EXHIBIT B
BY-LAWS
OF
CHEER ACQUISITION CORP.
ARTICLE I - OFFICES
Section 1. Principal Office. The principal office of the corporation
shall be located at 900 Third Avenue, New York, New York 10022, or at such other
place as its board of directors may determine.
Section 2. Other Offices. The corporation may also have offices and
places of business at such other places, within or without the State of
Tennessee, as its board of directors may from time to time determine or the
business of the corporation may require.
ARTICLE II - MEETINGS OF SHAREHOLDERS
Section 1. Time and Place. All meetings of shareholders shall be held
at such date, time and place, whether within or without the State of Tennessee,
as shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. Annual Meeting. An annual meeting of shareholders shall be
held on such date, not less than 60 nor more than 120 days after the end of the
corporation's last preceding fiscal year, as the board of directors shall
prescribe; provided, that if in any such year, the annual meeting shall not have
been held within such period, then it shall be held on the first Tuesday of the
fifth month after the end of the corporation's last preceding fiscal year, or if
such day shall be a legal holiday, on the next business day following. At each
annual meeting, the shareholders shall elect a board of directors and transact
such other business as may properly come before the meeting.
Section 3. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
charter, may be called by the president, and shall be called by the president or
the secretary at the request of a majority of the board of directors, or at the
request in writing of any one or more holders of at least ten percent of all the
votes entitled to be cast on any issue proposed to be discussed at the special
meeting. Any such request or requests from the shareholders shall state the
purpose or purposes of the proposed meeting and shall be signed, dated and
delivered to the corporation's secretary.
Section 4. Notice of Meetings. Written notice of each meeting of
shareholders, stating the date, time and place and hour of the meeting, and in
the case of a special meeting, specifying the purpose or purposes for which the
meeting is called, shall be given in the manner prescribed by Article VI of
these bylaws to each shareholder entitled to vote thereat, not less than ten nor
more than sixty days prior to the meeting.
Section 5. Quorum. Except as otherwise provided by statute or the
charter, the holders of a majority of the corporation's shares of one or more
classes or series that are entitled to vote and be counted together collectively
at a meeting of shareholders (a "voting group"), present in person or
represented by proxy, shall be necessary to and shall constitute a quorum for
the transaction of business at all meetings of that voting group. A quorum which
is present to organize a meeting shall not be broken by the subsequent
withdrawal of one or more shareholders. If, however, such quorum shall not be
present or represented at any meeting of the voting group, the shareholders
entitled to vote thereat present in person or represented by proxy shall have
power to adjourn the meeting from time to time, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed; provided, that if after any such adjournment,
a new record date is or must be set for the adjourned meeting, a notice of the
adjournment shall be given to each shareholder entitled to vote thereat.
Section 6. Vote Required. At any meeting of a voting group at which a
quorum is present, all elections of directors shall be determined by a plurality
vote and all other matters shall be approved when the votes cast within the
voting group approving the action exceed the votes cast opposing the action,
unless the matter is one which by express provision of statute, the charter or
these bylaws a different vote in required, in which case such express provision
shall govern and control the determination of such matter.
Section 7. Voting. At any meeting of shareholders every shareholder
having the right to vote shall be entitled to vote in person or by proxy. Except
as otherwise provided by law or the charter, each shareholder of record shall be
entitled to one vote for every share of stock standing in his name on the books
of the corporation as of the record date for determining the shareholders
entitled to notice of and to vote at such meeting.
Section 8. Proxies. Every proxy must be executed in writing by the
shareholder or his duly authorized attorney-in-fact. No proxy shall be valid
after the expiration of eleven months from its effective date, as determined by
Tennessee law, unless a longer period is provided for in the proxy. Every proxy
shall be
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revocable at the pleasure of the person executing it, or his legal
representatives or assigns, unless the appointment form conspicuously states it
is irrevocable and the appointment is coupled with an interest.
