-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GAfymKcXx8PfAZN/AOsqKVM9OCprv1tHYsUWov/6m8QfSON8xJV4o6Tt8/j3EBo2 zEU7imzsv9SLLbggEcAQ6A== 0000950144-97-007716.txt : 19970711 0000950144-97-007716.hdr.sgml : 19970711 ACCESSION NUMBER: 0000950144-97-007716 CONFORMED SUBMISSION TYPE: 8-B12B PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970710 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CORRECTIONS CORPORATION OF AMERICA CENTRAL INDEX KEY: 0000739404 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-FACILITIES SUPPORT MANAGEMENT SERVICES [8744] IRS NUMBER: 621156308 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-B12B SEC ACT: 1934 Act SEC FILE NUMBER: 001-13560 FILM NUMBER: 97638471 BUSINESS ADDRESS: STREET 1: 102 WOODMONT BLVD STE 800 CITY: NASHVILLE STATE: TN ZIP: 37205 BUSINESS PHONE: 6152923100 8-B12B 1 CORRECTIONS CORPORATION OF AMERICA FORM 8B 1 SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 FORM 8-B FOR REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 CORRECTIONS CORPORATION OF AMERICA (Exact name of registrant as specified in its charter) Tennessee 62-1156308 (State of incorporation or organization) (I.R.S. Employer Identification Number) 102 Woodmont Boulevard Nashville, Tennessee 37205 (Address of principal executive offices) (Zip Code) SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF ACT: Title of each class Name of each exchange to be so registered on which each class is ----------------------------- to be registered Common Stock, $1.00 Par Value ------------------------- New York Stock Exchange Title of each class Name of each exchange to be so registered on which each class is ---------------------------------- to be registered Warrants to Purchase Common Stock, ------------------------ $1.00 par value New York Stock Exchange SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: None (Title of Class) 2 ITEM 1. GENERAL INFORMATION (a) The Registrant was organized as a Tennessee corporation on May 5, 1997 as CCA of Tennessee, Inc. The Registrant amended its Charter on May 14, 1997, whereby its name was changed to Corrections Corporation of America. (b) The Registrant's fiscal year ends on December 31. ITEM 2. TRANSACTION OF SUCCESSION (a) Corrections Corporation of America, a Delaware corporation ("CCA Delaware") is the predecessor of the Registrant. CCA Delaware had securities registered pursuant to Section 12(b) of the Act. (b) The transaction of succession (the "Merger") was accomplished by merging CCA Delaware with and into the Registrant, a newly-formed Tennessee corporation, pursuant to the terms of an Agreement and Plan of Merger, dated May 12, 1997 (the "Merger Agreement"). The Registrant was incorporated in Tennessee on May 5, 1997 specifically for the purpose of implementing the Merger and had conducted no business and had no material assets or liabilities prior to the Merger. CCA Delaware has ceased to exist under Delaware law and the Registrant continues to operate the business of CCA Delaware under the name Corrections Corporation of America. Under the Merger Agreement, each outstanding share of CCA Delaware's common stock, $1.00 par value per share, was automatically converted into one share of the Registrant's common stock, par value $1.00 per share (the "Common Share"), upon the effective time of the Merger. The Merger did not result in any change in CCA Delaware's business, assets or liabilities and did not result in any relocation of management or other employees. For financial reporting and federal income tax purposes, the Registrant is considered to be the same reporting person and the same taxpayer as CCA Delaware. In addition to the Common Stock to be registered, the charter of the Registrant authorizes the Registrant to issue up to one million (1,000,000) shares of Preferred Stock, par value $1.00 per share. ITEM 3. SECURITIES TO BE REGISTERED The total number of shares of Common Stock which the Registrant has authority to issue is one hundred fifty million (150,000,000) shares, par value $1.00 per share. There are presently approximately 76,099,329 shares of Common Stock issued and outstanding, and no shares of Preferred Stock issued and outstanding. Presently there are no shares of Common Stock issued which are held by or for the account of the Registrant. CCA Delaware issued Warrants at various times since 1992 for the purchase of its Common Stock (the "Warrants"). There are presently approximately 5,178,341 Warrants issued and outstanding and 3 holders of such Warrants may exercise those Warrants and receive the Common Stock of the Registrant. ITEM 4. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED COMMON STOCK The description of the Registrant's Common Stock, set forth below does not purport to be complete and is qualified in its entirety by reference to the Registrant's Charter, as amended, and Bylaws. All issued and outstanding shares of Common Stock are fully paid and nonassessable. Subject to the preferential rights of any shares or series of Preferred Stock, holders of shares of Common Stock are entitled to receive dividends on Common Stock if, as and when authorized and declared by the Board of Directors of the Registrant out of assets legally available therefor and to share ratably in the assets of the Registrant legally available for distribution to its shareholders in the event of its liquidation, dissolution or winding-up after payment of, or adequate provision for, all known debts and liabilities of the Registrant. Subject to the provisions of the Registrant's Charter, each outstanding share of Common Stock entitles the holder to one vote on all matters submitted to a vote of shareholders, including the election of directors, and except as provided with respect to any other class or series of stock, the holders of Common Stock will possess exclusive voting power. There is no cumulative voting in the election of directors, which means that the holders of a majority of the outstanding shares of Common Stock can, subject to any rights of