BYLAWS
OF
SAINT
LAURENCE EDUCATION, INC.
Amended as of 1/4/05
BYLAWS
ARTICLE
I
NAME AND
PURPOSES
Section
1.1 Name. The name of the organization is Saint Laurence Education, Inc.
(hereinafter the “Corporation”).
Section
1.2 Purposes. The Corporation is organized exclusively for
the charitable and educational purposes of providing high quality education to children who qualify for the Federal
Free/Reduced Lunch Program (low-income students). Students currently well served by an effective Individual
Education Plan are not eligible (typically children classified as “special ed”)
ARTICLE
II
OFFICES
AND AGENT
Section 2.1 Registered Office and Agent. The
Corporation shall at all times maintain a registered office in the State of
Georgia and a registered agent at that address.
Section 2.2 Other Offices. The
Corporation may have offices at such place or places located within or without
the State of Georgia as the Board of Directors may from time to time determine.
ARTICLE III
AUTHORITY
AND DUTIES
OF DIRECTORS
Section
3.1 Authority. The Board of Directors is the policy-making
body, which shall have, and may exercise, all of the powers that may be
exercised or performed by the Corporation.
Section
3.2 Management. Subject
to the Georgia Nonprofit Corporation Act, the Articles of Incorporation and
these Bylaws, the full and entire management of the affairs and business of the
Corporation shall be vested in the Board of Directors.
Section 3.3 Number. The
number of Directors of the Corporation shall be an odd number of not less than
three (3) Directors, the precise number to be fixed by resolution of the Board
of Directors from time to time.
Section 3.4 Vacancies. Unless
the Articles of Incorporation or a provision of these Bylaws provides
otherwise, vacancies occurring by reason of resignation, death, incapacity or
removal before the expiration of his/her term shall be filled by a majority
vote of the remaining Directors. A
Director elected to fill a vacancy shall be elected for the unexpired term of
that Director’s predecessor in office.
Section 3.5 Election of Directors. Directors
shall be elected to a three year term, except in case of death, written
resignation, retirement, disqualification, or removal. Each Director shall serve the term until the
annual meeting at which his or her term expires and until his successor
is elected and qualifies or until the number of Directors is decreased. Staggered
terms will be set up so that one third of the board
is elected every year and one third of the board rolls off every year. The Secretary of the Corporation shall keep
a ledger of Directors terms so that the terms of the Directors are staggered to
ensure continuity of leadership.
Section 3.6 Resignation. Any Director
may resign at any time by giving written notice to the Corporation, the Board
of Directors or its Chairman. A
Director who resigns may postpone the effectiveness of his resignation to a
future date or upon the occurrence of a future event specified in the written
tender of resignation. If no time of
effectiveness is specified therein, a resignation shall be effective upon
tender. A vacancy shall be deemed to
exist at the time a resignation is tendered, and the Board of Directors may,
then or thereafter, elect or appoint a successor to take office when the
resignation by its terms becomes effective.
Section 3.7 Removal. One or
more Directors may be removed from office with or without cause by a majority
of the votes of the Board of Directors entitled to be cast. Removal action may be taken at any meeting
of a majority of Directors with respect to which the notice stated that the
purpose, or one of the purposes, of the meeting is removal of the Director, and
a removed Director's successor may be elected at the same meeting.
Section 3.8 Compensation and Reimbursement. Directors
shall serve without compensation with the exception that normal operating
expenses incurred in the furtherance of the Corporation’s business are allowed
to be reimbursed with documentation and prior approval. Directors serving the
organization in any other capacity, such as staff, are not allowed to receive
compensation, directly or indirectly.
Should any director take a paid staff position, they will be required to
resign their board position. No
contracts will be awarded to a company which employs one of the directors.
ARTICLE IV
COMMITTEES
Section
4.1 Executive Committee.
(a) The Board of Directors may by
resolution adopted by a majority of the entire Board designate an Executive
Committee of one or more Directors and Officers. Each member of the Executive
Committee shall hold until his successor is elected and qualified, or until his
death, resignation or removal, or until he shall cease to be a Director or
Officer.
