Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - JETBLUE AIRWAYS CORP | y04733e8vk.htm |
Exhibit 3.1
AMENDED CONSOLIDATED FIFTH AMENDED AND RESTATED
BYLAWS
OF
JETBLUE AIRWAYS CORPORATION
BYLAWS
OF
JETBLUE AIRWAYS CORPORATION
ARTICLE I
OFFICES
OFFICES
SECTION 1. The registered office shall be in the City of Dover, County of Kent, State of
Delaware.
SECTION 2. 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 or the business of
the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
SECTION 1. All meetings of the stockholders for the election of directors shall be held at
such place as may be fixed from time to time by the Board of Directors, or at such other place
either within or without the State of Delaware as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of Delaware, as shall be
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. Annual meetings of stockholders shall be held at such date and time as shall be
designated from time to time by the Board of Directors and stated in the notice of the meeting. At
each annual meeting, the stockholders shall elect directors to succeed those directors whose terms
expire in that year and shall transact such other business as may properly be brought before the
meeting.
SECTION 3. Written Unless otherwise provided by law, and except as to any stockholder duly waiving
notice, the notice of
the annual meeting stating the place, date and hour
of the meeting
any meeting shall be given personally or by mail or by electronic
transmission in the manner provided by law to each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date of the meeting. If mailed, notice
shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at
his or her address as it appears on the records of the Corporation. Whenever stockholders are
required or permitted to take any action at a meeting, unless notice is waived in writing or by
electronic transmission by all stockholders entitled to vote at the meeting, a notice
of the meeting shall be given which shall state the place, if any, date and hour of the meeting, and, in
the case of a special meeting, the purpose for which the meeting is called.
When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place, if any, thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If, however, the adjournment is for more than
30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 4. The officer who has charge of the stock ledger of the corporation shall prepare and
make available, at least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
SECTION 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the certificate of incorporation, may only be called by the Chairman of
the Board, the Vice Chairman of the Board or the Chief Executive Officer.
SECTION 6. Written notice of a special meeting stating the place, date and hour of the meeting
and the purpose or purposes for which the meeting is called, shall be given not fewer than ten (10)
nor more than sixty (60) days before the date of the meeting, to each stockholder entitled to vote
at such meeting.
SECTION 7. Business transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
SECTION 8. The holders of a majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of
the stockholders for the transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, either the Chairman of the Board, the Vice Chairman of the Board or
the stockholders entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented any business may be transacted that might have been
transacted at the meeting as originally notified. If the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
SECTION 9. When a quorum is present at any meeting, the vote of the holders of a majority of
the stock having voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express provision of the
statutes or of the certificate of incorporation, a different vote is required, in which case such
express provision shall govern and control the decision of such question.
SECTION 10. Unless otherwise provided in the certificate of incorporation, and subject to the
provisions of Article VII, each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having voting power held by
such stockholder, but no proxy shall be voted on after three (3) years from its date, unless the
proxy provides for a longer period.
SECTION 11. (A) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of other business to be considered by the stockholders may be made at
an annual meeting of stockholders only (i) if brought before the meeting by the Corporation and
specified in the Corporation’s notice of meeting delivered pursuant to Section 3 of this Article II
(ii) if brought before the meeting by or at the direction of the Board of Directors or (iii) if
brought before the meeting by a stockholder of the Corporation who (x) was a stockholder of record
(and, with respect to any beneficial owner, if different, on whose behalf any nomination or
proposal is made, only if such beneficial owner was the beneficial owner of shares of capital stock
of the Corporation) both at the time of giving of notice provided for in this Section 11, and at
the time of the meeting, (y) is entitled to vote at the meeting, and (z) has complied with this
Section 11 as to such nominations or other business. Except for proposals properly made in
accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (as so amended and inclusive of such rules and regulations, the “Exchange
Act”), and included in the notice of meeting given by or at the direction of the Board of
Directors, the foregoing clause (iii) shall be the exclusive means for a stockholder to propose
business to be considered or to propose any nominations of persons for election to the Board of
Directors at an annual meeting of the stockholders.
