<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A-1
FOR ANNUAL AND TRANSITION REPORTS
PURSUANT TO SECTIONS 13 OR 15(d) OF THIS
(Mark One) SECURITIES EXCHANGE ACT OF 1934
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1996
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _____________________ to ________________
Commission file number 0-14289
-------
GREENE COUNTY BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
Tennessee 62-1222567
- ------------------------------- -----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
100 North Main Street, Greeneville, Tennessee 37743
- --------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (423) 639-5111.
Securities registered pursuant to Section 12(b) of the Act: None.
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $10.00 per share
----------------------------------------
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES X NO
---- ----
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The registrant's voting stock is not regularly and actively traded in any
established market, and there are no regularly quoted bid and asked prices for
the registrant's common stock. Based upon recent negotiated trading of the
common stock at a price of $225 per share, the registrant believes that the
aggregate market value of the voting stock on March 24, 1997 was $101.59
million. For purposes of this calculation, it is assumed that directors,
officers and beneficial owners of more than 5% of the registrant's outstanding
voting stock are not affiliates. On such date, 451,500 shares of the common
stock were issued and 451,500 shares were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
The following lists the documents incorporated by reference and the
Part of the Form 10-K into which the document is incorporated:
1. Portions of the Annual Report to Shareholders for the fiscal year
ended December 31, 1996. (Parts I and II)
2. Portions of Proxy Statement for 1997 Annual Meeting of
Shareholders. (Part III)
<PAGE>
This Amendment is being submitted to file Exhibit 3(a), which was
inadvertently omitted from the initial filing.
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1) The following consolidated financial statements of the Company
included in the Annual Report are incorporated herein by reference from Item 8
of this Report. The remaining information appearing in the Annual Report to
Shareholders is not deemed to be filed as part of this Report, except as
expressly provided herein.
1. Report of Independent Auditors.
2. Consolidated Balance Sheets - December 31, 1996 and 1995.
3. Consolidated Statements of Income for the Years Ended
December 31, 1996, 1995 and 1994.
4. Consolidated Statements of Changes in Shareholders'
Equity for the Years Ended December 31, 1996, 1995
and 1994.
5. Consolidated Statements of Cash Flows for the Years Ended
December 31, 1996, 1995 and 1994.
6. Notes to Consolidated Financial Statements.
(a)(2) All schedules for which provision is made in the applicable
accounting regulations of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable and therefore have
been omitted.
(a)(3) The following exhibits either are filed as part of this Report
or are incorporated herein by reference:
Exhibit No. 3. Articles of Incorporation and Bylaws
(i) Restated Articles of Incorporation.
(ii) Bylaws - incorporated herein by reference
to the Company's Registration Statement on
Form S-14 (File No. 2-96273).
Exhibit No. 10. Employment Agreements
(i) Employment agreement between the Company and
R. Stan Puckett -- incorporated herein by
reference to the Company's Annual Report on
Form 10-K for the year ended December 31,
1995.
(ii) Employment agreement between the Company
and Davis Stroud -- incorporated herein by
reference to the Company's Registration
Statement on Form S-14 (File No. 2-96273).
Exhibit No. 13. Annual Report to Shareholders
Except for those portions of the Annual
Report to Shareholders for the year ended
December 31, 1996, which are expressly
incorporated herein by reference, such
Annual Report is furnished for the
information of the Commission and is not to
be deemed "filed" as part of this Report.
Exhibit No. 21. Subsidiaries of the Registrant
A list of subsidiaries of the Registrant is
included as an exhibit to this Report.
<PAGE>
Exhibit No. 23. Consent of Coopers & Lybrand L.L.P.
Exhibit No. 27. Financial Data Schedule (SEC Use Only)
(b) Reports on Form 8-K. No Reports on Form 8-K were filed by the
Company during the last quarter of the fiscal year covered by
this report.
(c) Exhibits. The exhibits required by Item 601 of Regulation S-K
are either filed as part of this Annual Report on Form 10-K or
incorporated herein by reference.
