Attached files
file | filename |
---|---|
10-K - FORM 10-K - Knight-Swift Transportation Holdings Inc. | c14360e10vk.htm |
EX-32 - EXHIBIT 32 - Knight-Swift Transportation Holdings Inc. | c14360exv32.htm |
EX-2.1 - EXHIBIT 2.1 - Knight-Swift Transportation Holdings Inc. | c14360exv2w1.htm |
EX-3.1 - EXHIBIT 3.1 - Knight-Swift Transportation Holdings Inc. | c14360exv3w1.htm |
EX-31.2 - EXHIBIT 31.2 - Knight-Swift Transportation Holdings Inc. | c14360exv31w2.htm |
EX-10.2 - EXHIBIT 10.2 - Knight-Swift Transportation Holdings Inc. | c14360exv10w2.htm |
EX-31.1 - EXHIBIT 31.1 - Knight-Swift Transportation Holdings Inc. | c14360exv31w1.htm |
EX-10.5 - EXHIBIT 10.5 - Knight-Swift Transportation Holdings Inc. | c14360exv10w5.htm |
EX-23.1 - EXHIBIT 23.1 - Knight-Swift Transportation Holdings Inc. | c14360exv23w1.htm |
EX-21.1 - EXHIBIT 21.1 - Knight-Swift Transportation Holdings Inc. | c14360exv21w1.htm |
Exhibit 3.2
BY-LAWS
OF
SWIFT TRANSPORTATION COMPANY
A Delaware Corporation
Effective December 21, 2010
TABLE OF CONTENTS
Page | ||||
ARTICLE I |
||||
OFFICES |
||||
Section 1. Registered Office |
1 | |||
Section 2. Other Offices |
1 | |||
ARTICLE II |
||||
MEETINGS OF STOCKHOLDERS |
||||
Section 1. Place of Meetings |
1 | |||
Section 2. Annual Meetings |
1 | |||
Section 3. Special Meetings |
2 | |||
Section 4. Notice |
2 | |||
Section 5. Nature of Business at Meetings of Stockholders |
2 | |||
Section 6. Nomination of Directors |
6 | |||
Section 7. Adjournments |
10 | |||
Section 8. Quorum |
11 | |||
Section 9. Voting |
11 | |||
Section 10. Proxies |
12 | |||
Section 11. Consent of Stockholders in Lieu of Meeting |
13 | |||
Section 12. List of Stockholders Entitled to Vote |
15 | |||
Section 13. Record Date |
16 | |||
Section 14. Stock Ledger |
18 | |||
Section 15. Conduct of Meetings |
18 | |||
Section 16. Inspectors of Election |
19 | |||
ARTICLE III |
||||
DIRECTORS |
||||
Section 1. Number and Election of Directors |
19 | |||
Section 2. Vacancies |
20 | |||
Section 3. Duties and Powers |
21 | |||
Section 4. Meetings |
21 | |||
Section 5. Organization |
22 | |||
Section 6. Resignations and Removals of Directors |
22 | |||
Section 7. Quorum |
23 | |||
Section 8. Actions of the Board by Written Consent |
24 | |||
Section 9. Meetings by Means of Conference Telephone |
24 | |||
Section 10. Committees |
25 | |||
Section 11. Compensation |
26 |
i
Page | ||||
Section 12. Interested Directors |
26 | |||
Section 13. Chairman of the Board of Directors |
27 | |||
Section 14. Lead Independent Director |
28 | |||
ARTICLE IV |
||||
OFFICERS |
||||
Section 1. General |
28 | |||
Section 2. Election |
29 | |||
Section 3. Voting Securities Owned by the Corporation |
29 | |||
Section 4. Chief Executive Officer |
30 | |||
Section 5. President |
30 | |||
Section 6. Vice Presidents |
31 | |||
Section 7. Chief Administrative Officer |
31 | |||
Section 8. Chief Financial Officer |
31 | |||
Section 9. Treasurer |
32 | |||
Section 10. Secretary |
33 | |||
Section 11. Assistant Secretaries |
33 | |||
Section 12. Assistant Treasurers |
34 | |||
Section 13. Assistant Officers |
34 | |||
Section 14. Combination of Offices |
34 | |||
Section 15. Other Officers |
34 | |||
ARTICLE V |
||||
STOCK |
||||
Section 1. Shares of Stock |
35 | |||
Section 2. Signatures |
35 | |||
Section 3. Lost Certificates |
36 | |||
Section 4. Transfers |
36 | |||
Section 5. Dividend Record Date |
37 | |||
Section 6. Record Owners |
37 | |||
Section 7. Transfer and Registry Agents |
37 | |||
ARTICLE VI |
||||
NOTICES |
||||
Section 1. Notices |
38 | |||
Section 2. Waivers of Notice |
39 |
ii
Page | ||||
ARTICLE VII |
||||
GENERAL PROVISIONS |
||||
Section 1. Dividends |
39 | |||
Section 2. Disbursements |
40 | |||
Section 3. Fiscal Year |
40 | |||
Section 4. Corporate Seal |
40 | |||
ARTICLE VIII |
||||
INDEMNIFICATION |
||||
Section 1. Power to Indemnify in Actions, Suits or Proceedings other than Those by
or in the Right of the Corporation |
40 | |||
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of
the Corporation |
41 | |||
Section 3. Authorization of Indemnification |
42 | |||
Section 4. Good Faith Defined |
43 | |||
Section 5. Indemnification by a Court |
43 | |||
Section 6. Expenses Payable in Advance |
44 | |||
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses |
44 | |||
Section 8. Insurance |
45 | |||
Section 9. Certain Definitions |
45 | |||
Section 10. Survival of Indemnification and Advancement of Expenses |
46 | |||
Section 11. Limitation on Indemnification |
46 | |||
Section 12. Indemnification of Employees and Agents |
47 | |||
ARTICLE IX |
||||
AMENDMENTS |
||||
Section 1. Amendments |
47 | |||
Section 2. Entire Board of Directors |
47 |
iii
BY-LAWS
OF
SWIFT TRANSPORTATION COMPANY
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be
in the City of Dover, County of Kent, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or without
the State of Delaware, as shall be designated from time to time by the Board of Directors.
Section 2. Annual Meetings. The Annual Meeting of Stockholders for the election
of directors shall be held on such date and at such time as shall be designated from time to time
by the Board of Directors. Any other proper business may be transacted at the Annual Meeting of
Stockholders.
Section 3. Special Meetings. Unless otherwise required by law or by the
certificate of incorporation of the Corporation, as amended from time to time (the Certificate of
Incorporation), Special Meetings of Stockholders, for any purpose or purposes, may be called by
(i) the Board of Directors or (ii) the Chairman of the Board of Directors, the Chief Executive
Officer of the Corporation or the Lead Independent Director (if any); and shall be called by the
Board of Directors at the request of stockholders as provided in the Certificate of Incorporation.