(B) Without qualification, for any nominations of persons for election to the Board of
Directors of the Corporation or other business to be properly brought before an annual meeting by a
stockholder, in each case, pursuant to clause (A)(iii) of this Section 11, the stockholder must (x)
have given timely notice thereof in writing and in proper form to the Secretary of the Corporation
and (y) provide any updates or supplements to such notice at the times and in the forms required by
this Section 11. To be timely, a stockholder’s notice shall be delivered to, or mailed and
received by, the Secretary at the principal executive offices of the Corporation not less than
ninety (90) days nor more than one hundred twenty (120) days prior to the one-year anniversary of
the preceding year’s annual meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than thirty (30) days, or delayed by more than sixty (60) days,
from such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed
and received, not later than the close of business on the later of the ninetieth day prior to such
annual meeting or the tenth day following the day on which public announcement of the date of such
annual meeting is first made by the Corporation. In no event shall any adjournment of an annual
meeting or the announcement thereof commence a new time
period (or extend any time period) for the giving of a stockholder’s notice. For purposes of this
Section 11, the term “Proposing Person” means (i) the stockholder providing the notice of a
proposed nomination or other business proposed to be brought before a meeting, (ii) the beneficial
owner or beneficial owners, if different, on whose behalf the proposed nomination or other business
proposed to be brought before a meeting is made, and (iii) any affiliate or associate (for purposes
of these Bylaws, each within the meaning of Rule 12b-2 under the Exchange Act) of such stockholder
or beneficial owner.
(C) To be in proper form, a stockholder’s notice shall set forth:
(a) As to each Proposing Person:
(i) the name and address of such Proposing Person (including, if applicable, the name and
address that appear on the Corporation’s stock ledger); and
(ii) the class or series and number of shares of capital stock of the Corporation that are,
directly or indirectly, owned of record or beneficially (within the meaning of Rule 13d-3 under the
Exchange Act) by such Proposing Person, except that such Proposing Person shall in all events be
deemed to beneficially own any shares of any class or series of the capital stock of the
Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any
time in the future (the disclosures to be made pursuant to the foregoing clauses (i) and (ii) are
referred to as “Stockholder Information”);
(b) As to each Proposing Person:
(i) any derivative, swap or other transaction or series of transactions engaged in, directly
or indirectly, by such Proposing Person, the purpose or effect of which is to give such Proposing
Person economic risk similar to ownership of shares of any class or series of the capital stock of
the Corporation, including due to the fact that the value of such derivative, swap or other
transaction is determined by reference to the price, value or volatility of any shares of any class
or series of the capital stock of the Corporation, or which derivative, swap or other transactions
provide, directly or indirectly, the opportunity to profit from any increase in the price or value
of shares of any class or series of the capital stock of the Corporation (“Synthetic Equity
Interests”), which such Synthetic Equity Interests shall be disclosed without regard to whether (x)
such derivative, swap or other transactions convey any voting rights in such shares to such
Proposing Person, (y) the derivative, swap or other transactions are required to be, or are capable
of being, settled through delivery of such shares or (z) such Proposing Person may have entered
into other transactions that hedge or mitigate the economic effect of such derivative, swap or
other transaction;
(ii) any proxy (other than a revocable proxy or consent given in response to a solicitation
made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a
solicitation statement filed on Schedule 14A), agreement, arrangement, understanding or
relationship pursuant to which such Proposing Person has or shares a right to vote any shares of
any class or series of the capital stock of the Corporation;
(iii) any agreement, arrangement, understanding or relationship, including any repurchase or
similar so-called “stock borrowing” agreement or arrangement, engaged in, directly or indirectly,
by such Proposing Person, the purpose or effect of which is to mitigate loss to, reduce the
economic risk (of ownership or otherwise) of shares of any class or series of the capital stock of
the Corporation by, manage the risk of share price changes for, or increase or decrease the voting
power of, such Proposing Person with respect to the shares of any class or series of the capital
stock of the Corporation, or which provides, directly or indirectly,
the opportunity to profit from any decrease in the price or value of the shares of any class
or series of the capital stock of the Corporation (“Short Interests”);
(iv) any rights to dividends on the shares of any class or series of the capital stock of the
Corporation owned beneficially by such Proposing Person that are separated or separable from the
underlying shares of the Corporation;
(v) any performance related fees (other than an asset based fee) that such Proposing Person is
entitled to based on any increase or decrease in the price or value of shares of any class or
series of the capital stock of the Corporation, or any Synthetic Equity Interests or Short
Interests, if any; and
(vi) any other information relating to such Proposing Person that would be required to be
disclosed in a proxy statement or other filing required to be made in connection with solicitations
of proxies or consents by such Proposing Person in support of the nomination for election of
Directors or the other business proposed to be brought before the meeting pursuant to Section 14(a)
of the Exchange Act (the disclosures to be made pursuant to the foregoing clauses (i) through (vi)
are referred to as “Disclosable Interests”); provided, however, that Disclosable Interests shall
not include any such disclosures with respect to the ordinary course business activities of any
broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as
a result of being the stockholder of record directed to prepare and submit the information required
by this Section 11 on behalf of a beneficial owner.
