EXHIBIT 3.2
SECOND AMENDED AND RESTATED BYLAWS
OF ARKANSAS BEST CORPORATION
(A Delaware corporation)
AS OF APRIL 21, 2009
TABLE OF CONTENTS
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Page
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ARTICLE I OFFICES
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1
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Section 1.1.
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Registered Office and Agent
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1
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Section 1.2.
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Other Offices
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1
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ARTICLE II MEETINGS OF STOCKHOLDERS
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1
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Section 2.1.
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Places of Meetings
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1
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Section 2.2.
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Annual Meetings
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1
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Section 2.3.
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Special Meetings
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1
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Section 2.4.
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Notice of Meetings
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1
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Section 2.5.
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Quorum
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2
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Section 2.6.
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Adjournments
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2
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Section 2.7.
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Order of Business
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2
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Section 2.8.
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Voting
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2
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Section 2.9.
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Proxies
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2
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Section 2.10.
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List of Stockholders
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3
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Section 2.11.
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Conduct of Meeting
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Section 2.12.
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Inspectors
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4
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Section 2.13.
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Business to be Brought Before Annual or Special Meetings
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4
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Section 2.14.
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Certain Rules of Procedure Relating to Stockholder Meetings
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9
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Section 2.15.
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Requests for Stockholder List and Corporation Records
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9
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ARTICLE III BOARD OF DIRECTORS
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10
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Section 3.1.
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General Powers
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10
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Section 3.2.
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Number
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10
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Section 3.3.
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Resignation
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10
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Section 3.4.
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Vacancies
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10
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Section 3.5.
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Nominations for Directors
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11
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Section 3.6.
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Place of Meetings
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11
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Section 3.7.
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Annual Meetings of Board
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11
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Section 3.8.
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Regular Meetings of Board
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11
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Section 3.9.
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Special Meetings of the Board
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11
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Section 3.10.
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Telephone Meetings
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11
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Section 3.11.
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Quorum
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11
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Section 3.12.
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Procedure
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12
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Section 3.13.
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Presumption of Assent
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12
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Section 3.14.
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Compensation
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12
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Section 3.15.
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Action Without Meeting
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12
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ARTICLE IV COMMITTEES
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12
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Section 4.1.
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Designation; Powers
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12
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Section 4.2.
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Number; Qualification; Term
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13
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Section 4.3.
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Committee Changes
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13
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i
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Page
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Section 4.4.
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Alternate Members of Committees
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13
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Section 4.5.
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Regular Meetings
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13
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Section 4.6.
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Special Meetings
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13
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Section 4.7.
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Quorum; Majority Vote
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13
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Section 4.8.
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Minutes
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13
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Section 4.9.
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Compensation
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13
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ARTICLE V OFFICERS
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13
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Section 5.1.
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Officers
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14
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Section 5.2.
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Removal and Resignation
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14
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Section 5.3.
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Vacancies
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14
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Section 5.4.
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Authority
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14
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Section 5.5.
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Compensation
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14
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Section 5.6.
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Chairman
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14
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Section 5.7.
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President
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14
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Section 5.8.
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Chief Financial Officer
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15
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Section 5.9.
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Vice President
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15
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Section 5.10.
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Treasurer
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15
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Section 5.11.
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Secretary
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15
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Section 5.12.
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Assistant Treasurers and Assistant Secretaries
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16
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ARTICLE VI SHARES AND STOCKHOLDERS
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16
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Section 6.1.
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Certificates Representing Shares
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16
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Section 6.2.
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Transfer of Shares
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17
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Section 6.3.
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Fixing Record Date
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17
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Section 6.4.
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Registered Stockholders
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17
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Section 6.5.
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Lost Certificates
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18
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Section 6.6.
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Regulations
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18
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ARTICLE VII MISCELLANEOUS PROVISIONS
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18
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Section 7.1.
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Method of Notice
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18
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Section 7.2.
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Waiver of Notice
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18
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Section 7.3.
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Dividends
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19
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Section 7.4.
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Seal
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19
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Section 7.5.
