Attached files
Exhibit 3.1
SAKS
INCORPORATED
COMPOSITE
AMENDED AND RESTATED BYLAWS
(As
amended through December 9, 2009)
ARTICLE
I
IDENTIFICATION;
OFFICES AND REGISTERED AGENT
Section 1.
Identification.
The name of the Corporation is Saks Incorporated, a Tennessee corporation
(the “Corporation”).
Section 2.
Principal
Office. The principal office of this Corporation
is located at 12 East 49th
Street, New York, New York 10017, as provided in the Charter. The Board of
Directors may, by resolution, amend the Charter to change the address of the
principal office.
Section 3.
Registered
Agent. The Corporation has designated and
shall continue to have a registered agent in the State of Tennessee. If the
registered agent resigns or is for any reason unable to perform his duties, the
Corporation shall promptly designate another registered agent. The Corporation
may, by resolution of the Board of Directors, appoint such other agents for the
service of process in such other jurisdictions as the Board of Directors may
determine.
ARTICLE
II
MEETINGS
OF SHAREHOLDERS
Section 1.
Meetings. All meetings of the shareholders
for the election of directors shall be held in the City of Alcoa, State of
Tennessee, at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of
Tennessee as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of shareholders for any other
purpose may be held at such time and place, within or without the State of
Tennessee, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2.
Annual
Meetings. Annual meetings of the
shareholders, commencing with fiscal year 1988, shall be held on the 2nd Monday
of June if said date is not a legal holiday, and if a legal holiday, then on the
next day following which is not a legal holiday, or at such other date and time
as shall be designated from time to time by the Board of Directors, for the
purpose of electing directors of the Corporation and for the transacting of such
other business as may properly come before the meeting. Written notice of the
annual meeting stating the place, date and hour of the meeting shall be given to
each shareholder entitled to vote at such meeting not less than 10 days nor more
than 60 days before the date of the meeting.
Section 3.
Shareholder
List. The officer who has charge of the
stock ledger of the Corporation shall prepare and make available, beginning two
(2) business days after notice of a
meeting
of the shareholders is given continuing through the meeting, a complete list of
the shareholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each shareholder and the number of shares
registered in the name of each shareholder. Such list shall be open to the
examination of any shareholder, for the purpose germane to the meeting, during
ordinary business hours either at the Corporation’s principal office or a place
within the city where the meeting is to be held (which place shall be specified
in the notice of the meeting), or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
shareholder who is present.
Section 4.
Special
Meetings. Special meetings of the shareholders may be called
by the Board of Directors or by the Chairman of the Board, or by the President,
and shall be called by the Chairman, the President, the Secretary, or an
assistant Secretary at the request in writing of a majority of the Board of
Directors, or at the request in writing of the holders of record of at least
twenty-five percent (25%) of the outstanding shares of the Corporation entitled
to vote at the meeting. Each special meeting shall be held at such
time as the Board of Directors shall determine, or, in the absence of such
determination by the Board of Directors, at such time as the person or persons
calling or requesting the call of the meeting shall specify in the notice or in
the written request. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given to each shareholder entitled to vote at such
meeting not less than 10 days or more than 60 days before the date of the
meeting. The business transacted or items presented at any special
meeting shall be limited to the purposes stated in the notice, which business or
items must have been proposed in accordance with the notice procedures set forth
in Article III of these Bylaws.
Section 5.
Waiver of
Notice. The shareholders may waive the
requirement of written notice of annual and special meetings by written waiver
duly executed and filed with the minutes of the meeting.
Section 6.
Quorum.
The holders of record of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
shareholders for the transaction of business except as otherwise provided by
statute or by the Charter. A quorum once present, is not broken by the
subsequent withdrawal of any shareholder. If, however, such quorum shall not be
present or represented at any meeting of the shareholders, the shareholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented by
proxy, any business may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for more than 30 days, or
if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the meeting. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock having voting power present in
person
2
or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the Charter a different vote is required, in which case such express provision
shall govern and control the decision of such question.
Section 7.
Meeting
Chairman. The Chairman of the Board, or if
absent or unable to serve, the President, or if absent or unable to serve, the
Treasurer or Secretary, shall call meetings of the shareholders to order and act
as Chairman of such meetings. The shareholders may elect any one of their number
to act as Chairman of any meeting in the absence of the aforenamed
individuals.
Section 8.
Proxies. Every
shareholder entitled to vote at a shareholders’ meeting may authorize another
person or persons to act for him by proxy. Each proxy must be in writing and
signed by the shareholder or by his attorney in fact. No proxy shall be valid
after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Each proxy shall be revocable at the pleasure of the
shareholder executing it, unless it conforms to the requirements of an
irrevocable proxy, as provided by statute. All proxies must be delivered to the
Secretary of the Corporation prior to the opening of the meeting, except for
proxies granted after the meeting has opened, which proxies shall be delivered
to the Secretary as soon as practicable after execution.
Section 9.
