Attached files
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S-1/A - FORM S-1/A - Roadrunner Transportation Systems, Inc. | c55423a7sv1za.htm |
EX-5 - EX-5 - Roadrunner Transportation Systems, Inc. | c55423a7exv5.htm |
EX-1 - EX-1 - Roadrunner Transportation Systems, Inc. | c55423a7exv1.htm |
EX-3.1 - EX-3.1 - Roadrunner Transportation Systems, Inc. | c55423a7exv3w1.htm |
EX-23.1 - EX-23.1 - Roadrunner Transportation Systems, Inc. | c55423a7exv23w1.htm |
EX-10.17 - EX-10.17 - Roadrunner Transportation Systems, Inc. | c55423a7exv10w17.htm |
EX-10.14 - EX-10.14 - Roadrunner Transportation Systems, Inc. | c55423a7exv10w14.htm |
EX-10.15 - EX-10.15 - Roadrunner Transportation Systems, Inc. | c55423a7exv10w15.htm |
EX-10.16 - EX-10.16 - Roadrunner Transportation Systems, Inc. | c55423a7exv10w16.htm |
Exhibit 3.2
SECOND AMENDED AND RESTATED BYLAWS
OF
ROADRUNNER TRANSPORTATION SYSTEMS, INC.
Article 1
Stockholders
Stockholders
1.1 Place of Meetings. Meetings of stockholders shall be held at the place, either
within or without the State of Delaware, as may be designated by resolution of the Board of
Directors from time to time.
1.2 Annual Meetings. Annual meetings of stockholders shall be held at such time and
place as determined by the Board of Directors, at which time they shall elect a Board of Directors
and transact any other business as may properly be brought before the meeting.
1.3 Special Meetings. A special meeting of stockholders (a Special Meeting)
for any purpose or purposes may be called at any time only by (i) the Chairman of the Board of
Directors, or (ii) the Board of Directors to be held at such place, date and time as shall be
designated in the notice or waiver of notice thereof. Only business within the purposes described
in the Corporations notice of meeting required by Section 1.4 may be conducted at the Special
Meeting. The ability of the stockholders to call a Special Meeting is specifically denied.
1.4 Notice of Meetings. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which shall state the place,
date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the Corporations Certificate of
Incorporation, or these Bylaws, the written notice of any meeting shall be given no less than ten
(10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to
vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the
mail, postage prepaid, directed to the stockholder at his or her address as it appears on the
records of the Corporation.
1.5 Adjournments. Any meeting of stockholders, annual or special, may adjourn from
time to time to reconvene at the same or some other place, and notice need not be given of any such
adjourned meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for more than thirty
(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 stockholder of record entitled to vote at
the meeting.
1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation, or
these Bylaws, at each meeting of stockholders the presence in person or by proxy of the holders of
shares of stock having a majority of the votes which could be cast by the holders of all
outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to
constitute a quorum. In the absence of a quorum, the stockholders so present may, by majority
vote, adjourn the meeting from time to time in the manner provided in Section 1.5 of these Bylaws
until a quorum shall attend. Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to
vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the
right of the Corporation to vote stock, including but not limited to its own stock, held by it in a
fiduciary capacity.
1.7 Organization. Meetings of stockholders shall be presided over by the Chairman of
the Board, if any, or in his or her absence by the Vice Chairman of the Board, if any, or in his or
her
absence by the President, or in his or her absence by a Vice President, or in the absence of
the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such
designation, by a chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any person to act as
secretary of the meeting.
1.8 Voting; Proxies. Except as otherwise provided by the Certificate of
Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled
to one vote for each share of stock held by such stockholder which has voting power upon the matter
in question. Each stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted
upon after three (3) years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long
as, it is coupled with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or another duly executed proxy
bearing a later date with the Secretary of the Corporation. Voting at meetings of stockholders
need not be by written ballot and need not be conducted by inspectors of election unless so
determined by the holders of shares of stock having a majority of the votes which could be cast by
the holders of all outstanding shares of stock entitled to vote thereon which are present in person
or by proxy at such meeting. At all meetings of stockholders for the election of directors a
plurality of the votes cast shall be sufficient to elect. All other elections and questions shall,
unless otherwise provided by law, the Certificate of Incorporation, or these Bylaws, be decided by
the vote of the holders of shares of stock having a majority of the votes which could be cast by
the holders of all shares of stock entitled to vote thereon which are present in person or
represented by proxy at the meeting.
