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EXHIBIT 3.3
BYLAWS
OF
AMERICAN RETIREMENT CORPORATION
(THE "CORPORATION")
(AS AMENDED THROUGH NOVEMBER 18, 1998)
ARTICLE I.
OFFICES
The Corporation may have such offices, either within or without the
State of Tennessee, as the Board of Directors may designate or as the business
of the Corporation may require from time to time.
ARTICLE II.
SHAREHOLDERS
2.1 ANNUAL MEETING.
An annual meeting of the shareholders of the Corporation shall be held
on such date as may be determined by the Board of Directors; provided, that, the
first annual meeting of shareholders shall not be held until 1998. The business
to be transacted at such meeting shall be the election of directors and such
other business as shall be properly brought before the meeting.
2.2 SPECIAL MEETINGS.
Unless otherwise required by law or the Corporation's Charter (the
"Charter"), as amended from time to time, a special meeting of shareholders
shall be held only on the call of the Board of Directors or if the holders of at
least twenty-five percent (25%) of all the votes entitled to be cast on any
issue proposed to be considered at the proposed special meeting sign, date, and
deliver to the Corporation's Secretary one or more written demands for the
meeting describing the purpose or purposes for which such special meeting is to
be held, 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 (or such
successor schedules or rules) of the Rules and Regulations of the Securities and
Exchange Commission. Only business within the purpose or purposes described in
the meeting notice may be conducted at a special shareholders' meeting.
2.3 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. If no place is fixed by the Board of Directors, the
meeting shall be held at the principal office of the Corporation.
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2.4 NOTICE OF MEETINGS; WAIVER.
(a) NOTICE. Notice of the date, time, and place of each annual
and special shareholders' meeting and, in the case of a special meeting, a
description of the purpose or purposes for which the meeting is called, shall be
given no fewer than ten days nor more than two months before the date of the
meeting. Such notice shall comply with the requirements of Article XI of these
Bylaws.
(b) WAIVER. A shareholder may waive any notice required by
law, the Charter, or these Bylaws before or after the date and time stated in
such notice. Except as provided in the next sentence, the waiver must be in
writing, be signed by the shareholder entitled to the notice and be delivered to
the Corporation for inclusion in the minutes or filing with the corporate
records. A shareholder's attendance at a meeting: (i) waives objection to lack
of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting (or promptly upon his arrival) objects to holding the
meeting or transacting business at the meeting; and (ii) waives objection to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
2.5 RECORD DATE.
The Board of Directors shall fix as the record date for the
determination of shareholders entitled to notice of a shareholders' meeting, to
demand a special meeting, to vote, or to take any other action, a date not more
than seventy days before the meeting or action requiring a determination of
shareholders. A record date fixed for a shareholders' meeting is effective for
any adjournment of such meeting unless the Board of Directors fixes a new record
date, which it must do if the meeting is adjourned to a date more than four
months after the date fixed for the original meeting.
2.6 SHAREHOLDERS' LIST.
After the record date for a meeting has been fixed, the Corporation
shall prepare an alphabetical list of the names of all shareholders who are
entitled to notice of a shareholders' meeting. Such list will show the address
of and number of shares held by each shareholder. The shareholders' list will be
available for inspection by any shareholder, beginning two business days after
notice of the meeting is given for which the list was prepared and continuing
through the meeting, at the Corporation's principal office or at a place
identified in the meeting notice in the city where the meeting will be held. A
shareholder or his agent or attorney is entitled on written demand to inspect
and, subject to the requirements of the Tennessee Business Corporation Act (the
"Act"), to copy the list, during regular business hours and at his expense,
during the period it is available for inspection.
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2.7 VOTING OF SHARES.
Unless otherwise provided by the Act or the Charter, each outstanding
share is entitled to one vote on each matter voted on at a shareholders'
meeting. Only shares are entitled to vote. Unless otherwise provided in the
Charter, directors are elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present.
2.8 PROXIES.
A shareholder may vote his or her shares in person or by proxy. A
shareholder may appoint a proxy to vote or otherwise act for him or her by
signing an appointment either personally or through an 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 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.