(b) During
the intervals between the meetings of the Board of Directors, the Executive
Committee may exercise all the authority of the Board of Directors; provided,
however, that the Executive Committee shall not have the power to amend or
repeal any resolution of the Board of Directors that by its terms shall not be
subject to amendment or repeal by the Executive Committee, and the Executive Committee
shall not have the authority of the Board of Directors in reference to (1)
approving or proposing action required to be approved by Directors; (2) filling
vacancies on the Board of Directors or on any of its committees; (3) amending
the Articles of Incorporation; (4) adopting, amending or repealing Bylaws; or
(5) approving a plan of merger.
(c) The
Executive Committee shall meet from time to time on call of the Chairman of the
Board or the President or of any two or more members of the Executive Committee.
Meetings of the Executive Committee may be held at such place or places, within
or without the State of Georgia, as the Executive Committee shall determine or
as may be specified or fixed in the respective notices or waivers of such
meetings. The Executive Committee may
fix its own rules of procedures, including provision for notice of its
meetings. It shall keep a record of
its proceedings and shall report these proceedings to the Board of Directors at
the meeting thereof held next after they have been taken, and 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.
(d) The
Executive Committee shall act by majority vote of its members; provided, that
contracts or transactions of and by the Corporation in which officers or
Directors of the Corporation are interested shall require the affirmative vote
of a majority of the disinterested members of the Executive Committee, at a
meeting of the Executive Committee at which the material facts as to the
interest and as to the contract or transaction are disclosed or known to the
members of the Executive Committee prior to the vote.
(e) Members
of the Executive Committee may participate in committee proceedings by means of
conference telephone or similar communications equipment by means of which all
persons participating in the proceedings can hear each other, and such participation
shall constitute presence in person at such proceedings.
(f) The
Board of Directors, by resolution adopted in accordance with paragraph (a) of
this section, may designate one or more Directors as alternate members of the
Executive Committee who may act in the place and stead of any absent member or
members at any meeting of said committee.
ARTICLE
V
MEETINGS
OF THE BOARD OF DIRECTORS
Section 5.1 Time and Place. Meetings
of the Board of Directors may be held at any place either within or without the
State of Georgia. Notice of each
meeting shall be given to each Director either by personal delivery or by mail,
telephone or e-mail at least two days before the meeting.
Section 5.2 Special Meetings; Notice. Special
meetings of the Board of Directors may be called by the Chairman of the Board
or the President on not less than one day's notice by telephone, mail, e-mail
or personal delivery to each Director and shall be called by the Chairman of
the Board, the President or the Secretary in like manner and on like notice on
the written request of any two or more Directors. Any such special meeting shall be held at such time and place,
within or without the State of Georgia, as shall be stated in the notice of
meeting. No notice of any meeting of
the Board of Directors need state the purposes thereof.
Section 5.3 Waiver of Notice. Notice of
any meeting may be waived by an instrument in writing executed before or after
the meeting. Attendance in person at
any such meeting shall constitute a waiver of notice thereof unless otherwise
provided under the Code.
Section 5.4 Quorum. Unless
the Corporation has only one (1) authorized Director, at all meetings of the
Board of Directors, the presence of a majority of the authorized number of
Directors, but not less than two Directors, shall be necessary and sufficient
to constitute a quorum for the transaction of business. Directors may participate in a regular or
special meeting by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
simultaneously hear each other, and participation in a meeting by means of such
communications equipment shall constitute the presence in person at such
meeting. The act of a majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
law, the Articles of Incorporation or these Bylaws. In the absence of a quorum, a majority of the Directors present
at any meeting may adjourn the meeting from time to time until a quorum is
present. Notice of any adjourned
meeting need only be given by announcement at the meeting at which the
adjournment is taken.
Section 5.5 Action in Lieu of Meeting. Any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if consent
setting forth the action so taken is approved by a majority of the Board of
Directors or of such committee, as the case may be, and such documented consent
is delivered to the Corporation for filing with the minutes of the proceedings
of the Board of Directors or of such committee and any further requirements of
law pertaining to such consents have been satisfied.