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Fiscal Year
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Section 7.6.
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Securities of Other Corporations
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Section 7.7.
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Invalid Provisions
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Section 7.8.
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Mortgages, etc.
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Section 7.9.
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Headings
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Section 7.10.
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References
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ARTICLE VIII INDEMNIFICATION
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Section 8.1.
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Indemnification
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19
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ARTICLE IX AMENDMENTS
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22
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ii
SECOND AMENDED AND RESTATED
BYLAWS
OF
ARKANSAS BEST CORPORATION
AS OF APRIL 21, 2009
ARTICLE I OFFICES
SECTION 1.1.
Registered Office and Agent
. The registered office and registered agent
of the corporation shall be as designated from time to time by the appropriate filing by the
corporation in the office of the Secretary of State of the State of Delaware.
SECTION 1.2.
Other Offices
. The corporation may have other offices, either within or
without the State of Delaware, at such place or places as the Board of Directors may from time to
time appoint or the business of the corporation may require.
ARTICLE II MEETINGS OF STOCKHOLDERS
SECTION 2.1.
Places of Meetings
. Unless the Board of Directors shall fix another place
for the holding of the meeting, meetings of stockholders shall be held at the corporations
headquarters, 3801 Old Greenwood Road, Fort Smith, Arkansas, or at such other place within or
without the State of Delaware as specified by the person or persons calling the meeting.
SECTION 2.2.
Annual Meetings
. Annual meetings of the stockholders for the election of
directors and for such other business as may be stated in the notice of meeting, shall be held on
the second Wednesday in May at 10:00 a.m., unless the Board of Directors shall fix a different date
or time. At each annual meeting, the stockholders entitled to vote shall elect directors and may
transact such other corporate business as may be properly brought before the meeting. No business
may be conducted at the annual meeting of stockholders except in accordance with the procedures set
forth in
Section 2.13
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SECTION 2.3.
Special Meetings
. Special meetings of the stockholders, for any purpose,
unless otherwise prescribed by statute or by the Certificate of Incorporation, may only be called
by (i) the Chairman of the Board, (ii) the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors, or (iii) the President. Only business within
the proper purpose or purposes described in the notice required by these bylaws may be conducted at
a special meeting of the stockholders.
SECTION 2.4.
Notice of Meetings
. Written notice, stating the place, date, and time of
each meeting of the stockholders, and the general nature of the business to be considered, shall be
delivered to each stockholder not less than ten nor more than sixty days before the date of the
meeting. If such notice is to be sent by mail, it shall be directed to each stockholder at his
address as it appears on the records of the corporation, unless he shall have filed with the
Secretary of the corporation a written request that notices to him be mailed to some other address,
in which case it shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall attend such meeting
in person or by proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or convened, or who shall,
either before or after the meeting, submit a signed waiver of notice, in person or by proxy.
SECTION 2.5.
Quorum
. At any meeting of stockholders, the holders of a majority of all
the issued and outstanding shares entitled to vote, represented in person or by proxy, shall
constitute a quorum for the transaction of business, except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws.
If stockholders necessary for a quorum shall fail to be present at the time and place fixed
for any meeting, the holders of a majority of the shares entitled to vote who are represented in
person or by proxy may adjourn the meeting from time to time, until a quorum is present, and at any
such adjourned meeting at which a quorum is present, any business may be transacted which might
have been transacted at the original meeting.
SECTION 2.6.
Adjournments
. If a quorum shall not be present, in person or by proxy,
at any meeting of stockholders or any adjournment thereof, the chairman of the meeting or a
majority in interest of the stockholders entitled to vote thereat who are present, in person or by
proxy, may adjourn the meeting from time to time, without notice other than announcement at the
meeting (unless the Board of Directors, after such adjournment, fixes a new record date for the
adjourned meeting), until a quorum shall be present, in person or by proxy. At any adjourned
meeting at which a quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been present, in person or by
proxy;
provided
that, 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 adjourned meeting.
SECTION 2.7.