2.9 ACCEPTANCE OF SHAREHOLDER DOCUMENTS.
If the name signed on a shareholder document (a vote, consent, waiver,
or proxy appointment) corresponds to the name of a shareholder, the Corporation,
if acting in good faith, is entitled to accept such shareholder document and
give it effect as the act of the shareholder. If the name signed on such
shareholder document does not correspond to the name of a shareholder, the
Corporation, if acting in good faith, is nevertheless entitled to accept such
shareholder document and to give it effect as the act of the shareholder if:
(a) the shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity;
(b) the name signed purports to be that of a fiduciary
representing the shareholder and, if the Corporation requests, evidence
of fiduciary status acceptable to the Corporation has been presented
with respect to such shareholder document;
(c) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the Corporation
requests, evidence of this status acceptable to the Corporation has
been presented with respect to the shareholder document;
(d) the name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of the
signatory's authority to sign for the shareholder has been presented
with respect to such shareholder document; or
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(e) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one
of the co-owners and the person signing appears to be acting on behalf
of all the co-owners.
The Corporation is entitled to reject a shareholder document if the
Secretary or other officer or agent authorized to tabulate votes, acting in good
faith, has a reasonable basis for doubt about the validity of the signature on
such shareholder document or about the signatory's authority to sign for the
shareholder.
2.10 ACTION WITHOUT MEETING.
No action required or permitted by the Act to be taken at a
shareholders' meeting may be taken without a meeting, unless the total number of
shareholders is less than ten. If there are fewer than ten shareholders and all
such shareholders consent to taking such action without a meeting, the
affirmative vote of the number of shares that would be necessary to authorize or
take such action at a meeting is the act of the shareholders.
The action must be evidenced by one or more written consents describing
the action taken, at least one of which is signed by each shareholder entitled
to vote on the action in one or more counterparts, indicating such signing
shareholder's vote or abstention on the action and delivered to the Corporation
for inclusion in the minutes or for filing with the corporate records.
If the Act or the Charter requires that notice of a proposed action be
given to nonvoting shareholders and the action is to be taken by consent of the
voting shareholders, then the Corporation shall give its nonvoting shareholders
written notice of the proposed action at least ten days before such action is
taken. Such notice shall contain or be accompanied by the same material that
would have been required to be sent to nonvoting shareholders in a notice of a
meeting at which the proposed action would have been submitted to the
shareholders for action.
2.11 PRESIDING OFFICER AND SECRETARY.
Meetings of the shareholders shall be presided over by the Chairman, or
if the Chairman is not present or if the Corporation shall not have a Chairman,
by the President or Chief Executive Officer, or if neither the Chairman nor the
President or Chief Executive Officer is present, by a chairman chosen by a
majority of the shareholders entitled to vote at such meeting. The Secretary or,
in the Secretary's absence, an Assistant Secretary shall act as secretary of
every meeting, but if neither the Secretary nor an Assistant Secretary is
present, a majority of the shareholders entitled to vote at such meeting shall
choose any person present to act as secretary of the meeting.
2.12 NOTICE OF NOMINATIONS.
Nominations for the election of directors may be made by the Board of
Directors or a committee appointed by the Board of Directors authorized to make
such nominations or by any
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shareholder entitled to vote in the election of directors generally. Any such
shareholder nomination may be made, however, only if written notice of such
nomination has been given, either by personal delivery or the United States
mail, postage prepaid, to the Secretary of the Corporation not later than (a)
with respect to an election to be held at an annual meeting of shareholders, one
hundred twenty days in advance of the anniversary date of the proxy statement
for the previous year's annual meeting, and (b) with respect to an election to
be held at a special meeting of shareholders for the election of directors
called other than by written request of a shareholder, the close of business on
the tenth day following the date on which notice of such meeting is first given
to shareholders, and (c) in the case of a special meeting of shareholders duly
called upon the written request of a shareholder to fill a vacancy or vacancies
(then existing or proposed to be created by removal at such meeting), within ten
business days of such written request. In the case of any nomination by the
Board of Directors or a committee appointed by the Board of Directors authorized
to make such nominations, compliance with the proxy rules of the Securities and
Exchange Commission shall constitute compliance with the notice provisions of
the preceding sentence.
