AMENDED
AND RESTATED BY-LAWS
OF
P.A.M.
TRANSPORTATION SERVICES, INC.
ARTICLE
I.
SHAREHOLDERS
MEETINGS
SECTION 1. PLACE
OF MEETING.
The Board of Directors may designate any
place within or without the State of Delaware as the place of meeting for any
annual or for any special meeting called by the Board of Directors. A
waiver of notice signed by all shareholders entitled to vote at a meeting may
designate any place within or without the State of Delaware as the place for
the
holding of such meeting. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be the principal office
of the Corporation in the State of Arkansas.
SECTION 2. ANNUAL MEETING.
The
annual meeting of the shareholders of the Corporation shall be held on such
date, at such time and at such place within or without the State of Delaware
as
may be designated by the Board of Directors, for the purpose of electing
directors and for the transaction of such other business as may be properly
brought before the meeting.
SECTION 3. SPECIAL
MEETINGS.
Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute or the Amended
and
Restated Certificate of Incorporation, may be called by the President, the
Chief
Executive Officer, or the Chairman of the Board of Directors, if
any. The President or Secretary shall call a special meeting when:
(1) requested in writing by any two or more of the Directors; or (2) requested
in writing by shareholders owning at least seventy-five percent (75%) of the
shares entitled to vote. Such written request shall state the purpose
or purposes of the proposed meeting. No business shall be transacted
and no corporate action shall be taken other than that stated in the notice
of
the meeting unless all of the shareholders are present in person or by proxy,
in
which case any and all business may be transacted at the meeting even though
the
business is transacted without notice. The provisions of this Section
shall be amended, altered, changed or repealed only with the affirmative vote
or
consent of the holders of at least seventy-five percent (75%) of the outstanding
shares of the stock of the Corporation entitled to elect Directors, in addition
to any approval of the Board of Directors or any shareholder vote or consent
required by law or any provision of the Amended and Restated Certificate of
Incorporation or otherwise.
SECTION 4. NOTICE.
Except
as otherwise required by statute or the Certificate of Incorporation, written
notice of each meeting of the shareholders, whether annual or special, shall
be
served, either personally or by mail, upon each shareholder of record entitled
to vote at such meeting, not less than ten (10) nor more than sixty (60) days
before the meeting. If mailed, such notice shall be directed to a
shareholder at his post office address last shown on the records of the
Corporation. Notice of any special meeting of shareholders shall
state the purpose or purposes for which the meeting is called. Notice
of any meeting of shareholders shall not be required to be given to any
shareholder who, in person or by his attorney thereunto authorized, either
before or after such meeting, shall waive such notice. Attendance of
a shareholder at a meeting, either in person or by proxy, shall itself
constitute waiver of notice and waiver of any and all objections to the place
and time of the meeting and manner in which it has been called or convened,
except when a shareholder attends a meeting solely for the purpose of stating,
at the beginning of the meeting, any such objections to the transaction of
business. Notice of the time and place of any adjourned meeting need
not be given otherwise than by the announcement at the meeting at which
adjournment is taken.
SECTION 5. QUORUM.
The
holders of a majority of the stock issued, outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
at
all meetings of the shareholders and shall be requisite for the transaction
of
business, except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws. If, however, such majority shall
not be present or represented at any meeting of the shareholders, the
shareholders entitled to vote thereat, present in person or by proxy, shall
have
the power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of voting stock shall
be
present. At such adjourned meeting at which a quorum shall be present
in person or by proxy, any business may be transacted that might have been
transacted at the meeting originally called.
SECTION 6. VOTING,
PROXIES.
At every meeting of the shareholders, any
shareholder having the right to vote shall be entitled to vote in person or
by
proxy, but no proxy shall be voted after eleven months from its date, unless
said proxy provides for a longer period. Each shareholder shall have
one vote for each share of stock having voting power, registered in his name
on
the books of the Corporation. If a quorum is present, the affirmative
vote of the majority of the shares represented at the meeting entitled to vote
on the subject matter shall be the act of the shareholders, except as otherwise
provided by law, by the Certificate of Incorporation or by these
By-Laws.
SECTION 7. FIXING
OF RECORD DATE.
