Exhibit
3.2
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.