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EXHIBIT 3(i)
AMENDED AND RESTATED CHARTER
OF
GREENE COUNTY BANCSHARES, INC.
1. The name of the Corporation is Greene County Bancshares, Inc.
2. The duration of the Corporation is perpetual.
3. The address of the principal office of the Corporation in the State of
Tennessee shall be 110 North Main Street, Greeneville, Greene County, Tennessee.
4. The Corporation is for profit.
5. The purposes for which the Corporation is organized are:
a) To carry on the business of a bank holding company, as defined in
the federal Bank Holding Company Act of 1956, as amended, and to do all
acts and things now and hereinafter permitted to be done by such a company
b) To acquire by purchase, subscription, or otherwise, and to
receive, hold, own, guarantee, sell, assign, exchange, transfer, mortgage,
pledge, or otherwise dispose of or deal in and with any and all
securities, as such term is hereinafter defined, issued or created by any
corporation, firm, association or other entity, public or private, whether
formed under the laws of the United States of America or of any state,
commonwealth, territory, dependency or possession thereof, or of any
foreign country or of any political subdivision, territory, dependency,
possession or municipality thereof, or issued or created by the United
States of America or any state or commonwealth thereof or any foreign
country or by any agency, subdivision, territory, dependency, possession
or municipality of any of the foregoing, and as owner thereof to possess
and exercise all the rights, powers and privileges of ownership, including
the right to execute consents and vote thereon. The term "securities" as
used in this Charter shall mean any and all notes, stocks, treasury
stocks, bonds, debentures, evidences of indebtedness, certificates of
interest or participation in any profit-sharing agreement, collateral
trust certificates, preorganization certificates or subscriptions,
transferable shares, investment contracts, voting trust certificates,
certificates of deposit for a security or, in general, any interests or
instruments commonly known as "securities" or any and all certificates of
interest or participation in, temporary or interim certificates for,
receipts for, guaranties of, or warranties or rights to subscribe to or
purchase, any of the foregoing
c) To make, establish and maintain investments in securities, and to
supervise and manage such investments
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d) To cause to be organized under the laws of the United States of
America or of any state, commonwealth, territory, dependency or possession
thereof, or of any foreign country or of any political subdivision,
territory, dependency, possession or municipality thereof, one or more
corporations, firms, organizations, associations or other entities and to
cause the same to be dissolved, wound up, liquidated, merged or
consolidated
e) To acquire by purchase or exchange, or by transfer to, or by
merger or consolidation with, the Corporation or any corporation, firm,
organization, association, or other entity owned or controlled, directly
or indirectly, by the Corporation, or to otherwise acquire, the whole or
any part of the business, good will, rights, or other assets of any
corporation, firm, organization, association or other entity, to operate
and/or carry on the business of same, and to undertake or assume in
connection therewith the whole or any part of the liabilities and
obligations thereof, to effect any such acquisition in whole or in part by
delivery of cash or other property, including securities issued by the
Corporation, or by any other lawful means
f) To aid by loan, subsidy, guaranty or in any other lawful manner
any corporation, firm, organization, association or other entity of which
any securities are in any manner directly or indirectly held by the
Corporation or in which the Corporation or any such corporation, firm,
organization, association or entity may be or become otherwise interested,
to guarantee the payment of dividends of any stock issued by any such
corporation, firm, organization, association or entity, to guarantee with
or without recourse against any such corporation, firm or organization,
association or entity or to assume the payment of the principal of, or the
interest on, any obligations issued or incurred by such corporation, firm,
organization, association or entity, to do any and all other acts and
things for the enhancement, protection or preservation of any securities
which are in any manner, directly or indirectly held, guaranteed or
assumed by the Corporation, and to do any and all acts and things designed
to accomplish any such purpose
g) To borrow money for any business, object or purpose of the
Corporation from time to time, without limit as to amount, to issue any
kind of evidence of indebtedness, whether or not in connection with
borrowing money, including evidences of indebtedness convertible into
stock of the Corporation, to secure the payment of any evidence of
indebtedness by the creation of any interest in any of the property or
rights of the Corporation, whether at that time owned or thereafter
acquired
h) To render service, assistance, counsel and advice to, and to act
in any capacity as representative or agent (whether managing, operating,
financial, purchasing, selling, advertising or otherwise) of any
corporation, firm, organization, association, or other entity
i) To engage in any lawful business and in connection therewith to
do any lawful act in furtherance of or otherwise necessary or convenient
to such business
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The Corporation shall possess and may exercise all powers and
privileges necessary or convenient to effect any or all of the foregoing
purposes, or to further any or all of the foregoing powers, and the
enumeration herein of any specific purposes or powers shall not be held to
limit or restrict in any manner the exercise by the Corporation of the
general powers of the State of Tennessee conferred upon corporations
formed under the Tennessee General Corporation Act
6. The maximum number of shares which the Corporation shall have the
authority to issue is
a) One Hundred Thirty (130) shares of Organizational Common Stock
with a par value of Ten Dollars ($10.00) per share, which stock shall be
callable by the Corporation at any time at the par value thereof by action
of a majority of the Board of Directors
b) Five Million (5,000,000) shares of Common Stock, with a par value
of Ten Dollars ($10.00) per share.
