EXHIBIT 3(ii)
FIRST MCMINNVILLE CORPORATION
AMENDED AND RESTATED BYLAWS
FIRST AMENDED AND RESTATED BYLAWS
OF
FIRST MCMINNVILLE CORPORATION
A TENNESSEE CORPORATION
MARCH 11, 2003
FIRST AMENDED AND RESTATED BYLAWS
OF
FIRST MCMINNVILLE CORPORATION
ORIGINALLY ADOPTED MARCH 11, 2003
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Time of Meetings.
An annual meeting of the stockholders shall be held each year within
one hundred eighty days after the close of the fiscal year of the corporation
for the purpose of electing directors and conducting such other proper business
as may come before the meeting. The date and time of the annual meeting shall be
determined by the chief executive officer in consultation with the board of
directors of the corporation and, if the chief executive officer does not act,
the board of directors shall determine the date and time of such meeting.
Special meetings of stockholders may be held at such time as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
Special meetings of the stockholders may be called only as expressly set forth
in the corporation's Charter. Notice of special meetings of the stockholders,
except as set forth in the Charter and as hereinafter provided, shall comply
fully with each and all requirements as to notice of annual meetings, but notice
of special meetings may be sent by posting the same in the United States mail
not less than ten days nor more than sixty days before the date of the meeting
or delivered personally upon execution of a written receipt thereof not less
than ten days nor more than sixty days before the date of the meeting. At the
annual meeting, stockholders shall elect directors and transact such other
business as properly may be brought before the meeting pursuant to Section 10 of
this Article I. Nominations of directors may not be made from the floor and may
be made by any person other than the Board of Directors only as set forth in
these bylaws. No business shall be conducted at a special meeting unless the
same is specified in reasonable detail in the notice thereof.
Section 2. Place of Meetings.
The board of directors may designate any place, either within or
without the State of Tennessee, as the place of meeting for any annual meeting
or for any special meeting called by the board of directors. If no designation
is made, or if a special meeting be otherwise called, the place of meeting shall
be the principal executive office of the corporation.
Section 3. Notice.
Whenever stockholders are required or permitted to take action at a
meeting, written or printed notice stating the place, date, time, and, in the
case of special meetings, the purpose or purposes, of such meeting, shall be
sent to each stockholder entitled to vote at such meeting not less than ten nor
more than sixty days before the date of the meeting, or as provided in Section 1
of this Article I with respect to written receipts. All such notices shall be
delivered, either personally or by mail, by or at the direction of the board of
directors, the chairperson of the board, the chief executive officer, the
president, the secretary, and/or any assistant secretary. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
postage prepaid, addressed to the stockholder at his, her or its address as the
same appears on the records of the corporation. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends for the express purpose of objecting at the beginning of the
meeting to the transaction of any item(s) of business (or of any business)
because such person asserts that the meeting is not lawfully called or convened.
Such notice shall be in writing, shall specify in reasonable detail the
objector's objections to the meeting, and shall be delivered to the chief
executive officer (or, if such officer is not present, to the chairperson of the
annual or special meeting) immediately upon the objector's arrival at the
meeting. If the objector otherwise votes or participates in any of the business
of the meeting, or if the objector delays in objecting to the meeting after her
or his arrival, then her or his objection shall be deemed to be waived.
Section 4. Stockholders List.
The officer having charge of the stock ledger of the corporation shall
make, at least ten days before every meeting of the stockholders, a complete
list of the stockholders entitled to vote at such meeting arranged in
alphabetical order, showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any lawful and proper purpose germane to
the meeting, during ordinary business hours, beginning two (2) business days
after the notice of an annual or special meeting is sent or given and continuing
through the time of the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present, except to the extent that applicable law may require greater rights.
Section 5. Quorum.
The holders of a majority of the outstanding shares of capital stock
entitled to vote (based on voting power), present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders, except as
otherwise provided by statute or by the Charter. If a quorum is not present, the
chairperson of the meeting and/or the holders of a majority of the shares
present in person or represented by proxy at the meeting, and entitled to vote
at the meeting, may adjourn the meeting to another time and/or place. When a
specified item of business requires a vote by a class or series (if the
corporation shall then
have outstanding shares of more than one class or series) voting as a class, the
holders of a majority of the shares of such class or series, present in person
or represented by proxy, shall constitute a quorum (as to such class or series)
for the transaction of such item of business.
Section 6. Adjourned Meetings.
When a meeting is adjourned to another time and place, notice need not
be given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. Except as otherwise required by
law, (1) at the adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting; and (2) if the
adjournment is for more than four months, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 7. Vote Required.
When a quorum is present, the affirmative vote of the majority of
shares present in person or represented by proxy at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders, unless (i) by
express provisions of an applicable law or of the Charter a different vote is
required, in which case such express provision shall govern and control the
decision of such question, or (ii) the subject matter is the election of
directors, in which case Section 2 of Article II hereof shall govern and control
the approval of such subject matter.
Section 8. Voting Rights.
Except as otherwise provided by the Tennessee Business Corporation Act
or by the Charter of the corporation or any amendments thereto, and also subject
to Sections 13 and 14 of this Article I, every stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by proxy for
each share of common stock held by such stockholder. Unless otherwise restricted
by the Charter, any action required or permitted to be taken at any meeting of
the stockholders may be taken without a meeting if all stockholders expressly
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 9. Proxies.