Section 9. Action by Written Consent. Whenever by any provision of law
the vote of shareholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and vote of
shareholders may be dispensed with if all the shareholders who would have been
entitled to vote upon the action if such meeting were held shall consent in
writing to such corporate action being taken without a meeting, and the holders
of the number of shares that would be necessary to authorize or take such action
at a meeting indicate their vote in favor of such action. The action must be
evidenced by one or more written consents describing the action taken, signed by
each shareholder entitled to vote on the action in one or more counterparts, and
indicating each such shareholder's vote or abstention on the action.
Section 10. List of Shareholders. A list of shareholders as of the
record date, certified by the corporate officer responsible for its preparation
or by the transfer agent, shall be available for inspection by any shareholder
beginning two business days after notice of the meeting is given for which the
list was prepared and continuing through the meeting, at the corporation's
principal office or at a place identified in the meeting notice in the city
where the meeting will be held. The list of shareholders shall be alphabetical
by voting group (and within each voting group by class or series of shares) and
show the address and number of shares held by each shareholder.
ARTICLE III - DIRECTORS
Section 1. Board of Directors. The business and affairs of the
corporation shall be managed by or under the direction of its board of
directors, which may exercise all such powers of the corporation and do all such
lawful acts and things on its behalf as are not, by statute or by the charter or
by these bylaws, directed or required to be exercised or done by the
shareholders.
Section 2. Number, Election and Tenure. The first board of directors
shall consist of two members and thereafter the number of directors constituting
the entire board of directors shall be not less than one nor more than nine as
may from time to time be determined as hereinafter provided. The shareholders,
at any meeting, regular or special, convened for the election of directors,
shall have power to determine or redetermine the number of directors to be
elected within the maximum and minimum limits above specified, and to elect the
number of directors as so determined or redetermined. The directors shall have
power from time to time, when the shareholders as such are not assembled in a
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meeting, to increase or decrease their own number, within the maximum and
minimum limits above specified from the number previously determined, provided
that no such decrease would terminate or shorten the term of office of any
director then in office. If the number of directors be at any time increased by
action of the board of directors, the additional directors may be elected by a
majority of the directors in office at the time of the increase or, if not so
elected prior to the next meeting of shareholders convened for the election of
directors, they shall be elected by the shareholders. Directors shall be elected
at the annual meeting of the shareholders by a plurality of the votes cast in
the election and, except as provided in Section 3 of this Article III, each
director shall be elected to serve until the expiration of the term for which he
was elected and thereafter until his successor has been elected and has
qualified. Unless otherwise provided in the charter, the directors need not be
shareholders and need not be residents of the State of Tennessee.
Section 3. Resignation and Removal. Any director may resign at any time
by written notice to the corporation. The resignation is effective upon delivery
of the notice, unless the notice specifies a later effective date. Unless
otherwise provided in the charter, any director may be removed for cause or
without cause by vote of the shareholders. A director may be removed only if the
number of votes cast to remove him exceeds the number of votes cast not to
remove him.
Section 4. Vacancies. If any vacancy occurs in the board of directors
by reason of the death, resignation, retirement, disqualification or removal
from office of any director with or without cause, or if any new directorships
are created, then either the shareholders or all of the directors then in
office, although less than a quorum, may, by majority vote choose a successor or
successors, or fill the newly created directorship, and the director so chosen
shall serve until the next shareholders' meeting at which directors are elected
and thereafter until their successors shall be duly elected and qualified,
unless sooner displaced from office by resignation, removal or otherwise. If the
vacant office was held by a director elected by a voting group of shareholders,
then only the holders of shares of that voting group are entitled to vote to
fill the vacancy if it is filled by the shareholders.