Determination of
Shareholder. In order to determine
shareholders entitled to notice of or to vote at any meeting of shareholders, or
any adjournment thereof, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may provide that the Stock Transfer Books
be closed for a stated period, but not to exceed 40 days. If the Stock Transfer
Books are closed for the purpose of determining shareholders entitled to notice
of or to vote at a meeting of shareholders, such books shall be closed for at
least 10 days immediately preceding such meeting. In lieu of closing the Stock
Transfer Books, the Board of Directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be not
less than 10 days prior to the date on which the particular action requiring
such determination of shareholders is to be taken. If the Stock Transfer Books
are not closed and no record date is fixed for determination of shareholders
entitled to notice of or entitled to vote at a meeting of shareholders or
shareholders entitled to receive payment of a dividend, the date on which notice
of the meeting is mailed, or the date on which the resolution of the Board
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders.
Section 10.
Shareholder Action By
Written Consent. Any action required or
permitted to be taken by the shareholders of the Corporation must be effected at
a duly called annual or special meeting of such holders and may not be effected
by any consent in writing by such holders.
3
ARTICLE
III
NOTICE
REQUIREMENTS AND CONDUCT OF SHAREHOLDERS MEETINGS
Section 1.
Business at Annual and
Special Meetings. No business (including nominating persons to
be elected or re-elected to the Corporation's Board of Directors) may be
transacted at an annual or special meeting of the Corporation's shareholders
other than business that is:
(a)
specified in a notice of meeting (or any supplement thereto) given by or at the
direction of the Corporation's Board of Directors or an authorized committee
thereof,
(b)
otherwise brought before the meeting by or at the direction of the Corporation's
Board of Directors or an authorized committee thereof, or
(c)
otherwise brought before the meeting by a “Noticing Shareholder” (as defined
below) who complies with the notice procedures set forth in Article III, Section
2 of these Bylaws (it being understood that, in the case of a special meeting of
shareholders, the business transacted at the meeting shall, as set forth in
Article II, section 4 of theses Bylaws, be limited to the purpose(s) or item(s)
set forth in the notice of the meeting and no shareholder (including a Noticing
Shareholder) shall be permitted to bring any other item of business before the
meeting).
A
“Noticing Shareholder” must be either a “Record Holder” or a “Nominee
Holder.” A “Record Holder” is a shareholder that holds of record
shares of the Corporation's stock entitled to vote at the meeting on the
business (including electing or re-electing persons to the Corporation's Board
of Directors) to be appropriately conducted at the meeting. A
“Nominee Holder” is a shareholder that holds such shares through a nominee or
“street name” holder of record of such shares and can demonstrate to the
Corporation such indirect ownership of such shares and such Nominee Holder’s
entitlement to vote such shares on such business. Clause (c) of this
Article III, Section 1 shall be the exclusive means for a Noticing Shareholder
to nominate persons to be elected or re-elected to the Corporation's Board of
Directors or to bring or submit other business before a meeting of shareholders
(other than proposals submitted pursuant to Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and included in the
Corporation’s notice of and proxy materials submitted in connection with such
meeting, which proposals are not governed by these
Bylaws). Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at a meeting of the Corporation's shareholders
except in accordance with the procedures set forth in Article III of these
Bylaws.
Section 2.
Notice of Shareholder
Business to be Conducted at a Meeting of Shareholders. In
order for a Noticing Shareholder to properly bring any item of business before a
meeting of shareholders, the Noticing Shareholder must give timely notice of
that business in proper form in writing to the Secretary of the Corporation in
compliance with the requirements of this Article III, Section 2. This
Article III, Section 2 shall constitute an “advance notice provision” for annual
meetings of shareholders for purposes of Rule 14a-4(c)(1) under the Exchange
Act.
(a) To
be timely, a Noticing Shareholder’s notice must be delivered to the Secretary at
the principal executive offices of the Corporation:
4
|
|
(i)
|
in the case of an annual meeting
of shareholders, not earlier than the close of business on the
120th day and not later than the close of business on the 90th day prior
to the first anniversary of the preceding year’s annual meeting; provided,
however, that in the event the date of the annual meeting is more than
thirty (30) days before or more than sixty (60) days after such
anniversary date, notice by the shareholder to be timely must be so
delivered not earlier than the close of business on the 120th day prior to
the date of such annual meeting and not later than the close of business
on the later of: (A) the 90th day prior to the date of such annual meeting
or, (B) if the first public announcement of the date of such annual
meeting is less than one-hundred (100) days prior to the date of such
annual meeting, the 10th day following the day on which public
announcement of the date of such annual meeting is first made by the
Corporation; and
|
|
|
(ii)
|
in
the case of a special meeting of shareholders, not earlier than the close
of business on the 120th day prior to such special meeting and not later
than the close of business on the later of: (A) the 90th day prior to such
special meeting or (B) the 10th day following the date on which public
announcement of the date of such special meeting was made, whichever first
occurs.
|
In no
event shall any adjournment or postponement of an annual or special meeting, or
the announcement thereof, commence a new time period for the giving of a
shareholder’s notice as described above.