(c) As to each person, if any, whom a Proposing Person proposes to nominate for election or
reelection as a director:
(i) all information with respect to such proposed nominee that would be required to be set
forth in a stockholder’s notice pursuant to this Section 11 if such proposed nominee were a
Proposing Person;
(ii) all information relating to such proposed nominee that is required to be disclosed in a
proxy statement or other filings required to be made in connection with solicitations of proxies
for election of directors in a contested election pursuant to Section 14(a) under the Exchange Act
(including such proposed nominee’s written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); and
(iii) a description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings during the past three years, and any other material
relationships, between or among any Proposing Person, on the one hand, and each proposed nominee
and his or her respective affiliates and associates, on the other hand, including, without
limitation, all information that would be required to be disclosed pursuant to Item 404 under
Regulation S-K if such Proposing Person were the “registrant” for purposes of such rule and the
proposed nominee were a director or executive officer of such registrant; and
(d) As to any business other than nominations for election of directors that a Proposing
Person proposes to bring before an annual meeting:
(i) a reasonably brief description of the business desired to be brought before the annual
meeting, the reasons for conducting such business at the annual meeting and any material interest
in such business of any Proposing Person;
(ii) the text of the proposal or business (including the text of any resolutions proposed for
consideration); and
(iii) a reasonably detailed description of all agreements, arrangements and understandings (x)
between or among any of the Proposing Persons and (y) between or
among any Proposing Person and any other record or beneficial owner of capital stock of the
Corporation (including their names) in connection with the proposal of such business by such
stockholder.
(4) A stockholder providing notice of a proposed nomination for election to the Board of
Directors of the Corporation or other business proposed to be brought before a meeting (whether
given pursuant to paragraph (A)(i) or (ii) of this Section 11) shall further update and supplement
such notice, if necessary, so that the information provided or required to be provided in such
notice shall be true and correct as of the record date for the meeting and as of the date that is
ten business days prior to the meeting or any adjournment or postponement thereof, and such update
and supplement shall be delivered to, or mailed and received by, the Secretary at the principal
executive offices of the Corporation not later than five business days after the record date for
the meeting (in the case of the update and supplement required to be made as of the record date),
and not later than eight business days prior to the date for the meeting or, if practicable, any
adjournment of postponement thereof (and, if not practicable, on the first practicable date prior
to the date to which the meeting has been adjourned or postponed) (in the case of the update and
supplement required to be made as of ten business days prior to the meeting or any adjournment or
postponement thereof). The Corporation may also require any proposed nominee for election to the
Board of Directors of the Corporation to furnish such other information (i) as may be reasonably
required by the Corporation to determine the eligibility of such proposed nominee to serve as an
independent director of the Corporation in accordance with the Corporation’s Corporate Governance
Guidelines as then in effect or (ii) that could be material to a reasonable stockholder’s
understanding of the independence, or lack thereof, of such proposed nominee.
(5) Notwithstanding anything in paragraph (B) of this Section 11 to the contrary, in the event
that the number of directors to be elected to the Board of Directors is increased and there is no
public announcement by the Corporation naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least ten days before the last
day a stockholder could otherwise deliver a notice of nomination in accordance with such paragraph
(B) of this Section 11, a stockholder’s notice required by this Section 11 shall also be considered
timely, but only with respect to nominees for any new positions created by such increase, if it
shall be delivered to, or mailed and received by, the Secretary at the principal executive offices
of the Corporation not later than the close of business on the tenth day following the day on which
such public announcement is first made by the Corporation.
The presiding officer of the meeting shall have the authority to determine and declare to the
meeting that a nomination not preceded by notification made in accordance with the foregoing
procedure shall be disregarded. Notwithstanding the foregoing provisions of this Section 11, a
stockholder shall also comply with all applicable requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder with respect to the matters set forth in
this Section 11.
SECTION 12. At any meeting of the stockholders, only such business shall be conducted as shall
have been brought before the meeting (a) pursuant to the corporation’s notice of meeting, (b) by or
at the direction of the Board of Directors or (c) by any stockholder of the corporation who is a
stockholder of record at the time of giving of the notice provided for in this Bylaw, who
shall be entitled to vote at such meeting and who complies with the notice procedures set forth in
this Bylaw.
For business to be properly brought before any meeting by a stockholder pursuant to clause (c)
above of this Section 12, the stockholder must have given timely notice thereof in writing to the
secretary of the corporation. To be timely, a stockholder’s notice must be delivered to or mailed
and received at the principal executive offices of the corporation not less than one hundred fifty
(150) days prior to the date of the meeting. A stockholder’s notice to the secretary shall set
forth as to each matter the stockholder proposes to bring before the meeting (a) a brief
description of the business desired to be brought before the meeting and the reasons for conducting
such business at the meeting, (b) the name and address, as they appear on the corporation’s books,
of the stockholder proposing such business, and the name and address of the beneficial owner, if
any, on whose behalf the proposal is made, (c) the class and number of shares of the corporation
which are owned beneficially and of record by such stockholder of record and by the beneficial
owner, if any, on whose behalf of the proposal is made and (d) any material interest of such
stockholder of record and the beneficial owner, if any, on whose behalf the proposal is made in
such business.
Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at a
meeting except in accordance with the procedures set forth in this Section 12. The presiding
officer of the meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in accordance with the procedures
prescribed by this Section 12, and if such person should so determine, such person shall so declare
to the meeting and any such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section 12, a stockholder shall also
comply with all applicable requirements of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder with respect to the matters set forth in this Section 12.
SECTION 13. Effective upon the closing of the corporation’s initial public offering of
securities pursuant to a registration statement filed under the Securities Act of 1933, as amended,
the stockholders of the corporation may not take action by written consent without a meeting but
must take any such actions at a duly called annual or special meeting in accordance with these
Bylaws and the Certificate of Incorporation.
ARTICLE III
DIRECTORS
SECTION 1. The number of directors of this corporation that shall constitute the whole board
shall be determined by resolution of the Board of Directors; provided, however, that no decrease in
the number of directors shall have the effect of shortening the term of an incumbent director.
Beginning with the 2009 annual meeting of stockholders, each director who is elected or appointed
at or after the 2009 annual meeting of stockholders shall hold office until the next annual meeting
of stockholders or until such director’s prior death, disability, resignation, retirement,
disqualification or removal from office. Directors elected prior to or at the 2009
annual meeting of stockholders, including those elected at the 2008 annual meeting of stockholders,
shall continue to hold office until the expiration of the three-year terms for which they were
elected, subject to such directors’ prior death, disability, resignation, retirement,
disqualification or removal from office. Any person elected to a newly-created director position or
any person elected to fill a vacancy on the Board of Directors shall serve until the next annual
meeting of stockholders and until a successor has been elected and qualified, subject to such
director’s prior death, disability, resignation, retirement, disqualification or removal from
office. No decrease in the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director.
SECTION 2. Vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then in office, even if
less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office
until the next annual meeting of stockholders and until their successors are duly elected and
qualified or until such directors’ prior death, disability, resignation, retirement,
disqualification or removal from office. If there are no directors in office, then an election of
directors may be held in the manner provided by statute.
SECTION 3. (A) Any director may resign at any time upon notice given in writing or by
electronic transmission to the corporation. Any such resignation shall take effect at the time
received by the corporation, unless the resignation specifies a later effective date or an
effective date determined upon the happening of one or more events, such as failing to receive a
specified vote for re-election as a director.
(B) If a director were to submit a resignation that was conditioned upon the director
failing to receive a specified vote for re-election as a director, the director may provide
that such resignation is irrevocable.
(C) If an incumbent director receives more “withheld” votes than “for” votes in an
uncontested election of directors, the director agrees that he or she shall submit a letter
of resignation to the Board of Directors within ten days following the certification of the
election results. The Board of Directors shall, no later than 90 days following the date of
the certification of the election results, consider the attendant circumstances,
recommendations and any other factors it deems relevant and determine whether to accept the
director’s resignation. If the Board of Directors determines not to accept the director’s
resignation, then such resignation shall not be effective with respect to the applicable
election. The Board of Directors will promptly disclose its decision regarding the tendered
resignation, including its rationale for accepting or rejecting the resignation offer, by
furnishing a report with the Securities and Exchange Commission.
(D) For purposes of this Section 3, an “uncontested election” shall mean an election of
directors where the only nominees are those nominated by the Board of Directors.
SECTION 4. The business of the corporation shall be managed by or under the direction of its
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 bylaws directed or required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 5. The Board of Directors of the corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
SECTION 6. The first meeting of each newly elected Board of Directors shall be held at such
time and place as shall be fixed by the vote of the stockholders at the annual meeting and no
notice of such meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected Board of
Directors, or in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors, or as shall be
specified in a written waiver signed by all of the directors.
SECTION 7. Regular meetings of the Board of Directors may be held without notice at such time
and at such place as shall from time to time be determined by the board.
SECTION 8. Special meetings of the Board of Directors may be called by the Chairman of the
Board, the Vice Chairman of the Board or the chief executive officer or the president on twelve
(12) hours’ notice to each director either personally or by telephone, telegram, facsimile or
electronic mail; special meetings shall be called by the chief executive officer or the president
or secretary in like manner and on like notice on the written request of a majority of the Board of
Directors unless the Board of Directors consists of only one director, in which case special
meetings shall be called by the Chairman of the Board or the chief executive officer or the
president in like manner and on like notice on the written request of the sole director. A written
waiver of notice, signed by the person entitled thereto, whether before or after the time of the
meeting stated therein, shall be deemed equivalent to notice.