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him, her, or it by proxy, but no
such proxy shall be voted or acted upon after eleven months from its date,
unless the proxy expressly provides for a longer period. All proxies must be in
writing, executed by the holder of record of the shares of stock referred to
therein, or by the due and lawful attorney-in-fact, personal representative,
trustee or guardian of such record holder, supported by a certified copy of the
appointment, letters or other paper relied on as the authority of such
attorney-in-fact, personal representative, trustee or guardian, to act for the
stockholder of record and received by the chief executive officer or by the
secretary
(or any assistant secretary) prior to the meeting governed therein. Proxies may
run to and empower not more than three (3) people, either jointly or severally,
to exercise the same; and the holder of record of any stock who executes a proxy
to vote same at any meeting shall be bound and estopped by any action taken at
such meetings and adjournments of any meetings and whatever transpires thereat
to the same extent as if such stockholder were present and voting in person.
A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power consistent with the
requirements of T.C.A. Section 48-17-203 (and any successor statute(s)). A proxy
may be made irrevocable regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the corporation
generally. Any proxy is suspended when the person executing the proxy is present
at a meeting of stockholders, affirmatively revokes her or his proxy at any time
before it is voted, and elects to vote, except that when such proxy is coupled
with an interest and the fact of the interest conspicuously appears on the face
of the proxy, the agent named in the proxy shall have all voting and other
rights referred to in the proxy, notwithstanding the presence of the person
executing the proxy or any attempted revocation. At each meeting of the
stockholders, and before any voting commences, all proxies filed at or before
the meeting shall be submitted to and examined by the chief executive officer or
the chief executive officer's designee (and, if no designee is named, then by
the chairperson of the meeting and, if such person is not present, then the
secretary or a person designated by the secretary), and no shares may be
represented or voted under a proxy that has been found to be invalid or
irregular.
Section 10. Business Brought Before a Meeting.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the board
of directors, (b) brought before the meeting by or at the direction of the board
of directors and/or the chief executive officer, or (c) otherwise properly
brought before the meeting by a stockholder. For business to be properly brought
before an annual meeting by a stockholder, the stockholder must have delivered
timely notice thereof in writing to the chief executive officer of the
corporation. To be timely, unless otherwise provided pursuant to applicable law
(including, without limitation, federal securities laws), a stockholder's notice
must be delivered to or mailed and received by the chief executive officer or
the corporate secretary at the principal executive offices of the corporation,
not less than sixty days nor more than ninety days prior to the meeting;
provided, however, that in the event that less than sixty days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth day following the date on which such notice of
the date of the annual meeting was mailed or such public disclosure was made. A
stockholder's notice to the chief executive officer shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting, (b)
the name and address, as they appear on the corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of the
corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business; and if there
are one or more nominees to be elected Director(s), then all of the information
regarding such stockholder's name and address and the number and class of all
shares of each class of stock of the Corporation beneficially owned by such
stockholder, including all of the information specified in Section 5.2 of
Article II hereof. As used herein, shares "beneficially owned" shall mean all
shares as to which such person, together with such person's affiliates and
associates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), may be deemed to beneficially own pursuant to
Rules 13d-3 and 13d-5 under the Exchange Act, as well as all shares as to which
such person, together with such person's affiliates and associates, has the
right to become the beneficial owner pursuant to any agreement or understanding,
or upon the exercise of warrants, options or rights to convert or exchange
(whether such rights are exercisable immediately or only after the passage of
time or the occurrence of conditions). Notwithstanding anything in the bylaws to
the contrary, no business shall be conducted at an annual or special meeting
except in accordance with the procedures set forth in this Section 10. The
person presiding at the meeting, in addition to making any other determinations
that may be appropriate to the conduct of the meeting, shall determine whether
such notice has been duly given and shall direct that proposals and nominees not
be considered if such notice has not been given. The presiding officer of an
annual or special meeting shall, if the facts warrant, determine and declare to
the meeting that business was not properly brought before the meeting in
accordance with the provisions of this Section 10; and if she or he should so
determine, she or he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
Section 11. Inspectors of Election; Opening and Closing the Polls.
The chief executive officer or the board of directors by resolution may
(but need not) appoint one or more inspectors, which inspector or inspectors may
include individuals who serve the corporation in other capacities, including,
without limitation, as officers, employees, agents or representatives, to act at
the meetings of stockholders and make a written report thereof. If inspectors
are used, then one or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the chairperson
of the meeting shall appoint one or more inspectors to act at the meeting. Upon
request by the chief executive officer or the board of directors, each inspector
shall, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have all
duties prescribed by law, by Charter or bylaw, and by board resolution. The use
of inspectors at any meeting or meetings shall not be deemed or interpreted to
mean that inspectors need be used in any future meetings.
At the election of the chief executive officer or the board of
directors, the chairperson of the meeting shall fix and announce at the meeting
the date and time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting.
Section 12. Conduct of Meetings.
The chief executive officer of the corporation shall be the chairperson
of the meetings of stockholders, and the secretary of the board of directors (or
of the corporation) shall serve as the secretary of such meetings, unless the
majority of the shares in attendance otherwise determines on motion duly made
and seconded. Subject to the change by the board of directors, the chief
executive officer is authorized to adopt such rules for the conduct of
stockholders meetings as the chief executive officer and/or the board shall deem
appropriate. The chairperson of the meeting may (but shall not be required to)
rely on any published rules of parliamentary procedure as she or he shall deem
proper.
Section 13. Fixing a Record Date for Stockholder Meetings.
In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the board of directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the board of directors, and which record date shall not be more than sixty
nor less than ten days before the date of such meeting. If no record date is
fixed by the board of directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be the close
of business on the next business day preceding the day on which notice is first
given. Except as otherwise required by law or the Charter, a determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the board of directors may fix a new record date for the adjourned meeting
and shall fix a new record date for the adjourned meeting if required by law.
Section 14. Fixing a Record Date for Other Purposes.
In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment or any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purposes of any other lawful
action, the board of directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the business day next
preceding the day on which the board of directors adopts the resolution relating
thereto.
ARTICLE II
DIRECTORS
Section 1. Management by the Board of Directors; General Powers.