(b) Notwithstanding
anything in Article III, Section 2(a) of these Bylaws to the contrary, if the
number of persons to be elected to the Corporation’s Board of Directors is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 100 days prior to the first anniversary of the preceding
year’s annual meeting, a Noticing Shareholder’s notice required by these Bylaws
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it is delivered to the Secretary at the
Corporation’s principal executive offices not later than the close of business
on the tenth (10th) day
following the date on which the public announcement naming all nominees or
specifying the size of the increased Board of Directors is first made by the
Corporation.
(c) To
be in proper form, whether in regard to nominating persons to be elected or
re-elected to the Corporation's Board of Directors or other business, a Noticing
Shareholder’s notice to the Secretary required by these Bylaws
must:
|
|
(i)
|
Set
forth, as to each Noticing Shareholder and, if a Noticing Shareholder
holds for the benefit of another, the beneficial owner on whose behalf the
nomination or proposal is made, the following information together with a
representation as to the accuracy of the
information:
|
|
|
(A)
|
the
name and address of the Noticing Shareholder as they appear on the
Corporation’s books and, if the Noticing Shareholder holds for the benefit
of another, the name and address of such beneficial owner (any Noticing
|
5
| Shareholder or such beneficial owner a "Holder" and, collectively “Holders”), |
|
|
(B)
|
the
class or series and number of shares of the Corporation that are, directly
or indirectly, owned beneficially and/or of record by each Holder, and the
date such ownership was acquired,
|
|
|
(C)
|
any
option, warrant, convertible security, stock appreciation right, or
similar right with an exercise or conversion privilege or a settlement
payment or mechanism at a price related to any class or series of shares
or other securities of the Corporation or with a value derived in whole or
in part from the value of any class or series of shares or other
securities of the Corporation, whether or not the instrument or right
shall be subject to settlement in the underlying class or series of shares
or other securities of the Corporation or otherwise (a “Derivative
Instrument”) that is directly or indirectly owned beneficially by a Holder
and any other direct or indirect opportunity to profit or share in any
profit derived from any increase or decrease in the value of shares or
other securities of the
Corporation,
|
|
|
(D)
|
any
proxy, contract, arrangement, understanding, or relationship pursuant to
which a Holder has a right to vote or has granted a right to vote any
securities (including the shares of common stock) of the
Corporation,
|
|
|
(E)
|
any
short interest in any securities (including the shares of common stock) of
the Corporation (for purposes of these Bylaws a person shall be deemed to
have a short interest in a security if a Holder directly or indirectly,
through any contract, arrangement, understanding, relationship or
otherwise, has the opportunity to profit or share in any profit derived
from any decrease in the value or price of the subject
security),
|
|
|
(F)
|
any
rights to dividends or other distributions on the shares or other
securities of the Corporation owned beneficially by a Holder that are
separated or separable from the underlying shares or other securities of
the Corporation,
|
|
|
(G)
|
any
proportionate interest in shares or other securities of the Corporation or
Derivative Instruments held, directly or indirectly, by a general or
limited partnership or limited liability company or similar entity in
which a Holder is a general partner or, directly or indirectly,
beneficially owns an interest in a general partner, is the manager,
managing member or directly or indirectly beneficially owns an interest in
the manager or managing member of a limited liability company or similar
entity,
|
|
|
(H)
|
any
performance-related fees (other than an asset-based fee) that a Holder is
entitled to based on any increase or decrease in the value of shares or
other securities of the Corporation or Derivative Instruments, if
any,
|
|
|
(I)
|
any
arrangements, rights, or other interests described in Sections
2(b)(i)(C)-(H) held by any Holder Associated Person (as defined in
subsection (d) below),
|
6
|
|
(J)
|
a
representation that the Noticing Shareholder intends to appear in person
or by proxy at the meeting to nominate the person(s) named or propose the
business specified in the notice, together with a statement whether the
Noticing Shareholder intends to deliver a proxy statement and/or form of
proxy to holders of at least the percentage of the Corporation’s
outstanding shares required to approve the nomination(s) or the business
proposed and/or otherwise to solicit proxies from Corporation's
shareholders in support of the nomination(s) or the business
proposed,
|
|
|
(K)
|
a
certification regarding whether each Holder and any Holder Associated
Persons have complied with all applicable federal, state and other legal
requirements in connection with such Holder’s and/or Holder Associated
Persons’ acquisition of shares or other securities of the Corporation
and/or such Holder’s and/or Holder Associated Persons’ acts or omissions
as a shareholder or security holder of the
Corporation,
|
|
|
(L)
|
any
other information relating to the Holder and any Holder Associated Person
that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies
for, as applicable, the proposal and/or for the election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the
rules and regulations thereunder,
and
|
|
|
(M)
|
any
other information as reasonably requested by the
Corporation.
|
Such
information shall be provided as of the date of the notice and shall be
supplemented by the Holder not later than 10 days after the record date for the
meeting to disclose any holdings, arrangements, rights or other interests
described in Sections 2(b)(i)(B) through (I) as of the record date.
