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EXHIBIT (3)a
GENESCO INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
CORPORATE OFFICES
The registered office of the Corporation within the State of
Tennessee shall be located at Genesco Park, 1415 Murfreesboro Road, Nashville,
Tennessee 37202. The Corporation may also have such other offices, including
its principal office, at such places, within or without the State of Tennessee,
as the board of directors may from time to time designate or the business of
the Corporation may require.
ARTICLE II
SHAREHOLDERS' MEETING
Section 1. ANNUAL MEETINGS. The annual meeting of
shareholders shall be held at 10:00 A.M. on the third Tuesday in the month of
June each year, or on such other date during the year and at such other time as
may be designated by the board of directors and stated in the notice of
meeting, for the purpose of electing directors and transacting such other
business as may be properly brought before the meeting.
Section 2. SPECIAL MEETINGS. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed by law,
may be called by the chairman or the board of directors pursuant to a
resolution adopted by a majority of the entire board of directors and shall be
called by the chairman or the secretary at the written request of persons
holding of record at least 10% of all of the votes entitled to be cast on any
issues proposed to be considered at the proposed special meeting, which written
request shall be validly signed, dated and delivered to the Corporation's
secretary. Such written request shall state with specificity the purpose or
purposes of such meeting, including all statements necessary to make any
statement of such purpose not incomplete, false or misleading, and include any
other information specified in Schedule 14A, Rule 14a-3, Rule 14a-8 or Rule
14a-11 of the Rules and Regulations of the Securities and Exchange Commission.
The board of directors may postpone or reschedule any previously scheduled
special meeting. Business transacted at all special meetings shall be confined
to the purpose or purposes stated in the notice of meeting.
Section 3. NOTICE OF MEETINGS. A written notice of each
meeting of shareholders stating the place, date and time of the meeting, and,
in the case of a special meeting, describing the purpose or purposes for which
the meeting is called, shall be
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given to each shareholder entitled to notice of such meeting not less than ten
days nor more than two months before the date of the meeting.
Section 4. PLACE OF MEETINGS. Meetings of shareholders shall
be held at such places, within or without the State of Tennessee, as may be
designated by the board of directors and stated in the notice of meeting.
Section 5. QUORUM. The holders of shares entitled to vote as
a separate voting group may take action on a matter at a meeting only if a
quorum of those shares exists with respect to that matter. Unless the charter
or the Act provides otherwise, the holders of a majority of the votes entitled
to be cast on a matter by a voting group constitute a quorum of that voting
group for action on that matter. Once a share is represented for any purpose
at a meeting, the holder is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting, unless a new
record date is or must be set for that adjourned meeting. If a quorum of a
voting group shall not be present or represented at any meeting, the shares
entitled to vote thereat shall have the power to adjourn the meeting to a
different date, time or place without notice other than announcement at the
meeting of the new time, date or place to which the meeting is adjourned. At
any adjourned meeting at which a quorum of any voting group shall be present or
represented, any business may be transacted by such voting group which might
have been transacted at the meeting as originally called.
Section 6. DIRECTOR NOMINATIONS. The nomination of a person
for election as a director at a meeting of shareholders can be made only (i) by
or at the direction of the board of directors or a committee appointed by the
board of directors authorized to make such nominations or (ii) by any
shareholder, provided that such shareholder complies with the notice
requirements of this Section 6 of Article II, is a shareholder of record on the
date the shareholder complies with such notice requirements and is entitled to
notice of and to vote at the shareholders' meeting. A shareholder who wishes
to make a director nomination (other than a nomination by or at the direction
of the board of directors or a committee thereof) must first deliver written
notice to the secretary of the Corporation (i) in the case of annual meetings
to be held on the third Tuesday in the month of June (the "Stated Date") or
within thirty days thereafter, not less than sixty days nor more than ninety
days prior to the Stated Date and (ii) in the case of an annual meeting which
is being held on a date other than the Stated Date or within thirty days
thereafter or in the case of any special meeting of shareholders, within ten
days after the earlier of the date on which notice of the meeting is first
mailed to shareholders or the date on which public disclosure is first made of
the date of such shareholders' meeting. Such notice by a shareholder must
contain (i) as to each nominee,
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all information relating to such person as would be required to be disclosed in
a proxy statement meeting the requirements of Regulation 14A under the
Securities Exchange Act of 1934, as amended, if such nominee had been nominated
by the board of directors, (ii) the written consent of each such nominee to
being named as a nominee in soliciting material and to serving as a director,
if elected, and (iii) the name and address of the shareholder delivering the
notice as it appears on the stock records of the Corporation and the number and
class of shares of stock held of record by such shareholder. Any person being
nominated by the board of directors, if requested by the board of directors,
must furnish the secretary of the Corporation substantially the same
information specified above as is required to be set forth in a notice by a
shareholder. No person shall be eligible as a director, unless nominated in
accordance with the notice and share ownership requirements of this Section 6
of Article II. The chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing procedure.