For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or
any adjournment thereof, or shareholders entitled to receive payment of
dividends, the Board of Directors may fix in advance a date as the record date
for any such determination of shareholders, such date in any case to be not
less
than ten (10) nor more than sixty (60) days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. If no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders,
or
shareholders entitled to receive payment of dividends, the date on which notice
of the meeting is mailed, or on the date on which the resolution of the Board
of
Directors declaring such dividend is adopted, as the case may be, shall be
the
record date. When a determination of shareholders entitled to vote at
any meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
SECTION 8. INFORMAL
ACTIONS BY SHAREHOLDERS.
Any action required to be taken
at a meeting of the shareholders, or any other action which may be taken at
a
meeting of the shareholders, may be taken without a meeting if written consent,
setting forth the action so taken, shall be signed by the shareholders 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 of shareholders at
which
all shares entitled to vote thereon were present and voted. Prompt
notice of the taking of any such corporate action without a meeting by less
than
unanimous written consent shall be given to those stockholders who have not
consented in writing. Such consent shall have the same force and
effect as a unanimous vote of the shareholders.
ARTICLE
II
DIRECTORS
SECTION 1. GENERAL
POWERS.
Except as may be otherwise provided by any
legal agreement among shareholders, the property and business of the Corporation
shall be managed by its Board of Directors. In addition to the powers
and authority expressly conferred by these By-Laws, the Board of Directors
may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law, or by any legal agreement among shareholders, or
by
the Certificate of Incorporation or by these By-Laws directed or required to
be
exercised or done by the shareholders.
SECTION 2. NUMBER,
TENURE, QUALIFICATIONS, REMOVAL.
The Board of Directors
shall consist of not less than three (3) nor more than fifteen (15) members,
the
precise number to be fixed by resolution of the shareholders or the Board of
Directors from time to time. Each Director shall hold office until
the annual meeting of shareholders held next after his election and until his
successor has been duly elected and has qualified, or until his earlier
resignation, removal from office, or death. Directors need not be
shareholders. Any Director may be removed at any time, with or
without cause, by the affirmative vote of the holders of seventy-five percent
(75%) of the outstanding shares of the stock of the Corporation entitled to
elect Directors, either at the annual meeting or at a special meeting called
for
that purpose. This Section shall be amended, altered, changed or
repealed only with the affirmative vote or consent of the holders of at least
seventy-five percent (75%) of the outstanding shares of stock of the Corporation
entitled to elect Directors, in addition to any approval of the Board of
Directors or any shareholder vote or consent required by law or any provision
of
the Amended and Restated Certificate of Incorporation of the Corporation or
otherwise.
SECTION 3. VACANCIES
AND ADDITIONAL DIRECTORSHIPS.
Any newly created
directorships resulting from any increase in the authorized number of Directors
and any vacancies on the Board of Directors resulting from resignation, removal,
death, or other cause, may be filled by the vote of the majority of the
Directors then in office, though less than a quorum, and if not therefore filled
by action of the Directors, may be filled by the shareholders at any meeting
held during the existence of such vacancy; provided that whenever any Director
shall have been elected by the holders of any class of stock of the Corporation
voting separately as a class under the provisions of the Certificate of
Incorporation, such Director may be removed and the vacancy filled only by
the
holders of that class of stock voting separately as a class. A
Director elected in accordance with this Section shall hold office until the
annual meeting of shareholders held next after his election and until his
successor has been duly elected and qualified, or until his earlier resignation,
removal or death. During any period when there is a vacancy on the
Board of Directors, including any vacancy resulting from an increase in the
authorized number of Directors, the remaining Directors shall continue to
act.
S
ECTION 4. PLACE
OF MEETING.
The Board of Directors may hold its meetings
at such place or places within or without the State of Delaware as it may from
time to time determine.
SECTION 5. COMPENSATION.
Directors
may be allowed such compensation for attendance at regular or special meetings
of the Board of Directors and of any special meeting or standing committees
thereof as may be from time to time determined by resolution of the Board of
Directors.
SECTION 6. REGULAR
MEETINGS.
A regular annual meeting of the Board of
Directors shall be held without other notice than this By-Law immediately after,
and at the same place as, the annual meeting of shareholders. The
Board of Directors may provide, by resolution, the time and place within or
without the State of Delaware, for the holding of additional regular meetings
without other notice than such resolution.
