AMENDED
AND RESTATED BYLAWS
OF FORWARD AIR
CORPORATION
Effective
July 1, 2009
ARTICLE
I
SHAREHOLDERS
Section
1.1 Annual
Meeting. The annual meeting of the shareholders of Forward Air
Corporation (the “Corporation”) shall be held at
the principal office of the Corporation in the State of Tennessee or at such
other place within or without the State of Tennessee as may be determined by the
board of directors of the Corporation (the “Board of Directors” or the
“Board”) and as shall be
designated in the notice of such meeting, on such date and at such time as may
be determined by the Board of Directors. The purpose of the annual
meeting shall be to elect directors and transact such other business as may
properly be brought before the meeting in accordance with these Amended and
Restated Bylaws (these “Bylaws”).
Section
1.2 Special
Meetings.
(i) Generally. Special
meetings of the shareholders shall be held upon call of a majority of the Board
of Directors, or, subject to the provisions of these Bylaws and unless the
charter of the Corporation (the “Charter”) otherwise provides,
upon written demand(s) signed, dated and delivered to the Secretary of the
Corporation by shareholders holding at least ten percent (10%) of the shares of
capital stock of the Corporation issued and outstanding and entitled to vote on
any issued proposed to be considered at such meeting (the “Special Meeting Percentage”),
except when the Tennessee Business Corporation Act, as amended (the “Business Corporation Act”),
confers upon the shareholders the right to demand the call of such meeting and
fix the date thereof. Only such business shall be conducted at a
special meeting of shareholders as shall have been brought before such special
meeting pursuant to the Corporation’s notice of meeting.
(ii) Shareholder Requested
Special Meetings.
(a) Any
shareholder of record seeking to have shareholders request a special meeting
shall, by sending written notice to the Secretary of the Corporation (the “Record Date Request Notice”)
by registered mail, return receipt requested, request the Board of Directors to
fix a record date to determine the shareholders entitled to request a special
meeting (the “Request Record
Date”). The Record Date Request Notice shall (1) set forth the
purpose of the meeting and the matters proposed to be acted on at it, (2) be
signed by one or more shareholders of record as of the date of signature (or
their agents duly authorized in writing), (3) bear the date of signature of each
such shareholder (or such agent) and (4) contain all the information required by
Section 1.13(iii) of these Bylaws and (5) set forth the information relating to
each such shareholder that must be disclosed in solicitations of proxies for
election of directors in an election contest (even if an election contest is not
involved), or is otherwise required, in each case pursuant to Regulation 14A (or
any successor provision) under the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”). Upon receiving the Record Date Request Notice, the
Board of Directors may fix a Request Record Date. The Request Record
Date shall not precede and shall not be more than ten (10) days after the close
of business on the date on which the resolution fixing the Request Record Date
is adopted by the Board of Directors. If the Board of Directors,
within ten (10) days after the date on which a valid Record Date Request Notice
is received, fails to adopt a resolution fixing the Request Record Date and make
a public announcement (as permitted by law) of such Request Record Date, the
Request Record Date shall be the close of business on the tenth day after the
first date on which the Record Date Request Notice is received by the Secretary
of the Corporation.
(b) In order
for any shareholder to request a special meeting of the shareholders, one or
more written requests for a special meeting signed by shareholders of record (or
their agents duly authorized in writing) as of the Request Record Date entitled
to cast at least the Special Meeting Percentage of all of the votes entitled to
be cast at such meeting (the “Special Meeting Request”)
shall be delivered to the Secretary of the Corporation. In addition,
the Special Meeting Request shall (1) set forth the purpose of the meeting and
the matters proposed to be acted on at it (which shall be limited to those
lawful matters set forth in the Record Date Request Notice received by the
Secretary), (2) bear the date of signature of each such shareholder (or such
agent) signing the Special Meeting Request, (3) contain the information required
by Section 1.13(iii) of these Bylaws and (4) set forth the name and address, as
they appear in the Corporation’s books, of each shareholder signing such request
(or on whose behalf the Special Meeting Request is signed), the class, series
and number of all shares of stock of the Corporation which are owned of record
or beneficially by each such shareholder, and the nominee holder for, and number
of, shares owned by such shareholder beneficially but not of record, shall be
sent to the Secretary by registered mail, return receipt requested, and shall be
received by the Secretary within sixty (60) days (or, if independent inspectors
of election are appointed pursuant to clause (f) below, within sixty-five (65)
days) after the Request Record Date. Any requesting shareholder may
revoke his, her or its request for a special meeting at any time by written
revocation delivered to the Secretary of the Corporation.
(c) The
Secretary shall inform the requesting shareholders of the reasonably estimated
cost of preparing and mailing the notice of meeting (including the Corporation’s
proxy materials). The Secretary shall not be required to call a
special meeting upon shareholder request and such meeting shall not be held
unless, in addition to the documents required by this Section 1.2, the Secretary
receives payment of such reasonably estimated cost prior to the mailing of any
notice of the meeting.
(d) Except as
provided in the next sentence, any special meeting shall be held at such place,
date and time as may be designated by the Board of Directors. In the
case of any special meeting called by the Secretary upon the request of
shareholders (a “Shareholder
Requested Meeting”), such meeting shall be held at such place, date and
time as may be designated by the Board of Directors; provided, however, that the
date of any Shareholder Requested Meeting shall be not more than seventy (70)
days nor less than ten (10) days after the record date for such meeting (the
“Meeting Record Date”);
and provided further that if the Board of Directors fails to designate, within
ten days after the date that a valid Special Meeting Request is actually
received by the Secretary (the “Delivery Date”), a date and
time for a Shareholder Requested Meeting, then such meeting shall be held at
2:00 p.m. local time on the 70th day after the Meeting Record Date or, if such
70th day is not a Business Day (as defined below), on the first preceding
Business Day; and provided further that in the event that the Board of Directors
fails to designate a place for a Shareholder Requested Meeting within ten (10)
days after the Delivery Date, then such meeting shall be held at the principal
executive office of the Corporation. In fixing a date for any special
meeting, the President, Chief Executive Officer or Board of Directors may
consider such factors as he, she or it deems relevant within the good faith
exercise of business judgment, including, without limitation, the nature of the
matters to be considered, the facts and circumstances surrounding any request
for the meeting and any plan of the Board of Directors to call an annual meeting
or a special meeting. In the case of any Shareholder Requested
Meeting, if the Board of Directors fails to fix a Meeting Record Date that is a
date within thirty (30) days after the Delivery Date, then the close of business
on the 30th day after the Delivery Date shall be the Meeting Record
Date.