In the case of any nomination by a shareholder, each such notice shall
set forth: (a) as to each person whom the shareholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address, and
residence address of such person, (ii) the principal occupation or employment of
such person, (iii) the class and number of shares of the Corporation which are
beneficially owned by such person, and (iv) any other information relating to
such person that is required to be disclosed in solicitations of proxies with
respect to nominees for election as directors, pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (including without limitation
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director, if elected); and (b) as to the shareholder giving
the notice (i) the name and address, as they appear on the Corporation's books,
of such shareholder, and (ii) the class and number of shares of the Corporation
which are beneficially owned by such shareholder; and (c) a description of all
arrangements or understandings between the shareholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder. The presiding
officer of the meeting may refuse to acknowledge the nomination of any person
not made in compliance with the foregoing procedure.
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2.13 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 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 a proposal to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation and the proposal and the shareholder must
comply with Regulation 14A under the Securities Exchange Act of 1934. To be
timely, a shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than one hundred
twenty calender days in advance of the anniversary date of the proxy statement
for the previous year's annual meeting. If the Corporation did not hold an
annual meeting the previous year, or if the date of the annual meeting has been
changed by more than thirty (30) calendar days from the date of the previous
year's annual meeting, then, in order to be timely, a shareholder's notice must
be received at the principal executive offices of the Corporation not later than
one hundred twenty calendar days before the date of such annual meeting or the
tenth day following the date on which public announcement of such annual meeting
is first made. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a shareholder's
notice as described above.
A shareholder's notice to the Secretary shall set forth as to each
matter the shareholder proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at 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 financial interest of the
shareholder in such proposal.
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 2.13. The presiding officer of the meeting shall, if
the facts warrant, determine and declare to the meeting that new business or any
shareholder proposal was not properly brought before the meeting in accordance
with the provisions of this Section 2.13, and if he or she should so determine,
he or she shall so declare to the meeting and any such business or proposal not
properly brought before the meeting shall not be acted upon at the meeting. This
provision shall not prevent the consideration and approval or disapproval at the
annual meeting of reports of officers, directors and committees, but in
connection with such reports no new business shall be acted upon at such annual
meeting unless stated and filed as herein provided.
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2.14 CONDUCT OF MEETINGS.
Meetings of the shareholders generally shall follow accepted rules of
parliamentary procedure subject to the following:
(a) The presiding officer of the meeting shall have absolute authority
over the matters of procedure, and there shall be no appeal from the ruling of
the presiding officer. If, in his or her absolute discretion, the presiding
officer deems it advisable to dispense with the rules of parliamentary procedure
as to any meeting of shareholders or part thereof, he or she shall so state and
shall state the rules under which the meeting or appropriate part thereof shall
be conducted.
(b) If disorder should arise which prevents the continuation of the
legitimate business of the meeting, the presiding officer may quit the chair and
announce the adjournment of the meeting, and upon so doing, the meeting will
immediately be adjourned.
(c) The presiding officer may ask or require that anyone not a bona
fide shareholder or proxy leave the meeting.
(d) The resolution or motion shall be considered for vote only if
proposed by a shareholder or a duly authorized proxy and seconded by a
shareholder or duly authorized proxy other than the individual who proposed the
resolution or motion.
(e) Except as the President, Chief Executive Officer, or chairman may
permit, no matter shall be presented to the meeting which has not been submitted
for inclusion in the agenda at least thirty (30) days prior to the meeting.
ARTICLE III.
DIRECTORS
3.1 POWERS AND DUTIES.
All corporate powers shall be exercised by or under the authority of
and the business and affairs of the Corporation managed under the direction of
the Board of Directors.
3.2 NUMBER AND TERM.
(a) NUMBER. The Board of Directors shall consist of no fewer
than three or more than fifteen members. The exact number of directors, within
the minimum and maximum, or the range for the size of the Board, or whether the
size of the Board shall be fixed or variable-range, may be fixed, changed, or
determined from time to time by the Board of Directors.