1.9 Fixing Date for Determination of Stockholders of Record. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion,
or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors and which record date: (a) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten
(10) days before the date of such meeting; (b) in the case of determination of stockholders
entitled to express consent to corporate action in writing without a meeting, shall not be more
than ten (10) days from the date upon which the resolution fixing the record date is adopted by the
Board of Directors; and (c) in the case of any other action, shall not be more than sixty (60) days
prior to such other action. If no record date is fixed: (i) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is held; (ii) the
record date for determining stockholders entitled to express consent to corporate action in writing
without a meeting when no prior action of the Board of Directors is required by law, shall be the
first date on which a signed written consent setting forth the action taken or proposed to be taken
is delivered to the Corporation in accordance with applicable law, or, if prior action by the Board
of Directors is required by law, shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action; and (iii) the record date for determining
stockholders for any other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
1.10 List of Stockholders Entitled to Vote. The Secretary shall prepare and make, at
least ten (10) days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period
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of at least ten (10) days prior to the meeting, either at 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 stockholder who is present. Upon the willful neglect or refusal of the directors
to produce such a list at any meeting for the election of directors, they shall be ineligible for
election to any office at such meeting. The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
1.11 Action by Consent of Stockholders. No action shall be taken by the stockholders
except at an annual or special meeting of stockholders called in accordance with these Bylaws, and
no action shall be taken by the stockholders by written consent without a meeting.
1.12 Notice of Stockholder Business; Nominations.
(a) Annual Meetings of Stockholders. Nominations of one or more individuals to the
Board of Directors of the Corporation (each, a Nomination, and more than one,
Nominations) and the proposal of business other than Nominations (Business) to
be considered by the stockholders of the Corporation may be made at an annual meeting of
stockholders only (1) pursuant to the Corporations notice of meeting or any supplement thereto
(provided, however, that reference in the Corporations notice of meeting to the election of
directors or to the election of members of the Board of Directors of the Corporation shall not
include or be deemed to include Nominations), (2) by or at the direction of the Board of Directors
of the Corporation, or (3) by any stockholder of the Corporation who was a stockholder of record of
the Corporation at the time the notice provided for in this Section 1.12 is delivered to the
Secretary of the Corporation, who is entitled to vote at the meeting, and who complies with the
notice procedures set forth in this Section 1.12.
(b) Special Meetings of Stockholders. Only such Business shall be conducted at a
special meeting of stockholders of the Corporation as shall have been brought before the meeting
pursuant to the Corporations notice of meeting; provided, however, that reference in the
Corporations notice of meeting to the election of directors or to the election of members of the
Board of Directors of the Corporation shall not include or be deemed to include Nominations.
Nominations may be made at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporations notice of meeting (1) by or at the direction of the Board of
Directors of the Corporation or (2) provided that the Board of Directors of the Corporation has
determined that directors shall be elected at such meeting, by any stockholder of the Corporation
who is a stockholder of record at the time the notice provided for in this Section 1.12 is
delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon such
election, and who complies with the notice procedures set forth in this Section 1.12. In the event
the Corporation calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors of the Corporation, any such stockholder entitled to vote in
such election of directors may make Nominations of one or more individuals (as the case may be) for
election to such position(s) as specified in the Corporations notice of meeting, if the
stockholders notice required by Section 1.12(c)(1) shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation in accordance with Section
1.12(c)(1)(E).