SECTION 7. SPECIAL
MEETINGS, NOTICE.
Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board, the Chief
Executive Officer, the President, or any two (2) or more members of the Board
of
Directors. The person or persons calling a special meeting of the
Board of Directors may fix the time and place of the meeting. Notice
of any special meeting shall be given to each Director personally or by
telephone, or by mail, express mail, courier service, facsimile, electronic
mail
or other means of electronic transmission, addressed to each Director at the
Director's usual place of business or residence, or the Director's address
as it
is shown on the records of the Corporation. If the notice is by mail,
the notice shall be deemed adequately delivered when deposited in the United
States mail at least four (4) days prior to the time set for the
meeting. If the notice is by express mail or courier service, such
notice shall be deemed adequately delivered when delivered to the express mail
or courier service at least two (2) days prior to the time set for such
meeting. If the notice is given personally or by telephone, or by
facsimile, electronic mail or other means of electronic transmission, such
notice will be deemed adequately delivered when the notice is transmitted at
least one (1) day prior to the time set for the meeting. An oral
notice given personally or by telephone may be communicated either to the
Director or to a person at the office of the Director whom the person giving
the
notice has reason to believe will promptly communicate it to the
Director. Any such special meeting shall be held at such time and
place as shall be stated in the notice of the meeting. Unless
otherwise indicated in the notice thereof, any and all business other than
an
amendment of these By-Laws may be transacted at any special meeting, and an
amendment of these By-Laws may be acted upon if the notice of the meeting shall
have stated that the amendment of these By-Laws is one of the purposes of the
meeting. At any meeting at which every Director shall be present,
even though without any notice, any business may be transacted, including the
amendment of these By-Laws.
SECTION 8. NOTICE,
WAIVER BY ATTENDANCE.
No notice of a meeting of the
Board of Directors need be given to any Director who signs a waiver of notice
either before or after the meeting. The attendance of a Director at a
meeting shall constitute a waiver of notice of such meeting and waiver of any
and all objections to the place of the meeting, the time of the meeting or
the
manner in which it has been called or convened except when a Director states,
at
the beginning of the meeting, any such objection or objections to the
transaction of business.
SECTION 9. QUORUM.
At
all meetings of the Board of Directors, the presence of a majority of the
Directors shall constitute a quorum for the transaction of
business. In the absence of a quorum a majority of the Directors
present at any meeting may adjourn from time to time until a quorum be
had. Notice of the time and place of any adjourned meeting need only
be given by announcement at the meeting at which adjournment is
taken.
SECTION
10. MANNER OF ACTING.
The act of the
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
SECTION
11. EXECUTIVE COMMITTEE.
In furtherance
and not in limitation of the powers conferred by statute, the Board of Directors
may establish an Executive Committee of two (2) or more Directors constituted
and appointed by the Board of Directors from their number who shall meet when
deemed necessary. They shall have authority to exercise all the
powers of the Board which may be lawfully delegated and not inconsistent with
these By-Laws, at any time and when the Board is not in session. The
committee shall elect a Chairman, and a majority of the whole committee shall
constitute a quorum; and the act of a majority of members present at a meeting
at which a quorum is present shall be the act of the committee provided all
members of the committee have had notice of such meeting or waived such
notice. Except as otherwise provided by resolution of the Board of
Directors, meetings of the Executive Committee may be called by any member
of
the Executive Committee. Notice of meetings of the Executive
Committee may be given in the same manner as provided for special meetings
of
the Board of Directors in Section 7 of Article II, or waived as provided in
Section 8 of Article II or as otherwise permitted by applicable
law.
SECTION
12. OTHER COMMITTEES.
In addition to
the Executive Committee, the Board of Directors may, by resolution passed by
a
majority of the whole Board, designate one or more committees, including without
limitation a Compensation Committee, each committee to consist of one or more
of
the Directors of the Corporation. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent
or
disqualified member at any meeting of the committee. 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
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 by resolution
passed by a majority of the whole Board, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and the affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which 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 these By-Laws; and unless such resolution, these By-Laws, or the
Certificate of Incorporation expressly so provide, no such committee shall
have
the power to authorize to declare a dividend or to authorize the issuance of
stock. Except as otherwise provided by resolution of the Board of
Directors, or for the Executive Committee, meetings of any committee may be
called by the chairperson, any two members of the committee, or if the committee
has only one member, such member. Notice of meetings of any committee
may be given in the same manner as provided for special meetings of the Board
of
Directors in Section 7 of Article II, or waived as provided in Section 8 of
Article II or as otherwise permitted by applicable law.