6A. a) (1) Nominations of persons for election to the Board of Directors
and the proposal of business to be considered at any annual or special
meetings of shareholders may be made by the Board of Directors or by any
shareholder of the Corporation who was a shareholder of record both at the
time of giving of notice provided for in this Section and at the time of
the annual meeting, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this Section.
(2) For nominations or other business to be properly brought
before an annual or special meeting by a shareholder pursuant to paragraph
(a) (1) of this Section, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other
business must otherwise be a proper matter for action by shareholders. To
be timely, a shareholder's notice shall be delivered to the Secretary at
the principal executive offices of the Corporation no less than 40 days
nor more than 60 days prior to the scheduled date of such meeting in which
the matter is to be acted upon; except that if notice or public disclosure
of the meeting is effected fewer than 50 days before the meeting, such
written notice must be delivered to the Secretary of the Corporation not
later than the close of the 10th day following the day on which notice of
the meeting was mailed to shareholders. In no event shall notice or public
announcement of a postponement or adjournment of such meeting to a later
date or time commence a new time period for the giving of a shareholder's
notice as described above. Such shareholder's notice shall set forth (i)
as to each person whom the shareholder proposes to nominate for election
or reelection as a director all information relating to such person that
is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (ii) as
to any other business that the shareholder proposes to bring before the
meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and
any material
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interest in such business of such shareholder and of the beneficial owner,
if any, on whose behalf the proposal is made; and (iii) as to the
shareholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made, (x) the name and address of
such shareholder, as they appear on the Corporation's books, and of such
beneficial owner and (y) the number of each class of shares of the
Corporation which are owned beneficially and of record by such shareholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a) (2) of this Section to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there
is no public announcement by the Corporation naming all of the nominees
for director or specifying the size of the increased Board of Directors at
least 70 days prior to the first anniversary of the preceding year's
annual meeting, a shareholder's notice required by this Section shall also
be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which
such public announcement is first made by the Corporation.
b)(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section. The presiding officer of
the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was
made in accordance with the procedures set forth this Section and, if any
proposed nomination or business is not in compliance with this Section, to
declare that such defective nomination or proposal be disregarded.
(2) For purposes of this Section, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section, a
shareholder shall also comply with all applicable requirements of state
law and of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section. Nothing in this Section
shall be deemed to affect any rights of shareholders to request inclusion
of proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
7. The Corporation will not commence business until consideration of One
Thousand Dollars ($1,000.00) has been received for the issuance of shares
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7A. Number of Directors. The Board of Directors shall consist of not less
than three (3) or more than fifteen (15) members, unless all of the outstanding
stock of the Corporation is owned of record by less than three (3) shareholders,
in which case the number of directors may be less than three (3), but not less
than the number of shareholders of record. The exact number within such maximum
and minimum numbers shall be determined from time to time in accordance with the
relevant provisions of the Corporation's Bylaws.
7B. The directors shall be divided into three classes designated as Class
I, Class II and Class III, each class to be as nearly equal in number as
possible. The term of office of the Class I directors shall expire at the first
annual meeting of the shareholders after the date on which this provision of the
Charter first becomes effective. The term of office of the Class II directors
shall expire at the second annual meeting of shareholders after the date on
which this provision of the Charter first becomes effective. The term of office
of the Class III directors shall expire at the end of the third annual meeting
after this provision of the Charter first becomes effective. Thereafter, at each
annual meeting of shareholders of the Corporation, directors of classes the
terms of which expire at such annual meeting shall be elected for terms of three
years. Notwithstanding any of the foregoing, a director whose term shall expire
at any annual meeting shall continue to serve until his or her successor is
elected and has qualified or until the director's death, retirement, resignation
or removal. Should a vacancy occur or be created, any director elected or
appointed to fill such vacancy shall serve for the full term of the class in
which the vacancy occurs or is created. If the number of directors is changed,
any increase or decrease in the number of directors shall be apportioned among
the classes so as to maintain the number of directors in each class as nearly
equal in number as possible.