Section 5.6 Interested Directors and Officers. An
interested Director or officer is one who is a party to a contract or
transaction with the Corporation or who is an officer or Director of, or has a
financial interest in, another corporation, partnership, association or other
entity which is a party to a contract or transaction with the Corporation. Contracts and transactions between the
Corporation and one or more interested Directors or officers shall not be void
or voidable solely because of the involvement or vote of such interested
persons as long as (i) the contract or transaction is approved in good faith by
the Board of Directors or appropriate committee by the affirmative vote of a
majority of disinterested Directors, even if the disinterested Directors be
less than a quorum, at a meeting of the Board or committee at which the
material facts as to the interest of the interested person or persons and the
contract or transaction are disclosed or known to the Board or committee prior
to the vote; or (ii) the contract or transaction is approved in good faith by
the Director after the material facts as to the interest of the interested
person or persons and the contract or transaction have been disclosed to them;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board or Executive
Committee. Interested Directors may be
counted in determining the presence of a quorum at a meeting of the Board or
Executive Committee, which authorizes the contract or transaction. All board members and officers, upon
election, will read and sign a Saint Laurence conflict of interest policy.
ARTICLE
VI
OFFICERS,
AGENTS AND EMPLOYEES
Section 6.1 General Provisions. The
officers of the Corporation shall consist of a President and Secretary, and may
include a Chairman of the Board, a Vice Chairman of the Board, a Chief
Executive Officer, a Chief Operating Officer, one or more Executive Vice
Presidents, Senior Vice Presidents and Vice Presidents, one or more Assistant
Secretaries, a Treasurer, and one or more Assistant Treasurers. The officers shall be elected by the Board
of Directors at the first meeting of the Board of Directors or shall be
appointed as provided in these Bylaws.
The Board of Directors may from time to time elect other officers,
agents and employees, who shall have such authority and perform such duties as
may be prescribed by the Board of Directors.
All officers shall hold office until the meeting of the Board of
Directors after their election or appointment and until their successors shall
have been elected or appointed and shall have qualified. Except for the President and Secretary, any
two or more offices may be held by the same person. With the exception of the President, who shall provide perpetual
service to the Corporation unless he or she resigns, becomes incapacitated or
dies, any officer, agent or employee of the Corporation may be removed by the
Board of Directors with or without cause.
Such removal without cause shall be without prejudice to such person's
contract rights, if any, but the election or appointment of any person as an officer,
agent or employee of the Corporation shall not of itself create contract
rights. The compensation of officers,
agents and employees elected by the Board of Directors shall be fixed by the
Board of Directors or a committee thereof, but this power may be delegated to
any officer, agent or employee as to persons under his direction or
control. The Board of Directors may
require any officer, agent or employee to give security for the faithful
performance of his duties.
Section 6.2 Powers and Duties of the Chairman of the
Board, the Vice Chairman of the Board, the Chief Executive Officer, the Chief
Operating Officer and the President. The
powers and duties of the Chairman of the Board, the Vice Chairman of the Board
and the President, subject to the supervision and control of the Board of
Directors, shall be those usually appertaining to their respective offices and
whatever other powers and duties are prescribed by these Bylaws or by the Board
of Directors. All officers/positions
on the Board are elected for a one year term.
(a) The
Chairman of the Board shall preside at all meetings of the Board of Directors,
and may be Chief Executive Officer.
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.
(b) The
Vice Chairman of the Board shall, in the absence or disability of the Chairman,
perform the duties of the Chairman.
(c) The
President may be the Chief Executive Officer and/or Chief Operating Officer of
the Corporation. He shall have general
charge of the business and affairs of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect, and
shall keep the Board of Directors fully advised. He shall employ and discharge employees and agents of the
Corporation, except such as shall be elected by the Board of Directors, and he
may delegate these powers. He shall
have such powers and perform such duties as generally pertain to the office of
the President, as well as such further powers and duties as may be prescribed
by the Board of Directors. He shall be ex
officio a member of all standing committees, unless otherwise provided
in the resolution appointing the same.
The Board of Directors, by resolution from time to time, may confer like
powers upon any other person or persons.
Except as the Board of Directors shall authorize the execution thereof
in some manner, he or she shall execute contracts on behalf of the corporation.
Section 6.3 Powers and Duties of Vice Presidents. Each
Executive Vice President, Senior Vice President and Vice President shall have
such powers and perform such duties as the Board of Directors or the President
may prescribe and shall perform such other duties as may be prescribed by these
Bylaws, including managing the daily operation and activities of the
Corporation and of supervising its personnel and the profitable utilization of
its facilities, equipment and resources.