Section 5. Interested Directors. To the extent and under the
circumstances permitted by law of the State of Tennessee, no contract or other
transaction between the corporation and one or more of its directors, or between
the corporation and any other corporation, firm, association or other entity in
which one or more of its directors are directors or officers, or are financially
interested, shall be either void or voidable for this reason alone, or by reason
that such director or directors are present at the meeting of the board of
directors, or of a committee thereof, which
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authorizes such contract or transaction, or that his or their votes are counted
for such purpose. Except as otherwise provided by statute, common or interested
directors may be counted in determining the presence of a quorum or at a meeting
of the board of directors, or of a committee, which authorizes any such contract
or transaction.
Section 6. Compensation. The board of directors may from time to time
fix the compensation of directors for their services in that capacity. The
compensation of a director may consist of an annual fee or a fee for attendance
at each regular or special meeting of the board of which such director is a
member or a combination of fees of both types; provided, that nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. The board
may also provide for the reimbursement to any director of expenses incurred in
attending any meeting of the board or any committee of the board of which he is
a member.
ARTICLE IV - MEETINGS OF THE BOARD
Section 1. Time and Place. The board of directors of the corporation
may hold meetings, both regular and special, at such time and place, within or
without the State of Tennessee, as shall be determined in accordance with these
bylaws.
Section 2. Annual Meeting. The annual meeting of the board of directors
shall be held for the purposes of electing officers and transacting any other
business which may properly come before the meeting as soon as practicable after
the adjournment of the annual meeting of shareholders, and no notice of such
meeting to the directors elected at such meeting of shareholders shall be
necessary in order to constitute the meeting, provided a quorum shall be
present.
Section 3. Regular Meetings. Regular meetings of the board of directors
may be held without notice for any purpose and at such date, time and place as
shall from time to time be determined in advance by the board.
Section 4. Special Meetings. Special meetings of the board of
directors may be called by the president, and, at the written request of any two
directors, may be called by any officer of the corporation. Written notice of
each special meeting of directors stating the date, time and place, and, if
required by the charter or these bylaws, the purpose or purposes thereof, shall
be given to each director, in the manner provided in Article VI of these bylaws,
at least two days before such meeting. The date, time and place of any special
meeting of directors may also be fixed by a duly executed waiver of notice
thereof.
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Section 5. Quorum. At all meetings of the board of directors a majority
of the entire board then in office shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at the time of the vote if a quorum is present shall be
the act of the board of directors, except as may be otherwise specifically
provided by law, or by the charter or these bylaws. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, until a quorum shall be present.
Notice of any such adjournment shall be given to any directors who were not
present and, unless announced at the meeting, to the other directors.
Section 6. Participation in Meetings through Means of Communication.
Any one or more members of the board of directors or of any committee of the
board may participate in a meeting of the board or any committee by any means of
communication by which all persons participating in the meeting may
simultaneously hear each other during the meeting. Participation by such means
shall constitute presence in person at a meeting.
Section 7. Consents. Whenever by any provision of law or of the charter
the vote of the board of directors or any committee thereof at any meeting
thereof is required or permitted to be taken in connection with any corporate
action, the meeting and the vote of the board of directors or such committee may
be dispensed with, if (a) all of the members of the board of directors or such
committee who would have been entitled to vote upon the action if such meeting
were held, shall consent in writing to such corporate action being taken without
a meeting; and (b) the action shall have received the affirmative vote of the
number of directors that would be necessary to authorize or take such action at
a meeting. The written consent, which may be signed in counterparts, shall
indicate each signing director's vote or abstention on the matter, and shall be
included in the minutes or filed with the corporate records reflecting the
action taken.