The business and affairs of the corporation shall be managed by or
under the direction of the board of directors. In addition to such powers as are
herein and in the Charter expressly conferred
upon it, the board of directors shall have and may exercise all the powers of
the corporation, subject to the provisions of the laws of the State of
Tennessee, the Charter and these bylaws.
Without limiting the foregoing list of general powers, and without
limiting the powers prescribed by law or inherent in the board of directors, the
board of directors shall have, inter alia, the following powers:
- From time to time, to make and change the rules and
regulations, not inconsistent with these bylaws, for the
management of the corporation's business affairs.
- To purchase, lease or otherwise acquire for the corporation,
in the corporate name, any property, property rights or
privileges at such price or consideration, and to sell,
convey, rent out, lease, assign, sublease, or otherwise
dispose of any such, or authorize any purchase, sale
conveyance, lease, assignment or sublease, all on such terms
and conditions as they think fit.
- At their discretion, to pay for any property or rights
acquired by the corporation, either wholly or partly in money,
or any credit, stock, notes, bonds, debentures or other
securities of the corporation or otherwise.
- To create debts and make and issue notes, mortgages, bonds,
deeds of trust, trust agreements and negotiable or
transferable instruments and securities secured by mortgage or
otherwise and to do every other act and thing necessary to
effectuate the same.
- To fix the price, or value, at which any unissued capital
stock of the corporation may be issued at any time, or from
time to time, to declare dividends, both in money and in
stock, and to purchase or authorize the purchase of stock of
the company for retirement or for holding in the treasury.
- To elect, appoint and employ, at their discretion, and remove
or suspend, at their discretion, any and all officers, agents
or servants permanently or temporarily, as the deem fit, and
to determine their duties, from time to time, to change their
salaries or emoluments, and to require security in such amount
as they think fit.
- To confer by resolution upon any elected or appointed officer
or employee of the corporation the power to appoint, employ,
remove or suspend any subordinate officers, agents, employees
or servants.
- To appoint any person or corporation to accept and hold in
trust, bailment, or as agent, for the corporation, any
property belonging to the corporation or in which it is
interested, or for any other purpose, and to execute and do
all such duties and things as may be requisite in relation to
such trust, bailment or agency.
- To designate a depository, or depositories, for the
corporation, at any time and from time to time, and determine
who shall be authorized, on the corporation's behalf, to sign
bills, notes, receipts, acceptances, endorsements, checks,
releases, deeds, mortgages, deeds of trust, contracts and
other instruments.
- To designate, by a resolution adopted by a majority of the
entire board, an executive committees, consisting of three (3)
or more directors, and other committees, consisting of two (2)
or more directors or other persons, and to delegate to such
committee or committees all such authority of the board that
it may deem desirable.
- To delegate specific powers of the board of directors to any
standing or special committee, or to any officer or agents, or
to appoint any person to be the agent of the corporation, with
such powers (including the power to sub-delegate) and upon
such terms as the board may deem appropriate.
- To fix the salaries of all officers of the corporation, or to
delegate this to a salary committee, and fix other
compensation.
Section 2. Number, Election and Term of Office.
The number of directors which shall constitute the first board shall
not be fewer than five (5). Thereafter, the number of directors shall be
established from time to time by resolution of the board. However, the number of
directors shall not be fewer than five (5) nor more than twenty-five (25). The
directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote in the
election of directors; provided that, whenever the holders of any class or
series of capital stock of the corporation are entitled to elect one or more
directors pursuant to the provisions of the Charter of the corporation
(including, but not limited to, for purposes of these bylaws, pursuant to any
duly authorized certificate of designation or comparable instrument), such
directors shall be elected by a plurality of the votes of such class or series
present in person or represented by proxy at the meeting and entitled to vote in
the election of such directors. Directors shall be elected in this manner at the
annual meeting of the stockholders, except as provided in Section 4 of this
Article II.
The Board of Directors shall be divided into three (3) classes, as
nearly equal in number as possible, with the term of office of one class
expiring each year. At the initial, organizational meeting of shareholders (the
"Initial Meeting"), directors of the first class shall be elected to hold office
for a term of one (1) year, and upon expiration of such one-year term and
thereafter, such class of directors shall be eligible to hold office for terms
of three (3) years. At the Initial Meeting of shareholders, directors of the
second class shall be elected to hold office for a term of two (2) years, and
upon the expiration of such two-year term and thereafter, such class of
directors shall be eligible to hold office for terms of three (3) years. At the
Initial Meeting of shareholders, directors of the third class shall be elected
to hold office for a term of three (3) years, and thereafter such class of
directors shall continue to be eligible to hold office for terms of three (3)
years. Newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the Board for any reason, including the
removal of directors, shall be filled by the Board of Directors (and only by the
Board of Directors) acting by a majority of directors then in office, although
less than a quorum, and any directors so chosen shall hold office until the next
election of the class for which the director shall have been chosen and until a
successor shall be elected and qualified.
Each director elected shall hold office until the annual meeting of
stockholders corresponding with the expiration of her or his term of office and
(1) until a successor is duly elected and qualified or (2) until his or her
earlier death, resignation or removal as provided in the Charter.
The mandatory retirement age for directors (other than the original
directors) of the corporation shall be the first day of the month following
their seventy-fifth (75th) birthday. The board of directors, at its discretion,
may name retired directors to the classification of honorary director, who could
attend meetings, have no vote or liability for serving, and receive one-half the
compensation of the other directors.
Section 3. Removal and Resignation. Any director may be removed at any
time for cause as set forth in the Charter.
Section 4. Vacancies.