(c) Stockholder Nominations and Business. For Nominations and Business to be properly
brought before an annual meeting by a stockholder pursuant to Section 1.12(a)(3), the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation in compliance
with this Section 1.12, and any such proposed Business must constitute a proper matter for
stockholder action. For Nominations to be properly brought before a special meeting by a
stockholder pursuant to Section 1.12(b)(2), the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation in compliance with this Section 1.12.
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(1) Stockholder Nominations.
(A) Only individual(s) subject to a Nomination made in compliance with the procedures set
forth in this Section 1.12 shall be eligible for election at an annual or special meeting of
stockholders of the Corporation, and any individual(s) subject to a Nomination not made in
compliance with this Section 1.12 shall not be considered nor acted upon at such meeting of
stockholders.
(B) For Nominations to be properly brought before an annual or special meeting of stockholders
of the Corporation by a stockholder pursuant to Section 1.12(a)(3) or Section 1.12(b)(2),
respectively, the stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation at the principal executive offices of the Corporation pursuant to this Section
1.12. To be timely, the stockholders notice must be delivered to the Secretary of the Corporation
as provided in Section 1.12(c)(1)(C) or Section 1.12(c)(1)(D), in the case of an annual meeting of
stockholders of the Corporation, and Section 1.12(c)(1)(E), in the case of a special meeting of
stockholders of the Corporation, respectively.
(C) In the case of an annual meeting of stockholders of the Corporation, to be timely, any
Nomination made pursuant to Section 1.12(a)(3) shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation not later than the close of
business on the one hundred twentieth (120th) day nor earlier than the close of business on the one
hundred fiftieth (150th) day prior to the first anniversary of the preceding years annual meeting
(provided, however, that in the event that the date of the annual meeting is more than thirty (30)
days before or more than seventy (70) days after such anniversary date, notice by the stockholder
must be so delivered not earlier than the close of business on the one hundred fiftieth (150th) day
prior to such annual meeting and not later than the close of business on the later of the one
hundred twentieth (120th) day prior to such annual meeting or the tenth (10th) day following the
day on which public announcement of the date of such meeting is first made by the Corporation). In
no event shall the public announcement of an adjournment or postponement of an annual meeting of
stockholders of the Corporation commence a new time period (or extend any time period) for the
giving of a stockholders notice as described above.
(D) Notwithstanding Section 1.12(c)(1)(C), in the event that the number of directors to be
elected to the Board of Directors of the Corporation at an annual meeting of stockholders of the
Corporation is increased and there is no public announcement by the Corporation naming the nominees
for the additional directorships at least one hundred (100) days prior to the first anniversary of
the preceding years annual meeting, the stockholders notice required by this Section 1.12 shall
also be considered timely, but only with respect to nominees for the additional directorships, if
it shall be delivered to the Secretary of the Corporation at the principal executive offices of the
Corporation not later than the close of business on the tenth (10th) day following the day on which
such public announcement is first made by the Corporation.
(E) In the case of a special meeting of stockholders of the Corporation, to be timely, any
Nomination made pursuant to Section 1.12(b)(2) shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation not earlier than the close of
business on the one hundred fiftieth (150th) day prior to such special meeting and not later than
the close of business on the later of the one hundred twentieth (120th) day prior to such special
meeting or the tenth (10th) day following the day on which public announcement is first made of the
date of such special meeting and of the nominees proposed by the Board of Directors of the
Corporation to be elected at such special meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting of stockholders of the Corporation commence a new
time period (or extend any time period) for the giving of a stockholders notice as described
above.