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(b) TERM. The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. At the 1998 annual meeting of shareholders, Class
I directors shall be elected; at the 1999 annual meeting of shareholders, Class
II directors shall be elected; and at the 2000 annual meeting of shareholders,
Class III directors shall be elected. At each succeeding annual meeting of
shareholders beginning with the annual meeting in 1998, successors to the class
of directors whose term expires at that annual meeting shall be elected for
three year terms. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, but in no case will a
decrease in the number of directors shorten the term of any incumbent director.
A director shall hold office until the annual meeting of shareholders for the
year in which his or her term expires and until his or her successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification, or removal from office.
3.3 MEETINGS; NOTICE.
The Board of Directors may hold regular and special meetings either
within or without the State of Tennessee. The Board of Directors may permit any
or all directors to participate in a regular or special meeting by, or conduct
the meeting through the use of, any 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.
(a) REGULAR MEETINGS. Unless the Charter otherwise provides,
regular meetings of the Board of Directors may be held without notice of the
date, time, place, or purpose of the meeting.
(b) SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman, the President, or a majority of the
directors. Unless the Charter otherwise provides, special meetings must be
preceded by at least twenty-four (24) hours' notice of the date, time, and place
of the meeting but need not describe the purpose of such meeting. Such notice
shall comply with the requirements of Article XI of these Bylaws.
(c) ADJOURNED MEETINGS. Notice of an adjourned meeting need
not be given if the time and place to which the meeting is adjourned are fixed
at the meeting at which the adjournment is taken, and if the period of
adjournment does not exceed one month in any one adjournment.
(d) WAIVER OF NOTICE. A director may waive any required notice
before or after the date and time stated in the notice. Except as provided in
the next sentence, the waiver must be in writing, signed by the director, and
filed with the minutes or corporate records. A director's attendance at or
participation in a meeting waives any required notice to him or her of such
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meeting unless the director at the beginning of the meeting (or promptly upon
his arrival) objects to holding the meeting or transacting business at the
meeting and does not thereafter vote for or assent to action taken at the
meeting.
3.4 QUORUM.
Unless the Charter requires a greater number, a quorum of the Board of
Directors consists of a majority of the fixed number of directors if the
Corporation has a fixed board size or a majority of the number of directors
prescribed, or if no number is prescribed, the number in office immediately
before the meeting begins, if the Corporation has a variable range board.
3.5 VOTING.
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, unless the
Charter or these Bylaws require the vote of a greater number of directors. A
director who is present at a meeting of the Board of Directors when corporate
action is taken is deemed to have assented to such action unless:
(a) he or she objects at the beginning of the meeting (or
promptly upon his or her arrival) to holding the meeting or transacting
business at the meeting;
(b) his or her dissent or abstention from the action taken is
entered in the minutes of the meeting; or
(c) he or she delivers written notice of his or her dissent or
abstention to the presiding officer of the meeting before its
adjournment or to the Corporation immediately after adjournment of the
meeting. The right of dissent or abstention is not available to a
director who votes in favor of the action taken.
3.6 ACTION WITHOUT MEETING.
Unless the Charter otherwise provides, any action required or permitted
by the Act to be taken at a Board of Directors meeting may be taken without a
meeting. If all directors consent to taking such action without a meeting, 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. Such
action must be evidenced by one or more written consents describing the action
taken, at least one of which is signed by each director, indicating the
director's vote or abstention on the action, which consents shall be included in
the minutes or filed with the corporate records reflecting the action taken.
Action taken by consent is effective when the last director signs the consent,
unless the consent specifies a different effective date.
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3.7 COMPENSATION.
Directors and members of any committee created by the Board of
Directors shall be entitled to such reasonable compensation for their services
as directors and members of such committee as shall be fixed from time to time
by the Board or a committee thereof, and shall also be entitled to reimbursement
for any reasonable expenses incurred in attending meetings of the Board or of
any such committee meetings. Any director receiving such compensation shall not
be barred from serving the Corporation in any other capacity and receiving
reasonable compensation for such other services.