8. a) The Board of Directors may take, on written consent without a
meeting, any action which it could take by means of a regularly called and held
meeting, provided that such written consent sets forth the action so taken and
is signed by all of the Directors
b) The Board of Directors shall have the power by majority vote of
the Directors present at a meeting at which a quorum is present to adopt,
amend, or repeal any of the By-Laws of the Corporation, but any By-Law
adopted by the Board may be amended or repealed by affirmative vote of the
holders of a majority of all outstanding shares entitled to vote thereon
c) The Corporation from time to time may provide either directly, or
indirectly through the purchase of insurance, for the indemnification of
directors, officers, employees and agents of the Corporation and of any of
its subsidiaries to the fullest extent permitted by law
d) The shareholders of the Corporation shall not have preemptive
rights
e) The Board of Directors shall have authority to issue bonds,
debentures, notes or other obligations of this Corporation and to fix all
the terms thereof, including without limitation the convertibility or
nonconvertibility thereof
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f) Any part of the authorized capital stock and any bonds,
debentures, notes or other obligations of the Corporation may at any
time, to the extent permitted by law, be issued, optioned or
reserved for sale, sold or disposed of by the Corporation pursuant
to appropriate action by the Board of Directors, to such parties and
upon such terms as the Board shall deem proper
g) The Corporation shall have the right to purchase its own shares
and to pay dividends and make distributions of property to the extent of
unreserved and unrestricted earned or capital surplus available therefor
h) There shall be no cumulative voting by shareholders of any class
or series in the election of directors of the Corporation
i) Special meetings of shareholders may be called at any time, but
only by the board of directors or a committee of the board of directors
that has been duly designated by the board of directors
j) "Control share acquisitions," as defined in Section 48-35-302 of
the Tennessee Code, respecting the shares of the Corporation shall be
governed by and subject to the provisions of the Tennessee Control Share
Acquisition Act, and Sections 48-35-308 and 49-35-309 of the Tennessee
Control Share Acquisition Act shall apply to the Corporation.
9. a) VOTING REQUIREMENT. In addition to any affirmative vote required by
law or any other Section of this Charter, and except as otherwise expressly
provided in Subsection b of this Section 9, any Business Combination (as defined
herein) shall require an affirmative vote of (i) eighty percent (80%) of the
votes entitled to be cast by all holders of Voting Stock (as defined herein)
voting together as a single class at a meeting of shareholders called for such
purpose and in addition thereto, (ii) a majority of the votes entitled to be
cast by all holders of Voting Stock, other than shares of Voting Stock which are
Beneficially Owned (as defined herein) by the Interested Shareholder (as defined
herein), voting together as a single class at a meeting of shareholders called
for such purpose. Such affirmative vote shall be required notwithstanding the
fact that a vote would not otherwise be required, or that a lesser percentage
may be specified by law or in any agreement with any national securities
exchange or otherwise
b) WHEN VOTING REQUIREMENT NOT APPLICABLE. The provisions of
Subsection a of this Section 9 shall not be applicable to any Business
Combination which shall have been approved by a majority of the
Disinterested Directors (as defined herein) or as to which all of the
conditions specified in Subsections b(1), b(2) and b(3) shall have been
met
(1) Fair Prices. The aggregate amount per share of the cash and
the Fair Market Value (as defined herein), as of the Announcement Date (as
defined herein), of the consideration other than cash to be received in
such Business Combination by holders of shares of the respective classes
and series of outstanding capital stock of the Corporation shall be at
least equal to the highest of the following:
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(a) if applicable, the highest per share price (adjusted
for any subsequent stock dividends, splits, combinations,
recapitalization, reclassifications or other such reorganizations)
paid to acquire any shares of such respective classes and series
Beneficially Owned (as defined herein) by the Interested Shareholder
during the Pre-announcement Period (as defined herein).
(b) The highest per share price (adjusted for any
subsequent stock dividends, splits, combinations, recapitalizations,
reclassifications or other such reorganizations) paid to acquire any
shares of such respective classes and series Beneficially Owned by
the Interested Shareholder in the transaction in which the
Interested Shareholder became an Interested Shareholder.
(c) The Fair Market Value per share of such respective
classes and series on the Announcement Date (as defined herein).