In the absence or inability to act of the President, unless the Board of
Directors shall otherwise provide, the Executive Vice President, or if there be
none, the Senior Vice President who has served in that capacity for the longest
time and who shall be present and able to act, or if there be none, the Vice
President who has served in that capacity for the longest time and who shall be
present and able to act, shall perform all duties and may exercise any of the powers
of the President. The performance of
any such duty by an Executive Vice President, a Senior Vice President or a Vice
President shall be conclusive evidence of his power to act.
Section
6.4 Powers and Duties of the Secretary. The
Secretary shall have charge of the minutes of all proceedings of the Board of
Directors and any committees thereof and shall keep the minutes of all their
meetings at which he is present. Except
as otherwise provided by these Bylaws he shall give, or cause to be given, all
required notices to Directors. He shall
have charge of the seal of the Corporation, shall attend to its use on all
documents the execution of which on behalf of the Corporation under its seal is
duly authorized and shall attest the same by his signature whenever
required. He shall have charge of the
records of the Corporation, and of such other books and papers as the Board of
Directors may direct. Subject to the
control of the Board of Directors, he shall have all such powers and duties as
generally are incident to the position of corporate secretary or as may be
assigned to him by the President or the Board of Directors. In the absence or disability of the Secretary
or at the direction of the President, any assistant secretary may perform the
duties and exercise the powers of the Secretary.
Section 6.5 Powers and Duties of the Treasurer. The
Treasurer shall have charge of all funds and securities of the Corporation,
shall endorse the same for deposit or collection when necessary and deposit the
same to the credit of the Corporation in such banks or depositories as the
Board of Directors may authorize. He
may endorse all commercial documents requiring endorsements for or on behalf of
the Corporation and may sign all receipts and all commercial documents
requiring endorsements for or on behalf of the Corporation and may sign all
receipts and vouchers for payments made to the Corporation. The Treasurer shall cause to be maintained
full and true accounts of all receipts and disbursements and shall make reports
of the same to the Board of Directors and President upon request. He shall have all such powers and duties as generally
are incident to the position of corporate treasurer or as may be assigned to
him by the President or by the Board of Directors.
Section 6.6 Delegation of Duties. In case
of the absence of any officer of the Corporation, or for any other reason that
the Board of Directors may deem sufficient, the Board of Directors (or in the
case of Assistant Secretaries or Assistant Treasurers only, the President) may
confer for the time being the powers and duties, or any of them, of such
officer upon any other officer (provided that the powers and duties of the
President may not be conferred upon the Secretary, and vice versa), or elect or
appoint any new officer to fill a vacancy created by death, resignation,
retirement or termination of any officer.
In such latter event such new officer shall serve until the next annual
election of officers.
Section 6.7 Bonds. The Board
of Directors by resolution may require any or all of the officers, agents or
employees of the Corporation to give bonds to the Corporation, with sufficient
surety or sureties, conditioned on the faithful performance of the duties of
their respective offices or positions, and to comply with any other conditions
as from time to time may be required by the Board of Directors.
Section 6.8 Reimbursement by Officers. Any
payments made to an officer of the Corporation including but not limited to
salary, commission, bonus, interest or rent, or entertainment expense incurred
by him, which shall be disallowed in whole or in part as a deductible expense
by the Internal Revenue Service, shall be reimbursed by the officer to the
Corporation to the full extent of any disallowance. It shall be the duty of the Board of Directors to enforce payment
of each amount disallowed. In lieu of
payment by the officer, subject to the determination of the Board of Directors,
proportionate amounts may be withheld from his future compensation payments
until the amount owed to the Corporation has been recovered.
ARTICLE
VII
BOOKS
AND RECORDS; SEAL
Section
7.1 Correct books of account of the
activities and transactions of the Corporation shall be kept at the office of
the Corporation. These shall include a
minute book, which shall contain a copy of the Certificate of Incorporation, a
copy of the Articles of Incorporation, a copy of these Bylaws, and all minutes
of meetings of the Board of Directors.
Section
7.2 Inspection of Books and Records. The Board
of Directors shall have power to determine which accounts, books and records of
the Corporation shall be opened to the inspection of each Director, except
those as may by law specifically be made open to inspection, and shall have
power to fix reasonable rules and regulations not in conflict with the
applicable law for the inspection of accounts, books and records which by law
or by determination of the Board of Directors shall be open to inspection.