(e) If
written revocations of requests for the special meeting have been delivered to
the Secretary of the Corporation and the result is that shareholders of record
(or their agents duly authorized in writing), as of the Request Record Date,
entitled to cast less than the Special Meeting Percentage have delivered, and
not revoked, requests for a special meeting to the Secretary of the Corporation,
the Secretary of the Corporation shall: (i) if the notice of meeting has not
already been mailed, refrain from mailing the notice of the meeting and send to
all requesting shareholders who have not revoked such requests written notice of
any revocation of a request for the special meeting, or (ii) if the notice of
meeting has been mailed and if the Secretary first sends to all requesting
shareholders who have not revoked requests for a special meeting written notice
of any revocation of a request for the special meeting and written notice of the
Secretary’s intention to revoke the notice of the meeting, revoke the notice of
the meeting at any time before ten days before the commencement of the
meeting. Any request for a special meeting received after a
revocation by the Secretary of the Corporation of a notice of a meeting shall be
considered a request for a new special meeting.
(f) The
Chairman of the Board of Directors, the President or the Board of Directors may
appoint regionally or nationally recognized independent inspectors of elections
to act as the agent of the Corporation for the purpose of promptly performing a
ministerial review of the validity of any purported Special Meeting Request
received by the Secretary of the Corporation. For the purpose of
permitting the inspectors to perform such review, no such purported request
shall be deemed to have been received by the Secretary until the earlier of (i)
five (5) days after actual receipt by the Secretary of the Corporation of such
purported request and (ii) such date as the independent inspectors certify to
the Corporation that the valid requests received by the Secretary of the
Corporation represent at least a majority of the issued and outstanding shares
of stock that would be entitled to vote at such meeting. Nothing
contained in this Section 1.2(b) shall in any way be construed to suggest or
imply that the Corporation or any shareholder shall not be entitled to contest
the validity of any request, whether during or after such five (5) day period,
or to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto, and the seeking
of injunctive relief in such litigation).
(g) For
purposes of these Bylaws, “Business Day” shall mean any
day other than a Saturday, a Sunday or a day on which banking institutions in
the State of Tennessee are authorized or obligated by law or executive order to
close.
Section
1.3 Notice of
Meetings. The notice of all meetings of shareholders shall be
given in writing or by electronic transmission, shall state the date, time and
place of the meeting, and, unless it is the annual meeting, shall indicate that
it is being issued by or at the direction of the person or persons calling the
meeting. The notice of an annual meeting should state that the
meeting is called for the election of directors and for the transaction of such
other business as may properly come before the meeting and shall state the
purpose or purposes of the meeting if any other action is to be taken at such
annual meeting which could be taken at a special meeting. The notice
of a special meeting shall, in all instances, indicate that it is being issued
by or at the direction of the person or persons calling the meeting and state
the purpose or purposes for which the meeting is called. Notice of
any meeting shall be given to shareholders entitled to vote at the meeting not
less than ten (10) days nor more than two (2) months before the date
of the meeting, to each shareholder at such shareholder’s record address or at
such other address which such shareholder may have furnished in writing to the
Secretary of the Corporation. If a meeting is adjourned to another
time or place and if any announcement of the adjourned time or place is made at
the meeting, it shall not be necessary to give notice of the adjourned meeting
unless the Board of Directors, after adjournment, fixes a new record date for
the adjourned meeting, which it must do if the meeting is adjourned to a date
more than four (4) months after the date fixed for the original
meeting. At the adjourned meeting any business may be transacted that
might have been transacted on the original date of the
meeting. Notice of a meeting need not be given to any shareholder who
submits to the Corporation for inclusion in the minutes or filing with the
corporate records a signed waiver of notice, in person or by proxy, before or
after the meeting. The attendance of a shareholder at a meeting
without objection at the beginning of the meeting (or promptly upon his arrival)
to the lack of notice or defective notice of such meeting shall constitute a
waiver of notice by such shareholder. Any previously scheduled annual
meeting of the Corporation’s shareholders may be postponed, and any previously
scheduled special meeting of the Corporation’s shareholders may be postponed or
canceled, by resolution of the Board of Directors upon public notice (as
permitted by law) given prior to the time previously scheduled for such meeting
of shareholders.
Section
1.4 Quorum. The
holders of record of a majority of the outstanding shares of the Corporation
entitled to vote at the meeting, present in person or by proxy, shall, except as
otherwise provided by law or the Charter, constitute a quorum at a meeting of
shareholders, provided that when a specified item of business is required to be
voted on by a class or series, voting as a class, the holders of a majority of
the shares of such class or series shall constitute a quorum for the transaction
of such specified item of business. When a quorum is once present to
organize a meeting, it is not broken by the subsequent withdrawal of any
shareholder or for adjournment of the meeting unless a new record date is or
must be set for the meeting.
Section
1.5 Conduct
of Meetings. Meetings of the shareholders shall be presided
over by the Chairman of the Board, if any, or, if the Chairman of the Board is
not present, by the Lead Independent Director, if any, or if the Lead
Independent Director is not present, by the President, or, if the President is
not present, by a Vice President, or, if neither the Chairman of the Board, the
Lead Independent Director, the President nor a Vice President is present, by a
chairman to be chosen at the meeting. 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 person presiding over the meeting shall choose any
person present to act as secretary of the meeting.
Section
1.6 Voting. For
each share of the capital stock of the Corporation registered in his name on the
books of the Corporation the holder thereof shall have the number of votes per
share specified in the Charter. Whenever under the provisions of the
Charter any shareholder is entitled to more or less than one (1) vote for
any share of capital stock of the Corporation held by such shareholder, every
reference in these Bylaws to a plurality or other proportion of stock shall
refer to such plurality or other proportion of the votes of such
stock. At each meeting of the shareholders, each shareholder having
the right to vote shall be entitled to vote in person or by proxy appointed by
an instrument in writing subscribed by such shareholder, or by his duly
authorized attorney, and bearing a date not more than eleven (11) months
prior to such meeting, unless such instrument provides for a longer
period. Every shareholder entitled to vote at any meeting may so vote
by proxy and shall be entitled to one (1) vote for each share entitled to
vote and held by such shareholder. At all elections of directors the
voting may, but need not, be by ballot and a plurality of the votes cast thereat
shall elect, except as otherwise required by law or the
Charter. Except as otherwise required by law, or the Charter, any
other action shall be authorized by a majority of the votes cast.