SECTION
13. ACTION WITHOUT FORMAL MEETING.
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 written
consent thereto is signed by all members of the Board of Directors or of such
committee, as the case may be, and such written consent is filed with the
Minutes of the proceedings of the Board or committee.
SECTION
14. CONFERENCE CALL MEETINGS.
Members
of the Board of Directors, or any committee designated by such Board, may
participate in a meeting of such Board or 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 participation in a meeting
pursuant to this Section shall constitute presence in person at such
meeting.
SECTION
15. CHAIRMAN OF THE BOARD.
The Board of
Directors may at any time appoint from its members a Chairman of the Board,
who
shall serve in that capacity at the discretion of the Board of
Directors. Unless otherwise determined by the Board of Directors, the
Chairman of the Board, if any, shall preside at all meetings of the shareholders
and of the Board of Directors at which the Chairman of the Board is
present. The Chairman of the Board shall have such other duties as
may from time to time be assigned to the Chairman of the Board by these By-Laws
or by the Board of Directors. Unless expressly determined otherwise
by the Board of Directors with respect to a particular director serving as
Chairman of the Board, the position of Chairman of the Board shall not be deemed
an officer position of the Corporation.
SECTION
16. VICE CHAIRMEN OF THE BOARD OF
DIRECTORS.
The Board of Directors may at any time
appoint from its members one of more Vice Chairmen of the Board, who shall
serve
in that capacity at the discretion of the Board of Directors. Unless
otherwise determined by the Board of Directors, in case of the absence of the
Chairman of the Board, the Vice Chairman, if any, (or if more than one, one
of
the Vice Chairmen as designated by the Board of Directors) shall preside at
all
meetings of the shareholders and the Board of Directors at which he shall be
present. The Vice Chairmen of the Board shall have such other duties
as may from time to time be assigned to them by the Board of
Directors. Unless expressly determined otherwise by the Board of
Directors with respect to a particular director serving as a Vice Chairman
of
the Board, the position of Vice Chairman of the Board shall not be deemed an
officer position of the Corporation.
ARTICLE
III.
OFFICERS
SECTION 1. OFFICERS.
The
officers of the Corporation shall be a Chief Executive Officer, a Chief
Operating Officer, a Chief Financial Officer, a President, one or more Executive
Vice Presidents or Vice Presidents, a Secretary and a Treasurer, and such
additional officers, if any, as shall be elected by the Board of Directors
pursuant to the provisions of Section 9 of this Article III. The
Chief Executive Officer, the Chief Financial Officer, the President, one or
more
Executive Vice Presidents or Vice Presidents, the Secretary and the Treasurer,
shall be elected by the Board of Directors at its first meeting after each
annual meeting of the shareholders. The failure to hold such election
shall not of itself terminate the term of office of any officer. Any
number of offices may be held simultaneously by the same person, except that
the
person serving as Chief Financial Officer may not serve simultaneously as the
Chief Executive Officer. Any officer may, but need not be, a
Director. Any officer may resign at any time upon written notice to
the Corporation.
All
officers, agents and employees shall be subject to removal, with or without
cause, at any time by the Board of Directors. The removal of an
officer without cause shall be without prejudice to his contract rights, if
any. The election or appointment of an officer shall not of itself
create contract rights. All agents and employees other than officers
elected by the Board of Directors shall also be subject to removal, with or
without cause, at any time by the officers appointing them.
Any
vacancy caused by the death of any officer, his resignation, his removal, or
otherwise, may be filled by the Board of Directors, and any officer so elected
shall hold office at the pleasure of the Board of Directors.
In
addition to the powers and duties of the officers of the Corporation as set
forth in these By-Laws, the officers shall have such authority and shall perform
such duties as from time to time may be determined by the Board of
Directors.