holders of Preferred Stock, elect all of the directors then standing for election, and the holders of the remaining shares of Common Stock will not be able to elect any directors. All shares of Common Stock have equal dividend, distribution, liquidation and other rights, and have no preferences, appraisal or exchange rights. Except for Sodexho S.A., holders of Common Stock have no conversion, sinking fund or redemption rights, or preemptive rights to subscribe for any securities of the Registrant. Pursuant to the Tennessee Business Corporation Act ("TBCA"), the Corporation generally cannot dissolve, amend its Charter, merge, sell all or substantially all of its assets, engage in a share exchange or engage in similar transactions outside the ordinary course of business unless approved by the Board of Directors and the affirmative vote of holders of shares entitled to cast a majority of all the votes or titled to be cast on such matters. WARRANTS For a description of the Registrant's Warrants, reference is made to Form 8-A filed with the Securities and Exchange Commission by CCA Delaware in December 1994. SUBJECT TO PREFERRED STOCK PREFERENCES 4 The Registrant's Charter authorizes the Board of Directors to issue up to one million (1,000,000) shares of Preferred Stock ("Preferred Stock"), from time to time, in one or more series, each such series to be so designated as to distinguish the shares thereof from the shares of all other series and classes. The Board of Directors is vested with the authority to divide any or all classes of Preferred Stock into series and to fix and determine the relative rights and preferences of the shares of any series so established. Such terms may provide the holders of any Preferred Stock or any series thereof rights to receive dividends and payment on liquidation of the Registrant that are preferential to the rights of holders of Common Stock and rights to vote with or separately from, the holders of shares of Common Stock as to all or various specified matters. CERTAIN PROVISIONS OF TENNESSEE LAW The following summary of certain provisions of the TBCA, does not purport to be complete and is qualified in its entirety by reference to the TBCA. Tennessee's Business Combination Act (the "Business Combination Act") provides that a party owning 10% or more of stock in a "resident domestic corporation" (such party is called an "interested stockholder") cannot engage in a business combination with the resident domestic corporation unless the combination (i) takes place at least five years after the interested stockholder first acquired 10% or more of the resident domestic corporation, and (ii) either (A) is approved by at least two-thirds of the non-interested voting shares of the resident domestic corporation or (B) satisfies certain fairness conditions specified in the Business Combination Act. These provisions apply unless one of two events occurs. A business combination with an entity can proceed without delay when approved by the target corporation's board of directors before that entity becomes an interested stockholder, or the resident corporation may enact a charter amendment or bylaw to remove itself entirely from the Business Combination Act. This charter amendment or bylaw must be approved by a majority of the stockholders who have held shares for more than one year prior to the vote. It may not take effect for at least two years after the vote. The Registrant has not adopted a provision in its Charter or Bylaws removing it from coverage under the Business Combination Act. The Business Combination Act further provides an exemption from liability for officers and directors of resident domestic corporations who do not approve proposed business combinations or charter amendments and bylaws removing their corporations from the Business Combination Act's coverage as long as the officers and directors act in "good faith belief" that the proposed business combination would adversely affect their corporation's employees, customers, suppliers, or the communities in which their corporation operates and such factors are permitted to be considered by the board of directors under the charter. The charter of the Tennessee Registrant does not provide for these factors to be considered. Control Share Acquisition: The Tennessee Control Share Acquisition Act (the "TCSAA") strips a purchaser's shares of voting rights any time an acquisition of shares in a Tennessee corporation brings the purchaser's voting power to each of the one-fifth, one-third and a majority level of all voting power if such corporation's charter or bylaws contain an election that shares of that 5 corporation be governed by the TCSAA. The purchaser's voting rights can be re-established only by an affirmative majority vote of the other stockholders. The purchaser may demand a special meeting of stockholders to conduct such a vote. The purchaser can demand such a meeting before acquiring a control share (i.e., reaching any and each of the aforementioned levels of share ownership) only if it holds at least 10% of outstanding shares and announces a good faith intention to make the control share acquisition. A target corporation may elect to redeem the purchaser's shares if the shares are not granted voting rights. The TCSAA applies only to corporations that have adopted a provision in its charter or bylaws expressly declaring that the TCSAA will apply. The Registrant has adopted a provision in its Charter electing protection under the TCSAA which may only be amended by the affirmative vote of at least eighty percent (80%) of the total voting power of all shares of stock of the Registrant entitled to vote in the election of directors. ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS (a) Financial Statements. Not Applicable (b) Exhibits. EXHIBIT NO. 1.1 Definitive Proxy Statement for the Annual Meeting of Stockholders of Corrections Corporation of America held on May 13, 1997. This exhibit is incorporated by reference pursuant to Rule 12b-32. 