Bylaws - Master Graphics Inc.
BYLAWS
OF
MASTER GRAPHICS, INC.
(THE "CORPORATION")
ARTICLE I
OFFICES, FISCAL YEAR AND RECORDS
1.1 Registered Office. The registered office of the Corporation shall be
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in the City of Memphis, County of Shelby, State of Tennessee until otherwise
established by resolution of the Board of Directors and a certificate certifying
the change is filed in the manner provided by statute.
1.2 Other Offices. The Corporation may also have offices at such other
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places within or without the State of Tennessee as the Board of Directors may
from time to time determine or the business of the Corporation may require.
1.3 Fiscal Year. The fiscal year of the Corporation shall end on the 31st
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of December in each year unless the Board of Directors shall authorize another
fiscal year end.
ARTICLE II
SHAREHOLDERS
2.1 Annual Meeting. The annual meeting of the shareholders of the
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Corporation for the election of Directors and the transaction of any business as
may properly be brought before the meeting shall be held on such date and at
such place and time as may be fixed by resolution of the Board of Directors.
Failure to hold an annual meeting does not invalidate the Corporation's
existence or affect any otherwise valid corporate act. At the annual meeting,
the shareholders shall consider only such business as shall have been proposed
by the board of directors for consideration at such meeting or shall have been
proposed by a shareholder pursuant to the terms and conditions of Section 2.7.
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2.2 Special Meeting. Subject to any rights of the holders of any series
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of Preferred Stock with respect to such series of Preferred Stock, the
Corporation shall hold a special meeting of shareholders only in the event (a)
the Board of Directors of the Corporation or the President of the Corporation
shall call same or (b) the holders of at least fifty percent (50%) of all the
votes entitled to be cast on any issue proposed to be considered at the proposed
special meeting shall sign, date, and deliver to the Corporation's secretary one
or more written demands for the meeting describing the purpose or purposes for
which it 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 of
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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 Meeting. The Board of Directors may designate the place of
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meeting for any annual meeting or for any special meeting of the shareholders
called by the Board of Directors or the President. If no designation is so
made, the place of meeting shall be the principal office of the Corporation.
2.4 Notice of Meeting; Waiver.
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(a) Notice. Written or printed notice, stating the place, day and
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hour of the meeting and the purpose or purposes for which the meeting is called,
shall be delivered by the Corporation not less than 10 days nor more than 60
days before the date of the meeting, either personally or by mail, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail with
postage thereon prepaid, addressed to the shareholder at his address as it
appears on the stock transfer books of the Corporation. Such further notice
shall be given as may be required by law. Meetings may be held without notice
if all shareholders entitled to vote are present, or if notice is waived by
those not present in accordance with Section 7.1 of these Bylaws.
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(b) Waiver. A shareholder may waive any notice required by law, the
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Corporation's Charter (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: (1) 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 (2)
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 Shareholders' List. After the record date for a meeting has been
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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 (2) 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 "TBCA"), to copy the list, during
regular business hours and at his expense, during the period it is available for
inspection.
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2.6 Voting of Shares. Unless otherwise provided by the TBCA or the
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Charter, each outstanding share of Common Stock is entitled to one (1) vote on
each matter voted on at a shareholders' meeting. Unless otherwise provided in
the Charter, directors are elected by a plurality of the votes cast by the
shares of Common Stock entitled to vote in the election at a meeting at which a
quorum is present.
2.7 Proxies. A shareholder may vote his or her shares in person or by
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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 (11) 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.
2.8 Acceptance of Shareholder Documents. If the name signed on a
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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
acceptable to the Corporation of the signatory's authority to sign for the
shareholder has been presented with respect to such 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
(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 (1) of
the co-owners and the person signing appears to be acting on behalf of all the
co-owners.
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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.
2.9 Action Without a Meeting. Action required or permitted by the TBCA
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to be taken at a shareholders' meeting may be taken without a meeting. If all
shareholders entitled to vote on the action 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 such meeting is the act of the
shareholders.
The action must be evidenced by one (1) 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 (1) 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 TBCA 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 (10) 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.
Notwithstanding the foregoing, if the rules of any securities exchange or
market on which the Corporation's shares or securities are traded shall not
permit the taking of action without a meeting, then, for so long as such rules
shall apply to the Corporation, the provisions of this Section 2.9 shall be of
no force and effect.