Section 7. NOTICE OF NEW BUSINESS. At an annual meeting of
the shareholders only such new business shall be conducted, and only such
proposals shall be acted upon, as shall have been properly brought before the
meeting. To be properly brought before the annual meeting such new 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) otherwise properly
brought before the meeting by or at the direction of the board of directors, or
(c) otherwise properly brought before the meeting by a shareholder. For
business to be properly brought before the annual meeting by a shareholder, the
shareholder must have given timely notice thereof in writing to the secretary
of the Corporation. To be timely, a shareholder's notice must be delivered to
or mailed to the secretary of the Corporation and received 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 seventy days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the shareholder to be
timely must be so received not later than the close of business on the tenth
day following the day on which such notice of the date of the annual meeting
was mailed or such public disclosure was made. A shareholder's notice of the
Secretary shall set forth as to each matter the shareholder 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 shareholder proposing such business, (c) the
class and number of shares of the Corporation which are beneficially owned by
the shareholder, and (d) any material interest of the shareholder in such
business. Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at any annual meeting except in accordance
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with the procedures set forth in this Section 7. The chairman of the annual
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in accordance with the
provisions of this Section 7, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Section 8. VOTING. Directors shall be elected by a plurality
of the votes cast by shareholders entitled to vote in the election at a meeting
at which a quorum is present. Shareholder action on any other matter is
approved by a voting group, if the votes cast by shareholders within the voting
group in favor of the action exceed the votes cast by shareholders within the
voting group in opposition to such action, unless the charter or the Act
provides otherwise. If two or more groups are entitled to vote separately on a
matter, action on the matter is approved only when approved by each voting
group.
Section 9. ADJOURNMENT. If a meeting of shareholders is
adjourned to another date, time or place, notice need not be given of the
adjourned meeting if the new date, time and place are announced at the meeting
before the adjournment. At the adjourned meeting, the Corporation may transact
any business which might have been transacted at the time originally designated
for the meeting if a quorum existed at the time originally designated for the
meeting; provided, however, if a new record date is or must be fixed under the
Act or these bylaws, a notice of the adjourned meeting must be given to
shareholders as of the new record date.
Section 10. PROXIES. A shareholder may appoint a proxy to
vote at a meeting of shareholders or otherwise act for him by signing an
appointment form, either personally or by his attorney-in-fact. An appointment
of a proxy is effective when received by the secretary or other officer or
agent authorized to tabulate votes. An appointment is valid for eleven months,
unless another period is expressly provided for in the appointment form. An
appointment of a proxy is revocable by the shareholder, unless the appointment
form conspicuously states that it is irrevocable and the appointment is coupled
with an interest.
Section 11. PRESIDING OFFICER AND SECRETARY. Meetings of the
shareholders shall be presided over by the chairman, or if he is not present or
if the Corporation shall not have a chairman, by the president, or if neither
the chairman nor the president is present, by a vice president or in the
absence of the foregoing persons by a chairman designated by the board of
directors, or the absence of such designation by a chairman chosen at the
meeting. The secretary or, in his absence, an assistant secretary
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shall act as secretary of every meeting, but if neither the secretary nor an
assistant secretary is present, the presiding officer of the meeting shall
appoint a person to act as secretary of the meeting.
Section 12. CONDUCT OF MEETINGS. The date and time of the
opening and the closing of the polls for each matter upon which the
shareholders will vote at a meeting shall be announced at the meeting by the
person presiding over the meeting. The board of directors of the Corporation
may adopt by resolution such rules and regulations for the conduct of the
meeting of shareholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the board of
directors, the chairman of any meeting of shareholders shall have the right and
authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the board of directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to shareholders of record of the
Corporation, their duly authorized and constituted proxies or such other
persons as the chairman of the meeting shall determine; (iv) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the board of directors or the chairman
of the meeting, meetings of shareholders shall not be required to be held in
accordance with the rules or parliamentary procedures.