Order of Business
. The order of business at all meetings of stockholders
shall be as determined by the chairman of the meeting.
SECTION 2.8.
Voting
. Except as otherwise provided by the Certificate of Incorporation,
each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of
Incorporation and these Bylaws shall be entitled to one vote, in person or by proxy, for each share
of stock entitled to vote held by such stockholder. Upon the demand of any stockholder, the vote
for directors and upon any question before the meeting shall be by ballot. All elections for
directors shall be decided by plurality vote; all other questions shall be decided by majority vote
except as otherwise provided by the Certificate of Incorporation or the laws of the State of
Delaware. The stockholders present at a duly constituted meeting may continue to transact business
until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
SECTION 2.9.
Proxies
. (a) Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by proxy, but no such proxy
shall be voted or acted upon after three years from its date of execution, unless the proxy
provides for a longer period. Each proxy shall be revocable unless expressly provided therein to be
irrevocable and coupled with an interest sufficient in law to support an irrevocable power or
unless otherwise made irrevocable by law.
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(b) Without limiting the manner in which a stockholder may authorize another person or persons
to act for him as proxy pursuant to subsection (a) of this Section, the following shall constitute
a valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another person or persons to act for him
as proxy. Execution may be accomplished by the stockholder or his authorized officer, director,
employee, or agent signing such writing or causing his or her signature to be affixed to such
writing by any reasonable means including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telegram, cablegram, or other means of electronic
transmission to the person who will be the holder of the proxy or to a proxy solicitation firm,
proxy support service organization, or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such telegram, cablegram, or
other means of electronic transmission must either set forth or be submitted with information from
which it can be determined that the telegram, cablegram, or other electronic transmission was
authorized by the stockholder. If it is determined that such telegrams, cablegrams, or other
electronic transmissions are valid, the inspectors or, if there are no inspectors, such other
persons making that determination shall specify the information upon which they relied.
(c) Any copy, facsimile telecommunication, or other reliable reproduction of the writing or
transmission created pursuant to subsection (b) of this Section may be substituted or used in lieu
of the original writing or transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or transmission.
SECTION 2.10.
List of Stockholders
. At least ten (10) days before each meeting of
stockholders, the Secretary or other officer of the corporation who has charge of the corporations
stock ledger, either directly or through another officer appointed by him or through a transfer
agent appointed by the Board of Directors, shall prepare 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 be
produced and kept at the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder present.
SECTION 2.11.
Conduct of Meeting
. The Chairman of the Board of Directors, if such
office has been filled, and, if not, or if the Chairman of the Board of Directors is absent or
otherwise unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence or inability to
act of any such officer, such officers duties shall be performed by the officer given the
authority
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to act for such absent or non-acting officer under these Bylaws or by some person appointed by
the meeting.
SECTION 2.12.
Inspectors.
(a) The corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting or any adjournment thereof and
make a written report thereof. The corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act
at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to
act at the meeting. Each inspector, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares outstanding and the voting power
of each, (ii) determine the shares represented at a meeting, the existence of a quorum and the
validity and effect of proxies and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots, and (vi) do such acts as are
proper to conduct the election or vote. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the duties of the inspectors. No director
or candidate for the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
(c) The date and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be announced at the meeting. No ballot, proxies or
votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors after
the closing of the polls unless the Delaware Court of Chancery, upon application by a stockholder,
shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots, the inspectors shall be
limited to an examination of the proxies, any envelopes submitted with those proxies, any
information provided in accordance with
Section 2.9(b)(ii)
, ballots and the regular books
and records of the corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks,
brokers, their nominees, or similar persons that represent more votes than the holder of a proxy is
authorized by the record owner to cast, or more votes than the stockholder holds of record. If the
inspectors consider other reliable information for the limited purpose permitted herein, the
inspectors at the time they make their certification pursuant to
Section 2.12(b)(v)
of this
Section shall specify the precise information considered by them including the person or persons
from whom they obtained the information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors belief that such information is accurate
and reliable.
SECTION 2.13.