Vacancies and newly created directorships resulting from any increase
in the total number of directors established by the board pursuant to Section 2
of this Article II may be filled by the affirmative vote of the majority of the
total number of directors then in office, though less than a quorum, or by a
sole remaining director. Any director elected to fill a vacancy resulting from
an increase in the number of directors shall hold office for a term that shall
coincide with the remaining term of the class of directors to which she or he is
elected. A director elected to fill a vacancy not resulting from an increase in
the number of directors shall have the same remaining term as that of her or his
predecessor. Each director so chosen shall hold office until the next annual
meeting and a successor is duly elected and qualified or until his or her
earlier death, resignation or removal as herein provided. Whenever holders of
any class or classes of stock or series thereof are entitled by the provisions
of the Charter to elect one or more directors, vacancies and newly created
directorships of such class or classes or series may only be filled by the
affirmative vote of the majority of the total number of directors elected by
such class or classes or series thereof then in office, or by a sole remaining
director so elected.
Section 5. Nominations.
5.1 Only persons who are nominated in accordance with the
procedures set forth in these bylaws shall be eligible to
serve as directors. Nominations of persons for election to the
board of directors of the corporation may be made at a meeting
of stockholders (i) by or at the direction of the board of
directors or (ii) by any stockholder of the corporation who
was a stockholder of record at the time of giving of notice
provided for in this bylaw, who is entitled to vote for the
election of directors at the meeting and who shall have
complied with the notice procedures set forth below in Section
5.2.
5.2 In order for a stockholder to nominate a person for election
to the board of directors of the corporation at a meeting of
stockholders, such stockholder shall have delivered timely
notice of such stockholder's intent to make such nomination in
writing to the chief executive officer of the corporation. To
be timely, unless otherwise provided by applicable law
(including, without limitation, federal securities laws), a
stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the corporation
(i) in the case of an annual meeting, not less than sixty nor
more than ninety days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is changed by
more than thirty days from such anniversary date, notice by
the stockholder to be timely must be so received not later
than the close of business on the tenth day following the
earlier of the day on which notice of the date of the meeting
was mailed or public disclosure of the meeting was made, and
(ii) in the case of a special meeting at which directors are
to be elected, not later than the close of business on the
tenth day following the earlier of the day on which notice of
the date of the meeting was mailed or public disclosure of the
meeting was made. Such stockholder's notice shall set forth
(i) as to each person whom the stockholder proposes to
nominate for
election as a director at such meeting 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 the stockholder giving
the notice (A) the name and address, as they appear on the
corporation's books, of such stockholder and (B) the class and
number of shares of the corporation which are beneficially
owned by such stockholder and also which are owned of record
by such stockholder; and (iii) as to the beneficial owner, if
any, on whose behalf the nomination is made, (A) the name and
address of such person and (B) the class and number of shares
of the corporation which are beneficially owned by such
person. In addition, the nominating stockholder shall be
responsible for providing to the corporation all of the
information as to each nominee as is required by paragraphs
(a), (d), (e) and (f) of Item 401 of Regulation S-K adopted by
the Securities and Exchange Commission (or the corresponding
provisions of any regulation subsequently adopted by the
Securities and Exchange Commission applicable to the
corporation), together with each such person's signed consent
to serve as a director of the corporation if elected. At the
request of the chief executive officer and/or the board of
directors, any person nominated by the board of directors for
election as a director shall furnish to the chief executive
officer of the corporation that information required to be set
forth in a stockholder's notice of nomination which pertains
to the nominee. It is the express intention of these bylaws
that the foregoing information be provided to the board of
directors and the stockholders so that adequate disclosure can
be made to the stockholders. Accordingly, such information
shall be provided notwithstanding that the corporation is not
at the time of the adoption of these bylaws, or at any other
time, subject either to the Exchange Act or to the rules and
regulations of the Securities and Exchange Commission.
5.3 The chairperson of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by this
Section 5, and if she or he should so determine, she or he
shall so declare to the meeting and the defective nomination
shall be disregarded. A stockholder seeking to nominate a
person to serve as a director must also comply with all
applicable requirements of the Exchange Act, together with the
rules and regulations thereunder, to the extent applicable to
the corporation, with respect to the matters set forth in this
Section 5.
Section 6. Annual Meetings.
The annual meeting of the board of directors shall be held without
other notice than this bylaw immediately after, and at the same place as, the
annual meeting of stockholders. No notice of a meeting need set forth the object
or purpose of the meeting.
Section 7. Other Meetings and Notice.
Regular meetings, other than the annual meeting, of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by resolution of the board. Special meetings of
the board of directors may be called by the chairperson of the board, by the
chief executive officer, by the president and, upon the written request of at
least a majority of the directors then in office, the secretary (or any
assistant secretary) of the corporation, on reasonable advance notice to each
director, either personally, by telephone, by mail, or by telegraph. Notice of
at least twenty-four hours shall be reasonable advance notice. (Shorter notice
may be deemed reasonable if, in the good faith judgment of the persons(s)
calling the meeting, the circumstances then and there prevailing require a
shorter notice.) No notice of a meeting need set forth the object or purpose of
the meeting.
Section 8. Presiding Officer, Etc.
The board of directors may elect, by the affirmative vote of the
majority of the total number of directors then in office, a chairperson of the
board, who shall, in the absence of the chief executive officer, preside at all
meetings of the stockholders and board of directors at which he or she is
present. If the board shall not elect a chairperson, or if the chief executive
officer and the chairperson be for whatever reason or cause absent, then the
president shall preside and shall be treated for all purposes as the chairperson
until such time as (a) a chairperson is elected by the board or (b) until the
chief executive officer and the chairperson shall return. If the chief executive
officer, the chairperson, and the president are absent from a stockholders
meeting, a majority of the directors present at such meeting shall elect one of
their members to so preside. A majority of the total number of directors then in
office shall constitute a quorum for the transaction of business. Unless by
express provision of an applicable law, the corporation's Charter or these
bylaws a different vote is required, the vote of a majority of directors present
at a meeting at which a quorum is present shall be the act of the board of
directors. 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, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. Conduct of Meetings.