Such request shall state the purpose or purposes of the proposed Special Meeting. At a Special
Meeting of Stockholders, only such business shall be conducted as shall be specified in the notice
of meeting (or any supplement thereto).
Section 4. Notice. 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 required by law, written notice of any meeting shall
be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to
each stockholder entitled to notice of and to vote at such meeting.
Section 5. Nature of Business at Meetings of Stockholders. Only such business
(other than nominations for election to the Board of Directors, which must comply with the
provisions of Section 6 of this Article II) may be transacted at an Annual Meeting of Stockholders
as is either (a) specified in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee thereof), (b) otherwise
properly brought before the Annual Meeting by or at the direction of the Board of Directors (or any
duly authorized committee thereof), or (c) otherwise properly brought before the Annual Meeting by
any stockholder of the Corporation (i) who is a stockholder of record on
the date of the giving of the notice provided for in this Section 5 of this Article II and on the
record date for the determination of stockholders entitled to notice of and to vote at such Annual
Meeting and (ii) who complies with the notice procedures set forth in this Section 5 of this
Article II.
2
In addition to any other applicable requirements, for business to be properly brought before
an Annual Meeting by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholders notice to the Secretary must be delivered to or be mailed and
received at the principal executive offices of the Corporation not less than ninety (90) days nor
more than one hundred and twenty (120) days prior to the anniversary date of the immediately
preceding Annual Meeting of Stockholders; provided, however, that in the event that
the Annual Meeting is called for a date that is not within twenty-five (25) days before or after
such anniversary date, notice by the stockholder in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the day on which such notice of
the date of the Annual Meeting was mailed or such public disclosure of the date of the Annual
Meeting was made, whichever first occurs. In no event shall the adjournment or postponement of an
Annual Meeting, or the public announcement of such an adjournment or postponement, commence a new
time period (or extend any time period) for the giving of a stockholders notice as described
above.
3
To be in proper written form, a stockholders notice to the Secretary must set forth the
following information: (a) as to each matter such stockholder proposes to bring before the Annual
Meeting, a brief description of the business desired to be brought before the Annual Meeting and
the reasons for conducting such business at the Annual Meeting, and (b) as to the
stockholder giving notice and the beneficial owner, if any, on whose behalf the proposal is being
made, (i) the name and address of such person, (ii) (A) the class or series and number of all
shares of stock of the Corporation which are owned beneficially or of record by such person and any
affiliates or associates of such person, (B) the name of each nominee holder of shares of all stock
of the Corporation owned beneficially but not of record by such person or any affiliates or
associates of such person, and the number of such shares of stock of the Corporation held by each
such nominee holder, (C) whether and the extent to which any derivative instrument, swap, option,
warrant, short interest, hedge or profit interest or other transaction has been entered into by or
on behalf of such person, or any affiliates or associates of such person, with respect to stock of
the Corporation and (D) whether and the extent to which any other transaction, agreement,
arrangement or understanding (including any short position or any borrowing or lending of shares of
stock of the Corporation) has been made by or on behalf of such person, or any affiliates or
associates of such person, the effect or intent of any of the foregoing being to mitigate loss to,
or to manage risk or benefit of stock price changes for, such person, or any affiliates or
associates of such person, or to increase or decrease the voting power or pecuniary or economic
interest of such person, or any affiliates or associates of such person, with respect to stock of
the Corporation; (iii) a description of all agreements, arrangements, or understandings (whether
written or oral) between or among such person, or any affiliates or associates of such person, and
any other person or persons (including their names) in connection with the proposal of such
business and any material interest of such person or any affiliates or associates of such person,
in such business, including any anticipated benefit therefrom to such person, or any affiliates or
associates of such person, (iv) a representation that the stockholder giving notice intends to
appear in person or by proxy at the Annual Meeting to bring such business before the
Annual Meeting; and (v) any other information relating to such person that would be required to be
disclosed in a proxy statement or other filing required to be made in connection with the
solicitation of proxies by such person with respect to the proposed business to be brought by such
person before the Annual Meeting pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended (the Exchange Act), and the rules and regulations promulgated thereunder.
4
A stockholder providing notice of business proposed to be brought before an Annual Meeting
shall further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 5 of this Article II shall be true
and correct as of the record date for determining the stockholders entitled to receive notice of
the Annual Meeting and such update and supplement shall be delivered to or be mailed and received
by the Secretary at the principal executive offices of the Corporation not later than five (5)
business days after the record date for determining the stockholders entitled to receive notice of
the Annual Meeting.
No business shall be conducted at the Annual Meeting of Stockholders except business brought
before the Annual Meeting in accordance with the procedures set forth in this Section 5 of this
Article II; provided, however, that, once business has been properly brought before
the Annual Meeting in accordance with such procedures, nothing in this Section 5 of this Article II
shall be deemed to preclude discussion by any stockholder of any such business. If the Chairman of
an Annual Meeting determines that business was not properly brought before the Annual Meeting in
accordance with the foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the Annual Meeting and such business shall not be
transacted.
5
Nothing contained in this Section 5 of this Article II shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporations proxy statement pursuant to
Rule 14a-8 under the Exchange Act (or any successor provision of law).
Section 6. Nomination of Directors. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors of the Corporation,
except as may be otherwise provided in the Certificate of Incorporation with respect to the right
of holders of preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the Board of Directors
may be made at any Annual Meeting of Stockholders, or at any Special Meeting of Stockholders called
for the purpose of electing directors, (a) by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (b) by any stockholder of the Corporation in accordance with
the Certificate of Incorporation and who complies with the notice procedures set forth in this
Section 6 of this Article II.
In addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation.
To be timely, a stockholders notice to the Secretary must be delivered to or be mailed and
received at the principal executive offices of the Corporation (a) in the case of an Annual
Meeting, not less than ninety (90) days nor more than one hundred and twenty (120) days prior to
the anniversary date of the immediately preceding Annual Meeting of Stockholders; provided,
however, that in the event that the Annual Meeting is called for a date that is not within
twenty-five (25) days before or after such anniversary date, notice by the stockholder in order to
be timely must be so received not later than the close of business on the tenth
6
(10th) day following the day on which such notice of the date of the Annual Meeting was mailed or such public
disclosure of the date of the Annual Meeting was made, whichever first occurs; and (b) in the case
of a Special Meeting of Stockholders called for the purpose of electing directors, not later than
the close of business on the tenth (10th) day following the day on which notice of the date of the
Special Meeting was mailed or public disclosure of the date of the Special Meeting was made,
whichever first occurs. In no event shall the adjournment or postponement of an Annual Meeting or a
Special Meeting called for the purpose of electing directors, or the public announcement of such an
adjournment or postponement, commence a new time period (or extend any time period) for the giving
of a stockholders notice as described above.