(F) A stockholders notice of Nomination(s) pursuant to Section 1.12(a)(3) or Section
1.12(b)(2) shall set forth: (i) as to any Nomination to be made by such
stockholder, (a) all information relating to the individual subject to such Nomination that is
required to be disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required,
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in each case pursuant to and in accordance with Regulation 14A
under the Securities Exchange Act of 1934, as amended (the Exchange Act), without regard
to the application of the Exchange Act to either the Nomination or the Corporation, and (b) such
individuals written consent to being named in a proxy statement as a nominee and to serving as a
director if elected; and (ii) as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the Nomination is made (a) the name and address of such stockholder, as they
appear on the Corporations books, and of such beneficial owner, (b) the class, series, and number
of shares of capital stock of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (c) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and such stockholder (or a
qualified representative of the stockholder) intends to appear in person or by proxy at the meeting
to propose such Nomination, and (d) a representation whether the stockholder or the beneficial
owner, if any, intends or is part of a group which intends (1) to deliver a proxy statement and/or
form of proxy to holders of at least the percentage of the Corporations outstanding capital stock
required to elect the individual subject to the Nomination and/or (2) otherwise to solicit proxies
from stockholders of the Corporation in support of such Nomination. The Corporation may require
any individual subject to such Nomination to furnish such other information as it may reasonably
require to determine the eligibility of such individual to serve as a director of the Corporation.
(2) Stockholder Business.
(A) Only such Business shall be conducted at an annual or special meeting of stockholders of
the Corporation as shall have been brought before such meeting in compliance with the procedures
set forth in this Section 1.12, and any Business not brought in accordance with this Section 1.12
shall not be considered nor acted upon at such meeting of stockholders; provided, however, that if
the Business is otherwise subject to Rule 14a-8 (or any successor thereto) promulgated under the
Exchange Act (Rule 14a-8), the notice requirements of this Section 1.12(c)(2) shall be
deemed satisfied by a stockholder if the stockholder has notified the Corporation of his, her, or
its intention to present such Business at an annual meeting of stockholders of the Corporation in
accordance with Rule 14a-8, and such Business has been included in a proxy statement that has been
prepared by the Corporation to solicit proxies for such annual meeting.
(B) In the case of an annual meeting of stockholders of the Corporation, to be timely, any
such written notice of a proposal of Business pursuant to Section 1.12(a)(3) shall be delivered to
the Secretary of the Corporation at the principal executive offices of the Corporation not later
than the close of business on the one hundred twentieth (120th) day nor earlier than the close of
business on the one hundred fiftieth (150th) day prior to the first anniversary of the preceding
years annual meeting (provided, however, that in the event that the date of the annual meeting is
more than thirty (30) days before or more than seventy (70) days after such anniversary date,
notice by the stockholder must be so delivered not earlier than the close of business on the one
hundred fiftieth (150th) day prior to such annual meeting and not later than the close of business
on the later of the one hundred twentieth (120th) day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such meeting is first made
by the Corporation). In no event shall the public announcement of an adjournment or postponement
of an annual meeting of stockholders of the Corporation commence a new time period (or extend any
time period) for the giving of a stockholders notice as described above.
(C) A stockholders notice of a proposal of Business pursuant to Section 1.12(a)(3) shall set
forth: (i) as to the Business proposed by such stockholder, a brief description of the Business
desired to be brought before the meeting, the text of the proposal or Business (including the text
of any resolutions proposed for consideration and in the event that such Business includes a
proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the
reasons for conducting such Business at the meeting and any material interest in such Business of
such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (ii)
as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the
nomination is made (a) the name and address of such stockholder, as they appear on the Corporations books, and of
such beneficial owner, (b) the class, series, and number of shares of capital stock of the
Corporation which are
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owned beneficially and of record by such stockholder and such beneficial
owner, (c) a representation that the stockholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and such stockholder (or a qualified representative of such
stockholder) intends to appear in person or by proxy at the meeting to propose such Business, and
(d) a representation whether the stockholder or the beneficial owner, if any, intends or is part of
a group which intends (1) to deliver a proxy statement and/or form of proxy to holders of at least
the percentage of the Corporations outstanding capital stock required to approve or adopt the
proposed Business and/or (2) otherwise to solicit proxies from stockholders of the Corporation in
support of such Business.
(d) General.
(1) Except as otherwise provided by law, the chairman of the meeting of stockholders of the
Corporation shall have the power and duty (a) to determine whether a Nomination or Business
proposed to be brought before such meeting was made or proposed in accordance with the procedures
set forth in this Section 1.12 and (b) if any proposed Nomination or Business was not made or
proposed in compliance with this Section 1.12, to declare that such Nomination or Business shall be
disregarded or that such proposed Nomination or Business shall not be considered or transacted.
