a meeting of the Board of Directors or any committee
thereof may be called (i) by any director or (ii) by the Chief Executive
Officer, President, Chief Financial Officer or the Secretary (the
Designated Officers
) of the corporation. Notice of the time and place of the meeting shall be
given by any available means of communication by the person calling the
meeting to such of the directors
and/or Designated Officers as may be feasible to reach. Such notice shall be
given at such time in advance of the meeting as, in the judgment of the person
calling the meeting, circumstances permit.
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Section 13.3 Quorum.
At any meeting of the Board of Directors or any committee thereof called in
accordance with this
Article 13
, the presence or participation of two directors, one director and a
Designated Officer, or two (2) Designated Officers shall constitute a quorum
for the transaction of business.
Section 13.4 Bylaws.
At any meeting called in accordance with this
Article 13
, the Board of Directors or a committee thereof, as the case may be, may
modify, amend or add to the provisions of this
Article 13
so as to make any provision that may be practical or necessary for the
circumstance of the Emergency.
Section 13.5 Liability.
Corporate action taken in good faith in accordance with the Emergency bylaws
may not be used to impose Liability on a director, officer, employee or agent
of the Company.
Section 13.6 Repeal or Change.
The provisions of this
Article 13
shall be subject to repeal or change by further action of the Board of
Directors or by action of shareholders, but no such repeal or change shall
modify the provisions of
Section 13.5
with regard to action taken prior to the time of such repeal or change.
Adopted May 10, 2024.
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