|
|
(ii)
|
If
a Noticing Shareholder's notice relates to any business other than a
nomination of one or more persons to be elected or re-elected to the
Corporation's Board of Directors that is proposed to be brought before the
meeting, the notice also must set
forth:
|
|
|
(A)
|
a
brief description of the business desired to be brought before the meeting
(including the text of any resolutions proposed for consideration), the
reasons for conducting such business at the meeting, and any material
direct or indirect interest of the Holder or any Holder Associated Persons
in such business, and
|
|
|
(B)
|
a
description of all agreements, arrangements and understandings, direct and
indirect, between the Holder, any Holder Associated Person and any other
person or persons (including their names) in connection with the proposal
of such business by the Holder.
|
|
|
(iii)
|
If
a Noticing Shareholder’s notice relates to the nomination of person(s)
(each a “Nominee” and collectively, “Nominees”) to be elected or
re-elected to the Corporation’s Board of Directors, the notice, as to each
Nominee, also must:
|
7
|
|
(A)
|
set
forth all information relating to the Nominee (including, without
limitation, the Nominee’s name, age, business and residence address and
principal occupation or employment and the class or series and number of
shares of common stock or other securities of the Corporation that are
owned beneficially or of record by the Nominee) that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the
rules and regulations thereunder (including the Nominee’s written consent
to being named in the proxy statement as a nominee and to serving as a
director if elected), and
|
|
|
(B)
|
set
forth a description of any agreements, arrangements and understandings
between or among the Holder or any Holder Associated Person, on the one
hand, and any other persons (including any Holder Associated Person), on
the other hand, in connection with the Nominee’s nomination,
and
|
|
|
(C)
|
set
forth a description of all direct and indirect compensation and other
material monetary agreements, arrangements, and understandings during the
past three years, and any other material relationships, between or among
the Holder, any Holder Associated Person and their respective Affiliates
and Associates, or others acting in concert therewith, on the one hand,
and each Nominee, and his or her respective Affiliates and Associates, or
others acting in concert therewith, on the other hand, including, without
limitation all information that would be required to be disclosed pursuant
to Item 404 of Regulation S-K promulgated by the Securities and Exchange
Commission (the “Commission”) if the Holder making the nomination or on
whose behalf the nomination is made, if any, or any Affiliate or Associate
thereof or person acting in concert therewith, were the “registrant” for
purposes of Item 404 and the Nominee were a director or executive officer
of such registrant, and
|
|
|
(D)
|
be
accompanied by a questionnaire, representation, and agreement required by
Article III, Section 3 of these Bylaws completed and signed by each
Nominee.
|
(d) In
addition to the other terms that are defined in these Bylaws, for purposes of
these Bylaws, the following terms shall have the respective meanings ascribed
thereto:
|
|
(i)
|
“Affiliate”
means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, another specified Person.
|
|
|
(ii)
|
“Associate”
means, with respect to a specified
Person:
|
8
|
|
(A)
|
any
corporation or organization of which that Person is an officer or partner
or is, directly or indirectly, the beneficial owner of ten percent (10%)
or more of any class of equity
securities,
|
|
|
(B)
|
any
trust or other estate in which that Person has a substantial beneficial
interest or as to which such Person serves as trustee or in a similar
fiduciary capacity, and
|
|
|
(C)
|
any
Immediate Family Member of that
Person.
|
|
|
(iii)
|
“Control”
means the possession, direct or indirect, of the power to direct or cause
the direction of the management or policies of a person, whether through
the ownership of voting securities, by contract, or
otherwise.
|
|
|
(iv)
|
“Holder
Associated Person” means, with respect to any shareholder, (i) any person
acting in concert with such shareholder, (ii) any beneficial owner of
shares of stock of the Corporation owned of record or beneficially by such
shareholder (other than a shareholder that is a depositary) and (iii) any
person controlling, controlled by or under common control with any
shareholder, or any Holder Associated Person identified in clauses (i) or
(ii) above.
|
|
|
(v)
|
“Immediate
Family Member” means any child, stepchild, parent, stepparent, spouse,
sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law of such director, executive officer or
nominee for director, and any person (other than a tenant or employee)
sharing the household of such director, executive officer or nominee for
director.
|
|
|
(vi)
|
“Person”
means an individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency
thereof.
|
|
|
(vii)
|
“public
announcement” shall mean disclosure by the Corporation in a press release
reported by a national news service or in a document publicly filed with
or furnished to the Commission pursuant to Section 13, 14, or 15(d) of the
Exchange Act and the rules and regulations
thereunder.
|
(e) Only
those persons who are nominated in accordance with the procedures set forth in
these Bylaws shall be eligible to serve as directors. Only such business shall
be conducted at a meeting of shareholders as shall have been brought before the
meeting in accordance with the procedures set forth in these Bylaws, provided,
however, that, once business has been properly brought before the meeting in
accordance with this Section 2, nothing in this Section 2(e) shall be deemed to
preclude discussion by any shareholder of such business. If any
information submitted pursuant to these Bylaws by a Noticing Shareholder is
inaccurate in any material respect, such information shall be deemed not to have
been provided in accordance with these Bylaws. Except as otherwise
provided by law, the Charter, or these Bylaws, the Chairman
9
of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as the
case may be, in compliance with the procedures set forth in these Bylaws and, if
he should determine that any proposed nomination or business is not in
compliance with these Bylaws, he shall so declare to the meeting and any such nomination or business is
defective and not properly brought before the meeting, in which case it shall be
disregarded or not be transacted.