2.10 Presiding Officer and Secretary. At every meeting of the
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shareholders, the Chairman of the Board, if there be one, shall conduct the
meeting or, in the case of vacancy in office or absence of the Chairman of the
Board, one of the following officers present shall conduct the meeting in the
order stated: the Vice-Chairman of the Board, if there be one, the President,
the Vice Presidents in their order of rank and seniority, or a Chairman chosen
by the shareholders entitled to cast a majority of the votes which all
shareholders present in person or by proxy are entitled to cast, shall act as
Chairman, and the Secretary or, in his absence, an assistant secretary, or in
the absence of both the Secretary and assistant secretaries a person appointed
by the Chairman shall act as secretary of the meeting.
2.11 Notice of Nominations. Nominations for the election of directors
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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 shareholder entitled to
vote in the election of directors generally. However, any such shareholder
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nomination may be made 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 (120) 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 (10th) 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
(10) 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 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 President,
Chief Executive Officer, or chairman of the meeting may refuse to acknowledge
the nomination of any person not made in compliance with the foregoing
procedure.
2.12 Notice of New Business. At any annual meeting of the shareholders
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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 Rule 14a-8 under the Securities
Exchange Act of 1934, as amended. To be timely, a shareholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation within the time limits specified by Rule 14a-8.
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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 President, Chief Executive Officer, or chairman
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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
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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.
2.13 Conduct of Meetings. Meetings of the shareholders shall follow
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accepted rules of parliamentary procedure subject to the following:
(a) The Chairman of the Board, Vice Chairman of the Board, the President,
the Vice President, or chairman of the meeting shall have absolute authority
over the matters of procedure, and there shall be no appeal from the ruling of
such individual. If, in his or her absolute discretion, the chairman of the
meeting deems its 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 with 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 chairman of the meeting may quit the
chair and announce the adjournment of the meeting, and upon so doing, the
meeting will immediately be adjourned.
(c) The chairman of the meeting 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 a 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.
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(e) Except as the chairman of the meeting 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.
2.14. Inspectors. At any meeting of shareholders, the Chairman of the
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meeting may, or upon the request of any shareholder shall, appoint one or more
persons as inspectors for such meeting. Such inspectors shall ascertain and
report the number of shares represented at the meeting based upon their
determination of the validity and effect of proxies, count all votes, report the
results and perform such other acts as are proper to conduct the election and
voting with impartiality and fairness to all the shareholders.
Each report of an inspector shall be in writing and signed by him or by a
majority of them if there is more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
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facie evidence thereof.
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ARTICLE III
BOARD OF DIRECTORS
3.1 General Powers. The business and affairs of the Corporation shall be
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managed under the direction of the Board of Directors. In addition to the
powers and authorities by these Bylaws expressly conferred upon it, the Board of
Directors may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Charter or by these Bylaws
required to be exercised or done by the shareholders.
3.2 Number, Tenure and Qualification. Subject to the rights of the
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holders of any series of Preferred Stock to elect directors under specified
circumstances, the Board of Directors shall consist of not less than three (3)
nor more than fifteen (15) members unless otherwise determined from time to time
by resolution adopted by the affirmative vote of at least eighty percent (80%)
of the members of the Board of Directors. However, the number of directors
shall never be less than the minimum number required by the TBCA. A director
need not be a shareholder. Directors shall be divided into three (3) classes as
nearly equal in number as possible. The initial term of Class I directors shall
expire at the annual shareholder meeting in 1999; the initial term of Class II
directors shall expire at the annual shareholder meeting in 2000; and the
initial term of the Class III directors shall expire at the annual shareholder
meeting in 2001. At each annual shareholder meeting, the shareholders shall
elect one or more directors to serve a three-year term of the class of directors
whose term is expiring at such annual meeting and until their successors are
elected and qualify.
3.3 Changes in Number; Vacancies. Subject to applicable law and the
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rights of the holders of any series of Preferred Stock with respect to such
series of Preferred Stock, and unless the Board of Directors otherwise
determines, vacancies resulting from death, resignation, retirement,
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disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors. The directors
chosen to fill vacancies shall hold office for a term expiring at the end of the
next annual meeting of shareholders at which the term of the class to which they
have been elected expires. At all times all classes of Directors shall be as
nearly equal in number as possible. If, consistent with the concept that the
three classes of Directors shall be as nearly equal in number as possible, any
newly-created directorship may be allocated to more than one class, the Board of
Directors shall allocate it to the available class whose term is due to expire
at the earliest date following such allocation.