2.1 Agreement and Plan of Merger, dated May 12, 1997, between the Registrant and Corrections Corporation of America, a Delaware corporation. Exhibit has been omitted pursuant to Exchange Act Rule 12b-31. It is substantially identical to APPENDIX A to EXHIBIT NO. 1.1 hereto, differing only in that APPENDIX B to EXHIBIT NO. 1.1 had not been signed and dated. 2.2 Articles of Merger of Corrections Corporation of America, a Delaware corporation, into Registrant, dated May 13, 1997. 3.1 Charter of Registrant, as amended. 3.2 Bylaws of Registrant. 6 99 Registration Statement on Form S-3 of Corrections Corporation of America effective May 31, 1996. This exhibit is incorporated by reference pursuant to Rule 12b-32. 7 SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. CORRECTIONS CORPORATION OF AMERICA Date: July 10, 1997 By: /s/ Darrell K. Massengale ------------------------- Darrell K. Massengale, Chief Financial Officer EX-2.2 2 ARTICLES OF MERGER 1 Exhibit 2.2 ARTICLES OF MERGER OF CORRECTIONS CORPORATION OF AMERICA A DELAWARE CORPORATION INTO CCA OF TENNESSEE, INC., A TENNESSEE CORPORATION Pursuant to the provisions of Section 48-21-105 of the Tennessee Business Corporation Act, the undersigned domestic and foreign corporations adopt the following Articles of Merger: 1. The names of the corporations participating in the merger and the States under the laws of which such corporations are organized are as follows: Name of Corporation State of Incorporation ------------------- ---------------------- Corrections Corporation of America Delaware CCA of Tennessee, Inc. Tennessee 2. The Agreement and Plan of Merger (the "Agreement and "Plan of Merger") between Corrections Corporation of America (the "Merging Corporation") and CCA of Tennessee, Inc. (the "Surviving Corporation") is set forth on the attached Exhibit A. 3. The name of the Surviving Corporation is CCA of Tennessee, Inc., which shall herewith be changed to Corrections Corporation of America, a Tennessee corporation. 4. As to the Merging Corporation, the Agreement and Plan of Merger was duly adopted by the stockholders at a meeting held on May 13, 1997. 5. As to the Surviving Corporation, the Agreement and Plan of Merger was duly adopted by written consent of the sole shareholder on May 12, 1997. 2 6. The merger is to be effective upon filing of these articles of merger by the Secretary of State. 7. (a) Simultaneous with the filing of these Articles of Merger, the charter of the Surviving Corporation shall be amended as follows: The name of the Corporation currently identified as CCA of Tennessee, Inc. in Paragraph 1 of the charter shall be deleted, and in lieu thereof Corrections Corporation of America shall be inserted as the new name of the Corporation; and (b) Immediately following the filing of these Articles of Merger, the charter of the surviving Corporation shall be amended by adding a new Paragraph 10 that shall read as follows: "The Corporation hereby elects to be governed by the provisions of the Tennessee Control Share Act, Tenn. Code Ann. 48-103-301, et. seq., as amended. The vote of shareholders required to alter, amend, or repeal this Paragraph 10, or to alter, amend, or repeal any other section of this Charter in any respect which would or might have the effect, direct or indirect, of modifying, permitting any action inconsistent with, or permitted circumvention of this Paragraph 10, shall be by the affirmative vote of at least eighty percent (80%) of the total voting power of all shares of stock of the corporation entitled to vote in the election of directors, considered for the purpose of this Paragraph 10 as one class." Dated: May 13, 1997. CORRECTIONS CORPORATION OF AMERICA. By: /s/ Doctor R. Crants ------------------------------- Title: Chairman CCA OF TENNESSEE, INC. By: /s/ Doctor R. Crants ------------------------------- Title: Chairman EX-3.1 3 CHARTER OF CORRECTIONS CORPORATION OF AMERICA 1 Exhibit 3.1 CHARTER OF CORRECTIONS CORPORATION OF AMERICA The undersigned, acting as the incorporator of a corporation under the Tennessee Business Corporation Act, adopts the following charter for such corporation: 1. The name of the Corporation is Corrections Corporation of America (hereinafter called the "Corporation") 2. The Corporation is for profit. 3. The street address of the Corporation's principal office is: 102 Woodmont Blvd., Suite 800 Nashville, Tennessee 37205 County of Davidson 4. (a) The name of the Corporation's initial registered agent is Linda G. Cooper. (b) The street address of the Corporation's initial registered office in Tennessee is: 102 Woodmont Blvd., Suite 800 Nashville, Tennessee 37205 County of Davidson 5. The name and address of the incorporator is: Elizabeth E. Moore 424 Church Street Suite 2800 Nashville, Tennessee 37219 2 6. The Corporation is authorized to issue two classes of shares of stock to be designated, respectively, "Common Stock" and "Preferred Stock." The total number of shares which the Corporation shall have authority to issue is One Hundred Fifty-One Million (151,000,000) shares, consisting of One Hundred Fifty Million (150,000,000) shares of Common Stock having One Dollar ($1.00) par value per share ("Common Stock") and One Million (1,000,000) shares of Preferred Stock having One Dollar ($1.00) par value per share ("Preferred Stock"). The shares of Preferred Stock may be issued from time to time in one or more series, each such series to be so designated as to distinguish the shares thereof from the shares of all other series and classes. The Board of Directors is hereby vested with the authority to divide any or all classes of Preferred Stock into series and to fix and determine the relative rights and preferences of the shares of any series so established. 