(d) Financial Statements and Financial Statement Schedules
Excluded From Annual Report. There are no financial statements
and financial statement schedules which were excluded from the
Annual Report pursuant to Rule 14a-3(b)(1) which are required
to be included herein.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
behalf by the undersigned, thereunto duly authorized.
GREENE COUNTY BANCSHARES, INC.
Date: April 21, 1997 By: /s/ R. Stan Puckett
----------------------
R. Stan Puckett
Director, President and
Chief Executive Officer
(Duly Authorized Representative)
<PAGE>
EXHIBIT 3(a)
AMENDED AND RESTATED CHARTER
OF
GREENE COUNTY BANCSHARES, INC.
1. The name of the Corporation is Greene County Bancshares, Inc.
2. The duration of the corporation is perpetual.
3. The address of the principal office of the corporation in
the State of Tennessee shall be Main and Depot Streets,
Greeneville, Greene County, Tennessee.
4. The corporation is for profit.
5. The purposes for which the corporation is organized are:
a) To carry on the business of a bank holding company, as
defined in the Federal Bank Holding Company Act of 1956, as
amended, and to do all acts and things now and hereinafter
permitted to be done by such a company.
b) To acquire by purchase, subscription, or otherwise, and to
receive, hold, own, guarantee, sell, assign, exchange,
transfer, mortgage, pledge, or otherwise dispose of or deal in
and with any and all securities, as such term is hereinafter
defined, issued or created by any corporation, firm,
association or other entity, public or private, whether formed
under the laws of the United States of America or of any
state, commonwealth, territory, dependency or possession
thereof, or of any foreign country or of any political
subdivision, territory, dependency, possession or municipality
thereof, or issued or created by the United States of America
or any state or commonwealth thereof or any foreign country,
or by any agency, subdivision, territory, dependency,
possession or municipality of any of the foregoing; and as
owner thereof to possess and exercise all the rights, powers
and privileges of ownership, including the right to execute
consents and vote thereon. The term "securities" as used in
this Charter shall mean any and all notes, stocks, treasury
stocks, bonds, debentures, evidences of indebtedness,
certificates of interest or participation in any
profit-sharing agreement, collateral trust certificates,
preorganization certificates or subscriptions, transferable
shares, investment contracts, voting trust certificates,
certificates of deposit for a security, or, in general, any
interests or instruments commonly known as "securities" or any
and all certificates of interest or participation in,
temporary or interim certificates for, receipts for,
guaranties of, or warranties or rights to subscribe to or
purchase, any of the foregoing.
c) To make, establish and maintain investments in
securities, and to supervise and manage such investments.
d) To cause to be organized under the laws of the United
States of America or of any state, commonwealth, territory,
dependency or possession thereof, or of any foreign country or
of any political subdivision, territory, dependency,
possession or municipality thereof, one or more corporations,
firms, organizations, associations or other entities and to
cause the same to be dissolved, wound up, liquidated, merged
or consolidated.
e) To acquire by purchase or exchange, or by transfer to, or
by merger or consolidation with, the corporation or any
corporation, firm organization, association, or other entity
owned or controlled, directly or indirectly, by the
corporation, or to otherwise acquire, the whole or any part of
the business, good will, rights, or other assets of any
corporation, firm, organization, association or other entity;
to operate and/or carry on the business of same, and to
undertake or assume in connection therewith the whole or any
part of the liabilities and obligations thereof; to
<PAGE>
effect any such acquisition in whole or in part by delivery
of cash or other property, including securities issued by
the corporation, or by any other lawful means.
f) To aid by loan, subsidy, guaranty or in any other lawful
manner any corporation, firm, organization, association or
other entity of which any securities are in any manner
directly or indirectly held by the corporation or in which
the corporation or any such corporation, firm, organization,
association or entity may be or become otherwise interested;
to guarantee the payment of dividends of any stock issued by
any such corporation, firm, organization, association or
entity; to guarantee with or without recourse against any
such corporation, firm or organization, association or
entity or to assume the payment of the principal of, or the
interest on, any obligations issued or incurred by such
corporation, firm, organization, association or entity; to
do any and all other acts and things for the enhancement,
protection or preservation of any securities which are in
any manner, directly or indirectly held, guaranteed or
assumed by the corporation, and to do any and all acts and
things designed to accomplish any such purpose.