SECTION 2. POWERS
AND DUTIES OF THE CHIEF EXECUTIVE OFFICER.
The Chief
Executive Officer shall be the chief executive officer of the Corporation and,
subject to the control of the Board of Directors, shall have general charge
and
control of all its business and affairs and shall perform all duties incident
to
the office of Chief Executive Officer; he may sign and execute, in the name
of
the Corporation, all authorized deeds, mortgages, bonds, notes and other
evidence of indebtedness, contracts or other instruments, except in cases in
which the signing and execution thereof shall have been expressly excluded
from
the Chief Executive Officer and delegated to some other officer or agent of
the
Corporation by the Board of Directors. In the absence or disability
of the Chairman and all Vice Chairmen, or if the Board of Directors has not
appointed a Chairman or Vice Chairman, the Chief Executive Officer shall preside
at all meetings of the shareholders and of the Board of Directors, and in any
event may so preside to the extent determined by the Board of
Directors. The Chief Executive Officer shall have such other powers
and perform such other duties as may from time to time be assigned to him by
these By-Laws or by the Board of Directors.
SECTION 3. POWERS
AND DUTIES OF THE CHIEF OPERATING OFFICER.
The Chief
Operating Officer shall be the principal operating officer of the Corporation
with authority as such, and at the request of the Chief Executive Officer or
in
his absence or disability to act, shall perform the duties and exercise the
functions of the Chief Executive Officer, and when so acting shall have such
other powers and perform such other duties as may from time to time be assigned
to him by the Board of Directors or the Chief Executive Officer.
SECTION 4. POWERS
AND DUTIES OF THE CHIEF FINANCIAL OFFICER.
The Chief
Financial Officer shall be the chief accounting officer of the Corporation;
he
shall see that the books and account and other accounting records of the
Corporation are kept in proper form and accurately; and, in general, he shall
perform all the duties incident to the office of Chief Financial Officer of
the
Corporation and such other duties as may from time to time be assigned to him
by
the Board of Directors or the Chief Executive Officer.
SECTION 5. POWERS
AND DUTIES OF THE PRESIDENT.
The President shall act as
a general executive officer of the Corporation and shall have such other powers
and perform such other duties as may from time to time be assigned to him by
these By-Laws or by the Board of Directors or by the Chief Executive
Officer.
SECTION 6. POWERS
AND DUTIES OF THE EXECUTIVE VICE PRESIDENT OR VICE
PRESIDENT.
Each Executive Vice President or Vice
President shall perform all duties incident to such office and shall have such
powers and perform such duties as may from time to time be assigned to him
by
these By-Laws or by the Board of Directors or the Chief Executive
Officer.
SECTION 7. POWERS
AND DUTIES OF THE SECRETARY.
The Secretary shall keep
the minutes of meetings of the Board of Directors and the minutes of all
meetings of the shareholders in books provided for that purpose; he shall attend
to the giving or serving of all notices of the Corporation; he shall have the
custody of the corporate seal of the Corporation and shall affix the same to
such documents and other papers as the Board of Directors or the Chief Executive
Officer shall authorize and direct; he shall have charge of the stock
certificate books, transfer books and stock ledgers and such other books and
papers as the Board of Directors or the Chief Executive Officer shall direct,
all of which shall at all reasonable times be open to the examination of any
Director, upon application, at the offices of the Corporation during business
hours; and he shall perform such other duties as may from time to time be
assigned to him by these By-Laws or the Board of Directors or the Chief
Executive Officer.
SECTION
8. POWERS AND DUTIES OF THE
TREASURER.
The Treasurer shall have custody of, and when
proper shall pay out, disburse or otherwise dispose of, all funds and securities
of the Corporation which may have come into his hands; he may endorse on behalf
of the Corporation for collection checks, notes and other obligations and shall
deposit them to the credit of the Corporation in such bank or banks or
depositary or depositaries as the Board of Directors may designate; he shall
sign all receipts and vouchers for payments made to the Corporation; he shall
enter or cause to be entered regularly in the books of the Corporation kept
for
the purpose full and accurate accounts of moneys received or paid or otherwise
disposed of by him and whenever required by the Board of Directors or the Chief
Executive Officer shall render statements of such accounts; and he shall perform
all duties incident to the office of Treasurer and shall also have such other
powers and shall perform such other duties as may from time to time be assigned
to him by these By-Laws or by the Board of Directors or the Chief Executive
Officer.
