-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PvgziIOuQXNJUkv8txgnzleQ7w/BnYFxgS9rMaFSpggs8msik06IAEUatT3yQ5se h2Sil5CSVc8phx4D2o5pTA== /in/edgar/work/20000809/0000914062-00-000306/0000914062-00-000306.txt : 20000921 0000914062-00-000306.hdr.sgml : 20000921 ACCESSION NUMBER: 0000914062-00-000306 CONFORMED SUBMISSION TYPE: 8-A12G/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000809 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PROFIT RECOVERY GROUP INTERNATIONAL INC CENTRAL INDEX KEY: 0001007330 STANDARD INDUSTRIAL CLASSIFICATION: [8700 ] IRS NUMBER: 582213805 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12G/A SEC ACT: SEC FILE NUMBER: 000-28000 FILM NUMBER: 689844 BUSINESS ADDRESS: STREET 1: 2300 WINDY RIDGE PKWY STREET 2: STE 100 N CITY: ATLANTA STATE: GA ZIP: 30339-8426 BUSINESS PHONE: 7707793900 MAIL ADDRESS: STREET 1: 2300 WINDY RIDGE PKWY STREET 2: STE 100 NORTH CITY: ATLANTA STATE: GA ZIP: 30339-8426 8-A12G/A 1 0001.txt AMENDMENT NO.1 TO FORM 8-A SECURITIES AND EXCHANGE COMMISSION/ WASHINGTON, D.C. 20549 FORM 8-A/A FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. --------------------------------------------- (Exact name of registrant as specified in its charter) Georgia 58-2213805 (State or other jurisdiction of (IRS Employer Identification incorporation) No.) 2300 Windy Ridge Parkway Suite 100 North Atlanta, Georgia 30339-8426 (Address of principal executive offices) (Zip Code) Securities to be registered pursuant to Section 12(b) of the Act: Not Applicable -------------- (Title of class) If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. [X] Securities to be registered pursuant to Section 12(g) of the Act: Title of each class to be so registered ------------------- Stock Purchase Rights INFORMATION REQUIRED IN REGISTRATION STATEMENT Explanatory Note: This amendment to the Registration Statement on Form 8-A filed by The Profit Recovery Group International, Inc. with the Securities and Exchange Commission on March 18, 1996 is for the purpose of adding in the "Description of Registrant's Securities to be Registered" a description of that certain Shareholder Protection Rights Agreement dated as of August 9, 2000. Item 1. Description of Registrant's Securities to be Registered. On July 31, 2000, the Board of Directors of The Profit Recovery Group International, Inc. (the "Registrant") declared a dividend of one preferred share purchase right (a "Right") for each outstanding share of common stock, no par value per share (the "Common Shares"), of the Registrant. The dividend is payable on August 28, 2000 to the shareholders of record on August 14, 2000 (the "Record Time"). Common Shares subsequently issued will include an associated Right. Each Right entitles the registered holder to purchase from the Registrant subject to the occurrence of certain events one one-hundredth of a share of Participating Preferred Stock, no par value per share (the "Preferred Shares"), of the Registrant at a price of $100 per one one-hundredth of a Preferred Share (the "Exercise Price"), subject to adjustment. The description and terms of the Rights are set forth in a Shareholder Protection Rights Agreement (the "Rights Agreement") between the Registrant and First Union National Bank as Rights Agent (the "Rights Agent"). Until the earlier to occur of (i) a public announcement that a person or group of affiliated or associated persons (an "Acquiring Person") have acquired beneficial ownership of 15% or more of the outstanding Common Shares or (ii) 10 business days (or such later date as may be determined by action of the Board of Directors prior to such time as any person or group of affiliated persons becomes an Acquiring Person) following the commencement of, or announcement of an intention to make, a tender offer or exchange offer the consummation of which would result in the beneficial ownership by a person or group of 15% or more of the outstanding Common Shares (the earlier of such dates being called the "Separation Time"), the Rights will be evidenced by the Common Stock certificates with a copy of a summary of the rights attached thereto. The Rights Agreement provides that, until the Separation Time (or earlier redemption or expiration of the Rights), the Rights may be transferred with and only with the Common Shares. Until the Separation Time (or earlier redemption or expiration of the Rights), new Common Share certificates issued after the Record Time upon transfer or new issuance of Common Shares will contain a notation incorporating the Rights Agreement by reference. Until the Separation Time (or earlier redemption or expiration of the Rights), the surrender for transfer of any certificates for Common Shares outstanding as of the Record Time, even without such notation or a copy of a summary of rights being attached thereto, will also constitute the transfer of the Rights associated with the Common Shares represented by such certificate. As soon as practicable following the Separation Time, separate certificates evidencing the Rights ("Rights Certificates") will be mailed to holders of record of the Common Shares as of the close of business on the Separation Time and such separate Rights Certificates alone will evidence the Rights. The Rights will not be exercisable until the Business Day (as defined in the Rights Agreement) following the Separation Time. The Rights will expire on the earliest of (i) the Exchange Time (as defined below), (ii) the close of business on August 14, 2010, (iii) the date on which the Rights are redeemed as described below and (iv) upon the merger of the Registrant into another corporation pursuant to an agreement entered into when there is no Acquiring Person unless such transaction would constitute a Flip-over Transaction or Event (in any such case, the "Expiration Time"). The Exercise Price payable, and the number of Preferred Shares or other securities or property issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent dilution in the event of (i) a stock dividend on, or a subdivision, combination or reclassification of, the Common Shares, or (ii) a distribution of securities or assets in respect of, in lieu of or in exchange for Common Shares (excluding regular periodic cash dividends or dividends payable in Common Shares). Preferred Shares purchasable upon exercise of the Rights will not be redeemable without the consent of the holders of such shares. Each Preferred Share will be entitled to an aggregate dividend of 100 times the dividend 1 declared per Common Share (other than dividends or distributions paid in Common Shares). In the event of liquidation, the holders of the Preferred Shares will be entitled to be paid an amount per share equal to the aggregate amount distributable upon such event to a holder of 100 shares of Common Stock (each as adjusted for any stock dividend, stock split or combination into a smaller number of shares). Each Preferred Share shall have 100 votes (as adjusted for any stock dividend, stock split or combination into a smaller number of shares) and shall vote as a class with the Common Shares voting on such matter. Finally, in the event of any merger, consolidation or other transaction in which Common Shares are exchanged, each Preferred Share will be entitled to receive 100 times the amount received per Common Share. Because of the nature of the Preferred Shares, dividend, liquidation and voting rights, the value of the one one-hundredth interest in a Preferred Share purchasable upon exercise of each Right should approximate the value of one Common Share. In the event that any person or group of affiliated or associated persons becomes an Acquiring Person, the Registrant shall take such action as shall be necessary to ensure and provide that each Right (other than Rights beneficially owned by the Acquiring Person, which Rights shall become void) shall constitute the right to purchase from the Registrant, upon the exercise thereof in accordance with the terms of the Rights Agreement, that number of shares of Common Stock or Preferred Shares having an aggregate Market Price (as defined in the Rights Agreement) equal to twice the Exercise Price for an amount in cash equal to the then current Exercise Price. At any time after any person or group becomes an Acquiring Person and prior to the acquisition by such person or group of 50% or more of the outstanding Common Shares, the Board of Directors of the Registrant may exchange all (but not less than all) of the then outstanding Rights (other than Rights owned by such person or group which will have become void) at an exchange ratio of one Common Share, or one one-hundredth of a Preferred Share, per Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date of the Separation Time (the "Exchange Ratio"). Immediately upon such action by the Board of Directors (the "Exchange Time"), the right to exercise the Rights will terminate and each Right will thereafter represent only the right to receive a number of shares of Common Stock or one one-hundredths of a Preferred Share equal to the Exchange Ratio. In the event (a "Flip-over Transaction or Event") that prior to the Expiration Time the Registrant enters into a transaction in which, directly or indirectly, (i) the Registrant shall consolidate or merge or participate in a share exchange with any other Person if, at the time of the consolidation, merger or share exchange or at the time the Registrant enters into any agreement with respect to any such consolidation, merger or share exchange, such other Person controls the Board of Directors of the Registrant and any term of or arrangement concerning the treatment of shares of capital stock in such consolidation, merger or share exchange relating to such other Person is not identical to the terms and arrangements relating to other holders of the Common Stock or (ii) the Registrant shall sell or otherwise transfer assets (A) aggregating more than 50% of the assets or (B) generating more than 50% of the operating income or cash flow of the Registrant to any Person if, at the time of the entry by the Registrant into an agreement with respect to such sale or transfer of assets, such other Person controls the Board of Directors of the Registrant, the Registrant will take such action as shall be necessary to ensure that each holder of a Right, other than Rights beneficially owned by such other Person (which will thereafter be void), will thereafter have the right to receive, upon the exercise thereof at the then current Exercise Price of the Right, that number of shares of common stock of the acquiring company which at the time of such transaction will have an aggregate Market Price equal to twice the Exercise Price of the Right for an amount in cash equal to the then current Exercise Price. If the Registrant elects not to issue certificates representing fractional shares upon exercise or redemption of Rights, the Registrant shall, in lieu thereof, in the sole discretion of the Board of Directors, either (i) evidence such fractional shares by depository receipts, or (ii) pay to the holder of such Rights an amount in cash equal to the same fraction of the Market Price of such share. The Registrant may at its option, at any time prior to the date (the "Flip-in Date") of public announcement by the Registrant that an Acquiring Person has become such (other than as a result of a Flip-over