g) To borrow money for any business, object or purpose of the
corporation from time to time, without limit as to amount; to
issue any kind of evidence of indebtedness, whether or not in
connection with borrowing money, including evidences of
indebtedness convertible into stock of the corporation, to
secure the payment of any evidence of indebtedness by the
creation of any interest in any of the property or rights of
the corporation, whether at that time owned or thereafter
acquired.
h) To render service, assistance, counsel and advice to, and
to act in any capacity as representative or agent (whether
managing, operating, financial, purchasing, selling,
advertising or otherwise) of, any corporation, firm,
organization, association, or other entity.
i) To engage in any lawful business and in connection
therewith to do any lawful act in furtherance of or
otherwise necessary or convenient to such business.
The corporation shall possess and may exercise all
powers and privileges necessary or convenient to effect any or
all of the foregoing purposes, or to further any or all of the
foregoing powers, and the enumeration herein of any specific
purposes or powers shall not be held to limit or restrict in
any manner the exercise by the corporation of the general
powers of the State of Tennessee conferred upon corporations
formed under the Tennessee General Corporation Act.
6. The maximum number of shares which the corporation shall have
the authority to issue is
a) One Hundred Thirty (130) shares of Organizational Common
Stock with a par value of Ten Dollars ($10.00) per share,
which stock shall be callable by the corporation at any time
at the par value thereof by action of a majority of the Board
of Directors.
b) One Million (1,000,000) shares of Common Stock,
with a par value of Ten Dollars ($10.00) per share.
7. The corporation will not commence business until consideration
of One Thousand Dollars ($1,000.00) has been received for the
issuance of shares.
8. a) The Board or Directors may take, on written consent
without a meeting, any action which it could take by means of
a regularly called and held meeting, provided that such
written consent sets forth the action so taken and is signed
by all of the Directors.
b) The Board of Directors shall have the power by majority
vote of the Directors present at a meeting at which a quorum
is present to adopt, amend, or repeal any of the By-Laws of
the Corporation, but any By-Law adopted by the Board may be
amended or repealed by affirmative vote of the holders of a
majority of all outstanding shares entitled to vote thereon.
<PAGE>
c) The corporation from time to time may provide either
directly, or indirectly through the purchase of insurance, for
the indemnification of directors, officers, employees and
agents of the corporation and of any of its subsidiaries to
the fullest extent permitted by law.
d) The shareholders of the corporation shall not have
preemptive rights.
e) The Board of Directors shall have authority to issue bonds,
debentures, notes or other obligations of this corporation and
to fix all the terms thereof, including without limitation the
convertibility or nonconvertibility thereof.
f) Any part of the authorized capital stock and any bonds,
debentures, notes or other obligations of the corporation may
at any time, to the extent permitted by law, be issued,
optioned or reserved for sale, sold or disposed of by the
corporation pursuant to appropriate action by the Board of
Directors, to such parties and upon such terms as the Board
shall deem proper.
g) The corporation shall have the right to purchase its own
shares and to pay dividends and make distributions of property
to the extent of unreserved and unrestricted earned or capital
surplus available therefor.