7. The Corporation hereby elects to be governed by the provisions of the Tennessee Control Share Act, Tenn. Code Ann. 48-103-301 et. seq., as amended. The vote of shareholders required to alter, amend or repeal this Paragraph 7, or to alter, amend or repeal any other section of the Charter in any respect which would or might have the effect, direct or indirect, of modifying, permitting any action inconsistent with, or permitting circumvention of this Paragraph 7, shall be by the affirmative vote of at least eighty percent (80%) of the total voting power of all shares of stock of the Corporation entitled to vote in the election of directors, considered for purposes of this Paragraph as one class. 8. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Charter in the manner now or hereafter prescribed by the laws of the State of Tennessee. All rights herein conferred to the shareholders are granted subject to this reservation. 9. The purpose for which the Corporation is organized is to engage in any lawful act or activity for which corporations may be organized under the laws of the State of Tennessee. 10. To the fullest extent permitted by the Tennessee Business Corporation Act as in effect on the date hereof and as hereafter amended from time to time, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. If the Tennessee Business Corporation Act or any successor statute is amended after adoption of this provision to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Tennessee Business Corporation Act, as so amended from time to time. Any repeal or modification of this Paragraph 10 by the shareholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification with respect to events occurring prior to such time. 2 EX-3.2 4 BYLAWS OF CORRECTIONS CORPORATION OF AMERICA 1 Exhibit 3.2 BYLAWS OF CORRECTIONS CORPORATION OF AMERICA ARTICLE I NAME The affairs of the corporation (the "Corporation") shall be conducted using the name Corrections Corporation of America ("CCA"), or such other name or names as the board of directors may from time to time authorize. ARTICLE II MEETINGS Section 1. Annual Meetings. An annual meeting of shareholders for the purposes of electing directors and transacting such other business as may properly come before the meeting shall be held within three (3) months of the last day of the fiscal year at 10:00 a.m., or on such other date or at such other time, or both, as shall be designated from time to time by the Board of Directors, the Chairman of the Board, or the President. Section 2. Special Meetings. A special meeting of shareholders may be called for any purpose or purposes by the Board of Directors, the Chairman of the Board, or the President. Section 3. Place of Meetings. Annual and special meetings of shareholders shall be held at the principal office of the Corporation or at such other place, either within or without the State of Tennessee, as the Board of Directors, the Chairman of the Board, or the President shall designate. Section 4. Notice of Meetings. Notice stating the date, time, and place of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is being called, shall be provided to each shareholder entitled to vote at such meeting no fewer than ten (10) days nor more than two (2) months before the date of such meeting. In the case of special meetings of shareholders, the notice of meeting shall include the purpose or purposes for which Bylaws - 1 2 the meeting is being called. Notice may be in writing, or oral if reasonable in the circumstance, and notice shall be deemed provided when received or, if mailed, when deposited in the United States mail addressed to the shareholder at his or her address as it appears in the Corporation's current record of shareholders, with first class postage affixed thereon. When a meeting is adjourned to another date, time, or place, it shall not be necessary to provide any notice of the adjourned meeting if the new date, time, or place to which the meeting is adjourned is announced at the meeting at which the adjournment is taken, and at the adjourned meeting any business may be transacted that might have been transacted at the original meeting. If after the adjournment, however, the Board of Directors fixes a new record date for the adjourned meeting pursuant to Section 9 of this Article II, a new notice of the adjourned meeting shall be provided. Section 5. Waiver of Notice. A shareholder may waive in writing any notice required by these Bylaws, provided that the waiver must be signed by the shareholder entitled to the notice and must be delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. A shareholder's attendance at a meeting (i) waives objection to lack of notice or defective notice of the meeting unless the shareholder at the beginning of the meeting (or promptly upon his or her arrival) objects to holding the meeting or transacting business at the meeting and (ii) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. Section 6. Quorum and Voting. The holders of a majority of shares entitled to vote, whether present in person or represented by proxy, shall constitute a quorum. Once a share is represented for any purpose at a meeting, the holder of such share is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting, unless a new record date is or must be set for the adjourned meeting. A meeting may be adjourned despite the absence of a quorum. If a quorum exists, action on a matter, other than the election of directors, is approved by the shareholders if the votes cast favoring the action exceeds the votes cast opposing the action. Section 7. Proxies. A shareholder may vote his or her shares in person or by proxy and may appoint a proxy to vote or otherwise act for him or her by signing a proxy or other appointment form, either personally or by his or her attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent of the Corporation authorized to tabulate votes. An appointment is valid for eleven (11) months unless another period is expressly provided in the proxy or other appointment form. An appointment of a proxy is revocable by the shareholder unless the proxy or other appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest, as provided in the Tennessee Business Corporation Act. Section 8. Action Without a Meeting. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting. If all shareholders entitled to vote Bylaws - 2 3 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 a meeting is the act of the shareholders. The action must be evidenced by one (1) or more written consents describing the action taken, signed by each shareholder entitled to vote on the action in one (1) or more counterparts, and indicating each shareholder's vote or abstention on the action, and such written consent or consents must be delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. A consent effected as provided in this section shall have the effect of a meeting vote and may be described as such in any document. Section 9. Record Date. For the purpose of determining the shareholders entitled to notice of or entitled to vote at any meeting of shareholders, or for the purpose of determining the shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other purpose, the Board of Directors may fix a future date as the record date for such purpose, provided that such record date shall not be more than seventy (70) days before the meeting or action requiring a determination of shareholders. If no record date is fixed by the Board of Directors: (i) the record date shall be at the close of business on the day next preceding the day on which notice of the meeting is given, or, if notice is waived, at the close of business on the eleventh day next preceding the day on which such meeting is held; (ii) the record date for the determination of shareholders entitled to consent to an action in writing without a meeting shall be at the close of business on the eleventh day next preceding the date on which the first shareholder, being entitled so to do, signs such a consent; and (iii) the record date for the determination of shareholders for any other purpose shall be at the close of business on the date on which the Board of Directors adopts the resolution or resolutions relating thereto. A determination of shareholders entitled to notice of or to vote at a shareholders' meeting is effective for any adjournment of the meeting unless the Board of Directors fixes a new record date, which it shall do if the meeting is adjourned to a date more than four (4) months after the date fixed for the original meeting. Section 10. List of Shareholders. After a record date has been fixed for a meeting, the Secretary shall prepare or cause to be prepared a complete list of the shareholders entitled to notice of the meeting, arranged in alphabetical order by class of stock and series, if any, and showing the address of each shareholder and the number of shares registered in the name of the shareholder. The shareholders' list shall 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 the place identified in the meeting notice in the city where the meeting will be held. If the right to vote at any meeting is challenged, the person presiding thereat may rely on such list as evidence of the right of the person challenged to vote at such meeting. Bylaws - 3 4 ARTICLE III DIRECTORS Section 1. Management. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation managed under the direction of, the Board of Directors. Section 2. Number. The number of directors, which shall not be less than three (3), of the Corporation shall be as fixed from time to time by the Board of Directors by a vote of two-thirds of the whole Board. Section 3. Election and Term of Office. Except in the case of the filling of vacancies, directors shall be elected at the annual meeting of shareholders by a plurality of the votes cast by shareholders entitled to vote in the election, a quorum being present. Each director, including a director elected to fill a vacancy, shall hold office until the next annual meeting of shareholders and until his or her successor is elected and qualified, or until his or her earlier death, resignation, or removal. Section 4. Resignation. Any director may resign at any time by delivering written notice to the Board of Directors, the Chairman of the Board, the President, or the Corporation. A resignation shall be effective when notice thereof is so delivered, unless the notice specifies a later effective date. Section 5. Removal. One or more directors may be removed with or without cause by a vote of sixty-six and two-thirds percent (66 2/3%) of the shareholders or with cause by a vote of a majority of the number of directors then prescribed. A director may be removed only at a meeting called for the purpose, and the notice of the meeting must state that the purpose, or one (1) of the purposes, of the meeting is the removal of a director or directors. Section 6. Annual and Other Regular Meetings. An annual meeting of the Board of Directors shall be held immediately following the annual meeting of shareholders, at the place of such annual meeting of shareholders. The Board of Directors may provide for the holding of other regular meetings of the Board of Directors, and may fix the dates, times, and places thereof. Section 7. Special Meetings. A special meeting of the Board of Directors shall be held whenever called by the Chairman of the Board, the President, or any two (2) directors, at such date, time, and place as may be specified by the person or persons calling the meeting. Section 8. Notice. Notice of an annual or other regular meeting of the Board of Directors need not be provided. Notice stating the date, time, and place of any special meeting of the Board of Directors shall be provided to each director in writing, or it may be provided orally if Bylaws - 4 5 reasonable in the circumstances, no fewer than two (2) days before such meeting. Notice shall be deemed provided when received or, if mailed, five (5) days after it is deposited in the United States mail addressed to the director at his or her address as it appears in the Corporation's current record of directors, with first class postage affixed thereon. Notice of an adjourned meeting need not be given if the time and place to which such meeting is adjourned are fixed at the