Section
1.7 Record
Date. Subject to Section 1.2 of these Bylaws, for the purpose
of determining the shareholders entitled to notice of, to demand a special
meeting, to vote or take any other action at any meeting of shareholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining the shareholders entitled
to receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the Board of Directors may fix, in advance, a date
as the record date for any such determination of shareholders. Such
date shall not be more than seventy (70) days nor less than ten (10)
days before the date of such meeting, nor more than seventy (70) days prior
to any other action. If no record date is fixed, the record date for
the determination of shareholders entitled to notice of, to demand a special
meeting, to vote or take any other action at a meeting of shareholders shall be
at the close of business on the day next preceding the day on which notice is
given or, if no notice is given, the day on which the meeting is
held.
The
record date for determining shareholders for any purpose other than that
specified in the preceding clause shall be at the close of business on the day
on which the resolution of the Board of Directors relating thereto is
adopted. When a determination of shareholders of record entitled to
notice of, to demand a special meeting, to vote or take any other action at any
meeting of shareholders has been made as provided in this Section 1.7, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date under this Section 1.7 for the adjourned
meeting; provided, however, if the meeting is adjourned to a date more than
four (4) months after the date fixed for the original meeting, the Board of
Directors shall fix a new record date.
Section
1.8 Shareholder
Lists. An alphabetical list by voting group, and within each
voting group by class or series of shares, of each shareholder’s name, address
and share ownership entitled to notice of a shareholders’ meeting as of the
record date, certified by the Secretary or other officer responsible for its
preparation, or by the transfer agent, if any, shall be available for inspection
by any shareholder, beginning two (2) Business Days after notice of the
meeting is given for which the list was prepared and continuing through the
meeting upon the request thereat or prior thereto of any
shareholder. If the right to vote at any meeting is challenged, the
inspectors of election, if any, or the person presiding thereat, shall require
such list of shareholders to be produced as evidence of the right of the persons
challenged to vote at such meeting, and all persons who appear from such list to
be shareholders entitled to vote thereat may vote at such
meeting. Nothing in this Section 1.8 shall require the Corporation to
include electronic mail addresses or other electronic contact information on
such list.
Section
1.9 Proxy
Representation. Every shareholder may authorize another person
or persons to act for such shareholder by proxy in all matters in which a
shareholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the shareholder or
such shareholder’s attorney-in-fact. No proxy shall be valid after
the expiration of eleven (11) months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the shareholder executing it, except as otherwise provided by the Business
Corporation Act.
Section
1.10 Inspectors. At
all meetings of shareholders, the proxies and ballots shall be received, taken
in charge and examined, and all questions concerning the qualification of
voters, the validity of proxies and the acceptance or rejection of proxies and
of votes shall be decided by two (2) inspectors of
election. Such inspectors of election together with one alternate to
serve in the event of death, inability or refusal by any of such inspectors of
election to serve at the meeting, shall be appointed by the Board of Directors,
or, if no such appointment or appointments shall have been made, then by the
presiding officer at the meeting. If for any reason the inspectors of
election so appointed shall fail to attend, or refuse or be unable to serve, a
substitute or substitutes shall be appointed to serve as inspector or inspectors
of election, in their place or stead, by the presiding officer at the
meeting. No director or candidate for the office of director shall be
appointed as an inspector. Each inspector shall take and subscribe an
oath or affirmation faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his
ability. The inspectors, if any, shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all shareholders. On
request of the person presiding at the meeting or any shareholder, the
inspectors shall make a report in writing of any challenge, question or matter
determined by them and execute a certificate as to any fact found by
them. Each inspector shall be entitled to reasonable compensation for
such inspector’s services, to be paid by the Corporation.
Section
1.11 Actions
Without Meetings. Whenever shareholders are required or
permitted to take any action by vote, such action may be taken without a meeting
on written consent setting forth the action so taken, signed by the holders of
all outstanding shares entitled to vote thereon; unless some number less than
all of the holders of all of the outstanding shares is required by applicable
law or the Charter. This section shall not be construed to alter or
modify any provision of law or of the Charter under which the written consent of
the holders of less than all outstanding shares is sufficient for corporate
action.
Section
1.12 Meaning
of Certain Terms. As used herein in respect of 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 “shareholder” or “shareholders” refers to an
outstanding share or shares and to a holder or holders of record of outstanding
shares, when the Corporation is authorized to issue only one (1) class of
shares, and such reference is also 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 Charter confers such rights, where there are two
(2) or more classes or series of shares, or upon which or upon whom the
Business Corporation Act confers such rights, notwithstanding that the Charter
may provide for more than one (1) class or series of shares, one
(1) or more of which are limited or denied such rights
thereunder.
Section
1.13 Advance
Notice Provisions for Business to be Transacted at Annual
Meeting.
(i) No
business may be transacted at an annual meeting of shareholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (c) otherwise properly brought
before the annual meeting by any shareholder of the Corporation (i) who is
shareholder of record on the date of the giving of the notice provided for in
this Section and on the record date for the determination of shareholders
entitled to vote at such annual meeting and (ii) who complies with the
notice procedures set forth in this Section.
(ii) A
shareholder’s notice must be delivered to or mailed and received by the
Secretary at the principal executive offices of the Corporation not less than
ninety (90) days nor more than one hundred twenty (120) days prior to the first
anniversary of the preceding year’s annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than thirty
(30) days or delayed by more than sixty (60) days from the anniversary date of
the preceding year’s annual meeting, notice by the shareholder must be so
delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th day
prior to such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made.