9. a) Voting Requirement. In addition to any affirmative
vote required by law or any other Section of this Charter,
and except as otherwise expressly provided in Subsection b
of this Section 9, any Business Combination (as defined
herein) shall require an affirmative vote of (i) eighty
percent (80%) of the votes entitled to be cast by all
holders of Voting Stock (as defined herein) voting together
as a single class at a meeting of shareholders called for
such purpose and in addition thereto, (ii) a majority of the
votes entitled to be cast by all holders of Voting Stock,
other than shares of Voting Stock which are Beneficially
Owned (as defined herein) by the Interested Shareholder (as
defined herein), voting together as a single class at a
meeting of shareholders called for such purpose. Such
affirmative vote shall be required notwithstanding the fact
that a vote would not otherwise be required, or that a
lesser percentage may be specified by law or in any
agreement with any national securities exchange or
otherwise.
b) When Voting Requirement Not Applicable. The provisions of
Subsection a of this Section 9 shall not be applicable to any
Business Combination which shall have been approved by a
majority of the Disinterested Directors (as defined herein) or
as to which all of the conditions specified in Subsections
b(1), b(2) and b(3) shall have been met:
(1) Fair Prices. The aggregate amount per share of
the cash and the Fair Market Value (as defined
herein), as of the Announcement Date (as defined
herein), of the consideration other than cash to be
received in such Business Combination by holders of
shares of the respective classes and series of
outstanding capital stock of the Corporation shall be
at least equal to the highest of the following:
(a) if applicable, the highest per share
price (adjusted for any subsequent stock
dividends, splits, combinations,
recpaitalizations, reclassifications or
other such reorganizations) paid to acquire
any shares of such respective classes and
series Beneficially Owned (as defined
herein) by the Interested Shareholder during
the Pre-announcement Period (as defined
herein);
(b) The highest per share price (adjusted
for any subsequent stock dividends, splits,
combinations, recapitalizations,
reclassifications or other such
reorganizations) paid to acquire any shares
of such respective classes and series
Beneficially Owned by the Interested
Shareholder in the transaction in which the
Interested Shareholder became an Interested
Shareholder.
<PAGE>
(c) The Fair Market Value per share of such
respective classes and series on the
Announcement Date (as defined herein);
(d) The Fair Market Value per share of such
respective classes and series on the
Determination Date (as defined herein);
(e) The amount per share of any preferential
payment to which shares of such respective
classes and series are entitled in the event
of a liquidation, dissolution or winding up
of the corporation.
(2) Form of Consideration. The consideration to be
received by holders of each particular class and
series of outstanding capital stock of the
Corporation in a Business Combination shall be (i)
cash or (ii) if the majority of the shares of any
particular class or series of the capital stock of
the Corporation Beneficially Owned by the Interested
Shareholder shall have been acquired for a
consideration in a form other than cash, the same
form of consideration used to acquire the largest
number of shares of such class or series previously
acquired and Beneficially Owned by the Interested
Shareholder.
(3) Other Requirements. After such Interested
Shareholder has become an Interested Shareholder and
prior to the consummation of such Business
Combination, except as approved by a majority of the
Disinterested Directors, there shall have been:
(a) No failure to declare and pay in full,
when and as due, any dividends on any class
or series of Preferred Stock (as defined
herein) (whether cumulative or not), except
on any class or series of Preferred Stock as
to which dividends were in arrears on the
Determination Date;
(b) No reduction in the periodic rate of
dividends on the Corporation's Common Stock
below the dividends paid during the dividend
period of the Corporation ended immediately
prior to the Determination Date, except any
reduction in dividends necessary to fairly
reflect any stock dividend, split,
recapitalization, reclassification or other
such reorganization;
(c) No failure to increase the periodic rate
of any dividends per share paid on the
Corporation's Common Stock to fairly reflect
any stock combination, recapitalization,
reclassification or other such
reorganization which has the effect of
reducing the number of outstanding shares of
Common Stock;
(d) No increase in the number of shares of
the capital stock of the Corporation
Beneficially Owned by the Interested
Shareholder, except (i) as a part of the
transaction that resulted in the Interested
Shareholder becoming an Interested
Shareholder or (ii) to consummate the
Business Combination in compliance with the
provisions of this Section 9;
(e) No loans, advances, guarantees, pledges