The chief executive officer of the corporation shall be the chairperson
of the meetings of stockholders, and the secretary of the corporation shall
serve as the secretary of such meetings, unless the majority of the shares in
attendance otherwise determines on motion duly made and seconded. The chief
executive officer (subject to change by the board of directors) is authorized to
adopt such rules for the conduct of stockholders meetings as the chief executive
officer and/or the board shall deem appropriate. The chairperson of the meeting
may (but shall not be required to) rely on any published rules of parliamentary
procedure as she or he shall deem proper.
Section 10. Committees.
The chief executive officer shall nominate committees for the
consideration of the board of directors. The board of directors may then, by
resolution passed by the majority of the total number of directors then in
office, ratify, restructure, or otherwise change any one or more committees,
each committee to consist of one or more of the directors of the corporation,
which to the extent provided in such resolution or these bylaws shall have, and
may exercise, the powers of the board of directors in the management and affairs
of the corporation, except as otherwise limited by law. The board of directors
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
Such committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the board of directors. Each
committee shall keep regular minutes of its meetings and report the same to the
board of directors when requested by the board of directors or by the chief
executive officer.
Section 11. Committee Rules.
Each committee of the board of directors may fix its own rules of
procedure and shall hold its meetings as provided by such rules, except as may
otherwise be provided by a resolution of the board of directors designating such
committee. Unless otherwise provided in such a resolution, the presence of at
least a majority of the members of the committee shall be necessary to
constitute a quorum. Unless otherwise provided in such a resolution, in the
event that a member and that member's alternate, if alternates are designated by
the board of directors as provided in Section 10 of this Article II, of such
committee is or are absent or disqualified, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in place of any such absent or
disqualified member.
Section 12. Communications Equipment.
Members of the board of directors or any committee thereof may
participate in and act at any meeting of such board or committee through the use
of a conference telephone or other communications equipment by means of which
all persons participating in the meeting can hear and speak with each other, and
participation in the meeting pursuant to this Section 12 shall constitute
presence in person at the meeting.
Section 13. Waiver of Notice and Presumption of Assent.
Any member of the board of directors or any committee thereof who is
present at a meeting shall be conclusively presumed to have waived notice of
such meeting except when such member attends for the express purpose of
objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. Such member shall be
conclusively presumed to have assented to any action taken unless his or her
dissent shall be entered in the minutes of the meeting or unless his or her
written dissent to such action shall be filed with the person acting as the
secretary or recorder of the meeting before the adjournment thereof or shall be
forwarded by registered mail to the secretary of the corporation, with a
mandatory copy to the chief executive officer of the corporation, immediately
after the adjournment of the meeting. Such right to dissent shall not apply to
any member who voted in favor of such action.
Section 14. Action by Written Consent.
Unless otherwise restricted by the Charter, any action required or
permitted to be taken at any meeting of the board of directors, or of any
committee thereof, may be taken without a meeting if all members of the board or
committee, as the case may be, expressly consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the board or
committee.
Section 15. Compensation.
Compensation for Board and Committee meetings and duties shall be set
by the Board from time to time by resolution.
ARTICLE III
OFFICERS
Section 1. Number.
The officers of the corporation shall be elected by the board of
directors and shall consist of a chairperson of the board, a chief executive
officer , president, one or more vice-presidents, a secretary, a treasurer and
such other officers and assistant officers as may be deemed necessary or
desirable by the board of directors. Except as otherwise required by law or by
the Charter, any number of offices may be held by the same person. In its
discretion, the board of directors may choose not to fill any office for any
period as it may deem advisable, except that the offices of president and
secretary shall be filled as expeditiously as possible.
Section 2. Election and Term of Office.
The officers of the corporation shall be elected annually by the board
of directors at its first meeting held after each annual meeting of stockholders
or as soon thereafter as convenient. Vacancies may be filled or new offices
created and filled at any meeting of the board of directors. Each officer shall
hold office until a successor is duly elected and qualified or until his or her
earlier death, resignation or removal as hereinafter provided.
Section 3. Removal.
Any officer or agent elected by the board of directors may be removed
by the board of directors at its discretion, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies.
Any vacancy occurring in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the board of directors.
Section 5. Compensation.
Compensation of all officers shall be fixed by the board of directors,
and no officer shall be prevented from receiving such compensation by virtue of
his or her also being a director of the corporation.
Section 6. Chairperson of the Board.
The board of directors may elect one of its members as chairperson, as
set forth in Section 8 of Article II. The chairperson shall preside at meetings
of the board of directors and, if requested by the chief executive officer, at
meetings of the stockholders.
Section 7. Chief Executive Officer.
The chief executive officer shall have the powers and perform the
duties incident to that position. Subject to the powers of the board of
directors, he or she shall be in the general and active charge of the entire
business and affairs of the corporation, and shall be its chief policy making
officer. She or he shall preside at all meetings of the board of directors and
stockholders and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or provided in these bylaws. The
chief executive officer is authorized to execute bonds, mortgages and other
contracts, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly
delegated by the board of directors to some other officer or agent of the
corporation. The chief executive officer is expressly authorized to retain
counsel and other professionals, and to take other actions that the chief
executive officer believes are in the best interests of the corporation, but the
chief executive officer shall not be precluded from bringing such decisions to
the attention of the board of directors for ratification. Whenever the chief
executive officer is unable to serve, by reason of sickness, absence or
otherwise, the chairperson, president, or a designated vice president shall
perform all the duties and responsibilities and exercise all the powers of the
chief executive officer. The chief executive officer shall expressly have the
power to hire and fire employees. Except as otherwise provided in the Charter or
in these bylaws, the chief executive officer may sign certificates of stock, and
the chief executive officer shall be responsible to the board of directors for
the proper performance of the duties of the office.