ARTICLE III
RECORD DATE
In order that the Corporation may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of
any other action, the board of directors may fix, in advance, a record date,
which shall not be more than seventy nor less than ten days before the date of
such meeting, nor more than seventy days prior to any other action. If no
record date is fixed (i) the record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at the close of
business on the day before the day on which the first notice is given to such
shareholders and (ii) the record date for
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determining shareholders for any other purpose shall be at the close of
business on the day that the board of directors authorizes the action. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting, unless
the board of directors fixes a new record date. The board of directors must
fix a new record date, if the meeting is adjourned to a date more than four
months after the date fixed for the original meeting.
ARTICLE IV
DIRECTORS
Section 1. NUMBER AND TERM. The business and affairs of the
Corporation shall be managed under the direction of a board of directors
consisting of not less than five nor more than twenty members, the number of
which shall be fixed by the board of directors. Each director shall hold
office until the next annual meeting of shareholders and until his successor is
elected and qualified or until his earlier resignation or removal. A decrease
in the number of directors shall not shorten an incumbent director's term.
Section 2. COMMITTEES. The board of directors, with the
approval of a majority of all the directors in office when the action is taken,
may create one or more committees. A committee shall consist of one or more
directors who serve at the pleasure of the board of directors. Any such
committee, to the extent specified by the board of directors, may exercise the
authority of the board of directors in the management of the business and
affairs of the Corporation, except that a committee may not: (i) authorize
distributions, except according to a formula or method prescribed by the board
of directors; (ii) fill vacancies on the board of directors or any of its
committees; (iii) adopt, amend or repeal bylaws; (iv) authorize or approve
reacquisition of shares, except according to a formula or method prescribed by
the board of directors; or (v) authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and relative rights,
preferences and limitations of a class or series of shares, except that the
board of directors may authorize a committee or senior executive officer of the
Corporation to do so within limits specifically prescribed by the board of
directors. The provisions of Sections 7, 8, 9, 10, 11 and 12 of this Article
IV and of Article V applicable to the board of directors shall also apply to
committees.
Section 3. COMPENSATION. Directors shall receive such
compensation as shall be fixed by the board of directors and shall be entitled
to reimbursement for any reasonable expenses incurred in attending meetings and
otherwise carrying out their
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duties. Directors may also serve the Corporation in any other capacity and
receive compensation therefor.
Section 4. REMOVAL. Shareholders may remove one or more
directors with or without cause. If a director is elected by a voting group of
shareholders, only shareholders of that voting group may participate in the
vote to remove him without cause. A director may be removed only at a meeting
called and noticed for the purpose of removing him and if the number of votes
cast to remove him exceeds the number of votes cast not to remove him.
Section 5. RESIGNATION. A director may resign at any time by
delivering written notice to the Corporation, the board of directors, the
chairman or the president. A resignation is effective when the notice is
delivered, unless the notice specifies a later effective date.
Section 6. VACANCIES. The board of directors may fill any
vacancy occurring on the board of directors, including any vacancy resulting
from an increase in the number of directors or from the resignation or removal
of a director. If the directors remaining in office constitute fewer than a
quorum, the board of directors may fill the vacancy by the affirmative vote of
a majority of all the directors remaining in office.
Section 7. QUORUM AND VOTING. A quorum of the board of
directors consists of a majority of the number of directors fixed by the board
of directors pursuant to Section 1 of this Article IV. If a quorum is present
when a vote is taken, the affirmative vote of a majority of directors present
is the act of the board of directors.
Section 8. REGULAR MEETINGS. Regular meetings of the board
of directors may be held without notice at such places, within or without the
State of Tennessee, on such dates and at such times as the board of directors
may determine from time to time.
Section 9. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by the chairman of the board, the president or any
three directors and shall be held at such places, within or without the State
of Tennessee, on such dates and at such times as may be stated in the notice of
meeting.
Section 10. NOTICES. Special meetings of the board of
directors must be preceded by at least one days' notice of the date, time and
place of the meeting. The notice need not describe the purpose of the meeting.
Notice of an adjourned meeting need not be given, if the time and place to
which the meeting is adjourned are fixed at the
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meeting at which the adjournment is taken and if the period of any one
adjournment does not exceed one month.