(f) Notwithstanding
the foregoing provisions of these Bylaws, a Holder also shall comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in these Bylaws; provided,
however, that any references in these Bylaws to the Exchange Act or the rules
thereunder are not intended to and shall not limit the requirements applicable
to nominations or proposals as to any other business to be considered pursuant
to this Article III.
(g) Nothing
in these Bylaws shall be deemed to affect any rights of shareholders to request
inclusion of proposals in the Corporation’s proxy statement pursuant to Rule
14a-8 under the Exchange Act. Notice of shareholder proposals that are, or that
the Noticing Shareholder intends to be, governed by Rule 14a-8 under the
Exchange Act are not governed by these Bylaws.
Section 3.
Submission of
Questionnaire, Representation and Agreement. To be eligible to
be a nominee for election or reelection as a director of the Corporation by a
Holder, a person must complete and deliver (in accordance with the time periods
prescribed for delivery of notice under Section 2) to the Secretary at
Corporation’s principal executive offices a written questionnaire providing the
information requested about the background and qualifications of such person
(including such information as may reasonably be required to determine the
eligibility of the nominee to serve as an independent director of the
Corporation or that could be material to a reasonable shareholder’s
understanding of the independence, or lack thereof, of the nominee) and the
background of any other person or entity on whose behalf the nomination is being
made and a written representation and agreement (the questionnaire,
representation, and agreement to be in the form provided by the Secretary upon
written request) that such person:
|
|
(a)
|
is
not and will not become a party to:
|
|
|
(i)
|
any
agreement, arrangement or understanding with, and has not given any
commitment or assurance to, any person or entity as to how the person, if
elected as a director of the Corporation, will act or vote on any issue or
question (a “Voting Commitment”) that has not been disclosed to the
Corporation, or
|
|
|
(ii)
|
any
Voting Commitment that could limit or interfere with the person’s ability
to comply, if elected as a director of the Corporation, with the person’s
fiduciary duties under applicable
law,
|
|
|
(b)
|
is
not and will not become a party to any agreement, arrangement or
understanding with any person or entity other than the Corporation with
respect to any direct or indirect compensation, reimbursement, or
indemnification in
|
10
| connection with service or action as a director that has not been disclosed therein, and |
|
|
(c)
|
in
the person’s individual capacity and on behalf of any person or entity on
whose behalf the nomination is being made, would be in compliance, if
elected as a director of the Corporation, and will comply with all
applicable publicly disclosed corporate governance, conflict of interest,
confidentiality, and share ownership and trading policies and guidelines
of the Corporation.
|
Section 4.
Conduct of Shareholders
Meetings. The Board of Directors of the
Corporation shall be entitled to make such rules or regulations for the conduct
of meetings of shareholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations of the Board of Directors, if
any, the chairman of the meeting shall have the right and authority to prescribe
such rules, regulations and procedures and to do all such acts as, in the
judgment of such chairman, are necessary, appropriate or convenient for the
proper conduct of the meeting, including, without limitation, establishing an
agenda or order of business for the meeting, rules and procedures for
maintaining order at the meeting and the safety of those present, limitations on
participation in such meeting to shareholders of record of the corporation and
their duly authorized and constituted proxies, and such other persons as the
chairman shall permit, restrictions on entry to the meeting after the time fixed
for the commencement thereof, limitations on the time allotted to questions or
comments by participants and regulation of the opening and closing of the polls
for balloting and matters which are to be voted on by ballot. Unless and to the
extent determined by the board of directors or the chairman of the meeting,
meetings of shareholders shall not be required to be held in accordance with
rules of parliamentary procedure.
ARTICLE
IV
BOARD
OF DIRECTORS
Section 1.
Number of
Directors. The affairs of the Corporation
shall be managed by a Board of up to 18 directors. Effective as of the annual
meeting of shareholders in 1997, the Board shall be divided into three classes,
designated as Class I, Class II, and Class III, as nearly equal in number as
possible. The initial term of office of Class I shall expire at the annual
meeting of shareholders in 1998, that of Class II shall expire at the annual
meeting of shareholders in 1999, and that of Class III shall expire at the
annual meeting in 2000, and in all cases as to each director until his or her
successor shall be elected and shall qualify, or until his or her earlier
resignation, removal from office, death, or incapacity. Subject to
the foregoing, at each annual meeting of shareholders the successors to the
class of directors whose term shall then expire shall be elected to hold office
for a term expiring at the third succeeding annual meeting and until their
successors shall be elected and qualified. If the number of directors is
changed, the Board shall determine the class or classes to which the increased
or decreased number of directors shall be apportioned; provided that the
directors in each class shall be as nearly equal in number as possible. No
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director. Notwithstanding any other provisions of the
11
Charter
or these Bylaws (and notwithstanding that a lesser percentage may be specified
by law, the Charter, or these Bylaws), the affirmative vote of the holders of
80% or more of the voting power of the then outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to amend or repeal, or
adopt any provisions inconsistent with this Article IV, Section 1 of these
Bylaws.