Transaction or Event), redeem all (but not less than all) of the then outstanding Rights at a price of $.001 per Right (the "Redemption Price"). Immediately upon any redemption of the Rights, without any further action and without notice, the right to exercise the Rights will terminate and each Right will thereafter represent only the right to receive the Redemption Price in cash for each Right 2 so held. Notwithstanding the foregoing, the Plan provides that in the event that the Board of Directors of the Registrant including any Persons (or their respective successors) elected by the shareholders of the Registrant who are not nominated by the Board of Directors in office immediately prior to such election (such persons, the "Unnominated Directors") then the Rights may not be redeemed except with the approval of a majority of the remaining directors not including the Unnominated Directors. The Registrant and the Rights Agent may from time to time supplement or amend the Rights Agreement without the approval of any holders of Rights (i) prior to the Flip-in Date, in any respect and (ii) after the close of business on the Flip-in Date, to make any changes that the Registrant may deem necessary or desirable and which shall not materially adversely affect the interests of the holders of Rights generally or in order to cure any ambiguity or to correct or supplement any provision contained therein which may be inconsistent with any other provisions therein or otherwise defective. Notwithstanding the foregoing, the Plan provides that in the event that the Board of Directors of the Registrant includes any Unnominated Directors then the Rights Agreement shall not be amended or supplemented, and the Board of Directors may not approve any action taken to exclude a Person from the definition of "Acquiring Person" contained in the Rights Agreement without the approval of a majority of the remaining directors not including the Unnominated Directors. Until a Right is exercised, the holder thereof, as such, will have no rights as a stockholder of the Registrant, including, without limitation, the right to vote or to receive dividends. The Rights will have substantial anti-takeover effects, but do not prevent a takeover of the Registrant. The Rights may cause substantial dilution to a person or group that acquires 15% or more of the outstanding shares of Common Stock unless (i) the Rights are first redeemed by the Registrant or (ii) the acquisition is approved by the Board of Directors. Nevertheless, the Rights should not interfere with a transaction that in the judgment of the Board is in the best interests of the Registrant and its shareholders because the Rights can be redeemed or amended on or prior to the Flip-in Date or rendered unexercisable by Board approval of the transaction. Concurrently with adopting the Rights Agreement, the Board of Directors also amended the Registrant's Bylaws to require compliance with certain procedures for shareholder proposals to be presented at shareholder meetings including a requirement that notice from shareholders of Board nominees or other business to be conducted at an annual meeting must be given to the Registrant at least 90 and not more than 120 days prior to the first anniversary of the previous year's annual meeting. The description of the Rights contained herein is qualified in its entirety by reference to the Rights Agreement, dated as of August 9, 2000, by and among the Registrant and the Rights Agent incorporated herein by reference to Exhibit 4.1 of Form 8-K filed August 9, 2000. The description of the amendment of the Bylaws is qualified in its entirety by reference to the Restated Bylaws attached hereto as Exhibit 4.3 and incorporation herein by reference. Item 2. Exhibits. Exhibit No. Description 4.1 Rights Agreement, dated as of August 9, 2000 between Registrant and Rights Agent (incorporated herein by reference to Exhibit 4.1 of Form 8-K filed August 9, 2000). 4.2 Restated Articles of Incorporation of the Registrant. 4.3 Restated Bylaws of the Registrant. 3 SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly cause this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. Dated: August 9, 2000 By: /s/ John M. Cook --------------------------------------- John M. Cook, Chairman of the Board and Chief Executive Officer 4 EXHIBIT INDEX Exhibit No. Description 4.1 Rights Agreement, dated as of August 9, 2000 between Registrant and Rights Agent (incorporated herein by reference to Exhibit 4.1 of Form 8-K filed August 9, 2000). 4.2 Restated Articles of Incorporation of the Registrant. 4.3 Restated Bylaws of the Registrant. 5 EX-4.2 2 0002.txt RESTATED ARTICLES OF INCORPORATION RESTATED ARTICLES OF INCORPORATION OF THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. 1. NAME The name of the corporation is: The Profit Recovery Group International, Inc. 2. CAPITALIZATION The total number of shares of capital stock of all classes that the corporation shall have the authority to issue is Two Hundred and One Million (201,000,000) shares, of which Two Hundred Million (200,000,000) shares, no par value per share, shall be designated "Common Stock" and One Million (1,000,000) shares, no par value per share, shall be designated "Preferred Stock." The preferences, limitations and relative rights of the shares of each class of stock of the corporation are as follows: A. PREFERRED STOCK 1. General. The Preferred Stock may be issued from time to time in one or more classes or series, the shares of each class or series to have such designations, powers, preferences, rights, qualifications, limitations and restrictions thereon as are stated and expressed herein and in the resolution or resolutions providing for the issuance of such class or series adopted by the Board of Directors as hereinafter prescribed. Articles of Amendment shall be filed with respect to issuance of such Preferred Stock pursuant to the provisions of Section 14-2-602 of the Georgia Business Corporation Code (as amended from time to time, the "Code"). Each series of a class must be given a distinguishing designation and all shares of a series must have preferences, limitations, and relative rights identical with those of other shares of the same series and, except to the extent otherwise provided in the description of the series, with those of other series of the same class; provided, however, that any of the voting powers, preferences, designations, rights, qualifications, limitations, or restrictions of or on the class or series of shares, or the holders thereof, may be made dependent upon facts ascertainable outside these Articles of Incorporation, as amended from time to time, if the manner in which the facts shall operate upon the voting powers, designations, preferences, rights, qualifications, limitations, or restrictions of or on the shares, or the holders thereof, is clearly and expressly set forth in these Articles of Incorporation, as amended from time to time. 2. Preferences, Limitations and Relative Rights. Authority is hereby expressly granted to and vested in the Board of Directors to authorize the issuance of the Preferred Stock from time to time in one or more classes or series, to determine and take necessary proceedings to fully effect the issuance and redemption of any such Preferred Stock, and, with respect to each class or series of the Preferred Stock, to fix and state the following by resolution or resolutions from time to time adopted providing for the issuance thereof: (a) whether or not the class or series is to have voting rights, full or limited, or is to be without voting rights; (b) the number of shares which shall constitute the class or series and the designations thereof; (c) the preferences and relative participating, optional or other special rights, if any, and the qualifications, limitations or restrictions thereof, if any, with respect to any class or series; (d) whether or not the shares of any class or series shall be redeemable and, if redeemable, the redemption price or prices, and the time or times at which, and the terms and conditions upon which, such shares shall be redeemable and the manner of redemption; (e) whether or not the shares of a class or series shall be subject to the operation of retirement or sinking funds to be applied to the purchase or redemption of such shares for retirement, and if such retirement or sinking fund or funds be established, the annual amount thereof and the terms and provisions relative to the operation thereof; (f) whether or not dividends are payable on any class or classes or series of stock, and if dividends are so payable, the dividend rate, whether dividends are payable in cash, stock of the corporation, or other property, the conditions upon which and the times when such dividends are payable, the preference to, or the relation to the payment of, the dividends payable on any other class or classes or series of stock, whether or not such dividend shall be cumulative or noncumulative, and if cumulative, the date or dates from which such dividends shall accumulate; (g) the preferences, if any, and the amounts thereof that the holders of any class or series thereof shall be entitled to receive upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the corporation; (h) whether or not the shares of any class or series shall be convertible into, or exchangeable for, the shares of any other class or classes or of any other series of the same or any other 2 class or classes of the corporation and the conversion price or prices or ratio or ratios or the rate or rates at which such conversion or exchange may be made, with such adjustments, if any, as shall be stated and expressed or provided for in such resolution or resolutions; and (i) such other rights and provisions with respect to any class or series as the Board of Directors may deem advisable. The shares of each class or series of the Preferred Stock may vary from the shares of any other class or series thereof in any or all of the foregoing respects. The Board of Directors may increase the number of shares of Preferred Stock designated for any existing class or series by a resolution adding to such class or series authorized and unissued shares of the Preferred Stock not designated for any other class or series. The Board of Directors may decrease, but not below the number of shares then issued, the number of shares of the Preferred Stock designated for any existing class or series by a resolution, subtracting from such class or series unissued shares of the Preferred Stock designated for such class or series, and the shares so subtracted shall become authorized, unissued and undesignated shares of the Preferred Stock. 