ARTICLE V - COMMITTEES OF THE BOARD
Section 1. Designation. The board of directors, by resolution adopted
by a majority of the entire board, or the number of directors required by the
charter or these bylaws, may designate from among its members one or more
committees, including without limitation an executive committee, each consisting
of one or more directors and having such title as the board may consider to be
properly descriptive of its function, each of which, to the extent provided in
such resolution, shall have the authority of the board in the management of the
business and affairs of the corporation. However, no such committee shall:
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(a) authorize distributions, except according to a formula or
method prescribed by the board of directors;
(b) approve or propose to shareholders actions that the Tennessee
Business Corporation Act requires to be approved by
shareholders;
(c) fill vacancies on the board of directors or any of its
committees;
(d) amend the charter pursuant to Section 48-20-102 of the
Tennessee Business Corporation Act;
(e) accept, amend or repeal these bylaws;
(f) approve a plan of merger not requiring shareholder approval;
(g) authorize or approve reacquisition of shares, except according
to a formula or method approved by the board of directors; or
(h) authorize or approve the issuance or sale or contract for sale
of shares, or determine the designation and relative rights,
preferences, and limitations of a class or series of shares,
except that the board of directors may authorize a committee
(or senior executive officer of the corporation) to do so
within limits specifically prescribed by the board of
directors.
A majority of any such committee shall constitute a quorum and may determine its
action, and fix the time and place of its meetings unless the board of directors
shall otherwise provide. The board may designate one or more directors as
alternate members of any such committee who may replace any absent member or
members at any meeting of such committee.
Section 2. Tenure; Reports. Each such committee member shall serve at
the pleasure of the board of directors. Each committee shall keep minutes of its
meetings and report the same to the board, and it shall observe such other
procedures with respect to its meetings as are prescribed in these bylaws or, to
the extent not prescribed herein, as may be prescribed by the board in the
resolution appointing such committee.
ARTICLE VI - NOTICE
Section I. Form. Notice shall be in writing, except that oral notice is
effective if it is reasonable under the circumstances.
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Section 2. Effective Time. Written notice by the corporation to the
shareholders, if in a comprehensible form, is effective when mailed, if mailed
post-paid and correctly addressed to the shareholder's address shown in the
corporation's current record of shareholders. In all other cases, written
notice, if in a comprehensible form, is effective at the earliest of (a) when
received, (b) five days after deposit in the United States mail, if mailed
post-paid and correctly addressed, or (c) on the date shown on the return
receipt, if sent by registered or certified mail, return receipt requested, and
the receipt is signed by or on behalf of the addressee. Oral notice if effective
when communicated, if communicated in a comprehensible manner.
Section 3. Waiver of Notice. Whenever a notice is required to be given
by statute, the charter or these bylaws, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to such notice. In addition, (a) a
shareholder's attendance at a meeting waives: (i) objection to lack of notice or
defective notice of the meeting, unless the shareholder at the beginning of the
meeting or promptly upon his arrival objects to holding the meeting or
transacting business at the meeting; and (ii) objection to the consideration of
a particular matter that is not within the purpose or purposes described in the
meeting notice, unless the shareholder objects to considering the matter when it
is presented; and (b) a director's attendance at or participation in a meeting
waives any required notice to him of the meeting unless the director at the
beginning of the meeting (or promptly upon his arrival) objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting.
ARTICLE VII - OFFICERS
Section 1. Executive Officers. The executive officers of the
corporation shall be a president, one or more vice presidents (any one of whom
may be designated an executive vice president), a secretary and a treasurer, and
such other officers as the board of directors may from time to time designate.
Any two or more offices may be held by the same person, except the offices of
president and secretary.
Section 2. Authority and Duties. All officers, as between themselves
and the corporation, shall have such authority and perform such duties in the
management of the corporation as may be provided in these bylaws, or, to the
extent not so provided, as may be prescribed by the board of directors.
Section 3. Term of Office; Removal. The board of directors shall elect
or appoint the officers of the corporation; provided, however, that the
president shall be empowered to appoint one or more assistant officers. Each
officer or assistant officer
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shall hold office for such term as may be prescribed by the board or the officer
appointing him and until his successor is elected or appointed. Any officer may
be removed with or without cause at any time by the board or the officer
appointing him, and may resign by written notice to the corporation.
Section 4. Compensation. The compensation of all officers of the
corporation shall be fixed by the board of directors or by the president acting
under authority delegated to him by the board of directors.