SECTION 9. At all meetings of the Board of Directors a majority of the directors shall
constitute a quorum for the transaction of business and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by statute or by the certificate of incorporation.
If a quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 10. Unless otherwise restricted by the certificate of incorporation or these bylaws,
any action required or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
SECTION 11. Unless otherwise restricted by the certificate of incorporation or these bylaws,
members of the Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall constitute presence in
person at the meeting.
COMMITTEES OF DIRECTORS
SECTION 12. The Board of Directors may, by resolution passed by a majority of the whole board,
designate one (1) or more committees, each committee to consist of one (1) or more of the directors
of the corporation. The board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of the committee.
At least two-thirds (2/3) of the members of each committee of the board shall be comprised of
individuals who meet the definition of “a citizen of the United States,” as defined by the
Transportation Act 49 U.S.C § 40102 or as subsequently amended or interpreted by the Department of
Transportation, provided that if a committee of the board has one (1) member, such member shall be
a “a citizen of the United States”, as defined immediately above.
In the absence or disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he/she or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board of Directors, shall
have and may exercise all the powers and authority of the Board of Directors in the management of
the business and affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers that may require it; but no such committee shall have the power or authority
in reference to amending the certificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially
all of the corporation’s property and assets, recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide, no such committee
shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
SECTION 13. Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required.
COMPENSATION OF DIRECTORS
SECTION 14. Unless otherwise restricted by the certificate of incorporation or these bylaws,
the Board of Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a
stated salary as director. No such payment shall preclude any director from serving the corporation
in any other capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
REMOVAL OF DIRECTORS
SECTION 15. Unless otherwise restricted by the certificate of incorporation or bylaws, any
director or the entire Board of Directors may be removed, with cause, by the holders of at least a
majority of shares entitled to vote at an election of directors. Directors may not be removed
without cause.
ARTICLE IV
NOTICES
SECTION 1. Whenever, under the provisions of the statutes or of the certificate of
incorporation or of these bylaws, notice is required to be given to any director or stockholder, it
shall not be construed to mean personal notice (except as provided in Section 7 of Article III of
these Bylaws), but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his/her address as it appears on the records of the corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by telephone, telegram,
facsimile or electronic mail.
SECTION 2. Whenever any notice is required to be given under the provisions of the statutes or
of the certificate of incorporation or of these bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
OFFICERS
SECTION 1. The officers of the corporation shall be chosen by the Board of Directors and shall
be at least a chief executive officer, chief financial officer and a secretary. The Board of
Directors may elect from among its members a Chairman of the Board and a Vice Chairman. The Board
of Directors may also choose a president, chief operating officer, treasurer and controller or one
or more vice-presidents, assistant secretaries, assistant controllers and assistant treasurers. Any
number of offices may be held by the same person, unless the certificate of incorporation or these
bylaws otherwise provide.
SECTION 2. The Board of Directors at its first meeting after each annual meeting of
stockholders shall choose a chief executive officer, chief financial officer and a secretary and
may also choose a president, chief operating officer, treasurer, controller, vice presidents,
assistant secretaries, assistant controllers or assistant treasurers.
SECTION 3. The Board of Directors may appoint such other officers and agents as it shall deem
necessary, 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.
SECTION 4. The salaries of all officers of the corporation shall be fixed by the Board of
Directors or any committee established by the Board of Directors for such purpose. The salaries of
agents of the corporation shall, unless fixed by the Board of Directors, be fixed by the president
or any vice-president of the corporation.
SECTION 5. The officers of the corporation shall hold office until their successors are chosen
and qualify. Any officer elected or appointed by the Board of Directors may be removed at any time
by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any
office of the corporation shall be filled by the Board of Directors.
THE CHAIRMAN OF THE BOARD
SECTION 6. The Chairman of the Board, if any, shall be elected by the Board and shall preside
at all meetings of the Board of Directors and of the stockholders at which he/she shall be present.
He/she shall have and may exercise such powers as are, from time to time, assigned to him/her by
the Board and as may be provided by law.
THE VICE CHAIRMAN OF THE BOARD
SECTION 7. The Vice Chairman of the Board, if any, shall be elected by the Board and shall, in
the absence of the Chairman of the Board or in case the Chairman of the Board shall resign, retire,
become deceased or otherwise cease or be unable to act, perform the duties and exercise the powers
of the Chairman of the Board. In addition, the Vice Chairman of the Board shall have and may
exercise such powers as are, from time to time, assigned to him/her by the Board and as may be
provided by law.