3. Participating Preferred Stock. i. The distinctive serial designation of this series shall be "Participating Preferred Stock" (hereinafter called "this Series"). Each share of this Series shall be identical in all respects with the other shares of this Series except as to the dates from and after which dividends thereon shall be cumulative. ii. The number of shares in this Series shall initially be 500,000 which number may from time to time be increased or decreased (but not below the number then outstanding) by the Board of Directors. Shares of this Series purchased by the Corporation shall be canceled and shall revert to authorized but unissued shares of Preferred Stock undesignated as to series. Shares of this Series may be issued in fractional shares, which fractional shares shall entitle the holder, in proportion to such holder's fractional share, to all rights of a holder of a whole share of this Series. iii. The holders of full or fractional shares of this Series shall be entitled to receive, when and as declared by the Board of Directors, but only out of funds legally available therefor, dividends, on each date that dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) are payable on or in respect of Common Stock comprising part of the Reference Package (as defined below), in an amount per whole share of this Series equal to the aggregate amount of dividends or other distributions (other than dividends or distributions payable in Common Stock of the Corporation) that would be payable on such date to a holder of the Reference Package. Each such dividend shall be paid to the holders of record of shares of this Series on the date, not exceeding seventy days preceding such dividend or distribution payment date, fixed for the purpose by the Board of Directors in advance of payment of each particular dividend or distribution. Dividends 3 on each full and each fractional share of this Series shall be cumulative from the date such full or fractional share is originally issued provided that any such full or fractional share originally issued after a dividend record date and on or prior to the dividend payment date to which such record date relates shall not be entitled to receive the dividend payable on such dividend payment date or any amount in respect of the period from such original issuance to such dividend payment date. The term "Reference Package" shall initially mean 100 shares of common stock, $.001 par value per share ("Common Stock"), of the Corporation. In the event the Corporation shall at any time after the close of business on August 14, 2000 (A) declare or pay a dividend on any Common Stock payable in Common Stock, (B) subdivide any Common Stock, or (C) combine any Common Stock into a smaller number of shares, then and in each such case the Reference Package after such event shall be the Common Stock that a holder of the Reference Package immediately prior to such event would hold thereafter as a result thereof. Holders of shares of this Series shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends, as herein provided on this Series. So long as any shares of this Series are outstanding, no dividend (other than a dividend in Common Stock or in any other stock ranking junior to this Series as to dividends and upon liquidation) shall be declared or paid or set aside for payment or other distribution declared or made upon the Common Stock or upon any other stock ranking junior to this Series as to dividends or upon liquidation, nor shall any Common Stock nor any other stock of the Corporation ranking junior to or on a parity with this Series as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any monies to be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation (except by conversion into or exchange for stock of the Corporation ranking junior to this Series as to dividends and upon liquidation), unless, in each case, the full cumulative dividends (including the dividend to be due upon payment of such dividend, distribution, redemption, purchase or other acquisition), if any, on all outstanding shares of this Series shall have been, or shall contemporaneously be, paid. iv. In the event of any merger, consolidation, reclassification or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of this Series shall at the same time be similarly exchanged or changed in an amount per whole share equal to the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, that a holder of the Reference Package would be entitled to receive as a result of such transaction. v. In the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, the 4 holders of full and fractional shares of this Series shall be entitled, before any distribution or payment is made on any date to the holders of the Common Stock or any other stock of the Corporation ranking junior to this Series upon liquidation, to be paid in full an amount per whole share of this Series equal to the aggregate amount distributed prior to such date or to be distributed in connection with such liquidation, dissolution or winding up to a holder of the Reference Package (such amount being hereinafter referred to as the "Liquidation Preference"), together with accrued dividends to such distribution or payment date, whether or not earned or declared. If such payment shall have been made in full to all holders of shares of this Series, the holders of shares of this Series as such shall have no right or claim to any of the remaining assets of the Corporation. In the event the assets of the Corporation available for distribution to the holders of shares of this Series upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to the first paragraph of this Section (v), no such distribution shall be made on account of any shares of any other class or series of Preferred Stock ranking on a parity with the shares of this Series upon such liquidation, dissolution or winding up unless proportionate distributive amounts shall be paid on account of the shares of this Series, ratably in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such liquidation, dissolution or winding up. Upon the liquidation, dissolution or winding up of the Corporation, the holders of shares of this Series then outstanding shall be entitled to be paid out of assets of the Corporation available for distribution to its shareholders all amounts to which such holders are entitled pursuant to the first paragraph of this Section (v) before any payment shall be made to the holders of Common Stock or any other stock of the Corporation ranking junior upon liquidation to this Series. For purposes of this Section (v), the consolidation or merger of, or binding share exchange by, the Corporation with any other corporation shall not be deemed to constitute a liquidation, dissolution or winding up of the Corporation. vi. The shares of this Series shall not be redeemable without the consent of the holder of such shares. vii. In addition to any other vote or consent of shareholders required by law or by the Articles of Incorporation, as amended, of the Corporation, each whole share of this Series shall, on any matter, vote as a class with any other capital stock comprising part of the Reference Package and voting on such matter and shall have the number of votes thereon that a holder of the Reference Package would have. viii.The shares of this Series shall rank junior to all other series of the Corporation's Preferred Stock as to the payment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise. 5 B. COMMON STOCK 1. Voting Rights. (a) Except as otherwise required by law or as may be provided by the resolutions of the Board of Directors authorizing the issuance of any class or series of Preferred Stock, as provided in Section A of this Article 2, all rights to vote and all voting power shall be vested exclusively in the holders of the Common Stock. (b) The holders of the Common Stock shall be entitled to one vote per share on all matters submitted to a vote of shareholders of the Corporation ( the "Shareholders"), including, without limitation, the election of directors. 2. Dividends. Except as otherwise provided by law or as may be provided by the resolutions of the Board of Directors authorizing the issuance of any class or series of Preferred Stock, as provided in Section A of this Article 2, the holders of the Common Stock shall be entitled to receive, on a pro-rata basis, when, as and if provided by the Board of Directors, out of funds legally available therefor, dividends payable in cash, stock or otherwise. 3. Liquidating Distributions. Upon any liquidation, dissolution or winding-up of the corporation, whether voluntary or involuntary, and after payment or provision for payment of the debts and other liabilities of the corporation, and except as may be provided by the resolutions of the Board of Directors authorizing the issuance of any class or series of Preferred Stock, as provided in Section A of this Article 2, the remaining assets of the corporation shall be distributed pro-rata to the holders of the Common Stock. 3. BOARD OF DIRECTORS (a) The Board of Directors shall be divided into three (3) classes with each such class to be as nearly equal in number as possible. At the annual meeting of Shareholders in 1996 the directors of Class I shall be elected to hold office for a term expiring at the next succeeding annual meeting; directors of Class II shall be elected to hold office for a term expiring at the second succeeding annual meeting; and directors of Class III shall be elected to hold office for a term expiring at the third succeeding annual meeting. (b) Subject to the foregoing, at each annual meeting of Shareholders beginning with the annual meeting to be held in 1997, the successors to the class of directors whose term shall then expire shall be elected to hold office for a term expiring at the third succeeding annual meeting. Each 6 director shall hold office for the term for which he or she is elected or appointed or until his or her successor shall be elected and qualified, or until his or her death, removal from office or resignation. (c) Should the number of directors be changed, any newly created directorships or any decrease in directorships shall be so apportioned among the classes as to make Classes I, II, and III as nearly equal in number as possible. (d) No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. 4. SPECIAL MEETINGS OF SHAREHOLDERS Special meetings of the Shareholders may be called only by: (a) the Chairman of the Board; (b) the President; (c) a majority of the members of the Board of Directors then in office; or (d) the holders of at least thirty five percent (35%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting if said holders deliver to the Secretary of the corporation one (1) or more signed and dated written demands for the meeting, describing therein the purpose or purposes for which the special meeting is to be held; provided, however, that at such time and so long as there are one hundred (100) or fewer Shareholders of record, the corporation shall hold such special meeting upon the demand of at least twenty five percent (25%) of said holders. The record date for determining Shareholders entitled to demand a special meeting shall be determined in the manner provided in the Bylaws. Only the business within the purpose or purposes described in the meeting notice required by subsection (c) of Code Section 14-2-705 may be conducted at a special meeting of the Shareholders. 