(iii) A
shareholder’s notice to the Secretary must be in writing and set forth as to
each matter such shareholder proposes to bring before the annual meeting:
(i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting; (ii) the name and address of such shareholder as they appear on
the Corporation’s books and of the beneficial owner, if any, on whose behalf the
proposal is made; (iii) the following information regarding the ownership
interests of the shareholder or such other beneficial owner, which shall be
supplemented in writing by the shareholder not later than ten (10) days after
the record date for the meeting to disclose such interests as of the record
date: (A) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such shareholder and
such beneficial owner; (B) option, warrant, convertible security, stock
appreciation right, or similar right with an exercise or conversion privilege or
a settlement payment or mechanism at a price related to any class or series of
shares of the Corporation or with a value derived in whole or in part from the
value of any class or series of shares of the Corporation, whether or not such
instrument or right shall be subject to settlement in the underlying class or
series of capital stock of the Corporation or otherwise (a “Derivative Instrument”)
directly or indirectly owned beneficially by such shareholder and any other
direct or indirect opportunity to profit or share in any profit derived from any
increase or decrease in the value of shares of the Corporation; (C) any
proxy, contract, agreement, arrangement, understanding, or relationship pursuant
to which such shareholder has a right to vote any shares of any security of the
Corporation; (D) any “short interest” in any security of the Corporation
(for purposes of this Section 1.13 and Section 2.4, a person shall be
deemed to have a short interest in a security if such person directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has the opportunity to profit or share in any profit derived from any
decrease in the value of the subject security); (E) any rights to dividends
on the shares of the Corporation owned beneficially by such shareholder that are
separated or separable from the underlying shares of the Corporation;
(F) any proportionate interest in shares of the Corporation or Derivative
Instruments held, directly or indirectly, by a general or limited partnership in
which such shareholder is a general partner or, directly or indirectly,
beneficially owns an interest in a general partner; and (G) any
performance-related fees (other than an asset-based fee) to which such
shareholder is entitled based on any increase or decrease in the value of shares
of the Corporation or Derivative Instruments, if any, as of the date of such
notice, including, without limitation, any such interests held by members of
such shareholder’s immediate family sharing the same household; (iv) a
description of all arrangements or understandings between such shareholder and
any other person or persons (including their names) in connection with the
proposal of such business by such shareholder and any material interest of such
shareholder in such business; and (v) a representation that such
shareholder intends to appear in person or by proxy at the annual meeting to
bring such business before the meeting. No business shall be conducted at the
annual meeting of shareholders except business brought before the annual meeting
in accordance with the procedures set forth in this Section 1.13 or in Section
2.4, provided, however,
that once business has been properly brought before the annual meeting in
accordance with such procedures, nothing in this Section 1.13 or in Section 2.4
shall be deemed to preclude discussion by any shareholder of any such
business.
(iv) If the
chairman of an annual meeting determines that business was not properly brought
before the annual meeting in accordance with the foregoing procedures, the
chairman of the meeting shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be
transacted.
(v) No
adjournment or postponement of a meeting of shareholders shall commence a new
period for the giving of notice of a shareholder proposal hereunder with respect
to such meeting.
ARTICLE
II
DIRECTORS
Section
2.1 Functions
and Definition. The business of the Corporation shall be
managed under the direction of its Board of Directors. The use of the
phrase “entire Board of Directors” herein refers to the total number of
directors which the Corporation would have if there were no
vacancies.
Section
2.2 Qualification
and Number. Each director shall be at least eighteen (18)
years of age. A director need not be a shareholder, a citizen of the
United States, nor a resident of the State of Tennessee. The number
of directors constituting the entire Board of Directors shall be not less than
the number required by law; such number may be fixed from time to time by action
of the Board of Directors or of the shareholders. The number of
directors may be increased or decreased by action of the Board of Directors or
shareholders, provided that any action of the Board of Directors to effect such
increase or decrease shall require the vote of a majority of the entire Board of
Directors. No decrease in the number of directors shall shorten the
term of any incumbent director.
Section
2.3 Election
and Term. Directors who are elected at an annual meeting of
shareholders, and directors who are elected in the interim to fill vacancies and
newly created directorships, shall hold office until the next annual meeting of
shareholders or until their respective successors have been elected and
qualified. In the interim between annual meetings of shareholders or
special meetings of shareholders called for the election of directors, the
creation of newly created directorships and to fill any vacancies in the Board
of Directors, including vacancies resulting from the removal of directors for
cause or without cause, may be filled by the vote of a majority of the directors
then in office, although less than a quorum exists.
Section
2.4 Advance
Notice Provisions for Election of Directors.
(i) Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation. Nominations of
persons for election to the Board of Directors may be made at any annual meeting
of shareholders, or at any special meeting of shareholders called for the
purpose of electing directors, (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (b) by any
shareholder of the Corporation (i) who is a shareholder of record on the
date of the giving of the notice provided for in this Section and on the record
date for the determination of shareholders entitled to vote at such meeting and
(ii) who complies with the notice procedures set forth in this
Section.
(ii) A
shareholder’s notice must be delivered to or mailed and received by the
Secretary at the principal executive offices of the Corporation (a) in the case
of an annual meeting, not less than 90 days nor more than 120 days
prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than
30 days or delayed by more than 60 days from the anniversary date of
the preceding year’s annual meeting, notice by the shareholder must be so
delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th day
prior to such annual meeting or the tenth day following the day on which public
announcement of the date of such annual meeting is first made; and (b) in
the case of a special meeting of shareholders called for the purpose of electing
directors, not later than the close of business on the tenth day following the
day on which notice of the date of the special meeting was mailed or public
announcement of the date of the special meeting was made, whichever first
occurs.