Section 8. President.
The president shall have the powers and perform the duties assigned by
the board of directors and/or the chief executive officer. Whenever the chief
executive officer is unable to serve, by reason of sickness, absence or
otherwise, the president shall, in the absence of a board resolution, perform
all the duties and responsibilities and exercise all the powers of the chief
executive officer in the chief executive officer's absence. The chief executive
officer or the board of directors may designate the presidents as the chief
operating officer, which officer shall be responsible for supervising the
day-to-day operations of the corporation under the supervision of the chief
executive officer. In the absence of the chief executive officer, or in
consultation with the chief executive officer, the president shall expressly
have the power to hire and fire employees. Except as otherwise provided in the
Charter or in these bylaws, the president may sign certificates of stock, and
the president shall be responsible to the board of directors for the proper
performance of the duties of the office.
Section 9. Vice-President.
The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors or the chief
executive officer, shall, in the absence or disability of the president, act
with all of the powers and be subject to all the restrictions of the president.
The vice-presidents shall also perform such other duties and have such other
powers as the board of directors, the chief executive officer, or the president
(in consultation with the chief executive officer) or these bylaws may, from
time to time, prescribe. The vice-presidents may also be designated as executive
vice-presidents or senior vice-presidents, or other categories, as the board of
directors may from time to time prescribe. If the chief executive officer and
the President are the same person, then the chief executive officer or the board
of directors may designate one of the vice-presidents as the chief operating
officer, which officer shall be responsible for supervising the day-to-day
operations of the corporation.
Section 10. The Secretary and Assistant Secretaries.
The secretary shall generally attend all meetings of the board of
directors, all meetings of the committees thereof and all meetings of the
stockholders and record all the proceedings of the meetings in a book or books
to be kept for that purpose or shall ensure that his or her designee attends
each such meeting to act in such capacity. Under the chief executive officer's
supervision, the secretary shall give, or cause to be given, all notices
required to be given by these bylaws or by law; shall have such powers and
perform such duties as the board of directors, the chairperson of the board, the
chief executive officer, the president or these bylaws may, from time to time,
prescribe; and shall have custody of the corporate seal of the corporation. The
secretary, or an assistant secretary, shall have authority to affix the
corporate seal to any instrument requiring it and when so affixed, it may be
attested by his or her signature or by the signature of such assistant
secretary; provided, that such affixation shall be taken only for lawful and
authorized purposes. The board of directors may give general authority to any
other officer to affix the seal of the corporation and to attest the affixing by
his or her signature. The assistant secretary, or if there be more than one, any
of the assistant secretaries, 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 and have such other powers as the board of directors,
the chairperson of the board, the chief executive officer, the president, and/or
the secretary may, from time to time, prescribe.
Section 11. The Treasurer and Assistant Treasurer.
The treasurer shall have the custody of the corporate funds and
securities; shall keep full and accurate all books and accounts of the
corporation as shall be necessary or desirable in accordance with applicable law
or generally accepted accounting principles; shall deposit all monies and other
valuable effects in the name and to the credit of the corporation as may be
ordered by the chief executive officer, the president, or by the chairperson of
the board or the board of directors; shall cause the funds of the corporation to
be disbursed when such disbursements have been duly authorized, taking proper
vouchers for such disbursements; and shall render to the chairperson of the
board, the chief executive officer, the president and the board of directors, at
its regular meeting or when the board of directors so requires, an account of
the corporation; shall have such powers and perform such duties as the board of
directors, the chairperson of the board, the chief executive officer, the
president or these bylaws may, from time to time,
prescribe. If required by the board of directors, the treasurer shall give the
corporation a bond (which shall be rendered periodically as prescribed by the
board of directors or by the chief executive officer) in such sums and with such
surety or sureties as shall be satisfactory to the board of directors for the
faithful performance of the duties of the office of treasurer and for the
restoration to the corporation, in case of death, resignation, retirement, or
removal from office, of all books, papers, vouchers, money, and other property
of whatever kind in the possession or under the control of the treasurer
belonging to the corporation. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the board of
directors, shall in the absence of disability of the treasurer, perform the
duties and exercise the powers of the treasurer and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe. Unless otherwise specified by the board of directors, the
treasurer shall also be the chief financial and chief accounting officer of the
corporation.
Section 12. Other Officers, Assistant Officers and Agents.
Officers, assistant officers and agents, if any, other than those whose
duties are provided for in these by laws, shall have such authority and perform
such duties as may from time to time be prescribed by resolution of the board of
directors. The chairperson, chief executive officer, president or secretary of
the corporation shall be authorized to appoint a recorder of meetings of the
stockholders, board of directors, or committees of the board of directors. A
recorder need not be an officer or employee of the corporation.
Section 13. Absence or Disability of Officers.
In the case of the absence or disability of any officer of the
corporation and of any person hereby authorized to act in such officer's place
during such officer's absence or disability, the board of directors may by
resolution delegate the powers and duties of such officer to any other officer
or to any director, or to any other person selected by it.
ARTICLE IV
OFFICES
Section 1. Registered Office.
The registered office of the corporation in the State of Tennessee
shall be located at 200 East Main Street, McMinnville, Warren County, Tennessee
37110. The name of the corporation's registered agent at such address shall be
Charles C. Jacobs. The registered office and/or registered agent of the
corporation may be changed from time to time by action of the board of
directors.
Section 2. Other Offices.
The corporation may also have offices at such other places, both within
and without the State of Tennessee, as the board of directors may from time to
time determine or the business of the corporation may require.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Shares.
The capital stock of the corporation shall consist of the type and
number of shares provided for in the Charter or amendments thereto.
Section 2. Form.