Section 2.
Determination of
Authorized Number of Directors. The Board of
Directors may determine the number of directors constituting the whole Board
from a minimum of one to a maximum of eighteen, which determinations shall be
evidenced by resolutions of the Board of Directors adopted from time to
time.
Section 3.
Removal of
Directors. Any or all directors may be
removed by a vote of a majority of the shareholders entitled to vote, only for
cause as defined by the Tennessee Business Corporation Act.
Section 4.
Filling of
Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors,
for any reason, may be filled by a vote of the majority of the directors then in
office, although less than a quorum exists, or by a sole remaining director, and
the directors so chosen shall hold office until the next annual election and
until their successors are duly elected and qualified, unless sooner displaced.
If there are no directors in office, then an election of directors may be held
in the manner provided by statute. If, at the time of filling any vacancy or any
newly created directorship, the directors then in office shall constitute less
than a majority of the whole board (as constituted immediately prior to any such
increase), the vacancy or newly created directorship may be filled by vote of
the shareholders at any meeting of the shareholders, notice of which shall have
referred to the proposed election. Any director elected by the shareholders to
fill any vacancy shall be elected to hold office until the next annual meeting
of shareholders and until their successors are duly elected and qualified,
unless sooner displaced.
Section 5.
Annual
Meeting. The annual meeting of the Board of
Directors shall be held immediately before or after and at the same place as the
annual meeting of the shareholders, provided a quorum be present and no notice
of such meeting shall be necessary. In the event such meeting of the Board of
Directors is not held at such time and place, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter provided
for special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6.
Notice of
Meetings. The annual and all regular
meetings of the Board of Directors may be held without notice at such time and
at such place as shall from time to time be determined by the Board. Special
meetings shall be held upon written notice not less than one day before the
meeting.
12
Section 7.
Special
Meetings. Special meetings of the Board may be
called by the Chairman of the Board or President, or if either is absent or
unable to do so, by any Vice President, or by any two directors.
Section 8.
Quorum. At
all meetings of the Board, a majority of directors shall constitute a quorum for
the transaction of business and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law, the Charter
or by these Bylaws. If a quorum shall not be present at any meeting of the Board
of Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9.
Dissent to
Action. A director who is present at a
meeting of the Board, at which any action is taken, shall be presumed to have
concurred in the action, unless his dissent thereto shall be entered in the
Minutes of the meeting, or unless he shall submit his written dissent to the
person acting as the Secretary of the meeting before the adjournment thereof, or
shall deliver or send such dissent to the Secretary of the Corporation promptly
after the adjournment of the meeting. Such rights to dissent shall not apply to
a director who voted in favor of any such action. A director who is absent from
a meeting at which such action is taken shall be presumed to have concurred in
the action unless he shall deliver or send by registered or certified mail his
dissent thereto to the Secretary of the Corporation or shall cause such dissent
to be filed with the Minutes of the proceedings of the Board within 10 days
after learning of such action.
Section 10.
Action without
Meeting. Unless otherwise restricted by the
Charter or these Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board or committee, as the case may be,
consent thereto in writing setting forth the actions so taken, signed by all of
the persons entitled to vote thereon, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
Section 11.
Board
Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, but no such committee shall have the power or
authority in reference to amending the Charter, adopting an agreement of merger
or consolidation, recommending to the shareholders the sale, lease or exchange
of all or substantially all of the Corporation’s property and assets,
recommending to the shareholders a dissolution of the Corporation or a
revocation of the dissolution, or amending the Bylaws of the Corporation; and,
unless the resolution or the Charter expressly so provide, no
13
such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when
required.
Section 12.
Compensation of
Directors. Unless otherwise restricted by
the Charter, the Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors and/or a stated salary
as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 13.
Indemnification. The
Corporation shall indemnify, to the full extent authorized or permitted by the
Tennessee Business Corporation Act, any person made, or threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding
(whether civil, administrative or investigative) by reason of the fact that he,
his testator or intestate is or was a director of the Corporation or serves or
served as a director of any other enterprise at the request of the
Corporation.
Section 14.
Mandatory
Resignation. Directors who are also officers
of the Corporation shall submit a letter of resignation as such to the Board of
Directors upon any termination of employment as an officer of the Corporation,
and directors who are not officers of the Corporation shall likewise submit a
letter of resignation upon any change in that director’s principal business or
other activity in which the director was engaged at the time of his or her
election.