(iii) A
shareholder’s notice to the Secretary must be in writing and set forth
(a) as to each person whom the shareholder proposes to nominate for
election as a director, all information relating to such person that is required
to be disclosed in connection with solicitations of proxies for election of
directors pursuant to Regulation 14A of the Exchange Act, and the rules and
regulations promulgated thereunder; and (b) as to the shareholder giving
the notice (i) the name and address of such shareholder as they appear on
the Corporation’s books and of the beneficial owner, if any, on whose behalf the
nomination is made, (ii) the following information regarding the ownership
interests of the shareholder or such other beneficial owner, which shall be
supplemented in writing by the shareholder not later than ten (10) days after
the record date for the meeting to disclose such interests as of the record
date: (A) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such shareholder and
such beneficial owner; (B) any Derivative Instrument directly or indirectly
owned beneficially by such shareholder and any other direct or indirect
opportunity to profit or share in any profit derived from any increase or
decrease in the value of shares of the Corporation; (C) any proxy,
contract, agreement, arrangement, understanding, or relationship pursuant to
which such shareholder has a right to vote any shares of any security of the
Corporation; (D) any “short interest” in any security of the Corporation;
(E) any rights to dividends on the shares of the Corporation owned
beneficially by such shareholder that are separated or separable from the
underlying shares of the Corporation; (F) any proportionate interest in
shares of the Corporation or Derivative Instruments held, directly or
indirectly, by a general or limited partnership in which such shareholder is a
general partner or, directly or indirectly, beneficially owns an interest in a
general partner; and (G) any performance-related fees (other than an
asset-based fee) to which such shareholder is entitled based on any increase or
decrease in the value of shares of the Corporation or Derivative Instruments, if
any, as of the date of such notice, including, without limitation, any such
interests held by members of such shareholder’s immediate family sharing the
same household; (iii) a description of all arrangements or understandings
between such shareholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such shareholder, (iv) a representation that such shareholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such
shareholder that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Regulation 14A of the Exchange Act and
the rules and regulations promulgated thereunder. Such notice must be
accompanied by a written consent of each proposed nominee to be named as a
nominee and to serve as a director if elected.
(iv) No person
shall be eligible for election as a director of the Corporation unless nominated
in accordance with the procedures set forth in this Section.
(v) If the
chairman of the meeting determines that a nomination was not made in accordance
with the foregoing procedures, the chairman of the meeting shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
(vi) No
adjournment or postponement of a meeting of shareholders shall commence a new
period for the giving of notice of a shareholder proposal hereunder with respect
to such meeting.
Section
2.5 Chairman
of the Board. The Board of Directors, after the election
thereof held in each year, may elect a Chairman of the Board. The
Chairman of the Board shall preside at all meetings of the shareholders and the
Board of Directors at which he or she shall be present and shall furnish advice
and counsel to the Board of Directors. The Chairman of the Board
shall exercise the powers and perform the duties usual to a chairman of the
board of a corporation, and shall have such other powers and duties as may be
assigned to him by the Board of Directors. The Chairman of the Board
shall be a member of the Board of Directors.
Section
2.6 Lead
Independent Director. In the event that the Board of Directors
elects a Chairman of the Board who is an employee of the Company, the Board will
elect a Lead Independent Director to furnish advice and counsel to the Board of
Directors and to perform such duties as assigned to him or her by the Board of
Directors.
Section
2.7 Quorum. A
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business. A majority of the directors present, whether
or not a quorum is present, may adjourn a meeting to another time and
place. Except as herein otherwise provided, the vote of a majority of
the directors present at the time of the vote, at a meeting duly assembled, a
quorum being present at such time, shall be the act of the Board of
Directors.
Section
2.8 Meetings;
Notice. Meetings of the Board of Directors shall be held at
such place within or without the State of Tennessee as may from time to time be
fixed by resolution of the Board of Directors, or as may be specified in the
notice of the meeting. Regular meetings of the Board of Directors
shall be held at such times as may from time to time be fixed by resolution of
the Board of Directors. Special meetings of the Board may be held at
any time upon the call of the Chairman of the Board, if any, the Lead
Independent Director, if any the President, the Secretary or any two
(2) directors. Notice shall be duly given to each director by
(i) giving notice to such director in person or by telephone, electronic
transmission or voice message system at least two (2) days in advance of the
meeting, (ii) sending a facsimile to the director’s last known facsimile
number, or delivering written notice by hand to the director’s last known
business or home address, at least two (2) days in advance of the meeting, or
(iii) mailing written notice to the director’s last known business or home
address at least two (2) days in advance of the meeting. A meeting of
the Board of Directors may be held without notice immediately after the annual
meeting of shareholders at the same place at which such meeting is
held. Notice need not be given of regular meetings of the Board of
Directors held at times fixed by resolution of the Board of
Directors. Any requirement of furnishing a notice shall be waived by
any director who signs and delivers to the Corporation a waiver of notice before
or after the meeting, or who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to the
director. The notice of any meeting need not specify the purpose of
the meeting, and any and all business may be transacted at such
meeting.
Section
2.9 Conduct
of Meetings. The Chairman of the Board of Directors, if any,
shall preside at all meetings of the Board of Directors, and in the Chairman’s
absence or inability to act, the Lead Independent Director, if any, shall
preside, and in the Lead Independent Director’s absence or inability to act, the
President shall preside, and in the President’s absence or inability to act,
such person as may be chosen by a majority of the directors present shall
preside.
Section
2.10 Committees. By
resolution adopted by a majority of the entire Board of Directors, the directors
may designate from their number one (1) or more directors to constitute an
Executive Committee and other committees, each of which, to the extent provided
in the resolution designating it, shall have the authority of the Board of
Directors with the exception of any authority the delegation of which is
prohibited by law. A majority of any such committee may determine its
action and fix the time and place of its meetings, unless the Board of Directors
shall otherwise provide. The Board of Directors shall have power at
any time to fill vacancies in, to change the membership of, to designate
alternate members of, or to discharge any such committee. All actions
of the Executive Committee shall be recorded in the minutes of such committee
and reported to the Board of Directors at its meeting next succeeding such
action. All actions of other committees shall be recorded in the
minutes of each such committee and reported to the Board of Directors (or in the
case of committees appointed by the Executive Committee, to the Executive
Committee) at its meeting next succeeding such action. The Board of
Directors may allow members of the Executive Committee or any other committee
designated by the Board of Directors or the Executive Committee a fixed fee and
expenses of attendance for attendance at meetings of such
committee. Members of such committees may also receive stated fees
for their services as committee members as determined by the Board of
Directors. Nothing herein contained shall be construed to preclude
any committee member from serving the Corporation in any other capacity as
officer, agent or otherwise, and receiving compensation therefor.
Section
2.11 Compensation
of Directors. The Board of Directors may, by resolution,
provide for payment to directors of a fee for their services as directors,
without regard for attendance at meetings of the Board, and for payment of
expenses for attendance at such meetings. Nothing herein contained
shall be construed as precluding any director from serving the Corporation in
any other capacity as member of a committee, officer, agent or otherwise and
receiving compensation therefor.