Section 5. Vacancies. If an office becomes vacant for any reason, the
board of directors shall fill such vacancy. Any officer so appointed or elected
by the board shall serve only until such time as the unexpired term of his
predecessor shall have expired, unless re-elected or reappointed by the board.
Section 6. The President. The president shall be the chief executive
officer of the corporation. He shall preside at all meetings of the
shareholders, and shall have general and active management and control over the
daily operations of the corporation, including the right to hire and discharge
employees other than elective officers, subject however to the control of the
board. He shall perform such other duties as the board may from time to time
prescribe.
Section 7. The Vice Presidents. The vice presidents, in order of their
seniority or in any other order determined by the board of directors shall, in
the absence or disability of the president, perform the duties and exercise the
powers of the president and severally assist the president in the management of
the business of the corporation and the implementation of resolutions of the
board, and in the performance of such other duties as the president may from
time to time prescribe.
Section 8. The Secretary. The secretary shall attend all meetings of
the board and all meetings of the shareholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for any committees of the board when required. He shall
give, or cause to be given, notice of all meetings of the shareholders and
special meetings of the board of directors, and shall perform such other duties
as may be prescribed by the board of directors or president, under whose
supervision he shall act. He shall keep in safe custody the seal of the
corporation and, when authorized by the board, affix the same to any instrument
requiring it and, when so affixed, it shall be attested by his signature or by
the signature of the treasurer or an assistant secretary or assistant treasurer.
He shall keep in safe custody the certificate books and shareholder records and
such other books and records as the board may direct and shall perform all other
duties incident to the office of secretary.
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Section 9. The Assistant Secretaries. The assistant secretaries, if
any, in order of their seniority or in any other order determined by the board
shall, in the absence or disability of the secretary, perform the duties and
exercise the powers of the secretary and shall perform such other duties as the
board of directors or the secretary may from time to time prescribe.
Section 10. The Treasurer. The treasurer shall have the care and
custody of the corporate funds, and other valuable effects, including
securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all monies
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors. The treasurer
shall disburse the funds of the corporation as may be ordered by the board,
taking proper vouchers for such disbursements, and shall render to the president
and directors, at the regular meetings of the board, or whenever they may
require it, an account of all his transactions as treasurer and of the financial
condition of the corporation. If required by the board of directors, the
treasurer shall give the corporation a bond for such term, in such sum and with
such surety or sureties as shall be satisfactory to the board for the faithful
performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 11. The Assistant Treasurers. The assistant treasurers, if any,
in the order of their seniority or in any other order determined by the board,
shall in the absence or disability of the treasurer, perform the duties and
exercise the power of the treasurer and shall perform such other duties as the
board of directors or the treasurer shall prescribe.
ARTICLE VIII - SHARES OF THE CORPORATION; RECORD DATE
Section 1. Certificated Shares. Shares may, but need not be,
represented by certificates. The certificates for shares of the corporation
shall be in such form as shall be determined by the board of directors, and
shall be numbered consecutively and entered in the books of the corporation as
they are issued. Each certificate shall exhibit the name of the corporation and
that it is organized under the laws of the State of Tennessee, the name of the
person to whom issued, and the number and class of shares and the description of
the series, if any, the certificate represents. Each certificate shall be signed
either manually or in facsimile by the president or vice president and the
treasurer or an assistant treasurer or the secretary or an assistant secretary.
In case any one or more of the officers who have signed, or whose facsimile
signature or signatures were placed on any such certificate shall
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cease to be such officer or officers of the corporation, whether because of
death, resignation or otherwise, before such certificate is issued and
delivered, it may nevertheless be issued and delivered by the corporation with
the same effect as if such officer or officers had continued in office.
Section 2. Shares without Certificates. Within a reasonable time after
the issue or transfer of shares without certificates, the corporation shall send
the shareholder a written statement of the information which would have been
required to be exhibited on a certificate, and, if applicable, restrictions on
the transferability of such shares.