or other financial assistance or tax credits
or other tax advantages provided by the
Corporation or its subsidiaries for the
benefit, directly or indirectly, of the
Interested Shareholder, whether in
anticipation of or in connection with such
Business Combination or otherwise;
(f) No material change in the Corporation's
business or capital structure or the
business or capital structure of any
subsidiary of the Corporation effected,
directly or indirectly, by or for the
benefit of the Interested Shareholder; and
<PAGE>
(g) A proxy or information statement mailed
at least thirty (30) days prior to the
completion of the Business Combination to
all the holders of Voting Stock (whether or
not shareholder approval of the Business
Combination is required) which proxy or
information statement shall (i) describe the
Business Combination, (ii) include in a
prominent place the recommendations, if any,
of a majority of the Disinterested Directors
as to the advisability or inadvisability of
the Business Combination, (iii) if deemed
advisable by a majority of the Disinterested
Directors, include an opinion of a reputable
investment banking firm or other expert as
to the fairness or unfairness of the terms
of the Business Combination from the point
of view of the shareholders other than the
Interested Shareholder (such investment
banking firm to be selected by a majority of
the Disinterested Directors and to be paid a
reasonable fee for their services by the
Corporation upon receipt of such opinion),
and (iv) be responsive to the pertinent
provisions of the Securities Exchange Act of
1934, as amended, and the rules and
regulations thereunder, or any laws
supplementing or superseding such Act, rules
and regulations, whether or not such proxy
or information statement is required by law
to be furnished to any holder of Voting
Stock.
c) Definitions. As used in this Section 9:
(1) "Business Combination" means any of the
transactions described below:
(a) Any merger or consolidation of the
Corporation or any Subsidiary (as defined
herein) with (i) any Interested Shareholder
or (ii) any corporation (whether or not
itself an Interested Shareholder) which is,
or after such merger or consolidation would
be, an Affiliate (as defined herein) of an
Interested Shareholder;
(b) Any sale, lease, exchange, mortgage,
pledge, transfer or other disposition, in
one transaction or a series of transactions,
(i) to or with any Interested Shareholder or
any Affiliate of any Interested Shareholder
of any assets (including securities) of the
Corporation or any Subsidiary having an
aggregate Fair Market Value of $1,000,000 or
more or (ii) to or with the Corporation or
any Subsidiary of any assets (including
securities) of any Interested Shareholder or
any Affiliate of an Interested Shareholder
having an aggregate Fair Market Value of
$1,000,000 or more;
(c) The issuance or transfer by the
Corporation or any Subsidiary in one
transaction or a series of transactions, of
any securities of the Corporation or any
Subsidiary to any Interested Shareholder or
an Affiliate of any Interested Shareholder
in exchange for cash, securities or other
property, or a combination thereof, having
an aggregate Fair Market Value of $1,000,000
or more;
(d) The adoption of any plan or proposal
for the liquidation or dissolution of the
Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate of
any Interested Shareholder;
(e) Any reclassification of securities
(including any reverse stock split) or any
recapitalization or reorganization of the
Corporation, or any merger or consolidation
of the Corporation with any of its
Subsidiaries or any other transaction
(whether or not with or into or otherwise
involving an Interested Shareholder) which
has the effect, directly or indirectly, of
increasing the
<PAGE>
proportionate share of the outstanding
shares of any class of equity securities of
the Corporation or any Subsidiary
(including securities convertible into
equity securities) which is directly or
indirectly owned by any Interested
Shareholder or any Affiliate of any
Interested Shareholder;
(f) Any other transaction or series of
transactions that is similar in purpose or
effect to those referred to in (a) through
(e) of this Subsection c(1).
(2) "Voting Stock" means the Common stock and those
classes of Preferred Stock which would then be
entitled to vote in the election of directors.
(3) "Beneficially Owned," with respect to any
securities, means the right or power (directly or
indirectly through any contract, understanding or
relationship) (i) to vote or direct the voting of
such securities, (ii) to dispose or direct the
disposition of such securities, or (iii) to acquire
such voting or investment power, whether such right
or power is exercisable immediately or only after the
passage of time.
(4) "Interested Shareholder" means any Person (as
defined herein) or member of a Group of Persons (as
defined herein) who or which, together with any
Affiliate or Associate (as defined herein) of such
Person or member, Beneficially Owns (within the
meaning of Subsection c(3) above) ten percent or more
of the outstanding Voting Stock of the Corporation.