3.4 Removal of Directors. Any director of the Corporation may be removed
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from office but only for cause and only by (a) the affirmative vote of the
holders of a majority of the voting power of the shares entitled to vote for the
election of directors, considered for this purpose as one class, unless a vote
of a special voting group is otherwise required by law or (b) the affirmative
vote of a majority of the entire Board of Directors then in office.
3.5 Regular Meetings. A regular meeting of the Board of Directors shall
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be held without other notice than this Bylaw immediately after, and at the same
place as, the annual meeting of shareholders, or at such other place or time as
the Board of Directors may determine by resolution and without other notice than
such resolution. The Board of Directors may, by resolution, provide the time
and place for the holding of additional regular meetings without other notice
than such resolution.
3.6 Special Meetings. Special meetings of the Board of Directors shall
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be called at the request of the Chairman of the Board, the President or a
majority of the Board of Directors then in office. The person or persons
authorized to call special meetings of the Board of Directors may fix the place
and time of the meetings.
3.7 Notice. Notice of any special meeting of directors shall be given to
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each director at his business or residence in writing by first-class or
overnight mail or courier service, telegram or facsimile transmission, orally by
telephone or by hand delivery. If mailed by first class mail, such notice shall
be deemed adequately delivered when deposited in the United States mails so
addressed, with postage thereon prepaid, at least five (5) days before such
meeting. If by telegram, overnight mail or courier service, such notice shall
be deemed adequately delivered when the telegram is delivered to the telegraph
company or the notice is delivered to the overnight mail or courier service
company at least twenty-four (24) hours before such meeting. If by facsimile
transmission, such notice shall be deemed adequately delivered when the notice
is transmitted at least twelve (12) hours prior to the time set for the meeting.
If by telephone or by hand delivery, the notice shall be given at least twelve
(12) hours prior to the time set for the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice of such meeting, except for
amendments to these Bylaws, as provided under Section 7.9. A meeting may be
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held at any time without notice if all the directors are present or if those not
present waive notice of the meeting.
3.8 Action by Consent of Board of Directors. Any action required or
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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, sign, in one or more counterparts, one or more
written consents to taking such action without a meeting, stating the action so
taken, and indicating each signing director's vote or abstention on the action,
and the writing or writings are filed with the minutes of proceedings of the
Board or committee.
3.9 Conference Telephone Meetings. Members of the Board of Directors, or
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any committee thereof, may participate in a meeting of the Board of Directors or
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at such meeting.
3.10 Quorum. Except as otherwise required by the Charter, a whole number
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of directors equal to at least a majority of the total number of directors then
in office shall constitute a quorum for the transaction of business, but if at
any meeting of the Board of Directors there shall be less than a quorum present,
a majority of the directors present may adjourn the meeting from time to time
without further notice. Except as otherwise required by the Charter or these
Bylaws, the act of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. The directors
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to leave less
than a quorum.
3.11 Committees. The Board of Directors may create one (1) or more
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committees, each consisting of one (1) 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 the 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 by the TBCA, to the extent specified by the Board of Directors, 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 and requirements contained in these Bylaws 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.
3.12. Compensation of Directors. Unless otherwise restricted by the
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Charter, the Board of Directors shall have the authority to fix the compensation
of directors.
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ARTICLE IV
OFFICERS
4.1 Number, Qualifications and Designation. The officers of the
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Corporation shall be chosen by the Board of Directors and shall be a Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, a
President, one or more Vice Presidents, a Secretary, a Treasurer, and such other
officers as may be appointed in accordance with the provisions of Section 4.3
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of this Article. Any number of offices may be held by the same person, except
as otherwise set forth in the TBCA. Except as otherwise set forth herein,
officers may, but need not, be directors or shareholders of the Corporation.
The Board of Directors may elect from among the members of the Board a Chairman
of the Board and a Vice Chairman of the Board who may be officers of the
Corporation if so designated by the Board. All officers elected by the Board of
Directors shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article IV. Such
officers shall also have such powers and duties as from time to time may be
conferred by the Board of Directors or by any committee thereof.
4.2 Appointment and Term of Office. The officers of the Corporation,
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except those appointed by delegated authority pursuant to Section 4.3 of this
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Article, shall be appointed annually by the Board of Directors, and each such
officer shall hold office until the next annual meeting of directors and until a
successor is appointed and qualified, or until his or her earlier resignation or
removal.