Section 11. MEETING BY TELEPHONE. Any or all directors may
participate in a regular or special meeting by conference telephone or any
other means of communication by which all directors participating may
simultaneously hear each other during the meeting. A director participating in
a meeting by this means is deemed to be present in person at the meeting.
Section 12. ACTION BY WRITTEN CONSENT. Any action required
or permitted to be taken at a meeting of the board of directors may be taken
without a meeting, if all directors consent to the taking of such action
without a meeting by signing one or more written consents describing the action
taken and indicating each signing director's vote or abstention on the action.
The affirmative vote of the number of directors that would be necessary to
authorize or take such action at a meeting is the act of the board of directors
without a meeting. The written consent or consents shall be included in the
minutes or filed with the corporate records reflecting the action taken.
Action taken by written consent is effective when the last director signs the
consent, unless the consent specifies a different effective date.
ARTICLE V
WAIVER OF NOTICE
A shareholder or director may waive any notice required to be
given by the Act, the charter or these bylaws before or after the date and time
stated in the notice. The waiver must be in writing, signed by the shareholder
of director entitled to the notice and delivered to the Corporation and filed
in the Corporation's minutes or corporate records, except that a shareholder's
or director's attendance at or participation in a meeting may constitute a
waiver of notice under the Act. Neither the business to be transacted at, nor
the purpose of, any meeting of the shareholders or directors need be specified
in any waiver of notice.
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ARTICLE VI
OFFICERS
Section 1. ELECTION AND TERM. At the first meeting of the
board of directors following the annual meeting of shareholders, or as soon
thereafter as is conveniently possible, the board of directors shall elect a
president and a secretary and such other officers as the board of directors may
determine, including a chairman of the board, a vice chairman of the board, one
or more vice presidents (any one or more of which may be designated as a senior
or executive vice president), a treasurer, a controller and one or more
assistant vice presidents, assistant treasurers, assistant controllers and
assistant secretaries. The board of directors may elect officers at such
additional times as it deems advisable. Each officer of the Corporation shall
serve until his successor is elected and qualified or until his earlier
resignation or removal. Any number of offices may be held by the same person,
except that the president may not serve as the secretary.
Section 2. COMPENSATION. The salaries and other compensation
of the officers of the Corporation shall be determined by the board of
directors or an authorized committee thereof.
Section 3. REMOVAL. The board of directors may remove any
officer at any time, with or without cause, but no such removal shall affect
the contract rights, if any, of the person so removed.
Section 4. RESIGNATION. An officer of the Corporation may
resign at any time by delivering notice to the Corporation. A resignation is
effective when the notice is delivered, unless the notice specifies a later
effective date. If a resignation is made effective at a later date and the
Corporation accepts the future effective date, the board of directors may fill
the pending vacancy before the effective date if it provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the Corporation's contract rights, if any, with the officer.
Section 5. DUTIES. The duties and powers of the officers of
the Corporation shall be as follows:
(a) Chairman of the Board - The chairman of the board shall
(i) be chosen from among the members of the board of directors and (ii) perform
such duties and exercise such authority as from time to time may be assigned or
granted by the board of directors.
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(b) President - The president shall (i) preside at all
meetings of the shareholders and the board of directors during the absence or
disability of the chairman of the board and (ii) perform such other duties and
exercise such authority as from time to time may be assigned by the chief
executive officer, if other than the president, or by the board of directors.
(c) Vice Presidents - The vice presidents in the order
designated by the board of directors, shall exercise the functions of the
president during the absence or disability of the president and shall perform
such other duties as may be assigned by the chief executive officer, if other
than the president, the president or the board of directors.
(d) Treasurer - The treasurer shall (i) have general
supervision over the funds of the Corporation and the investment or deposit
thereof, (ii) advise the officers and, if requested, the board of directors
regarding the financial condition of the Corporation and (iii) perform such
other duties as may be assigned by the chief executive officer, if other than
the president, the president, any vice president designated by the board of
directors as the chief financial officer of the Corporation or the board of
directors.
(e) Controller - The controller shall (i) be the chief
accounting officer of the Corporation with general supervision over the
accounting books and records of the Corporation, (ii) be responsible for
maintaining proper internal controls over the assets of the Corporation and
preparing accurate financial statements and (iii) perform such other duties as
may be assigned by the chief executive officer, if other than the president,
the president, any vice president designated by the board of directors as the
chief financial officer of the Corporation or the board of directors.