To be in proper written form, a stockholders notice to the Secretary must set forth the
following information: (a) as to each person whom the stockholder proposes to nominate for election
as a director (i) the name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) (A) the class or series and number of all
shares of stock of the Corporation which are owned beneficially or of record by such person and any
affiliates or associates of such person, (B) the name of each nominee holder of shares of all stock
of the Corporation owned beneficially but not of record by such person or any affiliates or
associates of such person, and the number of such shares of stock of the Corporation held by each
such nominee holder, (C) whether and the extent to which any derivative instrument, swap, option,
warrant, short interest, hedge or profit interest or other transaction has been entered into by or
on behalf of such person, or any affiliates or associates of such person, with respect to stock of
the Corporation and (D) whether and the extent to which any other transaction, agreement,
arrangement or understanding (including any short position or any borrowing or lending of shares of
stock of the Corporation) has been made by or on behalf of
7
such person, or any affiliates or associates of such person, the effect or intent of any of the
foregoing being to mitigate loss to, or to manage risk or benefit of stock price changes for, such
person, or any affiliates or associates of such person, or to increase or decrease the voting power
or pecuniary or economic interest of such person, or any affiliates or associates of such person,
with respect to stock of the Corporation; and (iv) any other information relating to such person
that would be required to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act, and the rules and regulations promulgated thereunder; and (b) as to the stockholder
giving the notice, and the beneficial owner, if any, on whose behalf the nomination is being made,
(i) the name and record address of such person; (ii) (A) the class or series and number of all
shares of stock of the Corporation which are owned beneficially or of record by such person and any
affiliates or associates of such person, (B) the name of each nominee holder of shares of the
Corporation owned beneficially but not of record by such person or any affiliates or associates of
such person, and the number of shares of stock of the Corporation held by each such nominee holder,
(C) whether and the extent to which any derivative instrument, swap, option, warrant, short
interest, hedge or profit interest or other transaction has been entered into by or on behalf of
such person, or any affiliates or associates of such person, with respect to stock of the
Corporation and (D) whether and the extent to which any other transaction, agreement, arrangement
or understanding (including any short position or any borrowing or lending of shares of stock of
the Corporation) has been made by or on behalf of such person, or any affiliates or associates of
such person, the effect or intent of any of the foregoing being to mitigate loss to, or to manage
risk or benefit of stock price changes for, such person, or any affiliates or associates of such
person, or to increase or
8
decrease the voting power or pecuniary or economic interest of such person, or any affiliates or associates of such person, with respect to
stock of the Corporation; (iii) a description of all agreements, arrangements, or understandings
(whether written or oral) between such person, or any affiliates or associates of such person, and
any proposed nominee or any other person or persons (including their names) pursuant to which the
nominations) are being made by such person, and any material interest of such person, or any
affiliates or associates of such person, in such nomination, including any anticipated benefit
therefrom to such person, or any affiliates or associates of such person; (iv) a representation
that the stockholder giving notice intends to appear in person or by proxy at the Annual Meeting or
Special Meeting to nominate the persons named in its notice; and (v) any other information relating
to such person that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with the solicitation of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.
Such notice must be accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
A stockholder providing notice of any nomination proposed to be made at an Annual Meeting or
Special Meeting shall further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to this Section 6 of this
Article II shall be true and correct as of the record date for determining the stockholders
entitled to receive notice of the Annual Meeting or Special Meeting, and such update and supplement
shall be delivered to or be mailed and received by the Secretary at the principal executive offices
of the Corporation not later than five (5) business days after the record date for determining the
stockholders entitled to receive notice of such Annual Meeting or Special Meeting.
9
No person shall be eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 6 of this Article II. If the Chairman of
the meeting determines that a nomination was not made in accordance with the foregoing procedures,
the Chairman shall declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded.
Nothing contained in this Section 6 of this Article II shall be deemed to affect any rights of
stockholders to request inclusion of nominees for director in the Corporations proxy statement
pursuant to Rule 14a-11 under the Exchange Act (or any successor provision of law).
Section 7. Adjournments. Any meeting of the stockholders may be adjourned from
time to time by the Chairman of the meeting 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, if any, thereof and
the means of remote communications, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such adjourned meeting 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, notice of
the adjourned meeting in accordance with the requirements of Section 4 hereof shall be given to
each stockholder of record entitled to notice of and to vote at the meeting.
10
Section 8. Quorum. Unless otherwise required by applicable law or the
Certificate of Incorporation, the holders of shares of Common Stock representing a majority of the
voting power of the shares (but in any event not less than one-third of such shares) of the
Corporations capital stock issued and outstanding and entitled to vote with respect to the
particular matter, present in person or represented by proxy, shall constitute a quorum of the
stockholders for the transaction of business with respect to such matter. A quorum, once
established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If,
however, such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, or the Chairman
of the meeting shall have power to adjourn the meeting from time to time, in the manner provided in
Section 7 hereof, until a quorum shall be present or represented.
Section 9. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, or the rules of any stock exchange on which the Corporations
shares are listed and traded, any question brought before any meeting of the stockholders, other
than the election of directors, shall be decided by a majority of the votes cast by the
stockholders entitled to vote thereon who are present in person or represented by proxy, and where
a separate vote by class or series is required, a majority of the votes cast by the stockholders of
such class or series who are present in person or represented by proxy shall be the act of such
class or series. Except as otherwise provided by law or by the Certificate of Incorporation each
stockholder of record of any series of Preferred Stock shall be entitled at each meeting of the
stockholders to such number of votes, if any, for each share of such stock as may be fixed in the
Certificate or in the resolution or resolutions adopted by the Board providing for the issuance of
such stock, each stockholder of record of Class B Common Stock (as defined in the Certificate of
Incorporation) shall be entitled at each meeting of the stockholders to two votes for each such
share of such stock and each stockholder of record of Class A Common Stock (as defined in the
Certificate of Incorporation) shall be entitled at each meeting of the stockholders to one vote for
each share of such stock, in each case, registered in such stockholders name on the books of the
Corporation
on the date fixed pursuant to Section 13 of Article II of these By-Laws as the record date for the
determination of stockholders entitled to notice of and to vote at such meeting.
11
The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting
of the stockholders, may require that any votes cast at such meeting shall be cast by written
ballot.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of the
stockholders or to express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder as proxy, but no such proxy shall
be voted upon after three years from its date, unless such proxy provides for a longer period.
Without limiting the manner in which a stockholder may authorize another person or persons to act
for such stockholder as proxy, the following shall constitute a valid means by which a stockholder
may grant such authority:
(i) A stockholder may execute a writing authorizing
another person or persons to act for such stockholder as proxy. Execution may be
accomplished by the stockholder or such stockholders authorized officer, director,
employee or agent signing such writing or causing such persons signature to be affixed
to such writing by any reasonable means, including, but not limited to, by facsimile
signature.