Section
2.12 Honorary
Directors. The Board of Directors may from time to time name,
in its discretion, any director who shall have resigned or shall have declined
nomination for a further term, an Honorary Director for such term as the Board
of Directors by resolution shall establish. An Honorary Director may,
at the invitation of the Chairman of the Board, attend meetings of the Board of
Directors. Honorary Directors shall not be entitled to vote on any
business coming before the Board of Directors nor shall any Honorary Director be
counted for the purpose of determining the number necessary to constitute a
quorum, for the purpose of determining whether a quorum is present or for any
other purpose whatsoever. The termination of any person’s
relationship with the Corporation as Honorary Director shall not be deemed to
create a vacancy in the position of Honorary Director. By resolution
of the Board of Directors a fixed annual fee may be allowed to an Honorary
Director. Honorary Directors shall not be directors of the
Corporation and shall not have rights, privileges or powers other than those
specifically provided in this Section 2.11 or as may be specifically given
or assigned by the Board of Directors.
Section
2.13 Dividends. Subject
always to the provisions of law and the Charter, the Board of Directors shall
have full power to determine whether any, and if any, what part of any, funds
legally available for the payment of dividends shall be declared as dividends
and paid to the Corporation’s shareholders; the division of the whole or any
part of such funds of the Corporation shall rest wholly within the lawful
discretion of the Board of Directors, and neither the Board of Directors nor the
Corporation shall be required at any time, against such discretion, to divide or
pay any part of such funds among or to the shareholders as dividends or
otherwise; and before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board
of Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Board of Directors shall deem conducive to the interest of the
Corporation, and the Board of Directors may modify or abolish any such reserve
in the manner in which it was created.
Section
2.14 Resignation;
Removal of Directors. A director may resign at any time upon
delivery of written notice to the Board of Directors, Chairman of the Board,
Lead Independent Director, President or the Corporation. Such
resignation shall be effective upon delivery unless the notice specifies a later
effective date. At any special meeting of the shareholders, duly
called as provided in these Bylaws, any director or directors may be removed
from office by the shareholders, with or without cause, and such director’s
successor or directors’ successors may be elected at such meeting.
Section
2.15 Actions
Without Meetings. Any action required or permitted to be taken
by the Board of Directors or by any committee thereof may be taken without a
meeting if a majority of all members of the Board of Directors or of any such
committee consent in writing to the adoption of a resolution authorizing the
action. The resolution and the written consents thereto by the
members of the Board of Directors or of any such committee shall be filed with
the minutes of the proceedings of the Board of Directors or of any such
committee.
Section
2.16 Electronic
Communication. Any one or more members of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or any such committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall
constitute presence in person at a meeting.
Section
2.17 Electronic
Transmission. “Electronic transmission” means any form of
communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
ARTICLE
III
OFFICERS
Section
3.1 Election. The
Board of Directors promptly after the election thereof held in each year, shall
elect the officers of the Corporation, which shall include a President and a
Secretary, and which may include a Chief Executive Officer, one (1) or more
Vice Presidents, a Treasurer, and a Controller, and may also include Assistant
Secretaries, Assistant Treasurers, Assistant Controllers and such other
officers, agents and employees as the Board may from time to time deem proper,
who shall hold their offices for such term and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors. The Board of Directors shall fix the salaries of the
President, the Chief Executive Officer, the Vice Presidents, the Treasurer, the
Controller and the Secretary. Unless fixed by the Board of Directors
or a committee thereof, the salaries of all other officers, agents and employees
shall be fixed by the Chief Executive Officer. Any two (2) or
more offices may be held by the same person except the offices of President and
Secretary.
Section
3.2 Term. The
term of office of all officers shall be until their respective successors have
been elected and qualified, but any officer may be removed from office, either
with or without cause, at any time by the affirmative vote of a majority of the
whole Board of Directors. Any vacancy in any office arising from any
cause may be filled for the unexpired portion of the term by the Board of
Directors.
Section
3.3 Duties. The
officers of the Corporation shall each have such powers and duties as are set
forth in these Bylaws and such additional powers and duties as from time to time
may be conferred upon them by the Board of Directors, and, subject thereto, such
powers and duties as generally pertain to their respective offices, and the
Board of Directors may from time to time impose and confer any or all of the
powers and duties hereinafter specifically prescribed for any officer upon any
other officer or officers.
Section
3.4 Resignation;
Removal of Officers. An officer may resign at any time upon
delivery of notice to the Corporation. Such resignation shall be
effective upon delivery unless the notice specifies a later effective
date. In the event that an officer specifies in his notice a later
effective date, and the Corporation accepts the future effective date, the Board
may fill the pending vacancy prior to the effective date; provided, however,
that the Board designates that the successor officer does not take office until
such effective date. Any officer may be removed from office, either
with or without cause, at any lime by the affirmative vote of a majority of the
whole Board of Directors. Further, any officer or assistant officer,
if appointed by another officer, may likewise be removed by such
officer.
Section
3.5 Chief
Executive Officer. The Chief Executive Officer shall be the
chief executive officer of the Corporation and direct the business, affairs and
property of the Corporation. The Chief Executive Officer shall
exercise the powers and perform the duties usual to a chief executive officer
and shall have such other powers and duties as may be assigned to him or her
from time to time by the Board of Directors. In the absence of a
Chairman of the Board or a Lead Independent Director, the Chief Executive
Officer shall preside at all meetings of the shareholders and the Board of
Directors.
Section
3.6 President. The
President, in the absence of a Chairman of the Board, a Lead Independent
Director or a Chief Executive Officer, shall preside at all meetings of the
shareholders and the Board of Directors at which he shall be
present. The President shall be the Chief Operating Officer and shall
direct the operations of the business of the Corporation, and report to the
Chief Executive Officer. In the absence of a Chief Executive Officer,
a Chairman of the Board or a Lead Independent Director, the President shall
report directly to the Board of Directors. In the absence of a Chief
Executive Officer, and in the event the Board of Directors has not vested such
powers in a Chairman of the Board or a Lead Independent Director, the President
shall be the Chief Executive Officer. He shall have such other powers
and duties as may be assigned to him from time to time by the Board of
Directors.
Section
3.7 Vice
Presidents. The Vice Presidents shall be of such number and
shall have such titles of designation as may be determined from time to time by
the Board of Directors. They shall perform such duties as may be
assigned to them, respectively, from time to time by the Board of
Directors.