THE CHIEF EXECUTIVE OFFICER, PRESIDENT AND VICE-PRESIDENTS
SECTION 8. The chief executive officer shall be the president of the corporation unless such
title is assigned to another officer of the corporation; and in the absence of the Chairman of the
Board and the Vice Chairman of the Board, he/she shall preside at all meetings of the stockholders
and the Board of Directors; he/she shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the Board of Directors are carried
into effect.
In the absence of the chief executive officer or in the event of his/her inability or refusal
to act, the president, if any, shall perform the duties of the chief executive officer, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the chief
executive
officer. The president shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
SECTION 9. The chief executive officer, president or any vice president shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some other officer or
agent of the corporation.
SECTION 10. In the absence of the president or in the event of his/her inability or refusal to
act, the vice-president, if any, (or in the event there be more than one vice-president, the
vice-presidents in the order designated by the directors, or in the absence of any designation,
then in the order of their election) shall perform the duties of the president, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
SECTION 11. The secretary or his or her designee shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of the meetings of
the corporation and of the Board of Directors and shall cause such records to be kept in a book
kept for that purpose and shall perform like duties for the standing committees when required.
He/she shall give, or cause to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or president, under whose supervision he/she shall be. He/she shall have custody
of the corporate seal of the corporation and he/she, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by his/her signature or by the signature of such assistant secretary.
The Board of Directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his/her signature.
SECTION 12. The assistant secretary, or if there be more than one, the assistant secretaries
in the order determined by the Board of Directors (or if there be no such determination, then in
the order of their election) shall, in the absence of the secretary or in the event of his/her
inability or refusal to act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors may from time to
time prescribe.
THE CHIEF FINANCIAL OFFICER
SECTION 13. The chief financial officer shall be the chief financial officer and treasurer of
the corporation and shall have the custody of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of Directors.
SECTION 14. He/she shall disburse the funds of the corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the president and
the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an
account of all his/her transactions as treasurer and of the financial condition of the corporation.
SECTION 15. Along with the president or any vice president, he/she shall be authorized to
execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation,
except where required or permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
SECTION 16. If required by the Board of Directors, he/she shall give the corporation a bond
(which shall be renewed every six years) in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of the duties of his/her
office and for the restoration to the corporation, in case of his/her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his/her possession or under his/her control belonging to the corporation.
SECTION 17. The controller shall, in the absence of the chief financial officer or in the
event of his/her inability or refusal to act, perform the duties and exercise the powers of the
chief financial officer and shall perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe.
Notwithstanding anything herein to the contrary, the Board of Directors shall be entitled to
assign the title of treasurer to an officer of the corporation other than the chief financial
officer, in which case the treasurer shall perform such duties and have such powers (which may
include some or all of the duties and powers enumerated above for the chief financial officer) as
the Board of Directors may from time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
SECTION 1. Every holder of stock in the corporation shall be entitled to have a certificate,
signed by, or in the name of the corporation by, the Chairman of the Board of Directors, or the
president, a vice-president or the Vice Chairman of the Board of Directors and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him/her in the corporation.
Certificates may be issued for partly paid shares and in such case upon the face or back of
the certificates issued to represent any such partly paid shares, the total amount of the
consideration to be paid therefor, and the amount paid thereon shall be specified.
If the corporation shall be authorized to issue more than one class of stock or more than one
series of any class, the powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate that the corporation shall issue to represent such class or series of
stock, provided that, except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the
certificate that the corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Any of or all the signatures on the certificate may be 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 he/she were such officer,
transfer agent or registrar at the date of issue.
LOST CERTIFICATES
SECTION 2. The Board of Directors may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the corporation alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate
or certificates, or his/her legal representative, to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
TRANSFER OF STOCK
SECTION 3. Upon surrender to the corporation or the transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation
or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
SECTION 4. In order that the corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
SECTION 5. The corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to vote as such owner,
and to hold liable for calls and assessments a person registered on its books as the owner of
shares and shall not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
LIMITATIONS OF OWNERSHIP BY NON-CITIZENS
SECTION 1. For purposes of this Article VII, the following definitions shall apply:
(a) “Act” shall mean Subtitle VII of Title 49 of the United States Code, as amended, or
as the same may be from time to time amended.
(b) “Beneficial Ownership,” “Beneficially Owned” or “Owned Beneficially” refers to
beneficial ownership as defined in Rule 13d-3 (without regard to the 60-day provision in
paragraph (d)(1)(i) thereof) under the Securities Exchange Act of 1934, as amended.
(c) “Foreign Stock Record” shall have the meaning set forth in Section 3.