(f) Secretary - The secretary shall (i) attend the meetings
of the shareholders, the board of directors and committees of the board of
directors and prepare minutes of all such meetings in a book to be kept for
that purpose, (ii) give, or cause to be given, such notice as may be required
of all meetings of the shareholders, board of directors and committees of the
board of directors, (iii) authenticate records of the Corporation and (iv)
perform such other duties as may be assigned by the chairman of the board, the
president or the board of directors.
The board of directors shall designate either the chairman of
the board or the president as the chief executive officer of the Corporation,
and such chief executive officer shall be primarily responsible for the general
management of the business affairs of the Corporation and for implementing the
policies and directives of the board of
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directors and shall have authority to make contracts on behalf of the
Corporation in the ordinary course of the Corporation's business.
ARTICLE VII
DIRECTOR INDEMNIFICATION
To the maximum extent permitted by law, subject to the
limitations contained in this Article VII, the Corporation shall indemnify an
individual who is a party to a proceeding because he is or was a director
against any liability incurred in the proceeding and, prior to the disposition
thereof, advance the reasonable expenses incurred by such director in
connection with the proceeding, except that the Corporation shall not be
required to indemnify or advance expenses to any director for liability or
expenses incurred in a proceeding initiated by or on behalf of such director or
to which such director voluntarily becomes a party, other than a suit to
enforce indemnification rights. A director's rights to advancement of expenses
are conditioned upon the director's furnishing the Corporation: (a) a written
affirmation, personally signed by or on behalf of the director, of his good
faith belief that he is not liable for (i) a breach of his duty of loyalty to
the Corporation or its shareholders, (ii) any acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) any unlawful distributions or (iv) profits made from the purchase or sale
by the director of securities of the Corporation pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any
similar provisions of any federal or state statutes or regulations, and (b) a
written opinion of counsel for the director in the proceeding to the effect
that, based on the facts known to such counsel, it is reasonably possible that
the director will not be found liable contrary to his affirmation and (c) a
written undertaking (in the form of an unlimited general obligation of the
director, which need not be secured) personally signed by or on behalf of the
director to repay any advances, if a judgment or other final adjudication
adverse to the director establishes his liability contrary to his affirmation.
A director's rights to indemnification and advancement of expenses as provided
in this Article VII are intended to be greater than those which are otherwise
provided for in the Act notwithstanding the director's failure to meet the
standard of conduct required for permissive indemnification under the Act, are
contractual in nature between the Corporation and the director and are
mandatory. No indemnification under this Article VII may be made in advance of
a final disposition of such proceeding or if a judgment or other final
adjudication adverse to the director establishes his liability for (i) a breach
of his duty of loyalty to the Corporation of its shareholders, (ii) any acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) any unlawful distributions, or (iv) profits
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made from the purchase or sale by the director of securities of the Corporation
pursuant to the provisions of Section 16(b) of the Securities and Exchange Act
of 1934, as amended, or any similar provisions of any federal or state statutes
or regulations. A settlement without the Corporation's prior written consent
shall not be deemed a final disposition, and no indemnification for any amount
paid in such a settlement may be made under this Article VII. A director's
rights to indemnification and advancement of expenses under this bylaw shall
not be exclusive of other rights to which a director may be entitled under an
insurance policy, the Act, the charter, a resolution of shareholders or
directors or an agreement providing for indemnification. The board of
directors is authorized to adopt such resolutions and enter into such
agreements indemnifying directors as are permitted by law and as are deemed by
the board to be in the interests of the Corporation.