SECTION
9. ADDITIONAL OFFICERS.
The Board of
Directors may from time to time elect such other officers (who may but need
not
be Directors), including Controllers, Assistant Treasurers, Assistant
Secretaries and Assistant Financial Officers, as the Board may deem advisable
and such officers shall have such authority and shall perform such duties as
may
from time to time be assigned to them by the Board of Directors or the Chief
Executive Officer.
The
Board
of Directors may from time to time by resolution delegate to any Assistant
Treasurer or Assistant Treasurers any of the powers or duties herein assigned
to
the Treasurer; and may similarly delegate to any Assistant Secretary or
Assistant Secretaries any of the powers or duties herein assigned to the
Secretary.
SECTION
10. GIVING OF BOND BY OFFICERS.
All
officers of the Corporation, if required to do so by the Board of Directors,
shall furnish bonds to the Corporation for the faithful performance of their
duties, in such amounts and with such conditions and security as the Board
shall
require.
SECTION
11. VOTING UPON STOCKS.
Unless
otherwise ordered by the Board of Directors, the Chief Executive Officer, the
Chief Operating Officer, the Chief Financial Officer, the President, any
Executive Vice President or Vice President shall have full power and authority
on behalf of the Corporation to attend and to act and to vote, or in the name
of
the Corporation to executive proxies to vote, at any meetings of shareholders
of
any corporation in which the Corporation may hold stock, and at any such
meetings shall possess and may exercise, in person or by proxy, any and all
rights, powers and privileges incident to the ownership of such
stock. The Board of Directors may from time to time, by resolution,
confer like powers upon any other person or persons.
SECTION
12. COMPENSATION OF OFFICERS.
The
officers of the Corporation shall be entitled to receive such compensation
for
their services as shall from time to time be determined by the Board of
Directors or by a committee of the Board to which the Board of Directors has
delegated such responsibility.
ARTICLE
IV.
CAPITAL
STOCK
SECTION 1. SHARE
CERTIFICATES AND UNCERTIFICATED SHARES.
Shares of the
Corporation's stock may be represented by certificates or uncertificated, as
provided under Delaware law, and shall be entered in the books of the
Corporation as they are issued. Any certificates representing shares
of stock shall be in such form as the Board of Directors may from time to time
determine. Each certificate shall include the holder's name, the
number of shares and class of shares and series, if any, represented thereby,
a
statement that the Corporation is organized under the laws of the State of
Delaware, and the par value of each share or a statement that the shares are
without par value.
Each
certificate shall be signed by the Chairman of the Board, the President or
a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer. Any or all of the signatures on the
certificates 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.
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 qualifications, 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 which the Corporation may issue to represent such
class or series of stock or, in the case of uncertificated shares, contained
in
a written notice that shall be sent to the registered owner within a reasonable
time after the issuance or transfer of such uncertificated stock, provided
that,
except as otherwise provided in Section 202 of the Delaware General
Corporation Law, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the Corporation may issue to
represent such class or series of stock or, in the case of uncertificated
shares, contained in the written notice sent to the registered holder as set
forth above, a statement that the Corporation will furnish without charge to
each shareholder 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.
Except
as
otherwise expressly provided by law, the rights and obligations of the holders
of uncertificated shares and the rights and obligations of the holders of
certificates representing shares of the same class and series shall be
identical.
SECTION 2. TRANSFER.
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 or evidence of the issuance of
uncertificated shares to the person entitled thereto, cancel the old certificate
and record the transaction upon the Corporation's books. Upon the receipt of
proper transfer instructions from the registered owner of uncertificated shares,
such uncertificated shares shall be cancelled, issuance of new equivalent
uncertificated shares or certificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
Corporation.
SECTION 3. REGISTERED
SHAREHOLDERS.
The Corporation shall have the
right to treat the person registered on its books as the owner of shares as
the
absolute owner thereof, and shall not be bound to recognize any equitable or
other claim to or interest in any of such shares on the part of any other
person, whether or not it shall have express or other notice thereof, except
as
otherwise provided by Delaware law.