(ii) A stockholder may authorize another person or
persons to act for such stockholder as proxy by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic transmission to
the person who will be the holder of the proxy or to a proxy solicitation firm,
proxy support service organization or like agent duly authorized by the person
who will be the holder of the proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic transmission must either set forth or
be submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the stockholder. If it is
determined that such telegrams, cablegrams or other electronic transmissions are valid,
the inspectors or, if there are no inspectors, such other persons making that
determination shall specify the information on which they relied.
12
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original
writing or transmission could be used; provided, however, that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section 11. Consent of Stockholders in Lieu of Meeting.
(a) Unless otherwise provided in the Certificate of Incorporation, any action required or
permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation may be
taken without a meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present and voted and shall
be delivered to the Corporation by delivery to its registered office in the State of
13
Delaware, its
principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded.
Delivery made to the Corporations registered office shall be by hand or by certified or registered
mail, return receipt requested. Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within sixty (60) days of the earliest dated consent delivered
in the manner required by this Section 11 to the Corporation, written consents signed by a
sufficient number of holders to take action are delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings of meetings of the stockholders
are recorded. A telegram, cablegram or other electronic transmission consenting to an action to be
taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act
for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes
of this Section 11 and in accordance with the requirements of Section 13(b) of this Article II,
provided that any such telegram, cablegram or other electronic transmission sets forth or is
delivered with information from which the Corporation can determine (i) that the telegram,
cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by
a person or persons authorized to act for the stockholder or proxyholder and (ii) the date on which
such stockholder or proxyholder or authorized person or persons transmitted such telegram,
cablegram or electronic transmission. The date on which such telegram, cablegram or electronic
transmission is transmitted shall be deemed to be the date on which such consent was signed. No
consent given by telegram, cablegram or other electronic transmission shall be deemed to have been
delivered until
14
such consent is reproduced in paper form and until such paper form shall be
delivered to
the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the
Corporations registered office shall be made by hand or by certified or registered mail, return
receipt requested. Any copy, facsimile or other reliable reproduction of a consent in writing may
be substituted or used in lieu of the original writing for any and all purposes for which the
original writing could be used, provided that such copy, facsimile or other reproduction shall be a
complete reproduction of the entire original writing. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing and who, if the action had been taken at a meeting,
would have been entitled to notice of the meeting if the record date for such meeting had been the
date that written consents signed by a sufficient number of holders to take the action were
delivered to the Corporation as provided above in this Section 11.
Section 12.
List of Stockholders Entitled to Vote. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of the 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 of at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is provided with the
notice of the meeting, or (ii) during ordinary business hours, at the principal place of business
of the Corporation. In the event that the Corporation determines
15
to make the list available on an
electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting
is to be held at a place, then the list shall 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. If
the meeting is to be held solely by means of remote communication, then the list shall also be open
to the examination of any stockholder during the whole time of the meeting on a reasonably
accessible electronic network, and the information required to access such list shall be provided
with the notice of the meeting.
Section 13. Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of the stockholders or any adjournment thereof, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed
by the Board of Directors, the record date for determining stockholders entitled to notice of or to
vote at a meeting of the 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. A determination of stockholders of record entitled
to notice of or to vote at a meeting of the 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.
16
(b) In order that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, 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 date shall not be more than ten (10) days
after the date upon which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorize or take corporate
action by written consent shall, by written notice to the Secretary of the Corporation, request the
Board of Directors to fix a record date. The Board of Directors shall
promptly, but in all events
within ten (10) days after the date on which such a request is received, adopt a resolution fixing
the record date. If no record date has been fixed by the Board of Directors within ten (10) days of
the date on which such a request is received, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting, when no prior action by the Board of
Directors is required by applicable 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 by delivery
to its registered office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of meetings of the
stockholders are recorded, to the attention of the Secretary of the Corporation. Delivery made to
the Corporations registered office shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts the resolution taking such prior
action.
17
Section 14. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 12 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of the stockholders.
Section 15. Conduct of Meetings. The Board of Directors of the Corporation may
adopt by resolution such rules and regulations for the conduct of any meeting of the stockholders
as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as
adopted by the Board of Directors, the Chairman of any meeting of the stockholders shall have the
right and authority to prescribe such rules, regulations and procedures and to do all such acts as,
in the judgment of such Chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the
Chairman of the meeting, may include, without limitation, the following: (i) the establishment of
an agenda or order of business for the meeting; (ii) the determination of when the polls shall open
and close for any given matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at
or participation in the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the Chairman of the meeting shall determine; (v)
restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi)
limitations on the time allotted to questions or comments by participants.
18
Section 16. Inspectors of Election. In advance of any meeting of the stockholders,
the Board of Directors, by resolution, the Chairman or the President shall appoint one or more
inspectors to act at the meeting and make a written report thereof. One or more other persons may
be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of the stockholders, the Chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by
applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector,
before entering upon the discharge of the duties of inspector, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best of
such inspectors ability. The inspector shall have the duties prescribed by law and shall take
charge of the polls and, when the vote is completed, shall make a certificate of the result of the
vote taken and of such other facts as may be required by applicable law.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. (a) The Board of Directors shall
consist of not less than one nor more than fifteen members, the exact number of which shall
initially be fixed by the Incorporator and thereafter from time to time by the Board of Directors.
Except as provided in Section 2 of this Article III, a nominee for director shall be elected to the
Board of Directors if the votes cast for such nominees election exceed the votes cast against such
nominees election; provided, however, that directors shall be elected by a
plurality of the votes cast at any meeting of stockholders for which the Secretary of the
Corporation determines that the number of nominees exceeds the number of directors to be elected as
of the record date of such meeting. Each director so elected shall hold office until the next
Annual Meeting of Stockholders and until such directors successor is duly elected and qualified,
or until such directors earlier death, resignation or removal. Directors need not be stockholders.
19
(b) At least two-thirds of the directors shall consist of persons who are not employees of
the Corporation or of any subsidiary of the Corporation, provided that there shall not be at any
time more than two directors who are employees of the Corporation. Should the
death, resignation or other removal of any non-employee director result in the failure of the
requirement set forth in the preceding sentence to be met, such requirement shall not apply during
the time of the vacancy caused by the death, resignation or removal of any such non employee
director, and the remaining directors of the Corporation shall cause any such vacancy to be filled
in accordance with these By-Laws within a reasonable period of time. At the Annual Meeting or a
Special Meeting at which directors are to be elected in accordance with the Corporations notice of
meeting, directors shall be elected in accordance with the requirements of these By-Laws and the
Certificate of Incorporation.