4.3 Subordinate Officers, Committees and Agents. The Board of Directors
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may from time to time appoint such other officers and appoint such committees,
employees or other agents as it deems necessary, who shall hold their offices
for such terms and shall exercise such powers and perform such duties as are
provided in these Bylaws, or as the Board of Directors may from time to time
determine. The Board of Directors may delegate to any officer or committee the
power to appoint subordinate officers and to retain or appoint employees or
other agents, or committees thereof, and to prescribe the authority and duties
of such subordinate officers, committees, employees or other agents.
4.4 Removal. Any officer or agent appointed by the Board of Directors may
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be removed by the affirmative vote of a majority of the total number of
directors then in office whenever, in their judgment, the best interests of the
Corporation would be served thereby. Any officer or agent appointed by another
officer by delegated authority pursuant to Section 4.3 may be removed by him
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whenever, in his judgment, the best interests of the Corporation would be served
thereby. No appointed officer shall have any contractual rights against the
Corporation for compensation by virtue of such appointment beyond the date of
the appointment of his successor, his death, his resignation or his removal,
whichever event shall first occur, except as otherwise provided in an employment
contract or under an employee deferred compensation plan.
4.5 Vacancies. A newly created elected office and a vacancy in any elected
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office because of death, resignation, or removal may be filled by the Board of
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Directors for the unexpired portion of the term at any meeting of the Board of
Directors. Any vacancy in an office appointed by another officer by delegated
authority pursuant to Section 4.3 because of death, resignation, or removal may
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be filled by such other officer.
4.6 The Chairman and Vice Chairman of the Board. The Chairman of the
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Board, if there be one, or in the absence of the Chairman, the Vice Chairman of
the Board, if there be one, shall preside at all meetings of the shareholders
and of the Board of Directors, and shall perform such other duties as may from
time to time be assigned to them by the Board of Directors. To be eligible to
serve, the Chairman of the Board and the Vice Chairman must be directors of the
Corporation.
4.7 The Chief Executive Officer. The Chief Executive Officer shall
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have responsibility for implementation of the policies of the Corporation, as
determined and directed by the Board of Directors and for the administration of
the business affairs of the Corporation.
4.8 The Chief Operating Officer. The Chief Operating Officer will have
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the responsibilities and duties in respect of the operation of the business of
the Corporation as set forth by the Board of Directors or the Chief Executive
Officer.
4.9 The Chief Financial Officer. The Chief Financial Officer will have
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responsibility for the financial affairs of the Corporation, including the
financing of the Corporation's business, accounting for its assets, liabilities
and operations, and the implementation and maintenance of internal accounting
controls, subject to direction and control by the Chief Executive Officer and
the Board of Directors (including any audit committee).
4.10 The President. The President shall have responsibility for general
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supervision over the business, operations and affairs of the Corporation,
subject, however, to the supervision by the Chief Executive Officer (if other
than the President) and control of the Board of Directors. The President shall,
in general, perform all duties incident to the office of president, and such
other duties as from time to time may be assigned by the Chief Executive Officer
and/or Board of Directors.
4.11 The Vice Presidents. The Vice Presidents shall perform such duties
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as may from time to time be assigned to them by the Board of Directors or by the
Chief Executive Officer or the President.
4.12 The Secretary. The Secretary, or an Assistant Secretary, shall
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attend all meetings of the shareholders and of the Board of Directors and shall
record the proceedings of the shareholders and of the directors and of
committees of the Board in a book or books to be kept for that purpose; shall
see that notices are given and records and reports properly kept and filed by
the Corporation as required by law; shall be the custodian of the seal of the
Corporation and see that it is affixed to all documents to be executed on behalf
of the Corporation under its seal; and, in general, shall perform all duties
incident to the office of secretary, and such other duties as may from time to
time be assigned by the Board of Directors, the Chairman thereof, or the Chief
Executive Officer.
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4.13 The Treasurer. The Treasurer, or an Assistant Treasurer, shall have
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or provide for the custody of the funds or other property of the Corporation;
shall collect and receive or provide for the collection and receipt of moneys
earned by or in any manner due to or received by the Corporation; shall deposit
all funds in his or her custody as treasurer in such banks or other places of
deposit as the Board of Directors may from time to time designate; whenever so
required by the Board of Directors, shall render an account showing his or her
transactions as treasurer and the financial condition of the Corporation; and,
in general, shall discharge such other duties as may from time to time be
assigned by the Board of Directors, the Chief Executive Officer, or the Chief
Financial Officer.