Section 7.3 The Secretary, the Board of Directors and
the Executive Committee shall at all times be entitled to rely on the corporate
records in making any determination hereunder.
Section
7.4 Seal. The
corporate seal shall be in such form as the Board of Directors may from time to
time determine. In the event it is
inconvenient to use such a seal at any time, the signature of the Corporation
followed by the word "Seal" enclosed in parentheses or scroll shall
be deemed the seal of the Corporation.
SECTION
VIII
FINANCIAL
ADMINISTRATION
Section
8.1 Fiscal Year. The fiscal year of the Corporation shall be
July 1 to June 30, but may be changed by resolution of the Board of Directors.
Section
8.2 Checks, Drafts, Etc. All checks, orders for the payment of money,
bills of lading, warehouse receipts, obligations, bills of exchange, and
insurance certificates shall be signed or endorsed by such officer or officers
or agent or agents of the Corporation and in such manner as shall from time to
time be determined by resolution of the Board of Directors or of any committee
to which such authority has been delegated by the Board.
Section
8.3 Deposits and Accounts. All funds of the Corporation, not otherwise
employed, shall be deposited from time to time in general or special accounts
in such banks, trust companies, or other depositories as the Board of Directors
or any committee to which such authority has been delegated by the Board may
select, or as may be selected by the President or by any other officer or
officers or agent or agents of the Corporation, to whom such power may from
time to time be delegated by the Board.
For the purpose of deposit and for the purpose of collection for that account
of the Corporation, checks, drafts, and other orders of the Corporation may be
endorsed, assigned and delivered on behalf of the Corporation by any officer or
agent of the Corporation.
Section
8.4 Annual Statements. Not later
than four (4) months after the close of each fiscal year, and in any case prior
to the next annual meeting of the Board of Directors, the Corporation shall
prepare:
(a) A
balance sheet showing in reasonable detail the financial condition of the
Corporation as of the close of its fiscal year;
(b) A
profit and loss statement showing the results of its operations during its
fiscal year. Upon written request, the
Corporation shall promptly mail to any Director of record a copy of the most
recent such balance sheet and profit and loss statement; and
(c) Such
other documents and reports as may be required by law.
ARTICLE
IX
NOTICES;
WAIVERS OF NOTICE
Section
9.1 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 Director or
officer, it shall be in writing unless oral notice is reasonable under the
circumstances. Notice may be
communicated in person; by telephone, 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 Director, if in comprehensible form, is effective when mailed, if
mailed with first-class postage prepaid and correctly addressed to the Director's
address shown in the Corporation's current record of Directors.
(c) Except
as provided in subsection (b) of this Section 9.1, written notice, if in
comprehensible form, is effective at the earliest of the following: (i) when received, or when delivered,
properly addressed, to the addressee's last known principal place of business
or residence; (ii) five (5) days after its deposit in the mail, as evidenced by
the postmark or such longer period as may be provided in the articles of
incorporation or Bylaws, if mailed with first-class postage prepaid and
correctly addressed; or (iii) on the date shown on the return receipt, if sent
by registered or certified mail, 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.
Section 9.2 Waivers of Notice. Except as
otherwise provided in these Bylaws, when any notice whatever is required to be
given by law, by the Articles of Incorporation or by these Bylaws, a written
waiver thereof, signed by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice.
ARTICLE X
EMERGENCY
POWERS
Section
10.1 Bylaws. The Board
of Directors may adopt emergency bylaws, which shall, notwithstanding any
provision of law, the Articles of Incorporation or these Bylaws, be operative
during any emergency in the conduct of the business of the Corporation
resulting from any catastrophic event including, without limitation, an attack
on the United States or on a locality in which the Corporation conducts its
business or customarily holds meeting of its Board of Directors, or during any
nuclear or atomic disaster, or during the existence of any catastrophe, or
other similar emergency condition, as a result of which a quorum of the Board
of Directors or a standing committee thereof cannot readily be convened for
action. The emergency bylaws may make
any provision that may be practical and necessary for the circumstances of the
emergency.