SECTION 4. LOST
OR DESTROYED CERTIFICATES.
Any person claiming a
certificate of stock to be lost, stolen or destroyed shall make an affidavit
or
affirmation of the fact in such manner as the Board of Directors may require
and
shall if the Board of Directors so requires, give the Corporation a bond of
indemnity in the form and amount and with one or more sureties satisfactory
to
the Board of Directors, whereupon a new certificate of stock or uncertificated
share may be issued in lieu of the one claimed to have been lost, stolen or
destroyed.
ARTICLE
V.
FISCAL
YEAR
The
fiscal year of the Corporation shall be established by the Board of Directors
of
the Corporation.
ARTICLE
VI.
SEAL
The
corporate seal shall be in such form as the Board of Directors may from time
to
time determine.
ARTICLE
VII.
ANNUAL
STATEMENTS
No
later
than four months after the close of each fiscal year, and in any case prior
to
the next annual meeting of shareholders, the Corporation shall
prepare:
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(a)
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A
balance sheet showing in reasonable detail the financial condition
of the
Corporation as of the close of the fiscal year, and
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(b)
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A
profit and loss statement showing the results of its operation during
the
fiscal year.
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Upon
written request, the Corporation shall mail promptly to any shareholder of
record a copy of the most recent such balance sheet and profit and loss
statement.
ARTICLE
VIII.
INDEMNIFICATION
SECTION 1. ACTION
BY PERSONS OTHER THAN THE CORPORATION.
Under the
circumstances prescribed in Sections 3 and 4 of this Article, the Corporation
shall indemnify and hold harmless any person who was or is a party or is
threatened to be made a party of any, threatened, pending or completed action,
suit or proceeding, or investigation, whether civil, criminal or administrative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a Director, Officer, employee or agent of the
Corporation, or is now 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 attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in a
manner which he reasonably believed to be in or not opposed to the best interest
of the Corporation, and, with respect to criminal action or proceeding, he
had
no reasonable cause to believe his 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 a manner which
he
reasonably believed to be in or not opposed to the best interest of the
Corporation, and with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. ACTIONS
BY OR IN THE NAME OF THE CORPORATION.
Under the
circumstances prescribed in Sections 3 and 4 of this Article, the Corporation
shall indemnify and hold harmless any person who was or is a party or is
threatened to be made a party of any, threatened, pending or completed action,
suit by or in the right of the Corporation to procure a judgment in its favor
by
reason of the fact that he is or was a Director, Officer, employee or agent
of
the Corporation, or is or was serving at the request of the Corporation as
a
Director, Officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner
he
reasonably believed to be in or not opposed to the best interest of the
Corporation; except that no indemnification shall be made in respect to any
claim, issue or matter as to which such person shall have been adjudged to
be
liable for negligence or misconduct in the performance of his duty to the
Corporation, unless and only to the extent that 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 expense which
the
court shall deem proper.
SECTION 3. SUCCESSFUL
DEFENSE.
To the extent that a Director, Officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections
1
and 2 of this Article, or in defense of any claim, issue or matter therein,
he
shall be indemnified against expenses (including attorney's fees) actually
and
reasonably incurred by him in connection therewith.
SECTION 4. AUTHORIZATION
OF INDEMNIFICATION.
Except as provided in Section 3 of
this Article and except as may be ordered by a court, any indemnification under
Sections 1 and 2 of this Article shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
the
Director, Officer, employee or agent is proper in the circumstances because
he
has met the applicable standard of conduct set forth in Sections 1 and
2. Such determination shall be made:
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(1)
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by
the Board of Directors by a majority vote of a quorum consisting
of
Directors who were not parties to such action, suit or proceeding;
or
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(2)
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if
such a quorum is not obtainable, or, even if obtainable, if a quorum
of
disinterested Directors so directs, by the firm of independent legal
counsel then employed by the Corporation, in a written
opinion.
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SECTION 5. PREPAYMENT
OF EXPENSES.
Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance
of
the final disposition of such action, suit or proceeding as authorized by the
Board of Directors upon receipt of an undertaking by or on behalf of the
Director, Officer, employee or agent to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Corporation
as
authorized in this Article.