(d) The Fair Market Value per share of such respective
classes and series on the Determination Date (as defined herein).
(e) The amount per share of any preferential payment to
which shares of such respective classes and series are entitled in
the event of a liquidation, dissolution or winding up of the
Corporation.
(2) Form of Consideration. The consideration to be received by
holders of each particular class and series of outstanding capital stock
of the Corporation in a Business Combination shall be (i) cash or (ii) if
the majority of the shares of any particular class or series of the
capital stock of the Corporation Beneficially Owned by the Interested
Shareholder shall have been acquired for a consideration in a form other
than cash, the same form of consideration used to acquire the largest
number of shares of such class or series previously acquired and
Beneficially Owned by the Interested Shareholder
(3) Other Requirements. After such Interested Shareholder has
become an Interested Shareholder and prior to the consummation of such
Business Combination, except as approved by a majority of the
Disinterested Directors, there shall have been
(a) No failure to declare and pay in full, when and as
due, any dividends on any class or series of Preferred Stock (as
defined herein) (whether cumulative or not), except on any class or
series of Preferred Stock as to which dividends were in arrears on
the Determination Date;
(b) No reduction in the periodic rate of dividends on
the Corporation's Common Stock below the dividends paid during the
dividend period of the Corporation ended immediately prior to the
Determination Date, except any reduction in dividends necessary to
fairly reflect any stock dividend, split, recapitalization,
reclassification or other such reorganization;
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(c) No failure to increase the periodic rate of any
dividends per share paid on the Corporation's Common Stock to fairly
reflect any stock combination, recapitalization, reclassification or
other such reorganization which has the effect of reducing the
number of outstanding shares of Common Stock;
(d) No increase in the number of shares of the capital
stock of the Corporation Beneficially Owned by the Interested
Shareholder, except (i) as a part of the transaction that resulted
in the Interested Shareholder becoming an Interested Shareholder or
(ii) to consummate the Business Combination in compliance with the
provisions of this Section 9;
(e) No loans, advances, guarantees, pledges or other
financial assistance or tax credits or other tax advantages provided
by the Corporation or its subsidiaries for the benefit, directly or
indirectly, of the Interested Shareholder, whether in anticipation
of or in connection with such Business Combination or otherwise;
(f) No material change in the Corporation's business or
capital structure or the business or capital structure of any
subsidiary of the Corporation effected, directly or indirectly, by
or for the benefit of the Interested Shareholder; and
(g) A proxy or information statement mailed at least
thirty (30) days prior to the completion of the Business Combination
to all the holders of Voting Stock (whether or not shareholder
approval of the Business Combination is required) which proxy or
information statement shall (i) describe the Business Combination,
(ii) include in a prominent place the recommendations, if any, of a
majority of the Disinterested Directors as to the advisability or
inadvisability of the Business Combination, (iii) if deemed
advisable by a majority of the Disinterested Directors, include an
opinion of a reputable investment banking firm or other expert as to
the fairness or unfairness of the terms of the Business Combination
from the point of view of the shareholders other than the Interested
Shareholder (such investment banking firm to be selected by a
majority of the Disinterested Directors and to be paid a reasonable
fee for their services by the Corporation upon receipt of such
opinion), and (iv) be responsive to the pertinent provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, or any laws supplementing or superseding
such Act, rules and regulations, whether or not such proxy or
information statement is required by law to be furnished to any
holder of Voting Stock.
c) DEFINITIONS. As used in this Section 9
(1) "Business Combination" means any of the transactions
described below:
(a) Any merger or consolidation of the
Corporation or any Subsidiary (as defined herein) with (i)
any Interested Shareholder or (ii) any corporation (whether
or not itself an Interested
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Shareholder) which is, or after such merger or consolidation
would be, an Affiliate (as defined herein) of an Interested
Shareholder.
(b) Any sale, lease, exchange, mortgage,
pledge, transfer or other disposition, in one transaction or
a series of transactions, (i) to or with any Interested
Shareholder or any Affiliate of any Interested Shareholder
of any assets (including securities) of the Corporation or
any Subsidiary having an aggregate Fair Market Value of
$1,000,000 or more or (ii) to or with the Corporation or any
Subsidiary of any assets (including securities) of any
Interested Shareholder or any Affiliate of an Interested
Shareholder having an aggregate Fair Market Value of
$1,000,000 or more.