3.8 RESIGNATION.
A director may resign at any time by delivering written notice to the
Board of Directors or to the Chairman or President. A resignation is effective
when the notice is delivered unless the notice specifies a later effective date.
3.9 VACANCIES.
Unless the Charter otherwise provides, if a vacancy occurs on the Board
of Directors, including a vacancy resulting from an increase in the number of
directors or a vacancy resulting from the removal of a director with or without
cause, either the shareholders or the Board of Directors may fill such vacancy.
If the vacancy is filled by the shareholders, it shall be filled by a plurality
of the votes cast at a meeting at which a quorum is present. If the directors
remaining in office constitute fewer than a quorum of the Board of Directors,
they may fill such vacancy by the affirmative vote of a majority of all the
directors remaining in office.
3.10 REMOVAL OF DIRECTORS.
(a) BY SHAREHOLDERS. The shareholders may remove one (1) or
more directors with or without cause unless the Charter provides that directors
may be removed only for cause. If cumulative voting is authorized, a director
may not be removed if the number of votes sufficient to elect him or her under
cumulative voting is voted against his or her removal. If cumulative voting is
not authorized, a director may be removed only if the number of votes cast to
remove him exceeds the number of votes cast not to remove him or her.
(b) BY DIRECTORS. If so provided by the Charter, any of the
directors may be removed for cause by the affirmative vote of a majority of the
entire Board of Directors.
(c) GENERAL. A director may be removed by the shareholders or
directors only at a meeting called for the purpose of removing him or her, and
the meeting notice must state that the purpose, or one of the purposes, of the
meeting is removal of directors.
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ARTICLE IV.
COMMITTEES
Unless the Charter otherwise provides, the Board of Directors may
create one or more committees, each consisting of one or more members. All
members of committees of the Board of Directors which exercise powers of the
Board of Directors must be members of the Board of Directors and serve at the
pleasure of the Board of Directors.
The creation of a committee and appointment of a member or members to
it must be approved by the greater of (i) a majority of all directors in office
when the action is taken or (ii) the number of directors required by the Charter
or these Bylaws to take action.
Unless otherwise provided in the Act, to the extent specified by the
Board of Directors or in the Charter, each committee may exercise the authority
of the Board of Directors. All such committees and their members shall be
governed by the same statutory requirements regarding meetings, action without
meetings, notice and waiver of notice, quorum, and voting requirements as are
applicable to the Board of Directors and its members.
ARTICLE V.
OFFICERS
5.1 NUMBER.
The officers of the Corporation shall be a Chairman, a President, a
Chief Executive Officer, a Chief Financial Officer, a Secretary and such other
officers as may be from time to time appointed by the Board of Directors or by
the Chairman with the Board of Directors' approval. One person may
simultaneously hold more than one office, except the President may not
simultaneously hold the office of Secretary.
5.2 APPOINTMENT.
The principal officers shall be appointed annually by the Board of
Directors at the first meeting of the Board following the annual meeting of the
shareholders, or as soon thereafter as is conveniently possible. Each officer
shall serve at the pleasure of the Board of Directors and until his or her
successor shall have been appointed, or until his or her death, resignation, or
removal.
5.3 RESIGNATION AND REMOVAL.
An officer may resign at any time by delivering notice to the
Corporation. Such resignation is effective when such notice is delivered unless
such notice specifies a later effective date. An officer's resignation does not
affect the Corporation's contract rights, if any, with the
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officer. The Board of Directors may remove any officer at any time with or
without cause, but such removal shall not prejudice the contract rights, if any,
of the person so removed.
5.4 VACANCIES.
Any vacancy in an office for any reason may be filled for the unexpired
portion of the term by the Board of Directors.
