AMENDED
AND RESTATED BYLAWS
OF
FORWARD
AIR CORPORATION
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
said meeting, on such date and at such time as may be determined by the Board
of
Directors. The purpose of said annual meeting shall be to elect directors and
transact such other business as may properly be brought before the
meeting.
Section
1.2 Special
Meetings.
Special
meetings of the shareholders 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 designated from time to time by the Board
of
Directors. Whenever the Board of Directors shall fail to fix such place, or,
whenever shareholders entitled to call a special meeting shall call the same,
the meeting shall be held at the principal office of the Corporation in the
State of Tennessee. Special meetings of the shareholders shall be held upon
call
of a majority of the Board of Directors, or, unless the Charter of the
Corporation (the "Charter") otherwise provides, upon written demand(s), signed,
dated and delivered to the Secretary of the Corporation describing the purpose
or purposes for which it is to be held, 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 issue proposed to be considered at
such
special meeting, at such time as may be fixed by the Secretary, and as shall
be
stated in the call and notice of said meeting, 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. Business transacted at any special meeting shall be confined
to
the purposes stated in the notice of meeting and matters germane
thereto.
Section
1.3 Notice
of Meetings.
The
notice of all meetings of shareholders shall be in writing, 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. If the Board of Directors
shall adopt, amend or repeal a bylaw regulating an impending election of
directors, the notice of the next meeting for the election of directors shall
contain the bylaw so adopted, amended or repealed, together with a concise
statement of the changes made. A copy of the notice of any meeting shall be
served either personally or by mail, 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.
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 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 said meeting, unless said 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.
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.
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 said 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 said 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.
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 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 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
2.5 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 by the Board of Directors.
Section
2.6 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
2.7 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 by oral, telegraphic or written notice duly served upon,
sent
or mailed to each director not less than two (2) days before such 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 him. 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
2.8 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
2.9 Committees.
By
resolution adopted by a majority of the entire Board of Directors, the directors
may designate from their number two (2) 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 the 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
2.10 Compensation
of Directors.
The
Board of Directors may, by resolution, provide for payment to directors of
a
fixed 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
2.11 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
2.12 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 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 it shall not 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
2.13 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.
One (1) or more directors may be removed for cause by a majority of the entire
Board of Directors.
Section
2.14 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
2.15 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.
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 time 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 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. He 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 him 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. He shall affix the seal, if any, to any instrument requiring it,
when signed by a duly authorized officer or when 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. He shall establish
policies for the receipt, custody and disbursement of the Corporation's monies
and securities, and for investment of the Corporation's funds. He shall perform
such other duties as may be assigned to him 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. He 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.
He
shall perform such other duties as may be assigned to him 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 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.
The
interest of each shareholder of the Corporation may be evidenced by certificates
representing shares in such form not inconsistent with the Charter as the Board
of Directors may from time to time prescribe. Shares of the Corporation may
also
be uncertificated. The Board of Directors shall have the power and authority
to
make all such rules and regulations as it may deem expedient concerning the
issue, transfer and registration of uncertificated shares or certificates for
shares of stock of the Corporation.
Certificates
representing shares shall have set forth thereon the statements prescribed
by
law and shall be signed by the Chairman, President or a Vice President and
by
the Secretary or an Assistant Secretary or Treasurer or an Assistant Treasurer
and may be sealed with the corporate seal or a facsimile thereof. The signatures
of the officers upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to
be
such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if such officer were an officer at the
date
of its issue.
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.
Section
4.3 Fractional
Shares.
The
Corporation may issue certificates 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.
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 certificates representing shares of the
Corporation.
Section
4.4 Replacement
Certificates.
No
certificates representing shares shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft as the Board of Directors may
require, and on delivery to the Corporation, if the Board of Directors shall
so
require, of a bond of indemnity in such amount, upon such terms and secured
by
such surety as the Board of Directors may in its discretion
require.
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 said
corporate seal.
ARTICLE
VII
INDEMNIFICATION
The
Corporation shall indemnify to the full 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, officer
or employee 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, officer or
employee 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. 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,
officer or employee of the Corporation which imposes duties on, or involves
services by, such director, officer or employee 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 said 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 said
shareholders.
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