5. INDEMNIFICATION The corporation may indemnify or obligate itself to indemnify, pursuant to an indemnification agreement or otherwise, a director made a party to a proceeding, including a proceeding brought by or in the right of the corporation, to the maximum extent permitted by Section 14-2-856 of the Code, without regard to the limitations contained in other sections of Part 5 of Article 8 of the Code. 7 6. ELIMINATION OF MONETARY LIABILITY No director of the corporation shall be personally liable to the corporation or its shareholders for monetary damages for breach of his or her duty of care or other duty as a director; provided, that this provision shall eliminate or limit the liability of a director only to the extent permitted by the Code or by any successor law or laws. EX-4.3 3 0003.txt RESTATED BYLAWS AMENDED AND RESTATED BYLAWS OF THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. ARTICLE 1. Offices ------- 1.1. Principal Office. The principal office for the business of The Profit Recovery Group International, Inc. (the "Corporation") shall be located at such place (within or without the State of Georgia) as the Board of Directors may fix from time to time. 1.2. Office Location. The Corporation may have other offices at such place or places (within or without the State of Georgia) as the Board of Directors may designate from time to time or the business of the Corporation may require or make desirable. 1.3. Registered Office. The registered office of the Corporation and the registered agent shall be the office and the agent set forth in the appropriate documents filed by the Corporation in the office of the Secretary of State of Georgia. ARTICLE 2. Capital Stock ------------- 2.1. Certificates. At a minimum, each share certificate shall state on its face: (1) the name of the Corporation and that the Corporation is organized under the laws of Georgia; (2) the name of the person to whom the shares are issued; and (3) the number and class of shares and the designation of the series, if any, that the certificate represents. Share certificates shall be numbered consecutively and entered into the stock transfer books of the Corporation as they are issued. 2.2. Signatures; Transfer Agent; Registrar. Each certificate shall be signed, either manually or in facsimile, by an officer of the Corporation and may bear the corporate seal or its facsimile. If the 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. Share certificates exchanged or returned shall be cancelled by the Secretary or his or her designee and placed in their original place in the stock book. 1 2.3. Stock Transfer Books. The Corporation shall keep at its registered office or its principal office or at the principal office of its transfer agent or registrar, wherever located, with a copy at the principal office of the Corporation, a book or set of books, to be known as the stock transfer books of the Corporation, containing in alphabetical order the name of each shareholder of record, together with such shareholder's address and social security or other tax identification number and the number of shares of each kind, class, or series of capital stock represented by each share certificate held by the shareholder and the number of each such certificate. The stock transfer books shall be maintained in current condition. The stock transfer books, or the duplicate copy thereof maintained at the principal office of the Corporation, shall be available for inspection and copying by any shareholder authorized to make such inspection pursuant to the Georgia Business Corporation Code (the "Code"), at the sole cost of such person. The stock transfer books may be inspected or copied either by such shareholder or by such shareholder's duly authorized attorney or agent. The information contained in the stock transfer books and share register may be stored on punch cards, magnetic tape, magnetic discs, or other information storage devices relating to electronic data processing equipment, provided that any such method, device, or system employed shall be approved by the Board of Directors, and provided further that the same is capable of reproducing all information contained therein, in legible and understandable form, for inspection by any shareholder authorized by the Code or for any other proper corporate purpose. 2.4. Replacement Certificate. The Corporation may issue a new certificate for its shares in place of any certificate theretofore issued and alleged by its owner of record or such owner's authorized representative to have been lost, stolen, or destroyed if the Corporation, transfer agent, or registrar is not on notice that such certificate has been acquired by a bona fide purchaser. A replacement certificate may be issued upon such owner's or representative's compliance with all of the following conditions: (a) the owner shall file with the Secretary of the Corporation and the transfer agent or the registrar, if any, a request for the issuance of a new certificate, together with an affidavit in form satisfactory to the Secretary and transfer agent or registrar, if any, setting forth the time, place, and circumstances of the loss; (b) if requested by the Corporation, the owner also shall file with the Secretary and the transfer agent or the registrar, if any, a bond with good and sufficient security acceptable to the Secretary and the transfer agent or the registrar, if any, conditioned to indemnify and save harmless the Corporation and the transfer agent or the registrar, if any, from any and all damage, liability, and expense of every nature whatsoever resulting from the Corporation, the transfer agent, or the registrar issuing a new certificate in place of the one alleged to have been lost, stolen, or destroyed; and (c) the owner shall comply with such other reasonable requirements as the Chairman of the Board, the President, the Secretary, or the Board of Directors of the Corporation and the transfer agent or the registrar shall deem appropriate under the circumstances. A new certificate may be issued in lieu of any certificate previously issued that has become defaced or mutilated upon surrender for cancellation of a part of the old certificate sufficient, in the opinion of the Secretary and the transfer agent or the registrar, to identify the owner of the defaced or mutilated certificate, the number of shares represented thereby, and the number of the certificate and 2 its authenticity and to protect the Corporation and the transfer agent or the registrar against loss or liability. When sufficient identification for such defaced or mutilated certificate is lacking, a new certificate may be issued upon compliance with all of the conditions set forth above in connection with the replacement of lost, stolen, or destroyed certificates. 2.5. Fractional Share Interests. The Corporation may, but shall have no obligation to, (1) issue fractions of a share or pay in money the value of fractions of a share; (2) arrange for disposition of fractional shares by or for the account of the shareholders; and (3) issue scrip in registered or bearer form entitling the holder to receive a full share upon surrendering enough scrip to equal a full share. Each certificate representing scrip must be conspicuously labeled "scrip" and must contain the information required by the Code to be on share certificates. The holder of a fractional share is entitled to exercise the rights of a shareholder, including the right to vote, to receive dividends, and to participate in the assets of the Corporation upon liquidation. The holder of scrip is not entitled to any of these rights unless the scrip provides for such rights. The Board of Directors may authorize the issuance of scrip subject to any conditions considered desirable. 2.6. Share Transfers and Registration. Upon compliance with provisions restricting the transferability of shares, if any, transfers of capital stock of the Corporation by the registered holder thereof shall be recorded on the stock transfer books of the Corporation only upon the written request of such registered holder, or by such holder's attorney authorized to effect such transfers by power of attorney duly executed and filed with the Secretary of the Corporation or with a transfer agent or registrar, if any, and upon surrender of the certificate or certificates for such shares properly endorsed for transfer (if the shares are represented by certificates), accompanied by such assurances as the Corporation, or such transfer agent or registrar, may require as to the genuineness and effectiveness of each necessary endorsement and satisfactory evidence of compliance with all applicable laws relating to securities transfers and the collection of taxes. It shall be the duty of the Corporation, or such transfer agent or registrar, to issue a new certificate, cancel the old certificate, and record the transactions upon the stock transfer books of the Corporation. 2.7. Registered Shareholders. Except as otherwise required by law, the Corporation shall be entitled to treat the person registered in the stock transfer books as the owner of shares of capital stock of the Corporation as the person exclusively entitled to receive notification, dividends, and distributions, to vote and to otherwise exercise the rights, powers, and privileges of ownership of such capital stock, and shall not be required to recognize any adverse claim. 2.8. Record Date. The Board of Directors may fix a future date to serve as the record date for one or more voting groups 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 shareholder action; provided, however, that such future date shall not be more than seventy days before the meeting or action requiring a determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided herein, such determination shall apply to any adjournment thereof, 3 unless the Board of Directors shall fix a new record date for the adjourned meeting, which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. ARTICLE 3. Shareholders' Meetings ---------------------- 3.1. Definitions. As used in these bylaws regarding the right to notice of a meeting of shareholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term "share" or "shares" or "shareholder" or "shareholders" refers to an outstanding share or shares of capital stock of the Corporation and to a holder or holders of record of outstanding shares of capital stock of the Corporation when the Corporation is authorized to issue only one class of shares. Such reference also is intended to include any outstanding share or shares and any holder or holders of record of outstanding shares of any class upon which or upon whom the articles of incorporation confer such governance rights when there are two or more classes or series of shares or upon which or upon whom the Code confers such governance rights notwithstanding that the articles of incorporation may provide for more than one class or series of shares, one or more of which are limited or denied such rights thereunder. 3.2. Date and Time. The annual meeting of the shareholders of the Corporation shall be held each fiscal year on the date and at the time designated, from time to time, by the Board of Directors. If at any time the Board of Directors shall fail to otherwise designate the date of an annual meeting, then such annual meeting shall be held at 10:00 a.m., local time, on the second Tuesday of the fifth month following the end of the fiscal year of the Corporation, or, if such day is a legal holiday, the next following business day. A special meeting shall be held on the date and at the time designated by the person or persons calling such special meeting. 3.3. Place. Annual and special meetings may be held within or without the State of Georgia at such place as the Board of Directors may from time to time designate or as may be specified in the notice of such meeting. Whenever the Board of Directors shall fail to designate such place, the meeting shall be held at the principal business office of the Corporation in the State of Georgia. 