Section 10.2 Lines of Succession. The Board
of Directors, either before or during any such emergency, may provide, and from
time to time modify, lines of succession in the event that during such an
emergency any or all officers or agents of the Corporation shall for any reason
be rendered unavailable or otherwise incapable of discharging their duties.
Section 10.3 Head Office. The Board
of Directors, either before or during any such emergency, may effective in the
emergency, change the head office or designate several alternative head offices
or regional offices, or authorize the officers to do so.
Section 10.4 Period of Effectiveness. To the
extent not inconsistent with any emergency bylaws so adopted, these Bylaws
shall remain in effect during any such emergency and upon its termination the
emergency bylaws shall cease to be operative.
Section 10.5 Notices. Unless
otherwise provided in emergency bylaws, notice of any meeting of the Board of
Directors during any such emergency may be given only to such of the Directors
as it may be practical to reach at the time, and by such means as may be
practical at the time, including publication, radio or television.
Section 10.6 Officers as Directors Pro Tempore. To the
extent required to constitute a quorum at any meeting of the Board of Directors
during any such emergency, the officers of the Corporation who are present
shall, unless otherwise provided in emergency bylaws, be deemed, in order of
rank and within the same rank in order of seniority, Directors for such
meeting.
Section 10.7 Liability of Officers, Directors and
Agents. No
officer, Director, agent or employee acting in accordance with any emergency
bylaws shall be liable except for willful misconduct. No officer, Director, agent or employee shall be liable for any
action taken by him in good faith in such an emergency in furtherance of the
ordinary business affairs of the Corporation even though not authorized by the
bylaws then in effect.
ARTICLE XI
CHECKS,
NOTES, DRAFTS, ETC.
Checks, notes, drafts,
acceptances, bills of exchange and other orders or obligations for the payment
of money shall be signed by such officer or officers or person or persons as
the Board of Directors by resolution shall from time to time designate.
ARTICLE XII
AMENDMENTS
(a) Unless the Articles of Incorporation or the
Code provides otherwise, 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 Article V
of these Bylaws are satisfied, except as provided below. 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,
repealed or amended only by the affirmative vote of a majority of the votes
entitled to be cast or only by a majority of the entire Board of
Directors. A bylaw adopted or amended
by the President 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 the Board of Directors.
ARTICLE
XIII
INDEMNIFICATION
Section 13.1 Mandatory Indemnification for Certain
Expenses. In
addition to any indemnification contained in the Corporation's Articles of
Incorporation, to the extent that a person has been successful, on the merits
or otherwise, in the defense of any proceeding to which he was a party, or in
defense of any claim, issue, or matter therein, because he is or was a Director
or officer of the Corporation, the Corporation shall indemnify the Director or
officer against reasonable expenses incurred by him in connection therewith up
to but not to exceed that allowed by the current insurance policy.
Section 13.2 Corporation's Authority to Indemnify
for Certain Matters Beyond Mandatory Indemnification.
(a) Subject
to a determination pursuant to Section 13.5 hereof, the Corporation shall
indemnify an individual made a party to any proceeding because he is or was a
Director or officer against liability in the proceeding, including a proceeding
brought by or in the right of the Corporation and including any criminal
proceeding (if, in the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful) provided that:
(i) the
Corporation shall not indemnify a person for any liability incurred in a
proceeding in which the person is adjudged liable to the Corporation or is
subjected to injunctive relief in favor of the Corporation; and
(ii) the
Corporation shall not indemnify a person for any liability for any
appropriation, in violation of his duties, of any business opportunity of the
Corporation; and
(iii) the
Corporation shall not indemnify a person for any liability for acts or
omissions which involve intentional misconduct or a knowing violation of the
law; and
(iv) the
Corporation shall not indemnify a person for any liability of the type set
forth in Section 14-2-832 of the Georgia Business Corporation Code; and
(v) the
Corporation shall not indemnify a person for any liability for any transaction
from which he received an improper personal benefit.
(b) A
person's conduct with respect to an employee benefit plan for a purpose he
believed in good faith to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subsection (a) of this Section 13.2.
(c) The
termination of a proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the person did not meet the standard of conduct set
forth in subsection (a) of this Section 13.2.