Section
3.8 Secretary. The
Secretary shall give, or cause to be given, notice of all meetings of
shareholders and directors, and all other notices required by law or by these
Bylaws, and in the case of his absence or refusal or neglect so to do, any such
notice may be given by any person thereunto directed by the Chairman of the
Board, or by the directors or shareholders upon whose request the meeting is
called as provided in these Bylaws. The Secretary shall record all
the proceedings of the meetings of shareholders, the Board of Directors and
Executive Committee in a book to be kept for that purpose, and shall perform
such other duties as may be assigned to the Secretary by the Board of Directors
or the Chief Executive Officer. The Secretary shall have the custody
of the records and the seal, if any, of the Corporation. The
Secretary shall affix the seal, if any, to any instrument requiring it, when
signed by a duly authorized officer or v hen specifically authorized by the
Board of Directors or the Chairman of the Board, and attest the
same. In the absence or incapacity of the Secretary, any Assistant
Secretary may affix the seal, if any, to any such instrument and attest the
same.
Section
3.9 Assistant
Secretaries. The Assistant Secretaries shall have such powers
and shall perform such duties as may be assigned to them from time to time by
the Board of Directors the Chief Executive Officer or the
Secretary.
Section
3.10 Treasurer. The
Treasurer shall be responsible for establishing and executing programs providing
for long and short term financing needs of the Corporation. The
Treasurer shall establish policies for the receipt, custody and disbursement of
the Corporation’s monies and securities, and for investment of the Corporation’s
funds. The Treasurer shall perform such other duties as may be
assigned to him or her from time to time by the Board of Directors or the Chief
Executive Officer.
Section
3.11 Assistant
Treasurers. The Assistant Treasurers shall have such powers
and shall perform such duties as may be assigned to them from time to time by
the Board of Directors the Chief Executive Officer or the
Treasurer.
Section
3.12 Controller. The
Controller shall be responsible for the development and maintenance of
accounting policies and systems properly to record, report and interpret the
financial position and the results of operations of the
Corporation. The Controller shall be responsible for development and
maintenance of adequate plans for the financial control of operations and the
protection of the assets of the Corporation. The Controller shall
perform such other duties as may be assigned to him or her from time to time by
the Board of Directors or the Chief Executive Officer.
Section
3.13 Assistant
Controllers. The Assistant Controllers shall have such powers
and shall perform such duties as may be assigned to them from time to time by
the Board of Directors, the Chief Executive Officer or the
Controller.
Section
3.14 Presiding
Officer at Meetings of the Shareholders and Board of
Directors. The presiding officer at any meeting of the
shareholders or the Board of Directors at which the Chairman of the Board, the
Lead Independent Director and the Chief Executive Officer are absent shall be
the President, or such other officer designated to so preside by the Chairman of
the Board or Lead Independent Director, if any. If the Chairman of
the Board or Lead Independent Director, for any reason, shall not have
designated any officer to preside at any such meeting, then the Chief Executive
Officer or President shall preside. In the event that both the Chief
Executive Officer and President shall be absent, then the Executive Vice
President-Finance, if there be such an officer, and he is a member of the Board,
shall preside. If the Executive Vice President-Finance shall also be
absent or if there be no such officer, then the most senior (in terms of time
served in the office of Executive Vice President) of the other Executive Vice
Presidents, if there be such an officer, and he or she is a member of the Board,
shall preside.
Section
3.15 Corporation
as Security Holder. Unless otherwise ordered by the Board of
Directors, the President, or, in the event of the President’s inability to act,
the Vice President designated by the Board of Directors to act in the absence of
the President or, in the absence of such designation, in the order of such Vice
President’s seniority, shall have full power and authority on behalf of the
Corporation to attend and to act and to vote at any meetings of security holders
of corporations in which the Corporation may hold securities, and at such
meetings shall possess and may exercise any and all rights and powers incident
to the ownership of such securities, and which as the owner thereof the
Corporation might have possessed and exercised, if present. The Board
of Directors by resolution from time to time may confer like powers upon any
other person or persons.
ARTICLE
IV
CERTIFICATED AND
UNCERTIFICATED SHARES
Section
4.1 Share
Certificates and Uncertificated Shares.1 The shares of the
Corporation’s stock may be certificated or un-certificated, as provided under
the Business Corporation Act, and shall be entered in the books of the
Corporation and registered as they are issued. Any certificates
representing shares of stock shall be in such form as the Board of Directors
shall prescribe, certifying the number and class of shares of the stock of the
Corporation owned by the shareholder. Any certificates issued to any
shareholder of the Corporation shall bear the name of the Corporation and state
that it is organized under the laws of the State of Tennessee, the name of the
shareholder, and the number and class (and the designation of the series, if
any) of the shares represented. Where applicable, any certificate
issued to any shareholder of the Corporation shall also either summarize the
designations, relative rights, preferences, and limitations applicable to each
class of stock and the variations in rights, preferences, and limitations
determined for each series of stock (and the authority of the Board of Directors
to determine variations for future series) or conspicuously state that the
Corporation will furnish such information to the shareholder upon written
request. Each certificate shall be signed either manually or by
facsimile, by (i) the Chairman of the Board, Chief Executive Officer, the
President or a Vice President and (ii) by the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation or a facsimile
thereof. If the person who signed a share certificate, either
manually or in facsimile, no longer holds office when the certificate is issued,
then the certificate is nevertheless valid.
Within a
reasonable time after the issuance or transfer of un-certificated stock, the
Corporation shall send to the registered owner thereof a written notice that
shall set forth the name of the Corporation, that the Corporation is organized
under the laws of the State of Tennessee, the name of the shareholder, the
number and class (and the designation of the series, if any) of the shares
represented, and any restrictions on the transfer or registration of such shares
of stock imposed by the Corporation’s Charter, these Bylaws, any agreement among
shareholders or any agreement between shareholders and the Corporation. The
written notice shall also set forth any the designations, relative rights,
preferences, and limitations applicable to each class of stock and the
variations in rights, preferences, and limitations determined for each series of
stock (and the authority of the Board of Directors to determine variations for
future series).
The Board
of Directors shall have power and authority to make all such rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of shares of the Corporation.