(c) The issuance or transfer by the
Corporation or any Subsidiary in one transaction or a series
of transactions, of any securities of the Corporation or any
Subsidiary to any Interested Shareholder or an Affiliate of
any Interested Shareholder in exchange for cash, securities
or other property, or a combination thereof, having an
aggregate Fair Market Value of $1,000,000 or more.
(d) The adoption of any plan or proposal for
the liquidation or dissolution of the Corporation proposed
by or on behalf of an Interested Shareholder or any
Affiliate of any Interested Shareholder.
(e) Any reclassification of securities
(including any reverse stock split) or any recapitalization
or reorganization of the Corporation, or any merger or
consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with
or into or otherwise involving an Interested Shareholder)
which has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of any
class of equity securities of the Corporation or any
Subsidiary (including securities convertible into equity
securities) which is directly or indirectly owned by any
Interested Shareholder or any Affiliate of any Interested
Shareholder.
(f) Any other transaction or series of
transactions that is similar in purpose or effect to those
referred to in (a) through (e) of this Subsection c(1).
(2) "Voting Stock" means the Common Stock and those classes of
Preferred Stock which would then be entitled to vote in the election of
directors.
(3) "Beneficially Owned," with respect to any securities, means
the right or power (directly or indirectly through any contract,
understanding or relationship) (i) to vote or direct the voting of such
securities, (ii) to dispose or direct the disposition of such securities,
or (iii) to acquire such voting or investment power, whether such right or
power is exercisable immediately or only after the passage of time.
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(4) "Interested Shareholder" means any Person (as defined herein)
or member of a Group of Persons (as defined herein) who or which, together
with any Affiliate or Associate (as defined herein) of such Person or
member, Beneficially Owns (within the meaning of Subsection c(3) above)
ten percent or more of the outstanding Voting Stock of the Corporation.
(5) "Person" means any individual, firm, corporation,
partnership, joint venture or other entity.
(6) "Group of Persons" means any two or more Persons who or which
are acting or have agreed to act together for the purpose of acquiring,
holding, voting or disposing of any Voting Stock of the Corporation.
(7) "Disinterested Director" means any member of the Board of
Directors of the Corporation who is not an Interested Shareholder or an
Affiliate or Associate of an Interested Shareholder and who (i) was a
member of the Board of Directors prior to the time the Interested
Shareholder became an Interested Shareholder or (ii) was elected or
recommended to succeed a Disinterested Director by a majority of the
Disinterested Directors then on the Board of Directors.
(8) "Fair Market Value" means (i) in the case of stock, the
highest sale price during the 30-day period immediately preceding the date
in question of a share of such stock on the NASDAQ National Market System,
or if such stock is listed on an exchange registered under the Securities
Exchange Act of 1934, on the principal exchange on which such stock is
listed, or if no such quotations are available, the fair market value on
the date in question of a share of such stock as determined by a majority
of the Disinterested Directors in good faith, and (ii) in the case of
property other than cash or stock, the fair market value of such property
on the date in question as determined by a majority of the Disinterested
Directors in good faith.
(9) "Pre-announcement Period" means the two-year period ending at
11:59 P.M., Greeneville time, on the Announcement Date.
(10) "Announcement Date" means the date of the first public
announcement of the proposal of the Business Combination.
(11) "Determination Date" means the date on which the Interested
Shareholder becomes an Interested Shareholder.
(12) "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by the
Corporation.
(13) "Affiliate," used to indicate a relationship with a
specified Person, means another Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is
under common control with, such specified Person.
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(14) "Associate," used to indicate a relationship with a
specified Person, means (i) any corporation or other similar organization
(other than the Corporation or a Subsidiary) of which such specified
Person is an officer or partner or is, directly or indirectly, the
beneficial owner of ten percent or more of any class of equity securities,
(ii) any trust or estate in which such specified Person has a substantial
beneficial interest or as to which such specified person serves as trustee
or in a similar fiduciary capacity, (iii) any relative or spouse of such
specified Person, or any relative of such spouse who has the same home as
such person and (iv) any other Person or Affiliate of a Person who
directly or indirectly has received more than $50,000 for services or
property from the specified Person or from an Affiliate of the specified
Person during any year of the preceding five calendar years or who can
reasonably be expected to receive more than such amount in the current
calendar year under any existing agreement or agreements or understandings
with such specified Person or an Affiliate of such specified Person.