Notwithstanding the foregoing provisions of this Section 1.12, if the stockholder (or a qualified
representative of such stockholder) does not appear at the annual or special meeting of
stockholders of the Corporation to present a Nomination or Business, such Nomination or Business
shall be disregarded and such Nomination or Business shall not be considered or transacted,
notwithstanding that proxies in respect of such vote may have been received by the Corporation.
(2) For purposes of this Section 1.12, public announcement shall include disclosure in a
press release reported by the Dow Jones News Service, Associated Press, or comparable national news
service, or in a document publicly filed by the Corporation with the Securities and Exchange
Commission.
(3) Nothing in this Section 1.12 shall be deemed to affect (A) the rights or obligations, if
any, of stockholders of the Corporation to request inclusion of proposals in the Corporations
proxy statement pursuant to Rule 14a-8 (to the extent that the Corporation or such proposals are
subject to Rule 14a-8), or (B) the rights, if any, of the holders of any series of preferred stock
of the Corporation to elect directors pursuant to any applicable provisions of the certificate of
incorporation of the Corporation.
Article 2
Board of Directors
Board of Directors
2.1 Number; Qualifications. The number of directors of the Corporation shall be fixed
from time to time by resolution of the Board of Directors; provided, however, no
directors term shall be shortened by reason of a resolution reducing the number of directors.
Directors must be natural persons who are 18 years of age or older but need not be residents of the
State of Delaware, stockholders of the Corporation, or citizens of the United States.
2.2 Staggered Board; Term. The Board of Directors shall be divided into three classes
designated Class I, Class II, and Class III. The number of directors elected to each class shall
be as nearly equal in number as possible. Directors shall be assigned to each class in accordance
with a resolution or resolutions adopted by the Board of Directors. Each Class I director shall be
elected to an initial term to expire at the 2011 annual meeting of stockholders, each Class II
director shall be elected to an initial term to expire at the 2012 annual meeting of stockholders;
and each Class III director shall be elected to an initial term to expire at the 2013 annual
meeting of stockholders. Upon the expiration of the initial terms of office for each class of
directors, the directors of each class shall be elected for a term of three years to serve until
their successors are duly elected and qualified or until their earlier resignation,
death, or removal from office. No decrease in the number of directors constituting the Board
shall shorten the term of any incumbent director.
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2.3 Resignation; Removal; Vacancies. Any director may resign at any time upon written
notice to the Corporation. At a special meeting of stockholders called expressly for that purpose,
the entire Board of Directors, or any member or members thereof, may be removed, but only for cause
by vote for removal of a specific director by stockholders holding at least 66 2/3% of the shares
then entitled to vote at an election for directors of the Corporation, voting as a single voting
group. The notice of such special meeting must state that the purpose, or one of the purposes, of
the meeting is removal of the director or directors, as the case may be. Any newly created
directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a
majority of the remaining members of the Board of Directors, although such majority is less than a
quorum, or by the sole remaining director, and each director so elected shall hold office until the
expiration of the term of office of the director whom he has replaced or until his or her successor
is elected and qualified.
2.4 Regular Meetings. Regular meetings of the Board of Directors may be held at such
places within or without the State of Delaware and at such times as the Board of Directors may from
time to time determine, and if so determined, notices thereof need not be given.
2.5 Special Meetings. Special meetings of the Board of Directors may be held at any
time or place within or without the State of Delaware whenever called by the President, any Vice
President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting
of the Board of Directors shall be given by the person or persons calling the meeting at least
twenty-four (24) hours before the special meeting.
2.6 Telephonic Meetings Permitted. Members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting thereof by means of
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 2.6 shall constitute presence in person at such meeting.
2.7 Quorum; Vote Required for Action. At all meetings of the Board of Directors a
majority of the whole Board of Directors shall constitute a quorum for the transaction of business.