SECTION 6. NON-EXCLUSIVE
RIGHT.
The indemnification provided by this Article
shall not be deemed exclusive of any other right to which the person indemnified
hereunder shall be entitled and shall inure to the benefit of the heirs,
executors or administrators of such persons.
SECTION 7. INSURANCE.
The
corporation may purchase and maintain insurance on behalf of any person who
is
or was a Director, Officer, employee or agent of the Corporation, or is or
was
serving at the request of the Corporation as a Director, Officer, employee
or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by him
in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this section.
SECTION 8. INTERPRETATION
OF ARTICLE.
It is the intent of this Article VIII to
provide for indemnification of the Directors, Officers, employees and agents
of
the Corporation to the full extent permitted under the laws of State of
Delaware. This Article VIII shall be construed in a manner consistent
with such intent.
ARTICLE
IX.
NOTICES:
WAIVER OF NOTICE
SECTION 1. NOTICES.
Except
as otherwise provided in these By-Laws, whenever under the provisions of these
By-Laws notice is required to be given to any shareholder, Director or Officer,
such notice shall be given either by personal notice or by cable or telegraph,
or by mail by depositing the same in the post office or letter box in a postpaid
sealed wrapper, addressed to such shareholder, Officer or Director at such
address as appears on the books of the Corporation, and such notice shall be
deemed to be given at the time when the same shall be thus sent or
mailed.
SECTION 2. WAIVER
OF NOTICE.
Whenever any notice whatsoever is required to
be given by law, by the Articles of Incorporation or by these By-Laws, a waiver
thereof by the person or persons entitled to said notice given before or after
the time stated therein, in writing, which shall include a waiver given by
telegraph or cable, shall be deemed equivalent thereto. No notice of
any meeting need be given to any person who shall attend such
meeting.
ARTICLE
X.
CHECKS,
NOTES, DRAFTS, LOANS, ETC.
SECTION 1. CHECKS,
NOTES, DRAFTS.
All checks, drafts, bills of exchange,
acceptances, notes or other obligations or orders for the payment of money
shall
be signed and, if so required by the Board of Directors, countersigned by such
officers of the Corporation and/or other persons as shall from time to time
be
designated by the Board of Directors or pursuant to authority delegated by
the
Board.
Checks,
drafts, bills of exchange, acceptances, notes, obligations and orders for the
payment of money made payable to the Corporation may be endorsed for deposit
to
the credit of the Corporation with a duly authorized depository by the Treasurer
and/or such other officers or persons as shall from time to time be designated
by the Treasurer.
SECTION 2. LOANS.
No
loans and no renewals of any loans shall be contracted on behalf of the
Corporation except as authorized by the Board of Directors. When
authorized so to do, any officer or agent of the Corporation may effect loans
and advances for the Corporation from any bank, trust company or other
institution or from any firm, corporation or individual, and for such loans
and
advances may make, execute and deliver promissory notes, bonds or other
evidences of indebtedness of the Corporation. When authorized so to
do, any officer or agent of the Corporation may pledge, hypothecate or transfer,
as security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general
or confined to specific instances.
ARTICLE
XI.
OFFICES
Except
as
otherwise required by the laws of the State of Delaware, the Corporation may
have an office or offices and keep its books, documents and papers outside
of
the State of Delaware at such place or places as from time to time may be
determined by the Board of Directors or the President.
ARTICLE
XII.
AMENDMENTS
Except
as
otherwise indicated in these By-Laws, the By-Laws of the Corporation may be
altered or amended and new By-Laws may be adopted by the shareholders or by
the
Board of Directors at any regular or special meeting of the Board of Directors;
provided, however, that, if such action is to be taken at a meeting of the
shareholders or Board of Directors, notice of the general nature of the proposed
change in the By-Laws shall have been given in the notice of a
meeting. Except as otherwise indicated in these By-Laws, action by
the shareholders with respect to By-Laws shall be taken by an affirmative vote
of a majority of the shares entitled to elect Directors, and action by the
Directors with respect to By-Laws shall be taken by an affirmative vote of
a
majority of all Directors then holding office.
Amended
and restated effective as of December 6, 2007.