(c) To be eligible for election or re-election and to be seated as a director of the
Corporation, a person must agree in advance to abide by (i) the Corporations director resignation
policy applicable to any director who fails to receive the required number of votes for re-election
in connection with the Companys majority voting requirements and (ii) the applicable corporate
governance, trading, conflict of interest and confidentiality policies and guidelines of the
Corporation applicable to directors.
Section 2. Vacancies. Unless otherwise required by law or the Certificate of
Incorporation, vacancies on the Board of Directors or any committee thereof arising through death,
resignation, removal, an increase in the number of directors constituting the Board of Directors or
such committee or otherwise may be filled only by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director. The directors so chosen shall, in the
case of the Board of Directors, hold office until the next annual election and until their
successors are duly elected and qualified, or until their earlier death, resignation or removal
and, in the case of any committee of the Board of Directors, shall hold office until their
successors are duly appointed by the Board of Directors or until their earlier death, resignation
or removal.
20
Section 3. Duties and Powers. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
Section 4. Meetings. The Board of Directors and any committee thereof may hold
meetings, both regular and special, either within or without the State of Delaware. Regular
meetings of the Board of Directors or any committee thereof may be held without notice at such time
and at such place as may from time to time be determined by the Board of Directors or such
committee, respectively. Special Meetings of the Board of Directors may be called by the Chairman,
the Lead Independent Director, if there be one, or the Chief Executive Officer, or by a majority of
the directors. Special Meetings of any committee of the Board of Directors may be called by the
Chairman of such committee, if there be one, the Chief Executive Officer, or a majority of the
directors serving on such committee. Notice thereof stating the place, date and hour of the meeting
shall be given to each director (or, in the case of a committee, to each member of such committee)
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
telegram or electronic means on twenty-four (24) hours notice, or on such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the circumstances.
21
Section 5. Organization. At each meeting of the Board of Directors or any
committee thereof, the Chairman of the Board of Directors or the Chairman of such committee,
as the case may be, or, in his or her absence or if there be none, the Lead Independent Director,
if there be one, or another director chosen by a majority of the directors present, shall act as
Chairman. Except as provided below, the Secretary of the Corporation shall act as secretary at each
meeting of the Board of Directors and of each committee thereof. In case the Secretary shall be
absent from any meeting of the Board of Directors or of any committee thereof, an Assistant
Secretary shall perform the duties of secretary at such meeting; and in the absence from any such
meeting of the Secretary and all the Assistant Secretaries, the Chairman of the meeting may appoint
any person to act as secretary of the meeting. Notwithstanding the foregoing, the members of each
committee of the Board of Directors may appoint any person to act as secretary of any meeting of
such committee and the Secretary or any Assistant Secretary of the Corporation may, but need not if
such committee so elects, serve in such capacity.
Section 6. Resignations and Removals of Directors. Any director of the
Corporation may resign from the Board of Directors or any committee thereof at any time, by giving
notice in writing or by electronic transmission to the Chairman of the Board of Directors, the
Chief Executive Officer or the Secretary of the Corporation and, in the case of a committee, to the
Chairman of such committee, if there be one. Such resignation shall take effect at the time therein
specified or, if no time is specified, immediately; and, unless otherwise specified in such notice,
the acceptance of such resignation shall not be necessary to make it effective. Except as otherwise
required by applicable law and subject to the rights, if any, of the holders of shares of preferred
stock then outstanding, any director or the entire Board of Directors may be removed from office at
any time by the affirmative vote of the holders of at least a majority in voting power of the
issued and outstanding capital stock of the Corporation entitled to vote in the election of
directors;
22
provided that if the director serving as Chairman of the Board of Directors is an Independent Director (as defined in the Corporations Certificate of Incorporation) then such
director, or if the Chairman of the Board of Directors is not an Independent Director then the
director serving as Lead Independent Director, may only be removed as a director with the
affirmative vote of the holders of a majority of the shares of Class A Common Stock excluding
Permitted Holders and Affiliated Persons. Any director serving on a committee of the Board of
Directors may be removed from such committee at any time by the Board of Directors. Permitted
Holder shall mean (i) Jerry Moyes, Vickie Moyes and their respective estates, executors and
conservators, (ii) any trust (including the trustee thereof) established for the benefit of Jerry
Moyes, Vickie Moyes or any children (including adopted children) thereof, (iii) any such children
upon transfer from Jerry Moyes or Vickie Moyes, or upon distribution from any such trust or from
the estates of Jerry Moyes or Vickie Moyes and (iv) any corporation, limited liability company or
partnership the sole stockholders, members or partners of which are Permitted Holders. Affiliated
Person means any entity (other than the Corporation or any subsidiary of the Corporation) of which
more than 10% of the capital stock or other equity interests or voting power of which is held by
one or more Permitted Holders, and any director, officer or employee hereof.
Section 7. Quorum. Except as otherwise required by law, or the Certificate of
Incorporation or the rules and regulations of any securities exchange or quotation system on which
the Corporations securities are listed or quoted for trading, at all meetings of the Board of
Directors or any committee thereof, a majority of the entire Board of Directors or a majority of
the directors constituting such committee, as the case may be, shall constitute a quorum for the
transaction of business and the act of a majority of the directors or committee members present at
any meeting at which there is a quorum shall be the act of the Board of Directors or such
committee, as applicable. If a quorum shall not be present at any meeting of the Board of Directors
or any committee thereof, the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting of the time and place of the adjourned
meeting, until a quorum shall be present.
23
Section 8. Actions of the Board by Written Consent. Unless otherwise provided in
the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken without a meeting,
if all the 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 the minutes are maintained in paper form and shall
be in electronic form if the minutes are maintained in electronic form.
Section 9. Meetings by Means of Conference Telephone. Unless otherwise provided
in the Certificate of Incorporation or these By-Laws, members of the Board of Directors of the
Corporation, or any committee thereof, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or other 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 9 shall constitute presence in person at such meeting.
24
Section 10. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the Corporation. Each
member of a committee must meet the requirements for membership, if any, imposed by applicable law
and the rules and regulations of any securities exchange or quotation system on
which the securities of the Corporation are listed or quoted for trading. The Board of Directors
may designate one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of any such committee. Subject to the rules and
regulations of any securities exchange or quotation system on which the securities of the
Corporation are listed or quoted for trading, in the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not such member or members constitute a quorum, may
unanimously appoint another qualified member of the Board of Directors to act at the meeting in the
place of any absent or disqualified member. Any committee, to the extent permitted by law and
provided in the resolution establishing such committee, 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 papers which may
require it. Each committee shall keep regular minutes and report to the Board of Directors when
required. Notwithstanding anything to the contrary contained in this Article III, the resolution of
the Board of Directors establishing any committee of the Board of Directors and/or the charter of
any such committee may establish requirements or procedures relating to the governance and/or
operation of such committee that are different from, or in addition to, those set forth in these
By-Laws and, to the extent that there is any inconsistency between these By-Laws and any such
resolution or charter, the terms of such resolution or charter shall be controlling.