Business to be Brought Before Annual or Special Meetings
. All matters,
including, without limitation, nominations of directors, to be considered and brought before any
annual or special meeting of stockholders, whether or not such matter is to be, or has been,
included in the corporations proxy statement prepared pursuant to the federal securities
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laws, including the proxy rules set forth in the Securities Exchange Act of 1934, as amended
(the
Exchange Act
), shall be properly brought before any such meeting only if in
compliance with the procedures set forth in this
Section 2.13
.
(a)
Annual Meetings of Stockholders
.
(i) At an annual meeting of the stockholders, only such business shall be conducted, or
nominations of persons for election to the Board made, as shall have been properly brought before
the meeting (x) pursuant to the corporations notice of meeting, (y) by or at the direction of a
majority of the members of the Board of Directors, or (z) by any stockholder who (i) is a
stockholder of record at the time of giving of notice provided for in this Bylaw and at the time of
the annual meeting, (ii) is entitled to vote at such meeting, and (iii) complies with the notice
procedures set forth in this
Section 2.13
as to such business or nomination; the foregoing
clause (z) shall be the exclusive means for a stockholder to make nominations or submit other
business before an annual meeting of stockholders.
(ii) For any nominations or any other business to be properly brought before an annual meeting
by a stockholder pursuant to clause (z) of
Section 2.13(a)(i)
, the stockholder must have
given timely notice thereof in writing to the Secretary of the corporation at the corporations
principal executive offices and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholders notice must be delivered to or mailed and
received at the principal executive offices of the corporation not earlier than the close of
business on the 120
th
day and not later than the close of business on the
90
th
day prior to the first anniversary of the preceding years annual meeting;
provided
,
however
, that in the event that the date of the annual meeting is more
than 30 days before or more than 60 days after the anniversary date of the preceding years annual
meeting, notice by the stockholder to be timely must be received not earlier than the close of
business on the 120
th
day prior to the date of such annual meeting and not later than
the close of business on the later of the 100
th
day prior to the date of such annual
meeting or, if the first public announcement of the date of such annual meeting is less than 100
days prior to the date of such annual meeting, the 10
th
day following the day on which
public announcement of the date of such meeting is first made by the corporation. In no event
shall any adjournment or postponement of an annual meeting or the announcement thereof commence a
new time period for the giving of a stockholders notice as described above.
To be in proper form, a stockholders notice (whether given pursuant to
Section
2.13(a)(i)
or pursuant to
Section 2.13(b)
) to the Secretary must:
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(A)
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set forth, as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (i) the name and address of
such stockholder, as they appear on the corporations books, and of such beneficial
owner, if any, and the business address and telephone number of such stockholder and of
the beneficial owner, if any, (ii) (A) the class or series and number of shares of the
corporation which are, directly or indirectly, owned beneficially and of record by such
stockholder and such beneficial owner, (B) any option, warrant, convertible security,
stock appreciation right, or similar right with an exercise or conversion privilege or
a settlement payment or mechanism at a price related to any class or series of shares
of the corporation or with a value
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derived in whole or in part from the value of any class or series of shares of the
corporation, whether or not such instrument or right shall be subject to settlement
in the underlying class or series of capital stock of the corporation or otherwise
(a
Derivative Instrument
) directly or indirectly owned beneficially by
such stockholder and any other direct or indirect opportunity to profit or share in
any profit derived from any increase or decrease in the value of shares of the
corporation, (C) any proxy, contract, arrangement, understanding, or relationship
pursuant to which such stockholder has a right to vote any shares of any security of
the corporation, (D) any short interest in any security of the corporation (for
purposes of this Bylaw a person shall be deemed to have a short interest in a
security if such person directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has the opportunity to profit or share in
any profit derived from any decrease in the value of the subject security), (E) any
rights to dividends on the shares of the corporation owned beneficially by such
stockholder that are separated or separable from the underlying shares of the
corporation, (F) any proportionate interest in shares of the corporation or
Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which such stockholder is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner and (G) any
performance-related fees (other than an asset-based fee) that such stockholder is
entitled to based on any increase or decrease in the value of shares of the
corporation or Derivative Instruments, if any, as of the date of such notice,
including without limitation any such interests held by members of such