Except in cases in which the Certificate of Incorporation or these Bylaws otherwise provide, the
vote of a majority of the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors.
2.8 Organization. Meetings of the Board of Directors shall be presided over by the
Chairman of the Board, if any, or in his or her absence by the Vice Chairman of the Board, if any,
or in his or her absence by the President, or in their absence by a chairman chosen at the meeting.
The Secretary shall act as secretary of the meeting, but in his or her absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
2.9 Informal Action by Directors. Unless otherwise restricted by the Certificate of
Incorporation 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, without prior
notice and without a vote, if all members of the Board of Directors or such committee, as the case
may be, consent thereto in writing or by electronic transmission, and the writing or writings or
electronic transmission or transmissions are filed with the minutes of proceedings of the Board of
Directors or such committee. Such filing shall be in paper form if such minutes are maintained in
paper form and shall be in electronic form if such minutes are maintained in electronic form.
Article 3
Committees
Committees
3.1 Committees. The Board of Directors may, by resolution passed by a majority of the
whole Board of Directors, designate one or more committees, each committee to consist of one or
more of the directors of the Corporation. The Board of Directors may designate two or more
directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting
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of the committee. In the absence or disqualification of a member of the committee,
the member or members thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified member. Any such
committee, to the extent permitted by law and 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, and may authorize the seal of the
Corporation to be affixed to all pages which may require it.
3.2 Committee Rules. Unless the Board of Directors otherwise provides, each committee
designated by the Board of Directors may make, alter, and repeal rules for the conduct of its
business. In the absence of such rules each committee shall conduct its business in the same
manner as the Board of Directors conducts its business pursuant to Article 2 of these Bylaws.
Article 4
Officers
Officers
4.1 Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal;
Vacancies. The Board of Directors shall elect a Chief Executive Officer, President, Secretary,
and Treasurer, and it may, if it so determines, choose a Chairman of the Board and a Vice Chairman
of the Board from among its members. The Board of Directors may also elect one or more Vice
Presidents, one or more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, and
such other officers as the Board of Directors deems necessary. Each such officer shall hold office
until the first meeting of the Board of Directors after the annual meeting of stockholders next
succeeding his or her election, and until his or her successor is elected and qualified or until
his or her earlier resignation or removal. Any officer may resign at any time upon written notice
to the Corporation. The Board of Directors may remove any officer with or without cause at any
time, but such removal shall be without prejudice to the contractual rights of such officer, if
any, with the Corporation. Any number of offices may be held by the same person. Any vacancy
occurring in any office of the Corporation by death, resignation, removal, or otherwise may be
filled for the unexpired portion of the term by the Board of Directors at any regular or special
meeting.
4.2 Powers and Duties of Executive Officers. The officers of the Corporation shall
have such powers and duties in the management of the Corporation as may be prescribed by the Board
of Directors and, to the extent not so provided, as generally pertain to their respective officers,
subject to the control of the Board of Directors. The Board of Directors may require any officer,
agent, or employee to give security for the faithful performance of his or her duties.
Article 5
Stock
Stock
5.1 Certificates.
(a) The Corporation is authorized to issue shares of common stock of the Corporation in
certificated or uncertificated form. The shares of the common stock of the Corporation shall be
registered on the books of the Corporation in the order in which they shall be issued. Any
certificates for shares of the common stock, and any other shares of capital stock of the
Corporation represented by certificates, shall be numbered, shall be signed by (i) the Chairman of
the Board of Directors, the President, or a Vice President, and (ii) the Secretary or an Assistant
Secretary, or the
Treasurer or an Assistant Treasurer. Any or all of the signatures on a certificate may be a
facsimile signature. In case any 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, she, or it were such officer, transfer agent, or registrar at the
date of issue. Within a reasonable time after the issuance or transfer of uncertificated stock,
the Corporation shall send, or cause to be sent, to the record owner thereof a written statement
setting forth the name of the Corporation, the name of the stockholder, the
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number and class of
shares, and a summary of the designations, relative rights, preferences, and limitations applicable
to such class of shares and the variations in rights, preferences, and limitations determined for
each series within a class (and the authority of the Board of Directors to determine variations for
future series), and a full statement of any restrictions on the transfer or registration of such
shares. Each stock certificate must set forth the same information or, alternatively, may state
conspicuously on its front or back that the Corporation will furnish the stockholders a full
statement of this information on request and without charge. Every stock certificate representing
shares that are restricted as to the sale, disposition, or transfer of such shares shall also
indicate that such shares are restricted as to transfer and there shall be set forth or fairly
summarized upon the certificate, or the certificate shall indicate that the Corporation will
furnish to any stockholders upon request and without charge, a full statement of such restriction.