25
Section 11. Compensation. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary for service as director,
payable in cash or securities. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for service as committee members.
Section 12. Interested Directors. 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 any such directors or officers vote is counted for such purpose if: (i) the material
facts as to the directors or officers 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 quorum; or (ii) the material facts as to the directors or officers 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 (iii) 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. In addition to the foregoing, any contract or
transaction with a Permitted Holder or Affiliated Person shall be subject to the provisions of
Article SIXTH of the Certificate of Incorporation.
26
Section 13. Chairman of the Board of Directors. The Chairman of the Board of
Directors shall be elected by the Board of Directors from among its members, and shall not be the
Chief Executive Officer or other employee of the Corporation. In addition, so long as the CEO (or
if there is no CEO then the person performing the duties of the CEO) is a Permitted Holder or
Affiliated Person (as such terms are defined in the Companys Certificate of Incorporation), the
Chairman shall be an Independent Director (as defined in the Companys Certificate of
Incorporation). The Chairman of the Board of Directors shall preside at all meetings of the
stockholders and of the Board of Directors at which he is present. In the absence or disability of
the Chairman of the Board, the duties of the Chairman of the Board (including presiding at meetings
of the Board of Directors and at meetings of the stockholders of the Corporation) shall be
performed and the authority of the Chairman of the Board may be exercised by the Lead Independent
Director, if there be one, or another independent director designated for this purpose by the Board
of Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as may from time to time be assigned by these By-Laws or by the Board of
Directors, and shall have the authority to sign such contracts, certificates and other instruments
of the Corporation as may be authorized by the Board of Directors. The Chairman of the Board of
Directors, if an Independent Director, may be removed from his office as Chairman only with the
affirmative vote of a majority of the Independent Directors and only for the following reasons: (1)
gross negligence or willful misconduct with respect to the Corporation, (2) breach of a fiduciary
duty to the Corporation and its stockholders or (3) a determination by a majority of the
Independent Directors that the
Chairman is not fulfilling his or her responsibilities in a manner that is in the best interests of
the Corporation and its stockholders.
27
Section 14. Lead Independent Director. If the Board of Directors appoints as
Chairman a director who is not an Independent Director, then at the same time as such appointment,
the Board of Directors shall appoint an Independent Director to be the Lead Independent Director.
The Lead Independent Director shall perform such duties and may exercise such powers as may from
time to time be assigned by these By-Laws or by the Board of Directors, and shall have the
authority to sign such contracts, certificates and other instruments of the Corporation as may be
authorized by the Board of Directors. The Lead Independent Director may be removed from his office
as Lead Independent Director only with the affirmative vote of a majority of the Independent
Directors and only for the following reasons: (1) gross negligence or willful misconduct with
respect to the Corporation, (2) breach of a fiduciary duty to the Corporation and its stockholders
or (3) a determination by a majority of the Independent Directors that the Lead Independent
Director is not fulfilling his or her responsibilities in a manner that is in the best interests of
the Corporation and its stockholders.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board
of Directors and shall be a CEO, a President, a Secretary and a Treasurer. The Board of Directors,
in its discretion, also may choose a Chief Administrative Officer (CAO), a Chief Financial
Officer (CFO) and one or more Assistant CAOs, Assistant CFOs, Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers as may be determined by the Board of
Directors. Any number of offices may be held by the same person, unless otherwise
prohibited by law, the Certificate of Incorporation or these By-Laws. The officers of the
Corporation need not be stockholders of the Corporation.
28
Section 2. Election. The Board of Directors, at its first meeting held after
each Annual Meeting of Stockholders (or action by written consent of stockholders in lieu of the
Annual Meeting of Stockholders), shall elect the officers of the Corporation who shall hold their
offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and each officer of the Corporation shall
hold office until such officers successor is elected and qualified, or until such officers
earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed
at any time by the Board of Directors. Any vacancy occurring in any office of the Corporation shall
be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed
by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President or any other officer authorized to do so by the Board of Directors and any
such officer may, in the name of and on behalf of the Corporation, take all such action as any such
officer may deem advisable to vote in person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any such meeting shall possess and
may exercise any and all rights and power incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any other person or
persons.
29
Section 4. Chief Executive Officer. The CEO shall, subject to the control of the
Board of Directors and the Chairman of the Board of Directors, have general supervision of the
business of the Corporation and shall see that all orders and resolutions of the Board of Directors
are carried into effect. The CEO shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except that the other officers
of the Corporation may sign and execute documents when so authorized by these By-Laws, the Board of
Directors or the CEO. The CEO shall also perform such other duties and may exercise such other
powers as may from time to time be assigned to such officer by these By-Laws or by the Board of
Directors, subject to the provisions of the Certificate of Incorporation and these By-Laws. If and
so long as the Chairman is a Permitted Holder or an Affiliated Person, the CEO (or if there is no
CEO, then the person performing the duties of the CEO) shall not be a Permitted Holder or an
Affiliated Person.
Section 5. President. In the absence of the CEO, in the event of his or her
death, inability to act, or refusal to carry out a lawful order of the Board of Directors, the
President shall perform the duties of the CEO, and when so acting, shall have all powers of and be
subject to all the restrictions upon the CEO. To the extent authorized in Article VI, the President
may sign, with any other officer of the Corporation or other person authorized by the Board of
Directors, certificates for shares of the Corporation, deeds, mortgages, bonds, contracts, trust
deeds, or other instruments. The President shall perform such other duties as from time to time may
be assigned to him or her by the CEO or the Board of Directors.
30
Section 6. Vice Presidents. The Board of Directors may, at its option, elect one
or more Vice-Presidents. In the absence of the CEO and the President, in the event of either
individuals death, inability to act, or refusal to carry out a lawful order of the Board of
Directors, or, with respect to the President, a lawful order of the CEO, a Vice-President shall
perform the duties of the CEO or President, respectfully, and when so acting, shall have all powers
of and be subject to all the restrictions upon the CEO, or President, respectfully. A
Vice-President shall perform such other duties as from time to time may be assigned to him by the
CEO, the President, or the Board of Directors.
Section 7. Chief Administrative Officer. The Board of Directors may, at its
option, elect a CAO. Subject to the authority of the Board of Directors, the CEO, and the
President, the CAO shall have general oversight and review powers over the conduct of the business
and affairs of all departments, divisions, and regions of the Corporation and its subsidiaries, if
any. The CAO shall periodically report to the CEO, President, and the Board of Directors of the
Corporation, as requested. The CAO shall perform such other duties as from time to time may be
assigned to him by the CEO, the President, or the Board of Directors.