5.5 DUTIES.
(a) CHAIRMAN. The Chairman shall preside at all meetings of
the shareholders and the Board of Directors and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
(b) VICE CHAIRMAN. The Vice Chairman, if such an officer be
elected, shall, if present in the absence of the Chairman, preside at all
meetings of the Board of Directors and exercise and perform such other powers
and duties as may be from time to time assigned to him or her by the Board of
Directors or prescribed by these Bylaws.
(c) CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of
the Corporation shall have general supervision over the active management of the
business of the Corporation.
(d) PRESIDENT. The President shall have the general powers and
duties of supervision and management usually vested in the office of the
President of a corporation and shall perform such other duties as the Board of
Directors may from time to time prescribe.
(e) VICE PRESIDENT. The Vice President or Vice Presidents (if
any) shall assist the Chairman, President, and Chief Executive Officer in the
active management of the business, and shall perform such other duties as the
Board of Directors may from time to time prescribe.
(f) CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have the custody of the Corporation's funds and securities, shall keep or cause
to be kept full and accurate account of receipts and disbursements in books
belonging to the Corporation, and shall deposit or cause to be deposited all
monies and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
The Chief Financial Officer shall disburse or cause to be disbursed the funds of
the Corporation as required in the ordinary course of business or as may be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the Chairman, the President, the Chief Executive Officer, and
directors at the regular meetings of the Board, or whenever they may require it,
an account of all of his or her transactions as Chief Financial Officer and the
financial condition of the Corporation. He or she shall perform such other
duties as may be incident to the office or as prescribed from time to time by
the Board of Directors.
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(g) SECRETARY AND ASSISTANT SECRETARY. The Secretary or
Assistant Secretary shall attend all meetings of the Board of Directors and all
meetings of the shareholders and shall prepare and record all votes and all
minutes of all such meetings in a book to be kept for that purpose. He or she
shall also perform like duties for any committee when required. The Secretary or
Assistant Secretary shall give, or cause to be given, notice of all meetings of
the shareholders and of the Board of Directors when required, and unless
directed otherwise by the Board of Directors, shall keep a stock record
containing the names of all persons who are shareholders of the Corporation,
showing their place of residence and the number of shares held by each of them.
The Secretary or Assistant Secretary shall have the responsibility of
authenticating records of the Corporation. The Secretary or Assistant Secretary
shall perform such other duties as may be prescribed from time to time by the
Board of Directors.
(h) OTHER OFFICERS. Other officers appointed by the Board of
Directors shall exercise such powers and perform such duties as may be delegated
to them.
(i) DELEGATION OF DUTIES. In case of the absence or disability
of any officer of the Corporation or of any person authorized to act in his or
her place, the Board of Directors may from time to time delegate the powers and
duties of such officer to any officer, or any director, or any other person whom
it may select, during such period of absence or disability.
5.6 INDEMNIFICATION, ADVANCEMENT OF EXPENSES, AND INSURANCE.
(a) INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
Corporation shall indemnify and advance expenses to each director and officer of
the Corporation, or any person who may have served at the request of the
Corporation's Board of Directors or its President or Chief Executive Officer as
a director or officer of another corporation (and, in either case, such person's
heirs, executors, and administrators), to the full extent allowed by the laws of
the State of Tennessee, both as now in effect and as hereafter adopted. The
Corporation may indemnify and advance expenses to any employee or agent of the
Corporation who is not a director or officer (and such person's heirs,
executors, and administrators) to the same extent as to a director or officer,
if the Board of Directors determines that doing so is in the best interests of
the Corporation.
(b) NON-EXCLUSIVITY OF RIGHTS. The indemnification and expense
advancement provisions of subsection (a) of this Section 5.6 shall not be
exclusive of any other right which any person (and such person's heirs,
executors and administrators) may have or hereafter acquire under any statute,
provision of the Charter, provision of these Bylaws, resolution adopted by the
shareholders, resolution adopted by the Board of Directors, agreement, or
insurance (purchased by the Corporation or otherwise), both as to action in such
person's official capacity and as to action in another capacity.