Section 13.3 Advance for Expenses. 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:
(a) The
Director or officer furnishes the Corporation a written affirmation of his good
faith belief that he has met the standard of conduct set forth in subsection
(a) of Section 13.2 hereof; and
(b) The
Director or officer furnishes the Corporation a written undertaking executed
personally or on his behalf to repay any advances of expenses if it is
ultimately determined that he is not entitled to indemnification hereunder and
providing such security, or evidence of financial ability to make such
repayments, as is deemed reasonable by the person making the determination and
authorization of indemnification pursuant to Section 13.5 hereof.
Section 13.4 Court-Ordered Indemnification and
Advances for Expenses. A
Director or officer of the Corporation who is a party to a proceeding may apply
for indemnification or advances for expenses to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an application, the court,
after giving any notice the court considers necessary, may order
indemnification or advances for expenses if it determines:
(a) The
person is entitled to mandatory indemnification under Section 13.1, in which
case the court shall also order the Corporation to pay the Director's or
officer's reasonable expenses incurred to obtain court-ordered indemnification;
(b) The
Director is fairly and reasonably entitled to indemnification in view of all
the relevant circumstances, whether or not he met the standard of conduct set
forth in subsection (a) of Section 13.2 hereof or was adjudged liable as
described in subsection (c) of Section 13.2 hereof; or
(c) In
the case of advances for expenses, the person is entitled, pursuant to any
applicable resolution of the Board of Directors or agreement, to payment or
reimbursement of his reasonable expenses incurred as a party to a proceeding in
advance of final disposition of the proceeding.
Section 13.5 Determination
and Authorization of Indemnification.
(a) The
Corporation shall not indemnify a person under Section 13.2 unless a separate
determination has been made in the specific case that indemnification of that
person is permissible in the circumstances because he has not engaged in
conduct described in subsection (a) of Section 13.2 hereof. Such separate
determination shall be made:
(i)
by the Board of
Directors by majority vote of a quorum consisting of Directors not at the time
parties to the proceeding; or
(ii)
if such a quorum
cannot be obtained under subsection 13.5(a)(i), by majority vote of a committee
duly designated by the Board of Directors (in which designation Directors who
are parties may participate), consisting solely of two or more Directors not at
the time parties to the proceeding; or
(iii)
by special legal
counsel selected by the Board of Directors or its committee in the manner
prescribed in subsection 13.5(a)(i) or (ii); or
(iv) by special legal counsel, if a quorum of the Board of Directors
cannot be obtained under subsection 13.5(a)(i), and a committee cannot be
designated under subsection 13.5(a)(ii), selected by majority vote of the
full Board of Directors (in which selection Directors who are parties may
participate).
(b) Once
the separate determination is made pursuant to subsection (a) of this
Section 13.5, no further decision need or shall be made on a specific case
as to the authorization of indemnification of such person by the
Corporation. However, an evaluation as
to reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible except that if the
determination is made by special legal counsel, evaluation as to reasonableness
of expenses shall be made by those entitled under subsection 13.5(a)(iii) or
(iv) to select counsel.
Section 13.6 Insurance. The
Corporation may purchase and maintain insurance on behalf of an individual who
is or was a Director, officer, employee, or agent of the Corporation or who,
while a Director, officer, employee, or agent of the Corporation, is or was
serving at the request of the Corporation as a Director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against liability asserted against or incurred by him in that capacity or
arising from his status as a Director, officer, employee, or agent, whether or
not the Corporation would have power to indemnify him against such liability.
Section 13.7 Indemnification of Officers, Employees
and Agents.
(a) An
officer, employee or agent of the Corporation who is not a Director is entitled
to mandatory indemnification under Section 13.1 hereof and is entitled to apply
for court ordered indemnification under Section 13.4 hereof, in each case to
the same extent as a Director; and
(b) The
Corporation may also indemnify and advance expenses to an officer, employee or
agent who is not a Director to the extent, consistent with public policy, that
may be provided by its Articles of Incorporation, By-laws, general or specific
action of its Board of Directors, or contracts.
Section 13.8 Witness Expenses. Nothing
in this Article 13 shall limit the Corporation's power to pay or reimburse
expenses incurred by a person in connection with his appearance as a witness in
a proceeding at a time when he has not been made a named defendant or
respondent to the proceeding.
Job Descriptions are included as part of by-laws herein.