meeting at which the adjournment is taken and if the period of adjournment does not exceed one (a) month in any one (1) adjournment. At the adjourned meeting, the Board of Directors may transact any business that might have been transacted at the original meeting. Section 9. Waiver of Notice. A director may waive in writing any notice required by these Bylaws, provided that the waiver must be signed by the director entitled to the notice and must be filed with the minutes or corporate records. A director's attendance at or participation in a meeting waives any required notice to him of the meeting unless the director at the beginning of the meeting (or promptly upon his or her arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. Section 10. Quorum and Voting. A majority of the number of directors then in office shall constitute a quorum for the transaction of business, provided that at no time shall a quorum consist of fewer than one-third (1/3) of the number of directors then prescribed. If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the Board of Directors. A director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (i) the director objects at the beginning of the meeting (or promptly upon his or her arrival) to holding the meeting or transacting business at the meeting; (ii) the director's dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) the director delivers written notice of his or her dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. Section 11. Telephone Meetings. Any or all directors may participate in a meeting of the Board of Directors by use of conference telephone or similar communications equipment by means of which all persons participating in the meeting may simultaneously hear each other during the meeting, and participation in such a meeting shall constitute presence in person at such a meeting. Section 12. Action Without a Meeting. Any action required or permitted to be taken at a meeting of the Board of Directors may be taken without a meeting if all directors consent to taking such action without a meeting. The affirmative vote of the number of directors that would be necessary to authorize or take such action at a meeting is the act of the Board of Directors. The action must be evidenced by one (1) or more written consents describing the action taken, signed by each director in one (1) or more counterparts, and indicating each director's vote or abstention on the action, and such written consent or consents shall be included in the minutes or filed with the corporate records reflecting the action taken. Any action taken under this section shall be Bylaws - 5 6 effective when the last director signs the consent, unless the consent specifies a different effective date. A consent effected as provided in this section shall have the effect of a meeting vote and may be described as such in any document. Section 13. Executive Committee. The Board of Directors, by the vote of a majority of the directors then in office, may create an Executive Committee of the Board of Directors consisting of one (1) or more directors, who shall serve at the pleasure of the Board of Directors. Subject to any specific directions or restrictions given by the Board of Directors, the Executive Committee may exercise all the authority of the Board of Directors, except that the Executive Committee may not: (i) authorize distributions to shareholders, except according to a formula or method prescribed by the Board of Directors; (ii) approve or propose to the shareholders action that the Tennessee Business Corporation Act requires to be approved by shareholders; (iii) fill vacancies on the Board of Directors or on any committee of the Board of Directors; (iv) amend the Charter of the Corporation pursuant to the provision of the Tennessee Business Corporation Act allowing the amendment of corporate charters by boards of directors; (v) amend or repeal these Bylaws or adopt new bylaws; (vi) approve a plan of merger not requiring shareholder approval; (vii) authorize or approve the reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; or (viii) authorize or approve the issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except within limits specifically prescribed by the Board of Directors. So far as applicable, the provisions of Sections 7 through 12 of this Article III shall apply to the Executive Committee as well as to the Board of Directors. The Executive Committee shall report its acts and proceedings to the Board of Directors at the next following regular meeting of the Board of Directors and at such other time or times as the Board of Directors shall request. Section 14. Other Committees. The Board of Directors, by the vote of a majority of the directors then in office, may designate one or more committees of the Board of Directors other than the Executive Committee, each such committee to consist of one (1) or more directors, who shall serve at the pleasure of the Board of Directors. Any such committee, to the extent specified by the Board of Directors, may exercise the authority of the Board of Directors, except that no such committee may exercise any authority forbidden to the Executive Committee by Section 13 of this Article III. So far as applicable, the provisions of Section 13 of this Article III shall apply to each such committee as well as to the Executive Committee, whether or not there is an Executive Committee. Section 15. Reliance Upon Information, Opinions, Reports, or Statements. To the full extent allowed by law, a director shall be, in the performance of his or her duties, protected in relying in good faith upon information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by (i) one or more officers or employees of the Corporation whom the director reasonably believes to be reliable and competent in the matters presented; (ii) legal counsel, public accountants, or other persons as to matters the Bylaws - 6 7 director reasonably believes are within the person's professional or expert competence; or (iii) a committee of the Board of Directors of which he or she is not a member if the director reasonably believes the committee merits confidence. ARTICLE IV OFFICERS Section 1. General. The Corporation shall have a Chairman of the Board, Vice Chairman of the Board, President and a Secretary, and may have one or more Vice Presidents, a Treasurer, and such other officers as may from time to time be deemed advisable by the Board of Directors, the Chairman of the Board, or the President. Any two (2) or more offices may be held by the same person, except the offices of President and Secretary. The Chairman of the Board shall be the chief executive officer of the Corporation. The Vice Chairman of the Board, President, any Vice President, the Secretary, and the Treasurer shall be appointed by the Board of Directors. Each other officer may be appointed by the Board of Directors, the Chairman of the Board, or the President. Each officer shall hold office until the meeting of the Board of Directors following the next annual meeting of shareholders and until his or her successor has been appointed and qualified, or until his or her earlier death, resignation, or removal. The Chairman of the Board must be a director of the Corporation. Any other officer may be, but is not required to be, a director of the Corporation. Each officer shall have the authority and perform the duties set forth in these Bylaws or, to the extent consistent with these Bylaws, the duties prescribed by the Board of Directors or prescribed by an officer authorized by the Board of Directors to prescribe the duties of other officers. Section 2. Resignation. Any officer may resign at any time by delivering notice to the Corporation. A resignation shall be effective when notice thereof is so delivered, unless the notice specifies a later effective date. Section 3. Removal. The Board of Directors may remove any officer at any time with or without cause, and any officer appointed by another officer may be removed likewise by such other officer. Section 4. Vacancies. Any vacancy occurring in any office for any reason may be filled by the Board of Directors or by an officer having the power of appointment with respect to the office in question. Section 5. Reliance Upon Information, Opinions, Reports, or Statements. To the full extent allowed by law, an officer shall be, in the performance of his or her duties, protected in relying in good faith upon information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by (i) one or more officers or employees of the Corporation whom the officer reasonably believes to be reliable and competent Bylaws - 7 8 in the matters presented; or (ii) legal counsel, public accountants, or other persons as to matters the officer reasonably believes are within the person's professional or expert competence. Section 6. Chairman of the Board. The Chairman of the Board, when present, shall preside at all meeting of the Board of Directors. The Chairman of the Board shall also perform such other duties and have such other powers as the Board of Directors shall from time to time prescribe. Section 7. Vice Chairman of the Board. The Vice Chairman of the Board shall perform the duties of the Chairman of the Board in the event of the Chairman's inability or refusal to act. The Vice Chairman of the Board shall perform such other duties and have such other powers as the Board of Directors, the Chairman of the Board, or the President may from time to time prescribe. Section 8. President. The President may be, but is not required to be, the chief executive officer of the Corporation. The President shall exercise general supervision over the management of the business and affairs of the Corporation and shall perform such other duties and have such other powers as the Board of Directors, or the Chairman of the Board if he or she is the chief executive officer, shall from time to time prescribe. In the absence of the Chairman of the Board or in the event of his or her inability or refusal to act, the President may perform the duties of the Chairman of the Board, and when so acting shall have all the powers of and be subject to all the restrictions upon the Chairman of the Board. Section 9. Vice Presidents. In the absence of the President or in the event of his or her inability or refusal to act, the Vice President, or in the event there is more than one Vice President, the Vice Presidents in the order designated, or in the absence of any designation, then in the order of their appointment, may perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall also perform such other duties and have such other powers as the Board of Directors or the President, or the Chairman of the Board if he or she is the chief executive officer, may from time to time prescribe. Section 10. Secretary and Assistant Secretaries. The Secretary shall, when possible, attend all meetings of the shareholders and all meetings of the Board of Directors, shall prepare or supervise the preparation of minutes of the proceedings of the shareholders, the Board of Directors, and the Executive Committee and other committees, and shall keep such minutes, along with all written consents to action without a meeting, in a book or books devoted to that purpose. The Secretary shall be the officer primarily responsible for authenticating records of the Corporation. The Secretary shall keep a record of the shareholders of the Corporation, arranged alphabetically for class and series, if any, giving the names and addresses of all shareholders and the number of shares held by each, and shall cause such a list as of the appropriate record date to be open for inspection prior to and at any meeting of shareholders, as provided in Section 10 of Bylaws - 8 9 Article II. The Secretary shall give, or cause to be given, notice of meetings of the shareholders and special meetings of the Board of Directors. The Secretary shall also perform such other duties as are generally performed by a secretary of a Corporation and, in addition, shall