(c) INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any individual who is or was a director, officer,
employee, or agent of the
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Corporation, or who, while a director, officer, employee, or agent of the
Corporation, is or was serving at the request of the Corporation's Board of
Directors or its Chief Executive Officer as a director, officer, partner,
trustee, employee, or agent of another corporation, partnership, joint venture,
trust, employee benefit plan, or other enterprise against any expense,
liability, or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability, or loss under this
Article or the Act.
ARTICLE VI.
SHARES OF STOCK
6.1 SHARES WITH OR WITHOUT CERTIFICATES.
The Board of Directors may authorize that some or all of the shares of
any or all of the Corporation's classes or series of stock be evidenced by a
certificate or certificates of stock. The Board of Directors may also authorize
the issue of some or all of the shares of any or all of the Corporation's
classes or series of stock without certificates. The rights and obligations of
shareholders with the same class and/or series of stock shall be identical
whether or not their shares are represented by certificates.
(a) SHARES WITH CERTIFICATES. If the Board of Directors
chooses to issue shares of stock evidenced by a certificate or certificates,
each individual certificate shall include the following on its face: (i) the
Corporation's name, (ii) the fact that the Corporation is organized under the
laws of the State of Tennessee, (iii) the name of the person to whom the
certificate is issued, (iv) the number of shares represented thereby, (v) the
class of shares and the designation of the series, if any, which the certificate
represents, and (vi) such other information as applicable law may require or as
may be lawful.
If the Corporation is authorized to issue different classes of
shares or different series within a class, the designations, relative rights,
preferences, and limitations determined for each series (and the authority of
the Board of Directors to determine variations for future series) shall be
summarized on the front or back of each certificate. Alternatively, each
certificate shall state on its front or back that the Corporation will furnish
the shareholder this information in writing, without charge, upon request.
Each certificate of stock issued by the Corporation shall be
signed (either manually or in facsimile) by any two officers of the Corporation.
If the person who signed a certificate no longer holds office when the
certificate is issued, the certificate is nonetheless valid.
(b) SHARES WITHOUT CERTIFICATES. If the Board of Directors
chooses to issue shares of stock without certificates, the Corporation, if
required by the Act, shall, within a reasonable time after the issue or transfer
of shares without certificates, send the shareholder a written statement of the
information required on certificates by Section 6.1(a) of these Bylaws and any
other information required by the Act.
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6.2 SUBSCRIPTIONS FOR SHARES.
Subscriptions for shares of the Corporation shall be valid only if they
are in writing. Unless the subscription agreement provides otherwise,
subscriptions for shares, regardless of the time when they are made, shall be
paid in full at such time, or in such installments and at such periods, as shall
be determined by the Board of Directors. All calls for payment on subscriptions
shall be uniform as to all shares of the same class or of the same series,
unless the subscription agreement specifies otherwise.
6.3 TRANSFERS.
Transfers of shares of the capital stock of the Corporation shall be
made only on the books of the Corporation by (i) the holder of record thereof,
(ii) his or her legal representative, who, upon request of the Corporation,
shall furnish proper evidence of authority to transfer, or (iii) his or her
attorney, authorized by a power of attorney duly executed and filed with the
Secretary of the Corporation or a duly appointed transfer agent. Such transfers
shall be made only upon surrender, if applicable, of the certificate or
certificates for such shares properly endorsed and with all taxes thereon paid.
6.4 LOST, DESTROYED, OR STOLEN CERTIFICATES.
No certificate for shares of stock of the Corporation shall be issued
in place of any certificate alleged to have been lost, destroyed, or stolen
except on production of evidence, satisfactory to the Board of Directors, of
such loss, destruction, or theft, and, if the Board of Directors so requires,
upon the furnishing of an indemnity bond in such amount and with such terms and
such surety as the Board of Directors may in its discretion require.
ARTICLE VII.
CORPORATE ACTIONS
7.1 CONTRACTS.
Unless otherwise required by the Board of Directors, the Chairman, the
President, the Chief Executive Officer, or any Vice President shall execute
contracts or other instruments on behalf of and in the name of the Corporation.
The Board of Directors may from time to time authorize any other officer,
assistant officer, or agent to enter into any contract or execute any instrument
in the name of and on behalf of the Corporation as it may deem appropriate, and
such authority may be general or confined to specific instances.