stockholders immediate family sharing the same household (which information shall
be supplemented by such stockholder and beneficial owner, if any, not later than 10
days after the record date for the meeting to disclose such ownership as of the
record date), and (iii) any other information relating to such stockholder and
beneficial owner, if any, that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations of
proxies for, as applicable, the proposal and/or for the election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder;
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(B)
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if the notice relates to any business other than a nomination of a director or
directors that the stockholder proposes to bring before the meeting, set forth (i) a
brief description of the business desired to be brought before the meeting, including
the exact text of any proposal to be presented for adoption, the reasons for conducting
such business at the meeting and any material interest of such stockholder and
beneficial owner, if any, in such business and (ii) a description of all agreements,
arrangements and understandings between such stockholder and beneficial owner, if any,
and any other person or persons (including their names) in connection with the proposal
of such business by such stockholder;
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(C)
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set forth, as to each person, if any, whom the stockholder proposes to nominate
for election or reelection to the Board of Directors (i) all information relating to
such person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for election
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of directors in a contested election pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder (including such persons written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected) and (ii) 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 such
stockholder and beneficial owner, if any, and their respective affiliates and
associates, or others acting in concert therewith, on the one hand, and each
proposed nominee, and his or her respective affiliates and associates, or others
acting in concert therewith, on the other hand, including, without limitation all
biographical and related party transaction and other information that would be
required to be disclosed pursuant to the federal and state securities laws as if the
stockholder making the nomination and any beneficial owner on whose behalf the
nomination is made, if any, or any affiliate or associate thereof or person acting
in concert therewith, were the registrant for purposes of such rule and the
nominee were a director or executive officer of such registrant; and
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(D)
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with respect to each nominee for election or reelection to the Board of
Directors, include a completed and signed questionnaire, representation and agreement
required by
Section 2.13(d)
.
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The corporation may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such proposed nominee to
serve as an independent director of the corporation or that could be material to a reasonable
stockholders understanding of the independence, or lack thereof, of such nominee.
(iii) Notwithstanding anything in the second sentence of
Section 2.13(a)(ii)
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 at least 100 days prior to the
first anniversary of the preceding years annual meeting, a stockholders notice required by
Section 2.13
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 the Secretary at the corporations
principal executive offices not later than the close of business on the 10th day following the day
on which such public announcement is first made by the corporation.
(b)
Special Meetings of Stockholders
. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
corporations notice of meeting. Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are to be elected pursuant to the
corporations notice of meeting (i) by or at the direction of the Board of Directors, including on
behalf of the Board of Directors by a Nominating Committee appointed by the Board of Directors, or
(ii) provided that the Board of Directors has determined that directors shall be elected at such
meeting, by any stockholder who (a) is a stockholder of record at the time of giving of notice
provided for in this bylaw and at the time of the special meeting, (b) is entitled to vote at the
meeting, and (c) complies with the notice procedures set forth in
7
Section 2.13
as to such nomination. In the event the corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case may be) for election
to such position(s) as specified in the corporations notice of meeting, if the stockholders
notice required by
Section 2.13(a)(ii)
with respect to any nomination (including the
completed and signed questionnaire, representation and agreement required by
Section
2.13(d)
) shall be delivered to the Secretary at the principal executive offices of the
corporation not earlier than the close of business on the 120th day prior to the date of such
special meeting and not later than the close of business on the later of the 100th day prior to the
date of such special meeting or, if the first public announcement of the date of such special
meeting is less than 100 days prior to the date of such special meeting, the 10th day following the
day on which public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no event shall any
adjournment or postponement of a special meeting or the announcement thereof commence a new time
period for the giving of a stockholders notice as described above.
(c)
General
.