(5) "Person" means any individual, firm, corporation,
partnership, joint venture or other entity.
(6) "Group of Persons" means any two or more Persons
who or which are acting or have agreed to act
together for the purpose of acquiring, holding,
voting or disposing of any Voting Stock of the
Corporation.
(7) "Disinterested Director" means any member of the
Board of Directors of the Corporation who is not an
Interested Shareholder or an Affiliate or Associate
of an Interested Shareholder and who (i) was a member
of the Board of Directors prior to the time the
Interested Shareholder became an Interested
Shareholder or (ii) was elected or recommended to
succeed a Disinterested Director by a majority of the
Disinterested Directors then on the Board of
Directors.
(8) "Fair Market Value" means: (i) in the case of
stock, the highest sale price during the 30-day
period immediately preceding the date in question of
a share of such stock on the NASDAQ National Market
System, or if such stock is listed on an exchange
registered under the Securities Exchange Act of 1934,
on the principal exchange on which such stock is
listed, or if no such quotations are available, the
fair market value on the date in question of a share
of such stock as determined by a majority of the
Disinterested Directors in good faith; and (ii) in
the case of property other than cash or stock, the
fair market value of such property on the date in
question as determined by a majority of the
Disinterested Directors in good faith.
(9) "Pre-announcement Period" means the two-year
period ending at 11:59 P.M., Greeneville time, on the
Announcement Date.
(10) "Announcement Date" means the date of the first
public announcement of the proposal of the Business
Combination.
(11) "Determination Date" means the date on which
the Interested Shareholder becomes an Interested
Shareholder.
<PAGE>
(12) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned,
directly or indirectly, by the Corporation.
(13) "Affiliate," used to indicate a relationship
with a specified Person, means another Person that
directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is
under common control with, such specified Person.
(14) "Associate," used to indicate a relationship
with a specified Person, means (i) any corporation or
other similar organization (other than the
Corporation or a Subsidiary) of which such specified
Person is an officer or partner or is, directly or
indirectly, the beneficial owner of ten percent or
more of any class of equity securities, (ii) any
trust or estate in which such specified Person has a
substantial beneficial interest or as to which such
specified Person serves as trustee or in a similar
fiduciary capacity, (iii) any relative or spouse of
such specified Person, or any relative of such spouse
who has the same home as such Person and (iv) any
other Person or Affiliate of a Person who directly or
indirectly has received more than $50,000 for
services or property from the specified Person or
from an Affiliate of the specified Person during any
year of the preceding five calendar years or who can
reasonably be expected to receive more than such
amount in the current calendar year under any
existing agreement or agreements or understandings
with such specified Person or an Affiliate of such
specified Person.
(15) "Preferred Stock" means all classes or series of
the Corporation's capital stock other than Common
Stock.
d) Power of Disinterested Directors. A majority of the
Disinterested Directors of the Corporation shall have the
power and duty to determine, on the basis of information known
to them after reasonable inquiry, all facts necessary to
determine compliance with this Section 9, including without
limitation (i) whether a Person is an Interested Shareholder,
(ii) the number of shares of Voting Stock beneficially owned
by any Person, (iii) whether a Person is an Affiliate or
Associate of another, (iv) whether the requirements of Section
b have been met with respect to any Business Combination, and
(v) whether the assets which are the subject of any Business
Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $1,000,000 or more. The good faith
determination of a majority of the Disinterested Directors on
such matters shall be conclusive and binding for all purposes
of this Section 9.
e) No Effect on Preferential Rights. The provisions of this
Section 9 shall not affect in any way the amount or form of
consideration that any holder of shares of the Corporation's
capital stock is entitled to receive upon the liquidation or
dissolution of the Corporation or any other preferential
rights of the holders of such shares.
f) No Effect on Fiduciary Obligations of Interested
Shareholders. Nothing contained in this Section 9 shall be
construed to relieve any Interested Shareholder from any
fiduciary obligation imposed by law.