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7.2 LOANS.
No loans shall be contracted on behalf of the Corporation and no
evidence of indebtedness shall be issued in its name unless authorized by the
Chairman, the President, the Chief Executive Officer, or the Board of Directors.
Such authority may be general or confined to specific instances.
7.3 CHECKS, DRAFTS, ETC.
Unless otherwise required by the Board of Directors, all checks,
drafts, bills of exchange, and other negotiable instruments of the Corporation
shall be signed by either the Chairman, the President, the Chief Executive
Officer, a Vice President or such other officer, assistant officer, or agent of
the Corporation as may be authorized so to do by the Board of Directors. Such
authority may be general or confined to specific business, and, if so directed
by the Board, the signatures of two or more such officers may be required.
7.4 DEPOSITS.
All funds of the Company not otherwise employed shall be deposited from
time to time to the credit of the Corporation in such banks or other
depositories as the Board of Directors may authorize.
7.5 VOTING SECURITIES HELD BY THE CORPORATION.
Unless otherwise required by the Board of Directors, the Chairman,
President, or Chief Executive officer shall have full power and authority on
behalf of the Corporation to attend any meeting of security holders, or to take
action on written consent as a security holder, of other corporations in which
the Corporation may hold securities. In connection therewith the Chairman, the
President, or the Chief Executive Officer shall possess and may exercise any and
all rights and powers incident to the ownership of such securities which the
Corporation possesses. The Board of Directors may, from time to time, confer
like powers upon any other person or persons.
7.6 DIVIDENDS.
The Board of Directors may, from time to time, declare, and the
Corporation may pay, dividends on its outstanding shares of capital stock in the
manner and upon the terms and conditions provided by applicable law. The record
date for the determination of shareholders entitled to receive the payment of
any dividend shall be determined by the Board of Directors, which in no event
will be less than ten days prior to the date of such payment.
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ARTICLE VIII.
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors, and in the absence of such determination, shall be the calendar year.
ARTICLE IX.
CORPORATE SEAL
The Corporation shall not have a corporate seal.
ARTICLE X.
AMENDMENT OF BYLAWS
These Bylaws may be altered, amended, repealed, or restated, and new
Bylaws may be adopted, at any meeting of the shareholders by the affirmative
vote of the holders of a majority of the voting power of the shares entitled to
vote for the election of directors, or by the affirmative vote of a majority of
the members of the Board of Directors who are present at any regular or special
meeting.
ARTICLE XI.
NOTICE
Unless otherwise provided for in these Bylaws, any notice required
shall be in writing except that oral notice is effective if it is reasonable
under the circumstances and not prohibited by the Charter or these Bylaws.
Notice may be communicated in person, by telephone, telegraph, teletype or other
form of wire or wireless communication, or by mail or private carrier. If these
forms of personal notice are impracticable, notice may be communicated by a
newspaper of general circulation in the area where published, or by radio,
television, or other form of public broadcast communication. Written notice to a
domestic or foreign corporation authorized to transact business in Tennessee may
be addressed to its registered agent at its registered office or to the
corporation or its secretary at its principal office as shown in its most recent
annual report or, in the case of a foreign corporation that has not yet
delivered an annual report, in its application for a certificate of authority.
Written notice to shareholders, if in a comprehensible form, is
effective when mailed, if mailed postpaid and correctly addressed to the
shareholder's address shown in the Corporation's current record of shareholders.
Except as provided above, written notice, if in a comprehensible form, is
effective at the earliest of the following: (a) when received; (b) five days
after its deposit in the United States mail, if mailed correctly addressed and
with first class postage affixed thereon; (c) on the date shown on the return
receipt, if sent by registered or certified mail, return receipt requested, and
the receipt is signed by or on behalf of the addressee; or (d) twenty days after
its deposit in the United States mail, as evidenced by the postmark if mailed
correctly
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addressed, and with other than first class, registered, or certified postage
affixed. Oral notice is effective when communicated if communicated in a
comprehensible manner.
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