Section
4.2 Transfer
of Shares. Upon compliance with provisions restricting the
transferability of shares, if any, transfers of shares of the Corporation shall
be made only on the share record of the Corporation by the registered holder
thereof, or by such holder’s attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the Corporation or with a transfer
agent or a registrar, if any, and upon the surrender of the certificate or
certificates for such shares properly endorsed and the payment of all taxes due
thereon. A certificate representing shares shall not be issued until
the full amount of consideration therefor has been paid, except as the Business
Corporation Act may otherwise permit. Upon the receipt of proper
transfer instructions from the registered owner of un-certificated shares, such
un-certificated shares shall be cancelled, issuance of new equivalent
un-certificated shares or certificated shares shall be made to the shareholder
entitled thereto and the transaction shall be recorded upon the books of the
Corporation.
Section
4.3 Fractional
Shares. The Corporation may issue certificated or
un-certificated shares for fractions of a share where necessary to effect
transactions authorized by the Business Corporation Act which shall entitle the
holder, in proportion to such holder’s fractional holdings, to exercise voting
rights, receive dividends and participate in liquidating distributions; or the
Corporation may pay in cash the value of fractions of a share as of the time
when those entitled to receive such fractions is determined; or it may issue
scrip in registered or bearer form over the manual or facsimile signature of an
officer of the Corporation or of its agent, exchangeable as therein provided for
full shares, but such scrip shall not entitle the holder to any rights of a
shareholder except as therein provided.
Section
4.4 Replacement
Certificates. Any person claiming a share certificate to be
lost, stolen or destroyed shall make an affidavit or affirmation of the fact in
such manner as the Board of Directors may require and shall, if the Board of
Directors so requires, give the Corporation a bond of indemnity in form and
amount, and with one or more sureties satisfactory to the Board of Directors, as
the Board of Directors may require, whereupon the Corporation may issue (i) a
new certificate or certificates of stock or (ii) un-certificated shares in place
of any certificate or certificates previously issued by the Corporation alleged
to have been lost, stolen or destroyed.
Section
4.5 Registered
Shareholders. The Corporation shall be entitled to treat the
holder of record of any share or shares of stock as the holder in fact thereof
and, accordingly, shall not be bound to recognize any equitable or other claim
to, or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of the State of Tennessee.
ARTICLE
V
FISCAL
YEAR
The
fiscal year of the Corporation shall be fixed from time to time by resolution of
the Board of Directors.
ARTICLE
VI
CORPORATE
SEAL
The
Corporation may, but shall not be required to, adopt a corporate
seal. The corporate seal shall have inscribed thereon the name of the
Corporation and the year of its incorporation, and shall be in such form and
contain such other words and/or figures as the Board of Directors shall
determine. The corporate seal may be used by printing, engraving,
lithographing, stamping or otherwise making, placing or affixing, or causing to
be printed, engraved, lithographed, stamped or otherwise made, placed or affixed
upon any paper or document, by any process whatsoever, an impression, facsimile
or other reproduction of such corporate seal.
ARTICLE
VII
INDEMNIFICATION
The
Corporation shall indemnify to the fullest extent permitted by law any person
made or threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person or such person’s testator or intestate is or was a director or
officer of the Corporation or serves or served at the request of the Corporation
any other enterprise as a director, officer or employee. Expenses
incurred by any such person in defending any such action, suit or proceeding
shall be paid or reimbursed by the Corporation promptly upon receipt by it of an
undertaking of such person to repay such expenses if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation. The rights provided to any person by this bylaw shall be
enforceable against the Corporation by such person who shall be presumed to have
relied upon it in serving or continuing to serve as a director or officer as
provided above. No amendment of this bylaw shall impair the rights of
any person arising at any time with respect to events occurring prior to such
amendment, it being understood that such person’s rights hereunder vest
immediately upon such person assuming the position of director or officer of the
Corporation. The Corporation, in its sole discretion, may (but need
not) provide its non-officer employees rights to indemnification or advancement
of expenses to such extent and under such circumstances as the Board of
Directors may determine from time to time.. For purposes of this
article, the term “Corporation” shall include any predecessor of the Corporation
and any constituent corporation including any constituent of a constituent)
absorbed by the Corporation in a consolidation or merger; the term “other
enterprise” shall include any corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise; service “at the request of the
Corporation” shall include service as a director or officer of the Corporation
which imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; any
excise taxes assessed on a person with respect to an employee benefit plan shall
be deemed to be indemnifiable expenses; and action taken or omitted by a person
with respect to an employee benefit plan which such person reasonably believes
to be in the interest of the participants and beneficiaries of such plan shall
be deemed to be action not opposed to the best interests of the
Corporation.
ARTICLE
VIII
GENERAL
Section
8.1 Financial
Reports. The directors may appoint the Treasurer or other
fiscal officer and/or the Secretary or any other officer to cause to be prepared
and furnished to shareholders entitled thereto any special financial notice
and/or financial statement, as the case may be, which may be required by any
provision of law.
Section
8.2 Books and
Records. The Corporation shall keep correct and complete books
and records of account and shall keep minutes of the proceedings of the
shareholders, of the Board of Directors, and/or any committee which the
directors may appoint, and shall keep at the office of the Corporation in the
State of Tennessee or at the office of the transfer agent or registrar, if any,
in such state, a record containing the names and addresses of all shareholders,
the number and class of shares held by each, and the dates when such
shareholders respectively became the owners of record thereof. Any of
the foregoing books, minutes or records may be in written form or in any other
form capable of being converted into written form within a reasonable
time.
ARTICLE
IX
AMENDMENTS
An
affirmative vote of a majority of the shareholders entitled to vote in the
election of directors may make, alter, amend or repeal the Bylaws and may adopt
new Bylaws. Except as otherwise required by law, the Charter or by
the provisions of these Bylaws, the Board of Directors may also make, alter,
amend or repeal the Bylaws and adopt new Bylaws, but Bylaws adopted by the Board
of Directors may be altered, amended or repealed by the Corporation’s
shareholders.
1 Similar
to other state statutes, the Tennessee Business Corporation Act requires that
the board of directors authorize the issuance of uncertificated
shares. We should confirm that the Corporation’s Board of Directors
has previously authorized such issuance. We can also provide short,
confirmatory resolutions if necessary.