(d) “Non-Citizen” shall mean any person or entity who is not a “citizen of the United
States” (as defined in Section 41102 of the Act and administrative interpretations issued by
the Department of Transportation, its predecessors and successors, from time to time),
including any agent, trustee or representative of a Non-Citizen.
(e) “Own or Control” or “Owned or Controlled” shall mean (i) ownership of record, (ii)
beneficial ownership or (iii) the power to direct, by agreement, agency or in any other
manner, the voting of Stock. Any determination by the Board of Directors as to whether Stock
is Owned or Controlled by a Non-Citizen shall be final.
(f) “Permitted Percentage” shall mean 25% of the voting power of the Stock.
(g) “Stock” shall mean the outstanding capital stock of the corporation entitled to
vote; provided, however, that for the purpose of determining the voting power of Stock that
shall at any time constitute the Permitted Percentage, the voting power of Stock outstanding
shall not be adjusted downward solely because shares of Stock may not be entitled to vote by
reason of any provision of this Article VII.
SECTION 2. It is the policy of the corporation that, consistent with the requirements of the
Act, Non-Citizens shall not Own and/or Control more than the Permitted Percentage and, if
Non-Citizens nonetheless at any time Own and/or Control more than the Permitted Percentage, the
voting rights of the Stock in excess of the Permitted Percentage shall be automatically suspended
in accordance with Sections 3 and 4 below.
SECTION 3. The corporation or any transfer agent designated by it shall maintain a separate
stock record (the “Foreign Stock Record”) in which shall be registered Stock known to the
corporation to be Owned and/or Controlled by Non-Citizens. It shall be the duty of each
stockholder to register his, her or its Stock if such stockholder is a Non-Citizen. A Non-Citizen
may, at its option, register any Stock to be purchased pursuant to an agreement entered into with
the corporation, as if Owned or Controlled by it, upon execution of a definitive agreement. Such
Non-Citizen shall register his, her or its Stock by sending a written request to the corporation,
noting both the execution of a definitive agreement for the purchase of Stock and the anticipated
closing date of such transaction. Within ten days of the closing, the Non-Citizen shall send to the
corporation a written notice confirming that the closing occurred. Failure to send such
confirmatory notice shall result in the removal of such Stock from the Foreign Stock Record. For
the sake of clarity, any Stock registered as a result of execution of a definitive agreement shall
not have any voting or other ownership rights until the closing of that transaction. In the event
that the sale pursuant to such definitive agreement is not consummated in accordance with such
agreement (as may be amended), such Stock shall be removed from the Foreign Stock Record without
further action by the corporation. The Foreign Stock Record shall include (i) the name and
nationality of each such Non-Citizen and (ii) the date of registration of such shares in the
Foreign Stock Record. In no event shall shares in excess of the Permitted Percentage be entered on
the Foreign Stock Record. In the event that the corporation shall determine that Stock registered
on the Foreign Stock Record exceeds the Permitted Percentage, sufficient shares shall be removed
from the Foreign Stock Record so that the number of shares entered therein does not exceed the
Permitted Percentage. Stock shall be removed from the Foreign Stock Record in reverse chronological
order based upon the date of registration therein.
SECTION 4. If at any time the number of shares of Stock known to the corporation to be Owned
and/or Controlled by Non-Citizens exceeds the Permitted Percentage, the voting rights of Stock
Owned and/or Controlled by Non-Citizens and not registered on the Foreign Stock Record at the time
of any vote or action of the stockholders of the corporation shall, without further action by the
corporation, be suspended. Such suspension of voting rights shall automatically terminate upon the
earlier of the (i) transfer of such shares to a person or entity who is not a Non-Citizen, or (ii)
registration of such shares on the Foreign Stock Record, subject to the last two sentences of
Section 3.
SECTION 5. (a) The corporation may by notice in writing (which may be included in the form of
proxy or ballot distributed to stockholders in connection with the annual meeting or any special
meeting of the stockholders of the corporation, or otherwise) require a person that is a holder of
record of Stock or that the corporation knows to have, or has reasonable cause to believe has,
Beneficial Ownership of Stock to certify in such manner as the corporation shall deem appropriate
(including by way of execution of any form of proxy or ballot of such person) that, to the
knowledge of such person:
(i) all Stock as to which such person has record ownership or Beneficial Ownership is
Owned and Controlled only by citizens of the United States; or
(ii) the number and class or series of Stock owned of record or Beneficially Owned by
such person that is Owned and/or Controlled by Non-Citizens is as set forth in such
certificate.
(b) With respect to any Stock identified in response to clause (a)(ii) above, the corporation
may require such person to provide such further information as the corporation may reasonably
require in order to implement the provisions of this Article VII.