(i) Only such persons who are nominated in accordance with the procedures set forth in this
Bylaw shall be eligible to be nominees and serve as directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in
Section 2.13
. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the Chairman of the meeting shall have the power and
duty to determine whether a nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the procedures set forth in
Section 2.13
and, if any proposed nomination or business is not in compliance with
Section 2.13
, to declare that such defective proposal or nomination shall be disregarded.
(ii) For purposes of
Section 2.13
, public announcement shall mean disclosure in a
press release reported by a national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act and the rules and regulations promulgated thereunder.
(iii) Notwithstanding the foregoing provisions of
Section 2.13
, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in
Section 2.13
;
provided
,
however
, that any references in these Bylaws to the Exchange Act or the rules promulgated
thereunder are not intended to and shall not limit the requirements applicable to nominations or
proposals as to any other business to be considered pursuant to clause (z) of
Section
2.13(a)(i)
or
Section 2.13(b)
. Nothing in
Section 2.13
shall eliminate or limit
any obligations of any stockholder pursuant to Rule 14a-8 under the Exchange Act or any other
applicable federal or state securities law with respect to that stockholders request to include
proposals in the corporations proxy statement.
(d)
Submission of Questionnaire, Representation and Agreement
. To be eligible to be a
nominee for election or reelection as a director of the corporation, a person must
8
deliver (in accordance with the time periods prescribed for delivery of notice under
Section 2.13
) to the Secretary at the principal executive offices of the corporation a
written questionnaire with respect to the background and qualification of such person and the
background of any other person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the Secretary upon written request) and a written representation
and agreement (in the form provided by the Secretary upon written request) that such person (i) is
not and will not become a party to (a) any agreement, arrangement or understanding with, and has
not given any commitment or assurance to, any person or entity as to how such person, if elected as
a director of the corporation, will act or vote on any issue or question (a
Voting
Commitment
) that has not been disclosed to the corporation or (b) any Voting Commitment that
could limit or interfere with such persons ability to comply, if elected as a director of the
corporation, with such persons fiduciary duties under applicable law, (ii) is not and will not
become a party to any agreement, arrangement or understanding with any person or entity other than
the corporation with respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director that has not been disclosed
therein, and (iii) in such persons individual capacity and on behalf of any person or entity on
whose behalf the nomination is being made, would be in compliance, if elected as a director of the
corporation, and will comply with all applicable publicly disclosed corporate governance, conflict
of interest, confidentiality and stock ownership and trading policies and guidelines of the
corporation.
SECTION 2.14.
Certain Rules of Procedure Relating to Stockholder Meetings
. All
stockholder meetings, annual or special, shall be governed in accordance with the following rules:
(a) Only stockholders of record will be permitted to present motions from the floor at any
meeting of stockholders.
(b) The chairman of the meeting shall preside over and conduct the meeting and all questions
of procedure or conduct of the meeting shall be decided solely by the chairman of the meeting. The
chairman of the meeting shall have all power and authority vested in a presiding officer by law or
practice to conduct an orderly meeting. Among other things, the chairman of the meeting shall have
the power to adjourn or recess the meeting, to silence or expel persons to ensure the orderly
conduct of the meeting, to declare motions or persons out of order, to prescribe rules of conduct
and an agenda for the meeting, to impose reasonable time limits on questions and remarks by any
stockholder, to limit the number of questions a stockholder may ask, to limit the nature of
questions and comments to one subject matter at a time as dictated by any agenda for the meeting,
to limit the number of speakers or persons addressing the chairman of the meeting or the meeting,
to determine when the polls shall be closed, to limit the attendance at the meeting to stockholders
of record, beneficial owners of stock who present letters from the record holders confirming their
status as beneficial owners, and the proxies of such record and beneficial holders, and to limit
the number of proxies a stockholder may name.
SECTION 2.15.
Requests for Stockholder List and Corporation Records
. Stockholders
shall have those rights afforded under the General Corporation Law of the State of Delaware (the
Delaware General Corporation Law
) to inspect a list of stockholders and other related
records and make copies or extracts therefrom. Such request shall be in writing in compliance with
9
Section 220 of the Delaware General Corporation Law. In addition, any stockholder making such
a request must agree that any information so inspected, copied or extracted by the stockholder
shall be kept confidential, that any copies or extracts of such information shall be returned to
the corporation and that such information shall only be used for the purpose stated in the request.