Section 8. Chief Financial Officer. The Board of Directors may, at its option,
elect a CFO. If required by the Board of Directors, the CFO shall give a bond for the faithful
discharge of his duties in such sum and with such surety or sureties as the Directors shall
determine. The CFO shall: (a) have charge and custody of, and be responsible for, all funds,
securities, notes, and valuable effects of the Corporation; (b) receive and give receipt for monies
due and payable to the Corporation from any sources whatsoever; (c) deposit all such monies to the
credit of the Corporation or otherwise as the Board of Directors, or the CEO shall direct in such
banks, trust companies or other depositories as shall be selected in accordance with the provisions
of Article VI of these By-Laws; (d) cause such funds to be disbursed by checks or drafts on the
authorized depositories of the Corporation signed as provided in
31
Article VI of these By-Laws; (e) be responsible for the accuracy of the amounts of, and cause to be preserved proper
vouchers for, all monies so disbursed; (f) have the right to require from time to time reports or
statements giving such information as he or she may desire with respect to any and all financial
transactions of the Corporation from the officers or agents transacting the same; (g) render to the
CEO or the Board of Directors, whenever they, respectively, shall request him or her so to do, an
account of the financial condition of the Corporation and of all his or her transactions as CFO;
(h) sign, if directed by the Board of Directors, with the CEO, President, or a Vice-President,
certificates for stock of the Corporation; and (i) upon request, exhibit or cause to be exhibited
at all reasonable times the cash books and other records to the CEO or any of the Directors of the
Corporation. The CFO shall, in general, perform all of the duties incident to the office of the CFO
and such other duties as from time to time may be assigned by the CEO, the President, or the Board
of Directors.
Section 9. Treasurer. If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his or her duties in such sum and with such surety or
sureties as the Board of Directors shall determine. In the absence of the CFO, in the event of his
or her death, inability to act, or refusal to carry out a lawful order of the Board of Directors,
CEO, or President, the Treasurer shall perform the duties of the CFO, and when so acting, shall
have all powers of and be subject to all the restrictions upon the CFO. The Treasurer shall,
generally, perform such other duties as from time to time may be assigned to him or her by the CEO,
CFO, or the Board of Directors.
32
Section 10. Secretary. The Secretary shall: (a) record all the proceedings of the
meetings of the stockholders, the Board of Directors and the committees of the Board of Directors,
if any, in one or more books kept for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these By-Laws or as required by law; (c) be the
custodian of all contracts, deeds, documents, all other indicia of title to properties owned by the
Corporation and of its other corporate records (except accounting records) and of the corporate
seal, if any, and affix such seal to all documents the execution of which on behalf of the
Corporation under its seal is authorized and required; (d) sign, if directed by the Board of
Directors, with the CEO, President, or a Vice-President, certificates for stock of the Corporation;
(e) have charge, directly or through the transfer clerk or transfer clerks, transfer agent or
transfer agents and registrar or registrars appointed as provided in Section 7 of Article V of
these By-Laws, of the issue, transfer, and registration of certificates for stock of the
Corporation and of the records thereof, such records to be kept in such manner as to show at any
time the amount of the stock of the Corporation issued and outstanding, the manner in which and the
time when such stock was paid for, the names, alphabetically arranged, and the addresses of the
holders of record thereof, the number of shares held by each, and the time when each became a
holder of record; (f) upon request, exhibit or cause to be exhibited at all reasonable times to any
Director such records of the issue, transfer, and registration of the certificates for stock of the
Corporation; (g) see that the books, reports, statements, certificates, and all other documents and
records required by law are properly kept and filed; and (h) see that the duties prescribed by
Section 6 of Article II of these By-Laws are performed. In general, the Secretary shall perform all
duties incident to the office of Secretary and such other duties as from time to time may be
assigned to him or her by the CEO or the Board of Directors.
Section 11. Assistant Secretaries. Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the President, any Vice President, if there be one, or the Secretary, and in
the
absence of the Secretary or in the event of the Secretarys inability or refusal to act, shall
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.
33
Section 12. Assistant Treasurers. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of the Treasurers inability or refusal to act, shall
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. If required by the Board of Directors, an
Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance of the duties of
the office of Assistant Treasurer and for the restoration to the Corporation, in case of the
Assistant Treasurers death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in the Assistant Treasurers possession or
under the Assistant Treasurers control belonging to the Corporation.
Section 13. Assistant Officers. Any persons elected as assistant officers shall
assist in the performance of the duties of the designated office and such other duties as shall be
assigned to them by any Vice-President, the CAO, the CFO, the Secretary, or the Treasurer, as the
case may be or by the Board of Directors, the CEO, or the President.
Section 14. Combination of Offices. Any two of the offices hereinabove enumerated
may be held by one and the same person, if such person is so elected or appointed.
Section 15. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
34
ARTICLE V
STOCK
Section 1. Shares of Stock. The shares of capital stock of the Corporation
shall be represented by a certificate, unless and until the Board of Directors of the Corporation
adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any
such resolution providing for uncertificated shares, every holder of capital stock of the
Corporation theretofore represented by certificates and, upon request, every holder of
uncertificated shares, shall be entitled to have a certificate for shares of capital stock of the
Corporation signed by, or in the name of the Corporation by, (a) the Chairman of the Board, the
Vice Chairman of the Board, the Chief Executive Officer, the President or any Executive Vice
President, and (b) the Chief Financial Officer, the Secretary or an Assistant Secretary, certifying
the number of shares owned by such stockholder in the Corporation.
Section 2. Signatures. Any or all of the signatures on a certificate may be a
facsimile. 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 such person were such officer, transfer agent or registrar at the date of issue.
35
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate or uncertificated shares be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issuance of a new certificate or uncertificated shares, the Board of Directors
may, in its discretion and as a condition precedent to the issuance thereof, require the owner of
such lost, stolen or destroyed certificate, or such owners legal representative, to advertise the
same in such manner as the Board of Directors 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 on account of the alleged loss, theft or destruction of such certificate or the
issuance of such new certificate or uncertificated shares.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by applicable law and in these By-Laws. Transfers of stock shall be made on the
books of the Corporation, and in the case of certificated shares of stock, only by the person named
in the certificate or by such persons attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary
transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer
instructions from the registered holder of the shares or by such persons attorney lawfully
constituted in writing, and upon payment of all necessary transfer taxes and compliance with
appropriate procedures for transferring shares in uncertificated form; provided, however, that such
surrender and endorsement, compliance or payment of taxes shall not be required in any case in
which the officers of the Corporation shall determine to waive such requirement. With respect to
certificated shares of stock, every certificate exchanged, returned or surrendered to the
Corporation shall be marked Cancelled, with the date of cancellation, by the Secretary or
Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be
valid as against the Corporation for any purpose until it shall have been entered in the stock
records of the Corporation by an entry showing from and to whom transferred.