3.4. Call. Annual meetings may be called by the Board of Directors, the Chairman of the Board, if any, the President, or by any officer instructed by the directors to call the meeting. Special meetings, including any special meeting in lieu of an annual meeting, may be called only by: (a) the Chairman of the Board, if any; (b) the President; 4 (c) a majority of the members of the Board of Directors then in office; or (d) the holders of at least thirty five percent (35%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting if said holders deliver to the Secretary of the corporation one (1) or more signed and dated written demands for the meeting, describing therein the purpose or purposes for which the special meeting is to be held; provided, however, that at such time and for so long as there are one hundred (100) or fewer shareholders of record, the corporation shall hold such special meeting upon the demand of at least twenty five percent (25%) of said holders. The record date for determining shareholders entitled to demand a special meeting shall be determined in the manner provided in these bylaws. Only the business within the purpose or purposes described in the meeting notice required by subsection (c) of Code Section 14-2-705 may be conducted at a special meeting of the Shareholders. 3.5. Notice. Written notice stating the place, day, and hour of each meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten days (or not less than any other such minimum period of days as may be prescribed by the Code) nor more than sixty days before the date of the meeting, either personally or by first class mail by or at the direction of the President, the Secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. When a meeting is adjourned to another time or place it shall not be necessary to give any notice of the new date, time, or place if the date, time, and place are announced at the meeting before adjournment. If, however, a new record date is or must be fixed under the Code, a notice of the new meeting shall be given to persons who are shareholders as of the new record date. At the adjourned meeting any business may be transacted that might have been transacted on the original date of the meeting. 3.6. Waiver of Notice. A shareholder may waive any notice required by the Code, the articles of incorporation, or these bylaws before or after the date and time of the required notice. The waiver must be in writing, signed by the shareholder entitled to notice, and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. No such waiver of notice of a shareholders' meeting with respect to an amendment of the articles of incorporation pursuant to Code section 14-2-1003, a plan of merger or share exchange pursuant to Code section 14-2-1103, a sale of assets pursuant to Code section 14-2-1202, or any other action which would entitle the shareholder to dissent pursuant to Code section 14-2-1302 or any successor statute shall be effective unless the provisions of paragraphs (1) or (2) of subsection (c) of Code section 14-2-706 or any successor statute are followed. Attendance at a meeting waives objection (1) to notice or defective notice of a meeting unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting and (2) 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. 5 3.7. Shareholders List. After fixing a record date for a meeting, the Corporation shall prepare an alphabetical list of the names of all its shareholders who are entitled to notice of a shareholders' meeting. The list shall be arranged by voting group (and within each voting group by class or series of shares) and show the address of and number of shares held by each shareholder. The shareholders list shall be available for inspection at the time and place of the meeting by any shareholder or the shareholder's agent or attorney. 3.8. Conduct of Meeting. Meetings of the shareholders shall be presided over by one of the following officers in the order of seniority and if present and acting: the Chairman of the Board, if any, the Vice Chairman of the Board, if any, the President, a Vice President, or, if none of the foregoing is in office and present and acting, by a chairman of the meeting to be chosen by the shareholders. The Secretary of the Corporation, or in the Secretary's absence an Assistant Secretary, shall act as secretary of every meeting, but, if neither the Secretary nor an Assistant Secretary is present, the chairman of the meeting shall appoint a secretary of the meeting. 3.9. Proxy Representation. At any meeting of the shareholders, any shareholder having the right to vote shall be entitled to vote in person or by proxy. An appointment of a proxy is valid for eleven months, unless a longer period is expressly provided in the appointment form. 3.10. Quorum and Action of Shareholders. At all meetings of the shareholders, a majority of the votes entitled to be cast on a matter by a voting group shall constitute a quorum of that voting group for action on that matter, unless the Code, the articles of incorporation, or a provision of these bylaws approved by shareholders, as the same are now enacted or hereafter amended, provides otherwise. Once a share is represented for any purpose at a meeting, other than solely to object to holding the meeting or transacting business at the meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. 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 a provision of these bylaws adopted by the shareholders under section 14-2-1021 of the Code or any successor statute, requires a greater number of affirmative votes. Unless otherwise provided in the articles of incorporation, directors are elected by a plurality of votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. 3.11. Adjournment of Meeting. The holders of a majority of the voting shares represented at a meeting, whether or not a quorum is present, may adjourn such meeting from time to time. 3.12. Action Without a Meeting. Any action required or permitted by the Code to be taken at a shareholders' meeting may be taken without a meeting if all the shareholders entitled to vote on such action sign one or more written consents describing the action taken and the consents are delivered to the 6 Corporation for inclusion in the minutes or filing with the corporate records. No such written consent shall be valid unless the provisions of section 14-2-704(b) of the Code or any successor statute are followed. 3.13. Advance Notice of Shareholder Nominations and Proposals. Nominations of persons for election to the Board of Directors and proposals of business to be transacted by the shareholders may be made at an annual meeting of shareholders (a) pursuant to the Corporation's notice with respect to such meeting, (b) by or at the direction of the Board of Directors, or (c) by any shareholder of record of the Corporation who was a shareholder of record at the time of the giving of the notice provided for in the following paragraph, who is entitled to vote at the meeting and who has complied with the notice procedures set forth in this Section. For nominations or other business to be properly brought before an annual meeting by a shareholder pursuant to clause (c) of the foregoing paragraph, (1) the shareholder must have given timely notice thereof in writing to the Secretary of the Corporation, (2) such business must be a proper matter for shareholder action under the Georgia Business Corporation Code, (3) if the shareholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Corporation with a Solicitation Notice, as that term is defined in this paragraph, such shareholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Corporation's voting shares required under applicable law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Corporation's voting shares reasonably believed by such shareholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such shareholder, and must, in either case, have included in such materials the Solicitation Notice and any proxy statement and form of proxy utilized or to be utilized by such person, and (4) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section, the shareholder or beneficial owner proposing such business or nomination must not have solicited, and must represent that he, she or it will not solicit, a number of proxies sufficient to have required the delivery of such a Solicitation Notice under this Section. To be timely, a stockholder's notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than ninety (90) nor more than one hundred twenty (120) days prior to the first anniversary (the "Anniversary") of the date on which the Corporation first mailed its proxy materials for the preceding year's annual meeting of shareholders; provided, however, that if the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year's annual meeting, notice by the shareholder to be timely must be so delivered not later than the close of business on the later of (i) the 90th day prior to such annual meeting or (ii) the 10th day following the day on which public announcement of the date of such meeting is first made. Such stockholder's notice shall set forth (a) as to each person whom the shareholder proposes to nominate for election or reelection as a director all information relating to such person as would be required to be disclosed in solicitations of proxies for the election of such nominees as directors pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and shall contain such person's 7 written consent to serve as a director if elected; (b) as to any other business that the shareholder proposes to bring before the meeting, a brief description of such business, the reasons for conducting such business at the meeting and any material interest in such business of such shareholder and the beneficial owner, if any, on whose behalf the proposal is made; (c) as to the shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such shareholder, and of such beneficial owner, as they appear on the Corporation's books, (ii) the class and number of shares of the Corporation that are owned beneficially and of record by such shareholder and such beneficial owner, and (iii) whether such shareholder or beneficial owner has delivered or intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Corporation's voting shares required under applicable law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Corporation's voting shares to elect such nominee or nominees (the notice described in this sentence, a "Solicitation Notice"). Notwithstanding anything in the second sentence of the second paragraph of this Section 3.13 to the contrary, in the event that the number of directors to be elected to the Board is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board made by the Corporation at least fifty-five (55) days prior to the Anniversary, a stockholder's notice required by this Section shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation. Only persons nominated in accordance with the procedures set forth in this Section 3.13 shall be eligible to serve as directors and only such business shall be conducted at an annual meeting of shareholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section. The chairman of the meeting shall have the power and the duty to determine whether a nomination or any business proposed to be brought before the meeting has been made in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defective proposed business or nomination shall not be presented for shareholder action at the meeting and shall be disregarded. Only such business shall be conducted at a special meeting of shareholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of shareholders at which directors are to be elected pursuant to the Corporation's notice of meeting (a) by or at the direction of the Board or (b) by any shareholder of record of the Corporation who is a shareholder of record at the time of giving of notice provided for in this paragraph, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 3.13. Nominations by shareholders of persons for election to the Board may be made at such a special meeting of shareholders if the stockholder's notice required by the second paragraph of this Section 3.13 shall be delivered to the Secretary at the 8 principal executive offices of the Corporation not later than the close of business on the later of the 90th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. For purposes of this Section, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. Notwithstanding the foregoing provisions of this Section 3.13, a shareholder must also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to matters set forth in this Section 3.13. Nothing in this Section 3.13 shall be deemed to affect any rights of shareholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act." ARTICLE 4. Directors 4.1. Definitions and Corporate Power and Authority. 