4.14 Officers' Bonds. No officer of the Corporation need provide a bond
---------------
to guarantee the faithful discharge of the officer's duties unless the Board of
Directors shall by resolution so require a bond in which event such officer
shall give the Corporation a bond (which shall be renewed if and as required) in
such sum and with such surety or sureties as shall be satisfactory to the Board
of Directors for the faithful performance of the duties of office.
4.15 Salaries. The salaries of the officers and agents of the Corporation
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appointed by the Board of Directors shall be fixed from time to time by the
Board of Directors.
ARTICLE V
CERTIFICATES OF SHARES, TRANSFER, ETC.
5.1 Form and Issuance.
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(a) Issuance. The shares of the Corporation shall be represented by
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certificates unless the Board of Directors shall by resolution provide that some
or all of any class or series of shares shall be uncertificated shares. Any
such resolution shall not apply to shares represented by a certificate until the
certificate is surrendered to the Corporation. Notwithstanding the adoption of
any resolution providing for uncertificated shares, every holder of shares
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
Corporation by, the Chairman or Vice Chairman of the Board of Directors, or the
President or Vice President, and by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary, representing the number of shares
registered in certificate form.
(b) Form and Records. Share certificates of the Corporation shall be
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in such form as approved by the Board of Directors. The share record books and
the blank share certificate books shall be kept by the Secretary or by any
agency designated by the Board of Directors for that purpose. The share
certificates of the Corporation shall be numbered and registered in the share
ledger and transfer books of the Corporation as they are issued.
(c) Signatures. Any of or all the signatures upon the share
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certificates of the Corporation may be a facsimile. In case any officer,
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transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any stock certificate shall have ceased to be such officer,
transfer agent or registrar, before the certificate is issued, it may be issued
with the same effect as if the signatory were such officer, transfer agent or
registrar at the date of its issue.
5.2 Transfer. The Corporation may appoint from time to time a transfer
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agent, who may, among other things, maintain any share register and transfer
books and effect transfers of the Corporation's shares. Transfers of shares
shall be made on the share register or transfer books of the Corporation upon
surrender of the certificate therefor, endorsed by the person named in the
certificate or by an attorney lawfully constituted in writing, with signature
guarantees to the extent required by law or in the sole discretion of the
Corporation or any transfer agent. No transfer shall be made which would be
inconsistent with the provisions of Article 8, Title 6 of the Tennessee Uniform
Commercial Code.
5.3 Lost, Stolen, Destroyed or Mutilated Certificates. The Board of
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Directors may direct a new certificate of share or uncertificated shares to be
issued in place of any certificate theretofore 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 share to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or uncertificated
shares, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or the legal representative of the owner,
to give the Corporation a bond sufficient to indemnify against any claim that
may be made against the Corporation on account of the alleged loss, theft or
destruction of such certificate or the issuance of such new certificate or
uncertificated shares.
5.4 Record Holder of Shares. The Corporation shall be entitled to
------------------------
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such 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, except as otherwise provided by the TBCA.
5.5 Determination of Shareholders of Record.
---------------------------------------
(a) Meetings of Shareholders. In order that the Corporation may
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determine the shareholders entitled to notice of or to vote at any meeting of
shareholders 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 seventy (70) days before the date of such meeting.
If no record date is fixed by the Board of Directors, 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 next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A record date
fixed for a shareholders' meeting is effective for any adjournment of such
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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 (4) months after the date
fixed for the original meeting.
(b) Dividends. In order that the Corporation may determine the
---------
shareholders entitled to receive payment of any dividend or other distribution
or allotment of any rights of the shareholders entitled to exercise any rights
in respect of any change, conversion or exchange of shares, or for the purpose
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 60 days
prior to such action. If no record date is fixed, the record date for
determining shareholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS AND
OTHER AUTHORIZED REPRESENTATIVES
6.1. Civil Proceedings. The Corporation shall indemnify to the fullest
-----------------
extent permitted by Tennessee law, any individual made a party to a proceeding
because such individual is or was a director, officer, employee or agent of the
Corporation against liability incurred in any civil proceeding if the individual
conducted himself or herself in good faith and in the case of conduct in his or
her official capacity with the Corporation, the individual reasonably believed
that his or her conduct was in the best interest of the Corporation, or in all
other cases such individual reasonably believed that his or her conduct was at
least not opposed to the best interest of the Corporation.