36
Section 5. Dividend Record Date. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders 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, and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
Section 6. Record Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person registered on its
books as the owner of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise required by law.
Section 7. Transfer and Registry Agents. The Corporation may from time to time
maintain one or more transfer offices or agencies and registry offices or agencies at such place or
places as may be determined from time to time by the Board of Directors.
37
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate
of Incorporation or these By-Laws, to be given to any director, member of a committee or
stockholder, such notice may be given by mail, addressed to such director, member of a committee or
stockholder, at such persons address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Without limiting the manner by which notice otherwise may be
given effectively to stockholders, any notice to stockholders given by the Corporation under
applicable law, the Certificate of Incorporation or these By-Laws shall be effective if given by a
form of electronic transmission if consented to by the stockholder to whom the notice is given. Any
such consent shall be revocable by the stockholder by written notice to the Corporation. Any such
consent shall be deemed to be revoked if (i) the Corporation is unable to deliver by electronic
transmission two (2) consecutive notices by the Corporation in accordance with such consent and
(ii) such inability becomes known to the Secretary or Assistant Secretary of the Corporation or to
the transfer agent, or other person responsible for the giving of notice; provided, however, that
the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or
other action. Notice given by electronic transmission, as described above, shall be deemed given:
(i) if by facsimile telecommunication, when directed to a number at which the stockholder has
consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice; (iii) if by a posting on an
electronic network, together with separate notice to the stockholder of such specific posting, upon
the later of (A) such posting and (B) the giving of such separate notice; and (iv) if by any other
form of electronic transmission, when directed to the stockholder. Notice
to directors or committee members may be given personally or by telegram, telex, cable or by means
of electronic transmission.
38
Section 2. Waivers of Notice. Whenever any notice is required by applicable
law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a
committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to
notice, or a waiver by electronic transmission by the person or persons entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person
at a meeting, present in person or represented by proxy, shall constitute a waiver of notice of
such meeting, except where the person attends the 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 Annual or
Special Meeting of Stockholders or any regular or Special Meeting of the directors or members of a
committee of directors need be specified in any written waiver of notice unless so required by law,
the Certificate of Incorporation or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the requirements of the General Corporation Law of the State of Delaware (the DGCL)
and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of
Directors at any regular or Special Meeting of the Board of Directors (or any action by written
consent in lieu thereof in accordance with Section 8 of Article III hereof), and may be paid in
cash, in property, or in shares of the Corporations capital stock. Before payment of any dividend,
there may be set aside out of any funds of the Corporation available for dividends such
sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper
as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital
stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or
evidences of indebtedness of the Corporation, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
39
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words Corporate Seal,
Delaware. The seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other than
Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation), by
reason of the fact that such person is or was a director or officer of
40
the Corporation, or is or
was a director or officer of the Corporation 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 expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such persons conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which such person reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such persons conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation 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 expenses (including attorneys fees) actually and
reasonably incurred by such person in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner such person reasonably believed to be in
41
or
not opposed to the best interests of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or
the court in which such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the present or former director or
officer is proper in the circumstances because such person has met the applicable standard of
conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such
determination shall be made, with respect to a person who is a director or officer at the time of
such determination, (i) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors
designated by a majority vote of such directors, even though less than a quorum, or (iii) if there
are no such directors, or if such directors so direct, by independent legal counsel in a written
opinion or (iv) by the stockholders. Such determination shall be made, with respect to former
directors and officers, by any person or persons having the authority to act on the matter on
behalf of the Corporation. To the extent, however, that a present or former director or officer of
the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of authorization in the specific case.
42
Section 4. Good Faith Defined. For purposes of any determination under Section 3
of this Article VIII, a person shall be deemed to have acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable cause to believe such
persons conduct was unlawful, if such persons action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to such person by the officers
of the Corporation or another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the Corporation or another
enterprise. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any
way the circumstances in which a person may be deemed to have met the applicable standard of
conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to the Court of Chancery
of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Section 1 or Section 2 of this Article
VIII. The basis of such indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances because such person has
met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as
the case may be. Neither a contrary
43
determination in the specific case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be a defense
to such application or create a presumption that the director or officer seeking indemnification
has not met any applicable standard of conduct. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such
application. If successful, in whole or in part, the director or officer seeking indemnification
shall also be entitled to be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses (including attorneys fees)
incurred by a director or officer in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the Corporation as authorized in this Article VIII. Such expenses (including
attorneys fees) incurred by former directors and officers or other employees and agents may be so
paid upon such terms and conditions, if any, as the Corporation deems appropriate.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this
Article VIII shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the Certificate of Incorporation,
these By-Laws, agreement, vote of stockholders or disinterested directors or otherwise, both as to
action in such persons official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of the persons specified in
Section 1 and Section 2 of this Article VIII shall be made to the fullest
extent permitted by law. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or Section 2 of this Article VIII
but whom the Corporation has the power or obligation to indemnify under the provisions of the
DGCL, or otherwise.
44
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation 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 or the obligation to indemnify such person against such liability under the
provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article VIII, references to
the Corporation shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of such constituent
corporation, or is or was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article VIII with respect to the resulting or surviving
corporation as such person would have with respect to such constituent corporation if its separate
45
existence had continued. The term another enterprise as used in this Article VIII shall mean any
other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. For purposes of this Article VIII, references to fines shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and references to
serving at the request of the Corporation shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner not opposed to the best interests of the Corporation as referred to in this
Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything contained in
this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer (or his or her heirs, executors or personal or legal
representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
46
Section 12. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. In furtherance and not in limitation of the powers
conferred upon it by the laws of the State of Delaware, the Board of Directors shall have the power
to adopt, amend, alter or repeal the Corporations By-Laws. The affirmative vote of at least a
majority of the entire Board of Directors shall be required to adopt, amend, alter or repeal the
Corporations By-Laws. The Corporations By-Laws also may be adopted, amended, altered or repealed
by the affirmative vote of the holders of at least two-thirds of the voting power of the shares
entitled to vote in connection with the election of directors of the Corporation, provided that,
notwithstanding anything to the contrary in the Certificate of Incorporation or in these By-Laws
(including, without limitation, any other provision of this Article IX, Section 1), Article III
Section 1(b), Article III Section 6, the last sentence of Article III Section 12, Article III
Section 13, Article III Section 14, Article IV Section 1, Article IV Section 4 and this sentence
can only be amended, altered or repealed with the affirmative vote of the holders of a majority of
Class A Common Stock excluding Permitted Holders or Affiliated Persons.
Section 2. Entire Board of Directors. As used in this Article IX and in these
By-Laws generally, the term entire Board of Directors means the total number of directors which
the Corporation would have if there were no vacancies.
47