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, a board of directors (herein referred to as the "Board of Directors," "Board," or "directors" notwithstanding that only one director may legally constitute the Board), subject to any limitation set forth in the articles of incorporation, or a provision of these bylaws approved by shareholders, as the same are now enacted or hereafter amended, or lawful agreements among the shareholders. 4.2. Qualifications and Number. Directors shall be natural persons who are at least eighteen years of age. A director need not be a shareholder, a citizen of the United States, or a resident of the State of Georgia. The Board of Directors shall consist of not less than three (3) nor more than fifteen (15) members, with the specific number to be determined by the Board of Directors. Notwithstanding the foregoing, this bylaw provision may be amended by the vote of a majority of the directors then in office in order to expand or contract the variable range for the permissible number of directors. 4.3. Election and Term. (a) The Board of Directors shall be divided into three (3) classes with each such class to be as nearly equal in number as possible. The term of the directors in Class I shall expire at the first annual meeting of Shareholders following the date of adoption of these Amended and Restated Bylaws, the term of the directors in Class 11 shall expire at the second annual meeting of Shareholders following the date of adoption of these Amended and 9 Restated Bylaws, and the term of the directors in Class III shall expire at the third annual meeting of Shareholders following the date of adoption of these Amended and Restated Bylaws. At each annual Shareholders' meeting, directors shall be chosen for a term of three (3) years to succeed those whose term expires. (b) The members of the initial classified Board of Directors are as follows: Class I Class II Class III - ------- -------- --------- John M. Cook Jonathan Golden Stanley B. Cohen John M. Toma Garth H. Greimann T. Charles Fial E. James Lowrey Fred W. I. Lachotzki (c) Subject to the foregoing, at each annual meeting of shareholders beginning with the first annual meeting following the adoption of these Amended and Restated Bylaws, the successors to the class of directors whose term shall then expire shall be elected to hold office for a term expiring at the third succeeding annual meeting. Each director shall hold office for the term for which he or she is elected or appointed or until his or her successor shall be elected and qualified, or until his or her death, removal from office or resignation. (d) Should the number of directors be changed, any newly created directorships or any decrease in directorships shall be so apportioned among the classes as to make Classes I, II, and III as nearly equal in number as possible. (e) No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. 4.4. Vacancies. Any vacancy in the Board of Directors resulting from the resignation, incapacity, death or retirement of a director, or any other cause, other than removal by the shareholders or increase in the number of directors, shall be filled by a majority vote of the remaining directors, though less than a quorum, for a term corresponding to the unexpired term of his or her predecessor in office. Newly created directorships resulting from any increase in the authorized number of directors shall be filled by a majority vote of the remaining directors, though less than a quorum, and the directors so chosen shall hold office for a term expiring at the next meeting of shareholders at which directors are to be elected; provided, however, that the term of any such additional director, if elected by the shareholders at such meeting, shall correspond to the term of the class to which he or she has been assigned, regardless of whether or not such class was the subject of the election held at the shareholders' meeting. 4.5. Quorum and Action. A majority of the directors shall constitute a quorum for the transaction of business unless the Code, the articles of incorporation, or a provision of these bylaws approved by shareholders, as the same are now enacted or hereafter amended, authorizes a greater number. If a quorum is present when a vote is taken, the affirmative vote of a majority of 10 the directors present at a meeting is the act of the Board, unless the articles of incorporation or a provision of these bylaws approved by shareholders, as the same are now enacted or hereafter amended, requires the vote of a greater number of directors. 4.6. Meetings. (a) Time. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble. (b) Place. Meetings shall be held at such place within or without the State of Georgia as shall be determined by the Board. (c) Call. Meetings may be called by the Chairman of the Board, if any, by the President, or by any two directors if the Board consists of three or more directors, or by any director if the Board consists of fewer than three directors. (d) Notice, Waiver of Notice. Unless the articles of incorporation provide otherwise, regular meetings of the Board of Directors may be held without notice required of the date, time, place, or purpose of the meeting. Notice of special meetings shall be given to directors at least two days before such meetings, which notice shall specify the date, time, and place of the meeting. The notice need not state the purpose of the special meeting. A director may waive any notice required by the Code, the articles of incorporation, or these bylaws before or after the date and time of the required notice. The waiver must be in writing, signed by the director entitled to the notice, and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A director's attendance at or participation in a meeting waives any required notice unless the director at the beginning of the meeting (or promptly upon 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. (e) Chairman of the Meeting. The Chairman of the Board, if any, and if present and acting, shall preside at all meetings. Otherwise, any director chosen by the Board shall preside. The person presiding at the meeting shall designate a person to act as secretary of the meeting, who may or may not be a director or officer of the Corporation. 4.7. Action Without Meeting. Unless the articles of incorporation or a provision of these bylaws provides otherwise, any action required or permitted by the Code to be taken at a Board of Directors' meeting may be taken without a meeting, if the action is taken by all members of the Board. The action must be evidenced by one or more written consents describing the action taken, signed by each director, and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. 11 4.8. Compensation. Directors may be allowed such compensation for attendance at regular or special meetings of the Board of Directors and any special or standing committees thereof as may be determined from time to time by resolution of the Board of Directors. 4.9. Removal by Shareholders. At any shareholders' meeting with respect to which notice of such purpose has been given, the shareholders may remove one or more directors from office, with or without cause, by a majority of the votes entitled to be cast unless the articles of incorporation or a provision of these bylaws approved by shareholders, as the same are now enacted or hereafter amended, provides otherwise. ARTICLE 5. Committees ---------- 5.1. Members. The Board of Directors may create one or more committees and appoint members to serve on them. Each committee may have one or more directors, who shall serve at the pleasure of the Board of Directors. 5.2. Authority. To the extent specified by the Board of Directors, each committee may exercise the authority of the Board of Directors under Code section 14-2-801 or any successor statute. A committee shall not, however: (1) approve or propose to shareholders action that the Code requires to be approved by shareholders; (2) fill vacancies on the Board of Directors or on any of its committees; (3) amend articles of incorporation pursuant to Code section 14-2-1002 or any successor statute; (4) adopt, amend, or repeal bylaws; or (5) approve a plan of merger not requiring shareholder approval. 5.3. Meetings. Committees shall meet from time to time on call of the Chairman of the Board, if any, the President, or of any one or more members of the particular committee. The requirements for meetings, action without meetings, notices, and waivers of notice of the Board of Directors shall apply to any committee which the Board shall establish. A committee shall keep a record of its proceedings and shall report these proceedings to the Board of Directors at the meeting thereof held next after the action has been taken. All such proceedings shall be subject to revision or alteration by the Board of Directors, except to the extent that action shall have been taken pursuant to or in reliance upon such proceedings prior to any such revision or alteration. 5.4. Quorum and Voting. The quorum and voting requirements of the Board of Directors also shall apply to any committee which the Board shall establish. 5.5. Removal. The Board of Directors shall have power to remove any member of any committee at any time, with or without cause, to fill vacancies, and to dissolve any such committee. 