ARTICLE
V
OFFICERS
Section 1.
Appointment. The
Board of Directors at its annual meeting shall choose a Chairman of the Board, a
Chief Executive Officer, a President, an Executive Vice President, a Chief
Financial Officer, a Treasurer, and a Secretary. The Board of Directors may also
choose additional vice presidents and one or more assistant secretaries and
assistant treasurers. Any two of the aforementioned offices may be filled by the
same person, except that no one person may be Secretary and also President. No
person shall purport to execute or attest any document or instrument on behalf
of the Corporation in more than one capacity.
Section 2.
Term. The
officers of the Corporation shall hold office for one year or until their
successors are chosen and qualified subject, however, to the removal of any
officer pursuant to these Bylaws.
14
Section 3.
Salaries. The
salaries of all officers of the Corporation shall be fixed by the Board of
Directors.
Section 4.
Removal. Any
officer elected or appointed by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors.
Section 5.
Duties. All
officers shall have such authority to perform such duties in the management of
the Corporation as are normally incident to their offices and as the directors
from time to time provide.
Section 6.
The Chairman of the
Board and Chief Executive Officer. The
Chairman of the Board and Chief Executive Officer of the Corporation shall
preside at all meetings of the shareholders and the Board of Directors, shall
have general and active management of the business of the Corporation, and shall
see that all orders and resolutions of the Board of Directors are carried into
effect.
Section 7.
Other Duties of the
Chairman of the Board. He shall execute
bonds, mortgages and other contracts, except where required or permitted by law
to be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
Section 8.
The
President. The President shall perform such
duties as shall be prescribed to him from time to time by the Board of
Directors.
Section
9. Duties of the President and the Vice
President(s). In the absence of the Chief
Executive Officer or in the event of his inability or refusal to act, the
President shall perform the duties of the Chief Executive Officer and, when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Chief Executive Officer. The Vice President(s) shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Section
10. The
Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of the shareholders and
record all the proceedings of the meetings of the Corporation and of the Board
of Directors in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give, or cause to be given,
notice of all meetings of the shareholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or the President, under whose supervision he shall be.
Section
11. Assistant
Secretary. The Assistant Secretary, or if
there be more than one, the assistant secretaries in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election) shall, in the absence of the Secretary or in the
15
event of
his inability or refusal to act, perform the duties and exercise the powers of
the Secretary and shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
Section
12. The Chief Financial Officer and
Treasurer. The Chief Financial Officer
and the Treasurer, in his capacity as such officers, shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys 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.
Section
13. Duties of the Chief Financial Officer
and Treasurer. He shall disburse the funds
of the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the President and the Board
of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all his transactions as the Treasurer and of the
financial condition of the Corporation.
Section
14. Bond. If
required by the Board of Directors, the Chief Financial Officer and the
Treasurer shall give the Corporation a bond (which shall be renewed every six
years) 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 his office
and for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
Section
15. Assistant
Treasurer(s). The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their election) shall, in the absence of the Treasurer or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the Treasurer and shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
Section 16.
Indemnification. The
Corporation shall indemnify, to the full extent authorized or permitted by the
Tennessee Business Corporation Act, any person made, or threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that he, his testator or intestate is or was an officer of the Corporation or
serves or served as a director or officer of any other enterprise at the request
of the Corporation.
16
ARTICLE
VI
CAPITAL
STOCK
Section 1. Certificate. Every
holder of stock in the Corporation shall be entitled to have a certificate
signed by, or in the name of the Corporation by, the Chairman of the Board, the
Chief Executive Officer or the President and the Chief Operating Officer, a Vice
President, the Treasurer (or an Assistant Treasurer), or the Secretary (or an
Assistant Secretary) of the Corporation, certifying the number of shares owned
by him in the Corporation.
Section
2. Facsimile
Signatures. Where a certificate is
countersigned (1) by a transfer agent other than the Corporation or its
employee, or (2) by a registrar other than the Corporation or its employee, any
other signature on the certificate may be facsimile. In case an officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issuance.
Section 3.
Notice of
Restrictions. Each certificate of stock
which is restricted or limited as to its transferability or voting rights, or
which is callable under the Charter, which is preferred or limited as to
dividends or rights upon voluntary or involuntary dissolution, shall have a
notice of such restriction, limitation or preference conspicuously stated on the
face or back of the certificate. Upon the removal of expiration of any such
restriction or limitation, the holder of such certificate shall be entitled to
receive a new certificate upon the surrender of the old restricted or limited
certificates, and the payment of the reasonable expenses of the Corporation
incurred in connection therewith.
Section
4. Reissuance of
Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates 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 stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, 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 his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section
5. Transfer of
Shares. The Corporation shall register a
transfer of a stock certificate presented to it for transfer if: (a) the
certificate is endorsed by the appropriate person or persons; (b) the signature
of the appropriate person or persons has been guaranteed by a national banking
association, a bank organized and operating under the statutes of the State of
Tennessee, or a member of the National Association of Security Dealers, and
reasonable assurance is given that the endorsements are effective, unless the
Secretary of the Corporation
17
waives such requirements; (c) there
has been compliance with any applicable law relating to the collection of taxes;
and (d) the transfer is in fact rightful or is to a bona fide
purchaser.