If the Corporation issues any certificated shares that are not registered under the Securities Act
of 1933, as amended, and registered or qualified under the applicable state securities laws, the
transfer of any such shares shall be restricted substantially in accordance with the following
legend:
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM.
(b) No certificate representing shares of stock shall be issued until the full amount of
consideration therefor has been paid, except as otherwise permitted by law.
(c) To the extent permitted by law, the Board of Directors may authorize the issuance of
certificates or uncertificated shares representing fractions of a share of stock that shall entitle
the holder to exercise voting rights, receive dividends, and participate in liquidating
distributions, in proportion to the fractional holdings; or it may authorize the payment in cash of
the fair value of fractions of a share of stock as of the time when those entitled to receive such
fractions are determined; or it may authorize the issuance, subject to such conditions as may be
permitted by law, of scrip in registered or bearer form over the signature of an officer or agent
of the Corporation, exchangeable as therein provided for full shares of stock, but such scrip shall
not entitle the holder to any rights of a stockholder, except as therein provided.
5.2 Lost, Stolen, or Destroyed Stock Certificates; Issuance of New Certificates. The
Board of Directors may require from any person who claims their stock certificate has been lost,
stolen, or destroyed an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen, or destroyed. The Board of Directors may, in its discretion and as a condition
precedent to the issuance of either a new stock certificate or uncertificated shares, 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.
5.3 Transfer of Shares.
(a) Transfers of shares shall be made upon the books of the Corporation (i) only by the holder
of record thereof, or by a duly authorized agent, transferee or legal representative and (ii) in
the case of certificated shares, upon the surrender to the Corporation of the certificate or
certificates for such shares duly endorsed or accompanied by proper evidence of succession,
assignment, or authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and record the transaction
upon its books.
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(b) The Corporation shall be entitled to treat the holder of record of any share or shares of
stock 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 of stock 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.
Article 6
Indemnification
Indemnification
6.1 Right to Indemnification. The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently 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), any person who was or is made or is threatened to be made a party
or is otherwise involved in any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (a proceeding), by reason of the fact that he or she or
a person for whom he or she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director, officer,
employee, or agent of another corporation or of a partnership, joint venture, trust, enterprise, or
nonprofit entity, including service with respect to employee benefit plans (an
indemnitee), against all expense, liability, and loss (including attorneys fees,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee. The Corporation shall be required to indemnify an
indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if
the initiation of such proceeding (or part thereof) by the indemnitee was authorized by the Board
of Directors of the Corporation.
6.2 Prepayment of Expenses. The Corporation shall pay the expenses (including
attorneys fees) incurred by an indemnitee in defending any proceeding in advance of its final
disposition, provided, however, that the payment of expenses incurred by a director or officer in
advance of the final disposition of the proceeding shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be indemnified under this Article or
otherwise.
6.3 Claims. If a claim for indemnification or payment of expenses under this Article
is not paid in full within sixty (60) days after a written claim therefor by the indemnitee has
been received by the Corporation, the indemnitee may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the expenses of
prosecuting such claim. In any such action the Corporation shall have the burden of proving that
the indemnitee was not entitled to the requested indemnification or payment of expenses under
applicable law.
6.4 Nonexclusivity of Rights. The rights conferred on any person by this Article 6
shall not be exclusive of any other rights which such person may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation, these Bylaws, agreement, vote of
stockholders, or disinterested directors or otherwise.