12 ARTICLE 6. Officers -------- 6.1. Selection. The Board of Directors at each annual meeting shall, or if no annual meeting is held, at such time as the Board deems proper, and at any regular or special meeting may, elect or appoint a President, a Secretary, and a Treasurer and may elect or appoint a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers, assistant officers, and agents as they may determine, or the Board may designate a duly appointed officer to appoint one or more officers or assistant officers. The President may, but need not, be a director. Any two or more offices may be held simultaneously by the same person. Unless otherwise provided in the resolution of election or appointment, all officers shall be elected for a term of office running until the meeting of the Board of Directors following the next annual meeting of shareholders and until their successors have been duly elected or appointed and qualified or until their earlier resignation, removal from office, or death. All officers, assistant officers, and agents of the Corporation shall have such authority, powers, duties, functions, and privileges as provided for herein and as the Board may determine from time to time. The Board may designate, elect, or appoint a chief operating officer and/or a chief executive officer, each of whom shall be deemed a Vice President unless elected to any other office. 6.2. Chairman of the Board. If a Chairman of the Board is elected by the directors, the Chairman shall preside at all meetings of shareholders and directors, and, unless otherwise provided by law, when the signature of the President is required the Chairman shall possess the same power as the President to sign all certificates, contracts, and other instruments of the Corporation. The Chairman shall have such other powers and duties as the Board may prescribe from time to time. In the event of the disability of the President, the Chairman shall exercise all the powers and discharge all the duties of the President. 6.3. President. The President shall, in the absence of a Chairman of the Board, preside at all meetings of the shareholders. The immediate supervision of the affairs of the Corporation shall be vested in the President. It shall be the President's duty to attend to the business of the Corporation and maintain strict supervision over all of its affairs and interests. The President shall keep the Board of Directors fully advised about the affairs and conditions of the Corporation, and shall manage and operate the business of the Corporation pursuant to and in accordance with such policies as may be prescribed from time to time by the Board of Directors. The President shall, subject to the approval of the Board, hire and fix the compensation of all employees and agents of the Corporation (other than the executive officers of the Corporation), and any such employee or agent shall be removable at the President's pleasure. Unless the Board of Directors by resolution shall otherwise provide, the President may delegate such of the President's powers as the President deems appropriate to other officers, employees, and agents of the Corporation. 13 6.4. Vice President. The Vice President (or Vice Presidents, in the order designated by the Board) shall, in the absence or disability of the President (and the Chairman of the Board, if one is elected by the Board of Directors) perform the duties and exercise the powers of the President, and shall perform such other duties as shall from time to time be imposed upon any Vice President by the Board or delegated to a Vice President by the President. The Board may by resolution supplement the title of any Vice President in any manner. 6.5. Secretary. It shall be the duty of the Secretary to keep a record of the proceedings of all meetings of the shareholders and the Board of Directors; to keep the stock transfer books of the Corporation or to assure that they are properly kept if the Corporation employs an independent transfer agent; to notify the shareholders and directors of meetings as provided by these bylaws or the Code; to have custody of the seal of the Corporation; to affix such seal to any instrument requiring the same; to attest the signature or certify the incumbency or signature of any officer of the Corporation; and to perform such other duties as the Chairman of the Board, the President, or the Board of Directors may prescribe. Any Assistant Secretary, if elected, shall perform the duties of the Secretary during the absence or disability of the Secretary and shall perform such other duties as the Chairman of the Board, the President, the Secretary, or the Board of Directors may prescribe. 6.6. Treasurer. The Treasurer shall keep, or cause to be kept, the financial books and records of the Corporation, and shall faithfully account for the Corporation's funds, financial assets, and other assets entrusted to the Treasurer's care and custody. The Treasurer shall make such reports as may be necessary to keep the Chairman of the Board, the President, and the Board of Directors informed at all times as to the financial condition of the Corporation, and shall perform such other duties as the Chairman of the Board, the President, or the Board of Directors may prescribe. The Treasurer shall maintain the money and other assets of the Corporation in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer may provide for the investment of the money and other assets of the Corporation consistent with the needs of the Corporation to disburse such money and assets in the course of the Corporation's business. The Treasurer shall perform the duties of the Secretary of the Corporation in the absence or disability of the Secretary and any Assistant Secretary. Any Assistant Treasurer, if elected, shall perform the duties of the Treasurer during the absence or disability of the Treasurer, and shall perform such other duties as the Chairman of the Board, the President, the Treasurer, or the Board of Directors may prescribe. 6.7. Salaries and Bonds. The Board of Directors shall fix the compensation of all officers of the Corporation, unless pursuant to a resolution of the Board the authority to fix such compensation is delegated to a committee of the Board or (other than compensation of executive officers) to the President. The fact that any officer also is a director shall not preclude such officer from receiving a salary or from voting upon the resolution providing the same. The Board of Directors may, in its sole discretion, require bonds from any or all of the officers and employees of the Corporation for the faithful performance of their duties and conduct while in office. 14 6.8. Removal. The Board of Directors may remove any officer at any time with or without cause. ARTICLE 7. Indemnification --------------- 7.1. Authority to Indemnify. (a) Except as provided in subsections (b) and (c) of this Section 7.1, the Corporation shall indemnify an individual made a party to a proceeding because such individual is or was a director or officer of the Corporation against liability incurred in the proceeding, if such director or officer acted in a manner such director or officer believed in good faith to be in or not opposed to the best interests of the Corporation and, in the case of any criminal proceeding, such director or officer had no reasonable cause to believe the conduct was unlawful. (b) The Corporation may not indemnify a director or officer under this Section 7.1: (1) In connection with a proceeding by or in the right of the Corporation in which the director or officer was adjudged liable to the Corporation; or (2) In connection with any other proceeding in which the director or officer was adjudged liable on the basis that personal benefit was improperly received by the director or officer. (c) Indemnification permitted under this Section 7.1 in connection with a proceeding by or in the right of the Corporation is limited to reasonable expenses incurred in connection with the proceeding. 7.2. Mandatory Indemnification. Unless otherwise provided in the articles of incorporation, to the extent that a director or officer has been successful, on the merits or otherwise, in the defense of any proceeding to which the director or officer was a party, or in defense of any claim, issue, or matter therein, because that individual is or was a director or officer of the Corporation, the Corporation shall indemnify the director or officer against reasonable expenses incurred by the director or officer in connection therewith. 15 7.3. Advance for Expenses. (a) The Corporation shall pay for or reimburse the reasonable expenses incurred by a director or officer who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The director or officer furnishes the Corporation a written affirmation of such director's or officer's good faith belief that such director or officer has met the standard of conduct set forth in subsection (a) of Section 7.1 of these bylaws; and (2) The director or officer furnishes the Corporation a written undertaking, executed personally or on the director's or officer's behalf, to repay any advances if it is ultimately determined that the director or officer is not entitled to indemnification under Section 7.1. (b) The undertaking required by paragraph (2) of subsection (a) of this Section 7.3 must be an unlimited general obligation of the director or officer, but need not be secured and may be accepted without reference to financial ability to make repayment. 7.4. Determination and Authorization of Indemnification. (a) The Corporation may not indemnify a director or officer under Section 7.1 of these bylaws unless authorized thereunder and a determination has been made in the specific case that indemnification of the director or officer is required in the circumstances because the director or officer has met the standard of conduct set forth in subsection (a) of Section 7.1. (b) The determination shall be made: (1) By the Board of Directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding; or (2) If a quorum cannot be obtained under paragraph (1) of this subsection, by majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the proceeding; or (3) By special legal counsel: (i) Selected by the Board of Directors or its committee in the manner prescribed in paragraphs (1) or (2) of this subsection (b); or (ii) If a quorum of the Board of Directors cannot be obtained under paragraph (1) of this subsection (b) and a committee cannot be designated under paragraph (2) of this subsection, selected by majority vote of the full Board of Directors (in which selection directors who are parties may participate); or 16 (4) By the shareholders, but shares owned by or voted under the control of directors or officers who are at the time parties to the proceeding may not be voted on the determination. (c) Evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is required, except that if the determination that indemnification is required is made by special legal counsel, evaluation as to reasonableness of expenses shall be made by those entitled under paragraph (3) of subsection (b) of this bylaw provision to select counsel. 7.5. Indemnification of Officers, Employees, and Agents. Notwithstanding any other provisions of these bylaws to the contrary, unless the articles of incorporation provide otherwise, the Corporation may, in the discretion of the Board of Directors, indemnify and advance expenses to an officer, employee, or agent who is not a director, to the extent the Board deems appropriate, consistent with public policy. 