Section 3. Lost Certificates. The board of directors may direct that a
new share certificate or certificates be issued in place of any certificate or
certificates theretofore issued by the corporation which have been mutilated or
which are alleged to have been lost, stolen or destroyed, upon presentation of
each such mutilated certificate or upon the making of an affidavit of that fact
by the person claiming the certificate to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the corporation a bond or
other form of indemnity in such sum as it may direct as indemnity against any
claim that may be made against the corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 4. Registration of Transfer. Upon surrender to the corporation
or any transfer agent of the corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the corporation shall issue or cause its transfer agent
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 5. Registered Shareholders. Except as otherwise provided by
law, the corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to vote, to receive
notification, and otherwise to exercise all the rights and powers of an owner,
and shall not be bound to recognize any equitable or legal claim to or interest
in such share or shares on the part of any other person.
Section 6. Record Date. For the purpose of determining the shareholders
entitled to notice of a meeting of shareholders, to demand a special meeting, to
vote or to take any other action, the board of directors may fix, in advance, a
date as the record date for one or more voting groups. Such date shall be not
more than 70 days before the date of any such meeting or action requiring a
determination of shareholders. A determination of
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shareholders entitled to notice of or vote at a shareholders' meeting is
effective for any adjournment of the meeting unless the board of directors fixes
a new record date, which the board of directors must do if the meeting is
adjourned to a date more than 120 days after the date fixed for the original
meeting. If no record date is fixed, the record date for determining the
shareholders entitled to notice of or to vote at a meeting shall be at the close
of business on the date before the first notice is delivered to shareholders,
or, in the case of a distribution to shareholders, the date on which the board
authorizes the distribution.
ARTICLE IX - INDEMNIFICATION
Section 1. Authority to Indemnify. The corporation may indemnify any
person who was or is a party or is threatened to be made a defendant or
respondent to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative and whether formal or
informal, by reason of the fact that he is or was a director of the corporation
or is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against judgments,
settlements, penalties, fines (including an excise tax assessed with respect to
an employee benefit plan), or reasonable expenses (including counsel fees),
incurred with respect to a proceeding if (a) he conducted himself in good faith
and (b) he reasonably believed (i) in the case of conduct in his official
capacity with the corporation, that his conduct was in its best interests; and
(ii) in all other cases, that his conduct was at least not opposed to its best
interests; and (c) with respect to any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful. A director's conduct with respect to
an employee benefit plan for a purpose he reasonably believed to be in the
interests of the participants in and beneficiaries of the plan is conduct that
satisfies the requirement of (b)(ii). The termination of a proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not meet the standard of conduct described in this section.
Section 2. Mandatory Indemnification. The corporation shall indemnify
any director if he was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which he was a party because he is or was a
director of the corporation against reasonable expenses incurred by him in
connection with the proceeding.
Section 3. Other Determination of Rights. No indemnification under
Section 1 hereof (unless ordered by a court) shall be made by the corporation
unless authorized in the specific case
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upon a determination that indemnification of the director is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1 hereof. Such determination shall be made:
(a) by a majority vote of a quorum of directors who are not at that
time parties to the proceeding;
(b) if such a quorum is not obtainable by a majority vote of a
committee duly designated by the board of directors (in which designation
directors who are parties may participate), consisting solely of two or more
directors who are not at that time parties to the proceeding;
(c) by independent special legal counsel (compensated by the
corporation) in a written opinion, selected by the board of directors or
committee in the manner described in subsections (a) or (b); provided however
that if the requirements of neither (a) nor (b) can be met, then by a majority
vote of the full board of directors; or
(d) by the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the proceeding may not be
voted in the determination.