g) Amendment or Repeal. In addition to any affirmative vote
required by law, an affirmative vote at least equal to the
vote of eight percent (80%) of the votes entitled to be cast
by all holders of Voting Stock voting together as a single
class, and, in addition thereto (ii) a majority of the votes
entitled to be cast by all holders of Voting Stock, other than
shares of Voting Stock which are Beneficially Owned by an
Interested Shareholder, voting together as a single class,
shall be required to amend or repeal, or adopt any charter
provisions inconsistent with, this Section 9. Such affirmative
vote shall be required notwithstanding the fact that no vote
may be required, or that a lesser percentage may be specified,
by law or in any agreement with any national securities
exchange or otherwise.
<PAGE>
10. Indemnification
a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was
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 or of a partnership, joint venture, trust
or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity
while serving as a director or officer shall be indemnified
and held harmless by the corporation to the fullest extent
authorized by Tennessee law, as the same exists or may
hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the corporation
to provide broader indemnification rights than such law
permitted the corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) seasonably incurred or suffered by
such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has
ceased to be a director or officer and shall inure to the
benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in
Section b hereof with respect to proceedings to enforce rights
to indemnification, the corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the
corporation.
The right to indemnification conferred in this Article shall
be a contract right and shall include the right to be paid by
the corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an
"advancement of expense"); provided, however, that if the
Tennessee law requires, an advancement of expense incurred by
an indemnitee in his or her capacity as a director or officer
(and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon
the following:
(i) delivery to the corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of
such indemnitee, to repay all amounts so advanced if
it shall ultimately be determined by final judicial
decision from which there is no further right to
appeal (hereinafter a "final adjudication"), that
such indemnitee is not entitled to be indemnified for
such expenses under this Section or otherwise.
(ii) delivery to the corporation by the indemnitee of
a written affirmation by the indemnitee of his good
faith belief that he has (a) conducted himself in
good faith; and (b) he reasonably believed in the
case of his official capacity with the corporation,
that his conduct was in its best interest; (c) he
reasonably believed in all other cases, that his
conduct was at least not opposed to its best interest
and (d) in the case of any criminal proceeding, he
had no reasonable cause to believe his conduct was
unlawful.
(iii) a determination is made on the facts then known
to those making the determination would not preclude
indemnification under Tennessee law.
b) Right of Indemnitee to Bring Suit.
<PAGE>
If a claim under Section a of this Article is not
paid in full by the corporation within sixty days after a
written claim has been received by the corporation, except in
the case of a claim for an advancement of expenses, in which
case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit
brought by the corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by
the indemnitee to enforce a right to indemnification hereunder
(but not in a suit brought by indemnitee to enforce a right to
an advancement of expenses) it shall be a defense that, and
(ii) in any such suit by the corporation to recover such
expenses upon a final adjudication that, the indemnitee has
not met the applicable standard of conduct set forth in the
Tennessee law. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel,
or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the
indemnitee has met the applicable standard of conduct set
forth in the Tennessee law, nor an actual determination by the
corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the indemnitee has
not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such
suit. In any suit brought by the indemnitee to enforce a right
to indemnification or to an advancement of expenses hereunder,
or by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of
providing that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the corporation.
c) Non-Exclusivity of Rights.
The rights to indemnification and to the advancement
of expenses conferred in this Article shall not be exclusive
of any other right which any person may have or hereafter
acquire under any statute, the corporation's Charter, By-Law,
agreement, vote of stockholders or disinterested directors or
otherwise.
d) Indemnification of Employees and Agents of the Corporation.
The corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses to any
employee or agent of the corporation to the fullest extent of
the provisions of this Section with respect to the
indemnification and advancement of expenses of directors and
officers of the corporation.
11. Elimination of Liability in Certain Circumstances
A director of this corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) or under TCA 48-18-304. No provision will
eliminate or limit the liability of a director for any act or omission occurring
prior to the date when such provisions become effective.