6.2 Criminal Proceedings. The Corporation shall indemnify to the fullest
--------------------
extent permitted by Tennessee law, any individual made a party to a criminal
proceeding because such individual is or was a director, officer, employee or
agent of the Corporation against any liability incurred in any criminal
proceeding if such individual had no reasonable cause to believe his conduct
was unlawful.
6.3 Employee Benefit Plan. The Corporation shall indemnify to the fullest
---------------------
extent permitted by Tennessee law, any individual made a party to any proceeding
because such individual is or was a director, officer, employee or agent of the
Corporation against any liability incurred in any proceeding relating to any
employee benefit plan maintained by the Corporation if his or her conduct with
respect to said employee benefit plan was for a purpose he or she reasonably
believed to be in the interests of the participants and the beneficiaries of the
plan and his or her conduct was not opposed to the best interests of the
Corporation.
6.4 Limitations. The termination of any proceeding by judgment, order,
-----------
settlement, conviction, or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the director, officer, employee or agent did
not meet the standard of conduct required in this Article. However, the
Corporation will not indemnify a director, officer, employee or agent if in
connection with a proceeding by or in the right of the Corporation in which the
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director, officer, employee or agent was adjudged liable to the Corporation, or
in connection with any other proceeding charging improper personal benefit to
him, whether or not involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly received by
him. The Corporation will indemnify a director, officer, employee or agent who
is wholly successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party because he is or was a director, officer,
employee or agent of the Corporation against reasonable expenses incurred by him
in connection with the proceeding.
6.5 Mandatory Indemnification. The Corporation shall indemnify a
-------------------------
director, officer, employee or agent who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which the director, officer,
employee or agent was a party because the director, officer, employee or agent
is or was a director, officer, employee or agent of the Corporation against
reasonable expenses incurred by the director, officer, employee or agent in
connection with the proceeding.
6.6 Advance for Expenses. The Corporation shall pay for or reimburse the
--------------------
reasonable expenses incurred by a director, officer, employee or agent who is a
party to a proceeding in advance of final disposition of the proceeding if the
director, officer, employee or agent furnishes the Corporation a written
affirmation of his good faith belief that he has met the standard of conduct
required in this Article, furnishes the Corporation a written undertaking,
executed personally or on his behalf, secured or unsecured, to repay the advance
if it is ultimately determined that he did not meet the required standard of
conduct, and a determination is made that the facts then known to those making
the determination would not preclude indemnification of said director, officer,
employee or agent.
6.7 Authorization. A majority vote of the Board of Directors shall
-------------
determine whether or not indemnification of a director, officer, employee or
agent is permissible under the circumstances because he has met the required
standard of conduct. Alternatively, a majority vote of the Board of Directors
may appoint an independent special legal counsel to determine whether or not
indemnification of a director, officer, employee or agent is permissible under
the circumstances because he has met the required standard of conduct.
6.8 Insurance. The Corporation may purchase and maintain insurance on
---------
behalf of an individual who is or was a director, officer, employee or agent of
the Corporation, or who, while a director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against liability asserted against or incurred by him in that capacity or
arising from his status as a director, officer, employee or agent, whether or
not the Corporation would have power to indemnify him against the same liability
under applicable state law.
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6.9 Interpretation. This Article shall be interpreted to allow
--------------
indemnification of directors, officers, employees or agents to the fullest
extent allowable under Title 48 of the Tennessee Code Annotated as amended from
time to time.
6.10 Insurance. The Corporation may purchase and maintain insurance on
---------
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against the
person and incurred by the person in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power or the
obligation to indemnify such person against such liability under the provisions
of this Article.
6.11 Scope of Article. The indemnification of authorized representatives
----------------
and advancement of expenses, as authorized by the preceding provisions of this
Article, shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in an official capacity and as to action in another capacity while
holding such office. The indemnification and advancement of expenses provided by
or granted pursuant to this Article shall continue as to a person who has ceased
to be an authorized representative and shall inure to the benefit of the heirs,
executors and administrators of such a person.
6.12 Reliance on Provisions. Each person who shall act as an authorized
----------------------
representative of the Corporation shall be deemed to be doing so in reliance
upon rights of indemnification provided by this Article.