ARTICLE VIII
OFFICER INDEMNIFICATION
To the maximum extent permitted by law, subject to the
limitations contained in this Article VIII, the Corporation shall indemnify an
individual who is a party to a proceeding because he is or was an officer of
the Corporation against any liability incurred in the proceeding and, prior to
the disposition thereof, advance the reasonable expenses incurred by such
officer in connection with the proceeding, except that the Corporation shall
not be required to indemnify or advance expenses to any officer, (i) if it is
determined that the officer did not conduct himself in good faith and in the
reasonable belief that his conduct was not opposed to the Corporation's best
interests and, in the case of a criminal proceeding, had no reasonable cause to
believe his conduct was unlawful, (ii) if it is determined that the officer is
liable for profits made from the purchase or sale by the officer of securities
of the Corporation pursuant to the provisions of Section 16(b) of the
Securities and Exchange Act of 1934, as amended, or any similar provisions of
any federal or state statutes or regulations or (iii) in connection with a
proceeding initiated by or on behalf of such officer or to which such officer
voluntarily becomes a party, other than a suit to enforce indemnification
rights. No indemnification shall be made by the Company for any amount paid in
settlement without the Corporation's prior written consent. An officer's
conduct with respect to an employee benefit plan for a purpose he reasonably
believes to be in the interests of the participants in and beneficiaries of the
plan is conduct that is not opposed to the Corporation's best interests. The
termination of a proceeding by a judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative whether the officer's conduct was opposed to the Corporation's
best interests. The determination
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on behalf of the Company of whether an officer is entitled to indemnification
or advancement of expenses under this Article VIII shall be made by the board
of directors or a committee thereof or by independent special legal counsel in
accordance with the provisions of Section 48-18-506 of the Act relating to
indemnification of directors. An officer's rights to advancement of expenses
are also conditioned upon the officer's furnishing the Corporation: (a) a
written affirmation, personally signed by or on behalf of the officer, of his
good faith belief that he is or will be entitled to indemnification for
liability under the terms of this Article VIII and (b) a written undertaking
(in the form of an unlimited general obligation of the officer, which need not
be secured) personally signed by or on behalf of the officer to repay any
advances, if a judgment or other final adjudication adverse to the officer
establishes his liability contrary to his affirmation. An officer's rights to
indemnification and advancement of expenses as provided in this Article VIII
are intended to be greater than those which are otherwise provided for in the
Act notwithstanding the officer's failure to meet the standard of conduct
required for permissive indemnification under the Act, are contractual in
nature between the Corporation and the officer and are mandatory. An officer's
rights to indemnification and advancement of expenses under this bylaw shall
not be exclusive of other rights to which an officer may be entitled under an
insurance policy, the Act, the charter, a resolution of shareholders or
directors or an agreement providing for indemnification.
ARTICLE IX
EMERGENCY BYLAW
In the event that a quorum of directors cannot be readily
assembled because of a catastrophic event, the board of directors may take
action by the affirmative vote of a majority of those directors present at a
meeting and may exercise any emergency power granted to a board of directors
under the Act not inconsistent with this bylaw. If less than three regularly
elected directors are present, the director present having the greatest
seniority as a director may appoint one or more persons (not to exceed the
number most recently fixed by the board pursuant to Section 1 of Article IV)
from among the officers or other executive employees of the Corporation to
serve as substitute directors. If no regularly elected director is present,
the officer present having the greatest seniority as an officer shall serve as
a substitute director, shall appoint up to four additional persons from among
the officers or other executive employees of the Corporation to serve as
substitute directors. Special meetings of the board of directors may be called
in an emergency by any director or, if no director is present at the
Corporation's principal offices, by the officer present having the greatest
seniority as an officer.
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ARTICLE X
CORPORATE SEAL
The Corporation may have a corporate seal, but the use of or
failure to use any such seal shall not have any legal effect on any action
taken or instrument executed by or on behalf of the Corporation. The seal may
be used by impressing or affixing it to an instrument or by causing a facsimile
thereof to be printed or otherwise reproduced thereon.
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall begin the first day
of February each year.
ARTICLE XII
AMENDMENT
The board of directors may amend or repeal these bylaws,
unless (i) the charter or the Act reserves this power exclusively to
shareholders or (ii) the shareholders, in amending or repealing a particular
bylaw, provide expressly that the board of directors may not amend or repeal
that bylaw. Shareholders may amend or repeal any bylaw, even though the bylaws
may also be amended or repealed by the board of directors. Action by the board
of directors with respect to the bylaws shall be taken by an affirmative vote
of a majority of all directors then holding office.
ARTICLE XIII
DEFINITIONS
The term "Act" as used in these bylaws refers to the Tennessee
Business Corporation Act, as amended from time to time. Terms defined in the
Act shall have the same meanings when used in these bylaws.
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ARTICLE XIV
TENNESSEE CONTROL SHARE ACQUISITION STATUTE
Control share acquisitions of shares of the Corporation's
capital stock are governed by and subject to the provisions of the Tennessee
Control Share Acquisition Act. Section 15 of the Tennessee Control Share
Acquisition Act shall apply to the Corporation.
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