6.5 Other Indemnification. The Corporations obligation, if any, to indemnify any
person who was or is serving at its request as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, enterprise, or nonprofit entity shall be reduced by
any amount such person may collect as indemnification from such other corporation, partnership,
joint venture, trust, enterprise, or nonprofit enterprise.
6.6 Nature of Indemnification Rights; Amendment or Repeal. Each person who was, is,
or becomes a director or officer shall be deemed to have served or to have continued to serve in
such capacity in reliance upon the indemnity provided for in this Article 6. All rights to
indemnification (and the advancement of expenses) under this Article 6 shall be deemed to be
provided by a contract between the Corporation and the person who serves or has served as a
director or officer of the Corporation. Such rights shall be deemed to have vested at the time
such person becomes or became a director or officer of
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the Corporation, and such rights shall
continue as to an indemnitee who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the indemnitees heirs, executors, and administrators. Any repeal or
modification of the foregoing provisions of this Article 6 shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
6.7 Insurance for Indemnification. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee, or agent of the
Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise
against any liability asserted against such person and incurred by such person in any such
capacity, or arising out of such persons status as such, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions of Section 145 of
the Delaware General Corporation Law.
Article 7
Miscellaneous
Miscellaneous
7.1 Fiscal Year. The fiscal year of the Corporation shall be determined by resolution
of the Board of Directors.
7.2 Seal. The corporate seal shall have the name of the Corporation inscribed thereon
and shall be in such form as may be approved from time to time by the Board of Directors.
7.3 Notices. Except as may otherwise be required by law, the Certificate of
Incorporation or these Bylaws, any notice to the Corporation, any stockholder or director must be
in writing and may be transmitted by: mail, private carrier or personal delivery; telegraph or
teletype; or telephone, wire or wireless equipment which transmits a facsimile of the notice.
Written notice by the Corporation to its stockholders shall be deemed effective when mailed, if
mailed with first-class postage prepaid and correctly addressed to the stockholders address shown
in the Corporations current record of stockholders. Except as set forth in the previous sentence,
written notice shall be deemed effective at the earliest of the following: (a) when received; (b)
five days after its deposit in the United States mail, as evidenced by the postmark, if mailed with
first-class postage, prepaid, and correctly addressed; (c) on the date shown on the return receipt,
if sent by registered or certified mail, return receipt requested, and receipt is signed by or on
behalf of the addressee; or (d) if sent to a stockholders address, telephone number, or other
number appearing on the records of the Corporation, when dispatched by telegraph, teletype or
facsimile equipment.
7.4 Waiver of Notice of Meetings of Stockholders, Directors, and Committees. Any
written waiver of notice, signed by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of any regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
7.5 Interested Directors; Quorum. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be void or voidable solely for this
reason, or
solely because the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or transaction, or solely
because his, her or their votes are counted for such purpose, if: (a) the material facts as to his
or her relationship or interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
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quorum; or (b) the material facts
as to his or her relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction
is fair as to the Corporation as of the time it is authorized, approved, or ratified by the Board
of Directors, a committee thereof, or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
7.6 Form of Records. Any records maintained by the Corporation in the regular course
of its business, including its stock ledger, books of account, and minute books, may be kept on, or
be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other
information storage device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect the same.
7.7 Amendment of Bylaws.
(a) These Bylaws may only be amended or repealed by the stockholders at an annual or special
meeting of the stockholders the notice for which designates that an amendment or repeal of one or
more of such sections is to be considered and then only by an affirmative vote of the stockholders
holding 66 2/3% of the shares entitled to vote upon such amendment or repeal, voting as a single
voting group.
(b) The Board of Directors shall have the power to amend or repeal the Bylaws of, or adopt new
bylaws for, the Corporation. However, any such bylaws, or any alternation, amendment or repeal of
the Bylaws, may be subsequently amended or repealed by the stockholders as provided in Article 7,
Section 7.7(a) of these Bylaws.
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