(c) For purposes of applying the provisions of this Article VII with respect to any Stock, in
the event of the failure of any person to provide the certificate or other information to which the
corporation is entitled pursuant to this Section 5, the corporation shall presume that the Stock in
question is Owned and/or Controlled by Non-Citizens.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
DIVIDENDS
SECTION 1. Dividends upon the capital stock of the corporation, subject to the provisions of
the certificate of incorporation, if any, may be declared by the Board of Directors at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of
the capital stock, subject to the provisions of the certificate of incorporation.
SECTION 2. 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 directors from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or for such other
purposes as the directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was created.
CHECKS
SECTION 3. 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.
FISCAL YEAR
SECTION 4. The fiscal year of the corporation shall be fixed by resolution of the Board of
Directors.
SEAL
SECTION 5. The Board of Directors may adopt a corporate seal having 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.
INDEMNIFICATION
SECTION 6. The corporation shall, to the fullest extent authorized under the laws of the State
of Delaware, as those laws may be amended and supplemented from time to time, indemnify any
director made, or threatened to be made, a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of being a director of the corporation or a
predecessor corporation or, at the corporation’s request, a director or officer of another
corporation, provided, however, that the corporation shall indemnify any such agent in connection
with a proceeding initiated by such agent only if such proceeding was authorized by the Board of
Directors of the corporation. The indemnification provided for in this Section 6 shall: (i) not be
deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in their
official capacities and as to action in another capacity while holding such office, (ii) continue
as to a person who has ceased to be a director, and (iii) inure to the benefit of the heirs,
executors and administrators of such a person. The corporation’s obligation to provide
indemnification under this Section 6 shall be offset to the extent of any other source of
indemnification or any otherwise applicable insurance coverage under a policy maintained by the
corporation or any other person.
Expenses incurred by a director of the corporation in defending a civil or criminal action,
suit or proceeding by reason of the fact that he/she is or was a director of the corporation (or
was serving at the corporation’s request as a director or officer of another corporation) 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 to repay such amount if it shall
ultimately be determined that he/she is not entitled to be indemnified by the corporation as
authorized by relevant sections of the General Corporation Law of Delaware. Notwithstanding the
foregoing, the corporation shall not be required to advance such expenses to an agent who is a
party to an action, suit or proceeding brought by the corporation and approved by a majority of the
Board of Directors of the corporation which alleges willful misappropriation of corporate assets by
such agent, disclosure of confidential information in violation of such agent’s fiduciary or
contractual obligations to the corporation or any other willful and deliberate breach in bad faith
of such agent’s duty to the corporation or its stockholders.
The foregoing provisions of this Section 6 shall be deemed to be a contract between the
corporation and each director who serves in such capacity at any time while this bylaw is in
effect, and any repeal or modification thereof shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought based in whole or in part upon any such state of
facts.
The Board of Directors in its discretion shall have power on behalf of the corporation to
indemnify any person, other than a director, made a party to any action, suit or proceeding by
reason of the fact that he, his/her testator or intestate, is or was an officer or employee of the
corporation.
To assure indemnification under this Section 6 of all directors, officers and employees who
are determined by the corporation or otherwise to be or to have been “fiduciaries” of any
employee benefit plan of the corporation which may exist from time to time, Section 145 of the
General Corporation Law of Delaware shall, for the purposes of this Section 6, be interpreted as
follows: an “other enterprise” shall be deemed to include such an employee benefit plan, including
without limitation, any plan of the corporation which is governed by the Act of Congress entitled
“Employee Retirement Income Security Act of 1974,” as amended from time to time; the corporation
shall be deemed to have requested a person to serve an employee benefit plan where the performance
by such person of his/her duties to the corporation also imposes duties on, or otherwise involves
services by, such person to the plan or participants or beneficiaries of the plan; excise taxes
assessed on a person with respect to an employee benefit plan pursuant to such Act of Congress
shall be deemed “fines.”
ARTICLE IX
AMENDMENTS
SECTION 1. These bylaws may be altered, amended or repealed or new bylaws may be adopted by
the affirmative vote of holders of at least a majority of the outstanding voting stock of the
corporation. These bylaws may also be altered, amended or repealed or new bylaws may be adopted by
the Board of Directors, when such power is conferred upon the Board of Directors by the certificate
of incorporation. The foregoing may occur at any regular meeting of the stockholders or of the
Board of Directors or at any special meeting of the stockholders or of the Board of Directors,
subject to the notice requirements set forth herein. If the power to adopt, amend or repeal bylaws
is conferred upon the Board of Directors by the certificate of incorporation it shall not divest or
limit the power of the stockholders to adopt, amend or repeal bylaws.