Section
6. Endorsements. An
endorsement of the stock certificate in registered form is made when an
appropriate person signs on it or on a separate document an assignment or
transfer of it, or a power to assign or transfer it, or when the signature of
this person is written without more upon the back of the certificate. An
endorsement may be in blank, which includes an endorsement to bearer, or
special, which specifies the person to whom the stock is to be transferred, or
who has the power to transfer it. The Corporation may elect to require
reasonable assurance beyond that specified in this Section.
Section
7. Registered
Stockholders. 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, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and 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 laws of Tennessee.
ARTICLE
VII
DIVIDENDS,
SURPLUS AND RESERVE
Section
1. Dividends. The
Board of Directors may from time to time declare, and the Corporation may pay,
dividends on its outstanding shares in cash, property or its own shares, except
where the Corporation is insolvent, as that term is defined in Section 48-1-102
(14), Tennessee Code Annotated, or when the payment thereof would render the
Corporation insolvent, or when the declaration of payment thereof would be
contrary to any restrictions contained in the Charter, these Bylaws, or in any
applicable valid contract. The declaration and payment of any such dividend
shall be in accordance with Section 48-1-511, Tennessee Code Annotated, as it
may be amended from time to time.
Section
2. Capital
Distributions. The Board of Directors may
distribute to the shareholders of the Corporation out of capital surplus, a
portion of its assets, in cash or property, subject to the following provisions:
(a) no such distribution shall be made at a time when the Corporation is
insolvent or when such distribution would render the Corporation insolvent; (b)
no such distribution shall be made unless such distribution is authorized by the
affirmative vote of the holders of the majority of all of the outstanding shares
of stock entitled to vote thereon; (c) no such distribution shall be made to the
holders of any class of shares unless all cumulative dividends accrued on all
preferred or special classes of shares entitled to preferential dividends shall
have been fully paid; (d) no such distribution shall be made to the holders of
any class of shares which would reduce the remaining net assets of the
Corporation below the aggregate preferential amount payable in the event of
voluntary liquidation to the holders of shares having preferential rights to the
assets of the Corporation in the event of liquidation; and (e) each such
distribution, when made, shall be identified as a distribution from capital
surplus and the amount
18
per
share shall be disclosed to the shareholders receiving the same, concurrently
with the distribution thereof.
Section
3. Increases of Capital
Surplus. The capital surplus of the
Corporation may be increased from time to time by resolution of the Board,
directing that all or part of the earned surplus of the Corporation be
transferred to capital surplus. The Board of Directors may, by resolution, apply
any part or all of the capital surplus of the Corporation to the reduction or
elimination of any deficit arising from losses however incurred; provided,
however, that the earned surplus has first been exhausted by charging such
losses to earned surplus and then only to the extent that such losses exceed the
earned surplus. Each such application of capital surplus shall, to the extent
thereof, effect a reduction of capital surplus.
Section
4. Seal. The
Corporation shall have a corporate seal. The presence or absence of a seal on
any instrument shall not affect the character, validity, or legal effect thereof
in any respect. The affixing of a seal shall not be necessary for the execution
of any instrument or document by the Corporation.
ARTICLE
VIII
AMENDMENTS
Subject
to the provisions of the Charter of the Corporation, these Bylaws may be
altered, amended, or repealed or new bylaws may be adopted by the vote of a
majority of all of the shareholders or by the majority vote of the entire Board
of Directors, when such power is conferred upon the Board of Directors by the
Charter, at any regular meeting of the shareholders or of the Board of Directors
or at any special meeting of the shareholders or of the Board of Directors if
notice of such alteration, amendment, repeal or adoption of new bylaws be
contained in the notice of such special meeting.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section
1. Fiscal
Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section
2. Insurance. The
Corporation may purchase and maintain insurance on behalf of any person who is
or was or has agreed to become a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him or on his behalf
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article, provided that such insurance is available on
acceptable terms, which determination shall be made by a vote of a majority of
the entire Board of Directors.
19
Section
3. Savings
Clause. If this Article or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation may nevertheless indemnify each
director or officer of the Corporation as to costs, charges and expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of the
Corporation, to the full extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the full extent permitted by
applicable law.
Section
4. Notices. Whenever,
under the provisions of the statutes, the Charter or these Bylaws, notice is
required to be given to any director or shareholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or shareholder at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram or electronic
facsimile, in which event it shall be deemed to have been given when deposited
with a telegraph or electronic facsimile office for transmission.
Section
5. Indemnification. Notwithstanding
anything in the Charter to the contrary, the Corporation shall be permitted, but
shall not be required, to indemnify and hold harmless any employee or agent of
the Corporation made, or threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative.
20