perform such other duties and have such other powers as the Board of Directors or the President, or the Chairman of the Board if he or she is the chief executive officer, may from time to time prescribe. Any Assistant Secretary may, in the absence of the Secretary or in the event of his or her inability or refusal to act, perform the duties of the Secretary, and when so acting shall have all the powers of and be subject to all the restrictions upon the Secretary. Each Assistant Secretary shall also perform such other duties and have such other powers as the Board of Directors, the President, the Secretary, or the Chairman of the Board if he or she is the chief executive officer, may from time to time prescribe. Section 11. Treasurer and Assistant Treasurers. The Treasurer shall have custody of the Corporation's funds and securities, shall keep or cause to be kept full and accurate accounts of receipts and disbursements, and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as ordered by the Board of Directors or by an officer authorized by the Board of Directors so to order, taking proper vouchers for such disbursements, and shall render to the Board of Directors, the Chairman of the Board, and the President an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as are generally performed by a treasurer of a Corporation and, in addition, shall perform such other duties and have such other powers as the Board of Directors or the President, or the Chairman of the Board if he or she is the chief executive officer, may from time to time prescribe. Any Assistant Treasurer may, in the absence of the Treasurer or in the event of his or her inability or refusal to act, perform the duties of the Treasurer, and when so acting shall have all the powers of and be subject to all the restrictions upon the Treasurer. Each Assistant Treasurer shall also perform such other duties and have such other powers as the Board of Directors, the President, the Treasurer, or the Chairman of the Board if he or she is the chief executive officer, may from time to time prescribe. ARTICLE V SHARES OF STOCK Section 1. Certificates. Unless the Board of Directors authorizes the issuance of some or all of the shares of the Corporation as uncertificated shares, the shares of the Corporation shall be represented by certificates signed on behalf of the Corporation by the Chairman of the Board, the President, or a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary. The certificates shall be in such form as shall be approved by the Board of Directors and shall be numbered and registered in the order issued. Each certificate shall Bylaws - 9 10 include, as a minimum, the name of the Corporation and that the Corporation is organized under the laws of the State of Tennessee, the name of the person to whom issued, and the number and class of shares and the designation of the series, if any, the certificate represents. The name of the person or entity owning the shares, the number of shares, and the date of issue shall be entered in the Corporation's books and on the certificate or its stub. Share certificates exchanged or returned shall be cancelled by the Secretary and placed in their original place in the stock book. Section 2. Lost, Destroyed, or Stolen Certificates. The Corporation may issue a new certificate in the place of any certificate previously issued and alleged to have been lost, destroyed, or stolen, on production of such evidence of loss, destruction, or theft as the Board of Directors may require. The Board of Directors may require the owner of such lost, destroyed, or stolen certificate, or his or her legal representative, to provide to the Corporation a bond in such sum as the Board of Directors may direct, and with such surety or sureties as may be satisfactory to the Board of Directors, to indemnify the Corporation against any claims, loss, liability, or damage it may suffer on account of issuing a new certificate. Section 3. Transfers of Shares. Transfers of shares of the Corporation shall be made on the stock transfer books of the Corporation only as permitted in this section and only by the holder of record thereof, or by his or her duly authorized attorney, upon surrender for cancellation of the certificate or certificates representing such shares, with an assignment or power of transfer endorsed thereon or delivered therewith, duly executed with such proof of the authenticity of the signature and of authority to transfer as the Corporation may require. The Corporation shall be entitled to treat the holder of record of any share or shares as the absolute owner thereof for all purposes and, accordingly, shall not be bound to recognize any legal, 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 expressly provided by law. Section 4. Voting. The holders of the shares shall be entitled to vote for each share of stock standing in their/its name. ARTICLE VI INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS Section 1. General. The Corporation may indemnify any person authorized by the Tennessee Business Corporation Act, as amended, in the manner and to the extent set forth herein. Section 2. Insurance. The Corporation shall have the power to purchase and maintain insurance on behalf of any person 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, partner, trustee, employee, or agent Bylaws - 10 11 of another Corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against any liability asserted against him or incurred by him in any such capacity or arising from 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 VI. ARTICLE VII FISCAL YEAR The fiscal year of the Corporation shall be fixed by the Board of Directors from time to time. ARTICLE VIII CORPORATE SEAL The corporate seal, if any, shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE IX AMENDMENTS These Bylaws may be amended or repealed, and new Bylaws may be adopted, by a majority vote of the Board of Directors or the shareholders. Bylaws - 11 -----END PRIVACY-ENHANCED MESSAGE-----