Every holder of stock in the corporation shall be entitled to have a
certificate, signed by, or in the name of the corporation by the chairperson of
the board, the chief executive officer, the president or a vice-president and
the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by such holder in the corporation. If such a certificate
is countersigned (1) by a transfer agent or an assistant transfer agent other
than the corporation or its employee or (2) by a registrar, other than the
corporation or its employee, the signature of any such chairperson of the board,
chief executive officer, president, vice-president, secretary, or assistant
secretary may be facsimiles. In case any officer or officers who have signed, or
whose facsimile signature or signatures have been used on, any such certificate
or certificates shall cease to be such officer or officers of the corporation
whether because of death, resignation or otherwise before such certificate or
certificates have been delivered by the corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates or whose facsimile signature
or signatures have been used thereon had not ceased to be such officer or
officers of the corporation. All certificates for shares shall be consecutively
numbered or otherwise identified. The name of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the books of the corporation. Shares of stock of the
corporation shall only be transferred on the books of the corporation by the
holder of record thereof or by such holder's attorney duly authorized in
writing, upon surrender to the corporation of the certificate or certificates
for such shares endorsed by the appropriate person or persons, with such
evidence of the authenticity of such endorsement, transfer, authorization, and
other matters as the corporation may reasonably require, and accompanied by all
necessary stock transfer stamps. In that event, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate or certificates, and record the transaction on its books.
The board of directors may appoint a bank or trust company, or any other
appropriate company or agency, organized under the laws of the United States or
any state thereof to act as its transfer agent or registrar, or both, in
connection with the transfer of any class or series of securities of the
corporation. The certificates shall contain such other provisions as may be
required by law, by Charter, and/or by the board of directors.
Section 3. Lost Certificates.
The board of directors may direct a new certificate or certificates to
be issued in place of any certificate or certificates previously issued by the
corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. When authorizing such issue of a new certificate or
certificates, the corporation 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 or her legal representative, to
give the corporation a bond sufficient to indemnify the corporation against any
claim that may be made against the corporation on account of the loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 4. Registered Stockholders.
4.1 Prior to the surrender to the corporation of the certificate
or certificates for a share or shares of stock with a request
to record the transfer of such share or shares, the
corporation may treat the registered owner as the person
entitled to receive dividends, to vote, to receive
notifications, and otherwise to exercise all the rights and
powers of an owner. The corporation 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.
4.2 The apparent endorsement of a certificate by the person
appearing by the stock record and certificate to be the owner
of the shares represented thereby shall be effectual and fully
protect the corporation, its officers or agents, against any
claim for loss or damage by reason of a forgery of such
signature or otherwise, if such signature appears to have been
witnessed by one or more persons known to the Secretary of the
company, or whose signature is witnessed by an officer of a
national bank, and the corporation shall not be required to
transfer stock unless the signature of the apparent owner
appears to be
witnessed by one or more such persons. In addition, the
corporation may rely upon and shall be protected by any and
all sections of the Uniform Commercial Code Investment
Securities set forth in Tennessee Code Annotated, Sections
47-8-101 through 47-8-406, inclusive, and any amendments
thereto.
ARTICLE VI
INDEMNIFICATION
The corporation shall indemnify any and all persons who may serve or
who have served at any time as directors or officers, or who at the request of
the board of directors of the corporation may serve or at any time have served
as directors or officers of another corporation in which the corporation at such
time owned or may own shares of stock (or other financial interest) or of which
it was or may be a creditor, and their respective heirs, administrators,
successors and assigns, against any and all expenses, including amounts paid
upon judgments, counsel fees, and amounts paid in settlement (before or after
suit is commenced), actually and necessarily incurred by such persons in
connection with the defense or settlement of any claim, action, suit or
proceeding in which they, or any of them, are made parties, or a part, or which
may be asserted against them or any of them, by reason of being or having been
directors or officers or a director or officer of the corporation, or of such
other corporation, if such director or officer acted in good faith for a purpose
which she or he reasonably believed to be to the best interest of the
corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that her or his conduct was unlawful, provided that
nothing herein contained shall create a right to indemnification inconsistent
with or contrary to the Tennessee Business Corporation Act or other applicable
statutes. This provision of the bylaws is intended to supplement, and not to
limit, the rights of indemnity held by officers, directors and others under the
corporation's Charter, under applicable law, or under any policy of insurance
that the corporation may now or hereafter have in effect.
ARTICLE VII
ADOPTION OF THE PROTECTION OF TENNESSEE LAW
Section 1. Opt-In.
To the maximum extent permitted by law, the corporation hereby opts
into the protections provided to it and to its shareholders pursuant to the
Tennessee Business Combination Statutes. As used herein, the term "Tennessee
Business Combination Statutes" means the Tennessee Investor Protection Act, to
the extent now or hereafter applicable to the corporation (T.C.A. Sections
48-103-101, et seq.), the Tennessee Business Combination Act (T.C.A. Sections
48-103-101, et seq.), the Tennessee Control Share Acquisition Act (T.C.A.
Sections 48-103-201, et seq.), and the Tennessee Authorized Corporation
Protection Act (T.C.A. Sections 48-103-401, et seq.), and the Tennessee
Greenmail Act (T.C.A. Sections 48-103-501, et seq.), all as the same may be
amended, supplemented and/or recodified from time to time.
Section 2. Board Considerations.
In connection with any transaction that does or could be considered to
be covered by any of the Tennessee Business Combination Statutes, or which
involves any business combination, merger, consolidation, share exchange,
liquidation, distribution, or comparable transaction, neither the corporation
nor any of its officers or directors may be held liable for:
2.1 Failing to approve the acquisition of shares by an interested
stockholder on or before the date the stockholder acquired such shares;
2.2 Seeking to enforce or implement the provisions of Tennessee
law;
2.3 Failing to adopt or recommend any charter or bylaw amendment
or provision relating to such provisions of Tennessee law; or
2.4 Opposing any merger, share exchange, exchange, tender offer,
or significant asset sale because of a good faith belief that such transaction
would adversely affect the corporation's employees, customers, suppliers, the
communities in which the corporation or its subsidiaries operate, or any other
relevant factor.