ARTICLE IX
GENERAL PROVISIONS
7.1 Dividends. Subject to the restrictions contained in the TBCA and any
---------
restrictions contained in the Charter, the Board of Directors may declare and
pay dividends upon the shares of capital stock of the Corporation.
7.2 Contracts. Except as otherwise required by law, the Charter, or these
---------
Bylaws, any contracts or other instruments may be executed and delivered in the
name and on the behalf of the Corporation by such officer or officers of the
Corporation as the Board of Directors may from time to time direct. Such
authority may be general or confined to specific instances as the Board may
determine. The Chairman of the Board, if an executive officer, the President or
any Vice President may execute bonds, contracts, deeds, leases, and other
instruments to be made or executed for or on behalf of the Corporation. Subject
to any restrictions imposed by the Board of Directors, the Chairman of the
Board, if an executive officer, the President or any Vice President of the
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Corporation may delegate contractual powers to others under his jurisdiction, it
being understood, however, that any such delegation of power shall not relieve
such officer of responsibility with respect to the exercise of such delegated
power.
7.3 Corporate Seal. The Corporation shall have a corporate seal, which
--------------
shall have inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Tennessee". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
7.4 Deposits. All funds of the Corporation shall be deposited from time to
--------
time to the credit of the Corporation in such banks, trust companies, or other
depositories as the Board of Directors may approve or designate, and all such
funds shall be withdrawn only upon checks signed by such one or more officers or
employees as the Board of Directors shall from time to time determine.
7.5 Corporate Records.
-----------------
(a) Examination by Shareholders. Every shareholder shall, upon
---------------------------
written demand under oath stating the purpose thereof, have a right to examine,
in person or by agent or attorney, during the usual hours for business, for any
proper purpose, the share ledger, list of shareholders, books or records of
account, and records of the proceedings of the shareholders and directors of the
Corporation, and to make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to such person's interest as a shareholder.
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 which authorizes the attorney or other agent
to so act on behalf of the shareholder. The demand under oath shall be directed
to the Corporation at its registered office in Tennessee or at its principal
place of business. Where the shareholder seeks to inspect the books and records
of the Corporation, other than its share ledger or list of shareholders, the
shareholder shall first establish (1) that the shareholder has complied with the
provisions of this section respecting the form and manner of making demand for
inspection of such documents; and (2) that the inspection sought is for a proper
purpose. Where the shareholder seeks to inspect the stock ledger or list of
shareholders of the Corporation and has complied with the provisions of this
section respecting the form and manner of making demand for inspection of such
documents, the burden of proof shall be upon the Corporation to establish that
the inspection sought is for an improper purpose.
(b) Examination by Directors. Any director shall have the right to
------------------------
examine the Corporation's share ledger, a list of its shareholders and its other
books and records for a purpose reasonably related to the person's position as a
director.
7.6 Resignations. Any director or any officer, whether elected or
------------
appointed, may resign at any time by giving written notice of such resignation
to the Chairman of the Board, the Chief Executive Officer, or the Secretary, and
such resignation shall be deemed to be effective as of the close of business on
the date said notice is received by the Chairman of the Board, the Chief
Executive Officer, or the Secretary, or at such later time as is specified
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therein. No formal action shall be required of the Board of Directors or the
shareholders to make any such resignation effective.
7.7 Proxies. Unless otherwise provided by resolution adopted by the Board
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of Directors, the Chairman of the Board, the President or any Vice President may
from time to time appoint an attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as the holder of stock or other
securities in any other corporation, any of whose stock or other securities may
be held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporation, or to consent in writing, in the name of
the Corporation as such holder, to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal or otherwise,
all such written proxies or other instruments as he may deem necessary or proper
in the premises.
7.8 Amendment of Bylaws. In furtherance and not in limitation of the
-------------------
powers conferred by statute, the Board of Directors of the Corporation is
expressly authorized from time to time to make, adopt, alter, amend, supplement
and repeal the bylaws of the Corporation in any respect, subject to the right of
the shareholders entitled to vote with respect thereto to adopt, alter, amend
and repeal bylaws made by the Board of Directors; provided, however, that bylaws
shall not be made, adopted, altered, amended or repealed by the shareholders of
the Corporation except by the vote of the holders of not less than sixty-six and
two-thirds percent (66b%) of the outstanding shares of stock of each class and
series entitled to vote upon such matter.
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