(15) "Preferred Stock" means all classes or series of the
Corporation's capital stock other than Common Stock.
d) POWER OF DISINTERESTED DIRECTORS. A majority of the Disinterested
Directors of the Corporation shall have the power and duty to determine,
on the basis of information known to them after reasonable inquiry, all
facts necessary to determine compliance with this Section 9, including
without limitation (i) whether a Person is an Interested Shareholder, (ii)
the number of shares of Voting Stock beneficially owned by any Person,
(iii) whether a Person is an Affiliate or Associate of another, (iv)
whether the requirements of Section b have been met with respect to any
Business Combination, and (v) whether the assets which are the subject of
any Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any Subsidiary in
any Business Combination has, an aggregate Fair Market Value of $1,000,000
or more. The good faith determination of a majority of the Disinterested
Directors on such matters shall be conclusive and binding for all purposes
of this Section 9
e) NO EFFECT ON PREFERENTIAL RIGHTS. The provisions of this Section
9 shall not affect in any way the amount or form of consideration that any
holder of shares of the Corporation's capital stock is entitled to receive
upon the liquidation or dissolution of the Corporation or any other
preferential rights of the holders of such shares
f) NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED SHAREHOLDERS.
Nothing contained in this Section 9 shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law
g) AMENDMENT OR REPEAL. In addition to any affirmative vote required
by law, an affirmative vote at least equal to the vote of eighty percent
(80%) of the votes entitled to be cast by all holders of Voting Stock
voting together as a single class, and in addition thereto (ii) a majority
of the votes entitled to be cast by all holders of Voting Stock, other
than shares of Voting Stock which are Beneficially Owned by an Interested
Shareholder, voting together as a single class, shall be required to amend
or repeal, or adopt any charter provisions inconsistent with, this Section
9. Such affirmative vote shall
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be required notwithstanding the fact that no vote may be required, or
that a lesser percentage may be specified by law or in any agreement with
any national securities exchange or otherwise
10. Indemnification
a) RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he
or she is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any
other capacity while serving as a director or officer shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by
Tennessee law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) seasonably
incurred or suffered by such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to be a
director or officer and shall inure to the benefit of the indemnitee's
heirs, executors and administrators, provided, however, that, except as
provided in Section b hereof with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation.
The right to indemnification conferred in this Article shall be a contract
right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expense"), provided, however,
that if the Tennessee law requires, an advancement of expense incurred by
an indemnitee in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall
be made only upon the following:
(i) delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a
"final adjudication"), that such indemnitee is not entitled
to be indemnified for such expenses under this Section or
otherwise
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(ii) delivery to the Corporation by the indemnitee
of a written affirmation by the indemnitee of his good faith
belief that he has (a) conducted himself in good faith, and
(b) he reasonably believed in the case of his official
capacity with the Corporation, that his conduct was in its
best interest, (c) he reasonably believed in all other
cases, that his conduct was at least not opposed to its best
interest and (d) in the case of any criminal proceeding, he
had no reasonable cause to believe his conduct was unlawful
(iii) a determination is made on the facts then
known to those making the determination would not preclude
indemnification under Tennessee law
b) Rights of Indemnitee to Bring Suit
If a claim under Section a of this Article is not paid in full
by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall
be twenty days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim.
If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending
such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by
indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any such suit by the
Corporation to recover such expenses upon a final adjudication that,
the indemnitee has not met the applicable standard of conduct set
forth in the Tennessee law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its
shareholders) to have made a determination prior to the commencement
of such suit that indemnification of the indemnitee is proper in the
circumstances because the indemnitee has met the applicable standard
of conduct set forth in the Tennessee law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) that the indemnitee
has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In
any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by
the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of providing that the
indemnitee is not entitled to be indemnified, or to such advancement
of expenses, under this Article or otherwise shall be on the
Corporation.
c) Non-Exclusivity of Rights
The rights to indemnification and to the advancement of
expenses conferred in this Article shall not be exclusive of any
other right which any person
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may have or hereafter acquire under any statute, the Corporation's
Amended and Restated Charter, by-law, agreement, vote of
Shareholders or Disinterested Directors or otherwise.
d) Indemnification of Employees and Agents of the Corporation
The corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and
to the advancement of expenses to any employee or agent of the
Corporation to the fullest extent of the provisions of this Section
with respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
11. Elimination of Liability in Certain Circumstances
A director of this corporation shall not be personally liable
to the Corporation or its Shareholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or
its Shareholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law;
(iii) or under TCA 48-18-304. No provision will eliminate or limit
the liability of a director for any act or omission occurring prior
to the date when such provisions become effective.
ATTEST
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Davis Stroud
Corporate Secretary
Dated:
This restated charter was duly adopted by Davis Stroud on June 8, 1998.
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