7.6. Director's Expenses as a Witness. This Article Seven does not limit the Corporation's power to pay or reimburse expenses incurred by a director in connection with such director's appearance as a witness in a proceeding at a time when such director has not been made a named defendant or respondent to the proceeding. 7.7. Rights to Indemnification Not Exclusive. The right of the directors and officers of the Corporation to indemnification under these bylaws is not exclusive of or in limitation of any other right now possessed or hereafter acquired under the Articles of Incorporation or any statute, agreement or otherwise. ARTICLE 8. Notices ------- (a) Except as otherwise specifically provided in these bylaws, whenever under the provisions of these bylaws notice is required to be given to any shareholder, director, or officer, it shall be in writing unless oral notice is reasonable under the circumstances. Notice may be communicated in person; by telephone, telegraph, teletype, or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are 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. (b) Written notice to a shareholder, if in comprehensible form, is effective when mailed, if mailed with first-class postage prepaid and correctly addressed to the shareholder's address shown in the Corporation's current record of shareholders. If the Corporation has more than 500 shareholders of record 17 entitled to vote at a meeting, however, the Corporation may utilize a class of mail other than first class if the notice of the meeting is mailed, with adequate postage prepaid, not less than thirty days before the date of the meeting. (c) Except as provided in subsection (b) of this Article Eight, written notice, if in comprehensible form, is effective at the earliest of the following: (1) when received, or when delivered, properly addressed, to the addressee's last known principal place of business or residence; (2) five days after its deposit in the mail, as evidenced by the postmark or such longer period as may be provided in the articles of incorporation or these bylaws, if mailed with first-class postage prepaid and correctly addressed; or (3) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. Oral notice is effective when communicated if communicated in a comprehensible manner. ARTICLE 9. Amendments ---------- (a) Unless the articles of incorporation or the Code provides otherwise, or the shareholders in amending or repealing a particular bylaw provide expressly that the Board of Directors may not amend or repeal that bylaw, the Board of Directors may amend the bylaws if the voting requirements provided in Section 4.5 of these bylaws are satisfied, except as provided below. The shareholders also may amend or repeal the Corporation's bylaws or adopt new bylaws, but only by the affirmative vote of the holders of not less than sixty percent (60%) of all the issued and outstanding shares of Common Stock. Unless the articles of incorporation or a provision of these bylaws provides otherwise, a bylaw that fixes a greater quorum or voting requirement for the Board of Directors may be adopted, amended, repealed or rescinded only by (i) the affirmative vote of the majority of the entire Board of Directors or (ii) the affirmative vote of the holders of not less than sixty percent (60%) of all the issued and outstanding shares of Common Stock. A bylaw adopted or amended by the shareholders that fixes a greater quorum or voting requirement for the Board of Directors may provide that it may be amended or repealed only by a specified vote of either the shareholders or the Board of Directors. (b) Unless the articles of incorporation or the Code provides otherwise, a provision of these bylaws limiting the authority of the Board of Directors or establishing staggered terms for directors may be adopted, amended, repealed or rescinded only by the affirmative vote of the holders of not less than sixty percent (60%) of all the issued and outstanding shares of Common Stock. The shareholders may provide by resolution that any bylaw provision repealed or amended by them may not be repealed or amended by the Board of Directors. 18 ARTICLE 10. Miscellaneous ------------- 10.1. Inspection of Records by Shareholders. (a) A Shareholder is entitled to inspect and copy, during regular business hours at the Corporation's principal office, any of the following records of the Corporation if the shareholder gives the Corporation written notice of the shareholder's demand at least five business days before the date on which the shareholder wishes to inspect and copy such records: (1) The Corporation's articles or restated articles of incorporation and all amendments currently in effect; (2) The Corporation's bylaws or restated bylaws and all amendments currently in effect; (3) Resolutions adopted by either the shareholders or the Board of Directors with respect to increasing or decreasing the number of directors, the classification of directors, if any, or the names and residence addresses of any members of the Board of Directors; (4) Resolutions adopted by the Board of Directors creating one or more classes or series of shares, and fixing their relative rights, preferences, and limitations, if shares issued pursuant to such resolutions are outstanding and any resolution adopted by the Board of Directors that affect the size of the Board of Directors; (5) The minutes of all shareholders' meetings, executed waivers of notice of meetings, and executed written consents evidencing all actions taken by shareholders without a meeting, for the past three years; (6) All written communications to shareholders generally within the past three years, including the financial statements furnished for the past three years under section 14-2-1620 of the Code; (7) A list of the names and business addresses of the Corporation's current directors and officers; and (8) The Corporation's most recent annual registration as delivered to the Secretary of State. (b) A shareholder is entitled to inspect and copy, during regular business hours at a reasonable location specified by the Corporation, any of the following records of the Corporation if the shareholder meets the requirements of subsection (c) of this Section 10.1 and gives the Corporation written notice of the shareholder's demand at least five business days before the date on which the shareholder wishes to inspect and copy such records: 19 (1) Excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors while acting in place of the Board of Directors on behalf of the Corporation, minutes of any meeting of the shareholders, and records of action taken by the shareholders or Board of Directors without a meeting, to the extent not subject to inspection under subsection (a) of this Section 10.1; (2) Accounting records of the Corporation; and (3) The record of shareholders. (c) A shareholder may inspect and copy the records described in subsection (b) of this Section 10.1 only if: (1) the shareholder's demand is made in good faith and for a proper purpose that is reasonably relevant to the shareholder's legitimate interest as a shareholder; (2) the shareholder describes with reasonable particularity the shareholder's purpose and the records the shareholder desires to inspect; (3) the records are directly connected with the shareholder's purpose; and (4) the records are to be used only for the stated purpose. 10.2. Fiscal Year. The fiscal year of the Corporation shall be fixed from time to time by resolution of the Board of Directors. If no fiscal year is fixed by the Board, the fiscal year of the Corporation shall end on December 31 of each calendar year. 10.3. Seal. The corporate seal shall be in such form as the Board of Directors may determine from time to time. 10.4. Financial Statements. The Board of Directors may appoint the Treasurer or other fiscal officer or the Secretary or any other officer to cause to be prepared and furnished to shareholders entitled thereto any special financial notice or any financial statements which may be required by any provision of law. 10.5. Appointment of Agents. The Chairman of the Board, if any, the President or any Vice President or any other officer authorized by the Board shall be authorized and empowered in the name and as the act and deed of the Corporation to name and appoint general and special agents, representatives, and attorneys to represent the Corporation in the United States or in any foreign country or countries and to name and appoint attorneys and proxies to vote any shares of stock in any other corporation at any time owned or held of record by the Corporation, and to prescribe, limit, and define the powers and duties of such agents, representatives, attorneys, and proxies and to make substitution, revocation, or cancellation in whole or in part of any power or authority conferred on any such agent, representative, attorney, or proxy. All powers of attorney or instruments under which such agents, representatives, attorneys, or proxies shall be so named and appointed shall be signed and executed by the Chairman of the Board, if any, the President, or a Vice President, or any other 20 officer designated by the Board, and the corporate seal shall be affixed thereto. Any substitution, revocation, or cancellation shall be signed in like manner. Any agent, representative, attorney, or proxy, when so authorized by the instrument appointing such person, may substitute or delegate such person's powers in whole or in part and revoke and cancel such substitutions or delegations. No special authorization by the Board of Directors shall be necessary in connection with the foregoing, and this bylaw shall be deemed to constitute full and complete authority to the officers above designated to do all the acts and things as they deem necessary or incidental thereto or in connection therewith. 10.6. Contracts, Deeds, and Loans. All contracts, deeds, mortgages, pledges, promissory notes, security documents, transfers, and other written instruments binding upon the Corporation shall be executed on behalf of the Corporation by the Chairman of the Board, if any, or the President, or any Vice President, or by such officers or agents as the Board of Directors or the President (unless the Board of Directors shall otherwise provide) may designate from time to time. Any such instrument which may be or is required to be given under the seal of the Corporation may be sealed and attested by the Secretary or any Assistant Secretary of the Corporation. 10.7. Checks and Drafts. Checks and drafts of the Corporation shall be signed by such officer or officers or such other employees or persons as the Board of Directors may from time to time designate. The Board of Directors may provide by resolution for the authority of officers, employees, and other persons to deal with banks and other financial institutions on behalf of the Corporation. ARTICLE 11. Fair Price Provisions --------------------- The requirements of Part 2 of Article 11 of the Code shall be applicable to the Corporation to the maximum extent permitted by the Code and under the circumstances set forth therein. ARTICLE 12. Business Combinations With Interested Shareholders -------------------------------------------------- The requirements of Part 3 of Article 11 of the Code shall be applicable to the Corporation to the maximum extent permitted by the Code and under the circumstances set forth therein. -----END PRIVACY-ENHANCED MESSAGE-----