Section 3. Amendment of Bylaws Concerning Tennessee Business
Combination Statutes.
Except as otherwise provided by the Charter, if at all, or to the
extent required by the laws of the State of Tennessee, as now in effect or
hereafter amended, the Bylaws of the corporation may be amended or repealed or
additional Bylaws may be adopted by the Board of Directors by a vote of a
majority of the entire Board of Directors. However, any amendment or repeal of
any part of Articles 1, 2, 5, 6, 7, or 9 of these bylaws effected by the
Directors shall require the affirmative vote of at least 75% of the full Board
of Directors following at least twenty (20) days prior written notice to all
Directors of the specific proposal or, if presented to the shareholders, any
amendment or repeal of any part of Articles 1, 2, 5, 6, 7, or 9 of these bylaws
effected by the shareholders shall require the affirmative vote of at least 75%
of all of the shares entitled to vote thereon, exclusive on any "Interested
Shareholder" as that term is defined in Section 48-103-203 of the Tennessee
Business Combination Statutes following at least forty-five (45) days prior
written notice to all shareholders of the specific proposal.
Section 4. Voting Securities Owned By Corporation.
Voting securities in any other corporation held by the corporation
shall be voted by the chief executive officer or, in the chief executive
officer's absence, by the chairperson of the board, the president or a
vice-president, unless the board of directors specifically confers authority to
vote with respect thereto, which authority may be general or confined to
specific instances, upon some other person or officer. Any person authorized to
vote securities shall have the power to appoint proxies, with general power of
substitution.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends.
Dividends upon the capital stock of the corporation, subject to the
provisions of the Charter, if any, may be declared by the board of directors at
any regular or special meeting, in accordance with applicable law. Dividends may
be paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the Charter. 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 directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
any other purpose and the directors may modify or abolish any such reserve in
the manner in which it was created.
Section 2. Checks, Drafts or Orders.
All checks, drafts, or other orders for the payment of money by or to
the corporation and all notes and other evidences of indebtedness issued in the
name of the corporation shall be signed by such officer or officers, agent or
agents of the corporation, and in such manner, as shall be determined by
resolution of the board of directors or a duly authorized committee thereof.
Section 3. Contracts.
In addition to the powers otherwise granted to officers pursuant to
Article III hereof, the board of directors may authorize any officer or
officers, or any agent or agents, of the corporation to enter into any contract
or to execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific
instances.
Section 4. Loans.
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a director of the
corporation or its subsidiaries, whenever, in the judgment of the directors, or
the duly authorized committee of the board, such loan, guaranty or assistance
may reasonably be expected to benefit the corporation. The loan, guaranty or
other assistance may be with or without interest, and may be unsecured, or
secured in such manner as the board of directors (or its committee) shall
approve, including, without limitation, a pledge of shares of stock of the
corporation. Nothing in this section contained shall be deemed to deny, limit or
restrict the powers of guaranty or warranty of the corporation at common law or
under any statute. It shall be proper for the chief executive officer or the
board of directors to approve loans to employees for the purpose of assisting
such persons in exercising options granted to them by the board of directors or
otherwise properly granted to them.
Section 5. Fiscal Year.
The fiscal year of the corporation shall be fixed by resolution of the
board of directors.
Section 6. Corporate Seal.
The corporation need not have a seal. If the board or the stockholders
elect to have a seal, then any seal to be used by the corporation shall be in
the form of a circle and shall have inscribed thereon the name of the
corporation and the words "Corporate Seal" and "Tennessee Corporation" or words
to like effect. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise replicated.
Section 7. Inspection of Books and Records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand or request under oath stating the purpose thereof,
have the right during the corporation's usual hours for
business Monday through Friday (holidays excluded) to inspect for any proper
purpose the corporation's stock ledger, a list of its stockholders, and its
other books and records, and to make copies or extracts therefrom. A proper
purpose shall mean any purpose reasonably related to such person's interest as a
stockholder. In every instance where an attorney or other agent shall be the
person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing satisfactory to the
corporation or its counsel which authorizes the attorney or other agent to so
act on behalf of the stockholder. The demand or request under oath shall be
directed to the corporation at its registered office in the State of Tennessee
or at its principal executive offices. The corporation shall have a reasonable
amount of time to respond to any such request. In the event of a good faith
doubt about the validity of any such request, the board is authorized to rely
upon the advice of counsel and/or to bring a declaratory action before any Court
of competent jurisdiction to determine the validity of such demand or request,
including the priority of the purpose(s) stated by the stockholder.
Section 8. Section Headings.
Section headings in these bylaws are for convenience of reference only
and shall not be given any substantive effect in limiting or otherwise
construing any provision herein.
Section 9. Inconsistent Provisions.
In the event that any provision of these bylaws is or becomes
inconsistent with any provision of the Charter, the Business Corporation Act of
the State of Tennessee or any other applicable law, the provision of these
bylaws shall not be given any effect to the extent of such inconsistency but
shall otherwise be given full force and effect.
ARTICLE IX
AMENDMENTS
Except as otherwise provided in these bylaws, or as may be provided in
the Charter, these bylaws may be amended, altered, or repealed and new bylaws
adopted at any meeting of the board of directors by the affirmative vote of the
entire board of directors specified in the Charter or, if no specification is
made as to a particular subject matter, then by the affirmative vote of the
majority of the total number of directors then in office. The fact that the
power to adopt, amend, alter, or repeal the bylaws has been conferred upon the
board of directors shall not divest the stockholders of such powers as may be
set forth in the Charter.