Section 4. Advances of Expenses. Expenses incurred by a director who is
a party or threatened to be made a defendant or respondent to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal, may be paid by
the corporation in advance of the final disposition of such action, suit, or
proceeding as determined and authorized in the manner specified in Section 3 of
this article, upon (a) the receipt of a written affirmation by the director of
his good faith belief that he has met the required standard of conduct; (b) the
receipt of an undertaking by or on behalf of the director, constituting such
director's unlimited general obligation, to repay such amount if it is
ultimately determined that he is not entitled to indemnification by the
corporation; and (c) a determination is made that the facts then known to those
making the determination would not preclude indemnification under this article.
Section 5. Nonexclusiveness; Heirs. The indemnification provided by
this article shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled as a matter of law or under the charter,
these bylaws, any agreement, any insurance purchased by the corporation, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be director, trustee, officer, or employee and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
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Section 6. Purchase of Insurance. The corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, partner, trustee, or employee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this article or of the Tennessee Business Corporation Act.
ARTICLE X - GENERAL PROVISIONS
Section 1. Distributions. Subject to all applicable requirements of law
and to any applicable provisions of the charter, these bylaws and any indenture
or other agreement to which the corporation is a party or by which it is bound,
distributions to the shareholders of the corporation may be declared by the
board of directors at any regular or special meeting, pursuant to law.
Section 2. Reserves. Before payment of any distribution, there may be
set aside out of any funds of the corporation available for distributions such
sum or sums as the board of directors from time to time, in its absolute
discretion, may consider proper as a reserve or reserves to meet contingencies,
or for equalizing distributions, or for repairing or maintaining any property of
the corporation, or for such other purpose as the board may deem conducive to
the interest of the corporation, and the board may modify or abolish any such
reserve in the manner in which it was created.
Section 3. Checks, Notes. Etc. All checks or other orders for payment
of money and notes or other instruments evidencing indebtedness or obligations
of the corporation shall be signed by such officer or officers or such other
person or persons as the board of directors may from time to time designate.
Section 4. Contracts, Etc. Unless otherwise directed by the board of
directors, the president, any vice president, secretary or treasurer shall have
the power and authority to enter into, execute and deliver contracts,
agreements, deeds, bonds, mortgages, tax returns and other instruments on behalf
of the corporation. The president may authorize the execution of any such
documents by such other officers, agents or employees as may be designated by
him from time to time, subject to such limitations and restrictions as the
instrument designating such person may provide.
Section 5. Fiscal Year. The fiscal year of the corporation shall be
fixed and may from time to time be changed by resolution of the board of
directors.
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Section 6. Seal. The corporate seal, if any, shall have inscribed
thereon the name of the corporation, the year of its organization and the words
"Corporate Seal Tennessee". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or otherwise reproduced.
Section 7. Securities of Other Corporations. Unless otherwise ordered
by the board of directors, the president shall have full power and authority on
behalf of the corporation: (a) to endorse, transfer, convert, sell and deliver
any and all bonds, debentures, corporate shares or other securities standing in
the name of or owned by the corporation and to make, execute and deliver, under
the seal of the corporation or otherwise, any and all written instruments
necessary or proper to effectuate the authority hereby conferred; and (b) to
attend and to act and to vote, or in the name of the corporation to execute
proxies to vote, at any meetings of shareholders of any corporation in which the
corporation may hold stock, and at any such meeting shall possess and may
exercise, in person or by proxy, any and all rights, powers and privileges
incident to the ownership of such stock. The board of directors may, by
resolution, from time to time, confer like powers upon any other person or
persons.
Section 8. Amendments. The board of directors may amend or repeal the
corporation's bylaws unless (a) the charter or the Tennessee Business
Corporation Act reserves this power exclusively to the shareholders in whole or
in part; or (b) the shareholders in amending or repealing a particular bylaw
expressly provide that the board of directors may not amend or repeal that
bylaw. The shareholders of the corporation may amend or repeal the corporation's
bylaws even though the bylaws may also be amended or repealed by its board of
directors.
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