Information so requested shall be made available for inspecting, copying or extracting at the
principal executive offices of the corporation. Each stockholder desiring a photostatic or other
duplicate copies of any of such information requested shall make arrangements to provide such
duplicating or other equipment necessary in the city where the corporations principal executive
offices are located. Alternative arrangements with respect to this
Section 2.15
may be
permitted in the discretion of the President of the corporation or by vote of the Board of
Directors.
ARTICLE III BOARD OF DIRECTORS
SECTION 3.1.
General Powers
. The business and affairs of the corporation shall be
managed by the Board of Directors. Subject to the restrictions imposed by law, the Certificate of
Incorporation or these Bylaws, the Board of Directors may exercise all the powers of the
corporation and do all such lawful acts and things as are not by law or otherwise directed or
required to be exercised or done by the stockholders.
SECTION 3.2.
Number
.
(a) At the 2010 annual meeting of stockholders of the corporation, the successors of the
directors whose terms expire at that meeting shall be elected for a term expiring at the 2011
annual meeting of stockholders (which number of directors shall be approximately one-third of the
total number of directors of the corporation); at the 2011 annual meeting of stockholders of the
corporation, the successors of the directors whose terms expire at that meeting shall be elected
for a term expiring at the 2012 annual meeting of stockholders (which number of directors shall be
approximately two-thirds of the total number of directors of the corporation); and at the 2012
annual meeting of stockholders of the corporation, and each annual meeting of stockholders
thereafter, all directors shall be elected for terms expiring at the next annual meeting of
stockholders.
(b) The number of directors shall be fixed from time to time by resolution of the Board of
Directors. In case of any increase in the number of directors in advance of an annual meeting of
stockholders, each additional director shall be elected by the directors then in office, although
less than a quorum, to hold office until the next annual meeting of stockholders at which directors
are elected. No decrease in the number of directors shall shorten the term of any incumbent
director.
SECTION 3.3.
Resignation
. Any director may resign at any time. Such resignation shall
be made in writing, and shall take effect at the time specified therein, and if no time be
specified, at the time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3.4.
Vacancies
. In case of any vacancy in the Board of Directors through
death, resignation, retirement, disqualification or other cause, the remaining directors, by vote
of
10
a majority thereof, may elect a successor to hold office for the unexpired portion of the
term, and until the election of his successor.
SECTION 3.5.
Nominations for Directors
. Nominations for election to the Board of
Directors of the corporation at a meeting of the stockholders may be made by the Board of
Directors, or on behalf of the Board of Directors by a Nominating Committee appointed by the Board
of Directors, or by any stockholder who complies with the provisions of
Section 2.13
.
SECTION 3.6.
Place of Meetings
. The directors may hold their meetings and may have an
office and keep the books of the corporation, except as otherwise provided by statute, in such
place or places within or without the State of Delaware as the Board of Directors may from time to
time determine or as shall be specified in the notice of such meeting or duly executed waiver of
notice of such meeting.
SECTION 3.7.
Annual Meetings of Board
. The annual meeting of the Board of Directors
shall be held following the annual meeting of the stockholders and shall be a meeting of the
directors elected at such meeting of stockholders plus all continuing directors. No notice shall be
required.
SECTION 3.8.
Regular Meetings of Board
. Regular meetings of the Board shall be held at
such times and places as shall be designated from time to time by resolution of the Board of
Directors. Notice of such regular meetings shall not be required.
SECTION 3.9.
Special Meetings of the Board
. Special meetings of the Board of Directors
shall be held whenever called by the Chairman, the President, or a majority of the Board of
Directors. At least 24 hours written or oral notice of each special meeting shall be given to each
director. Notice of any such meeting need not be given to any party entitled to notice who shall,
either before or after the meeting, submit a signed waiver of notice or who shall attend such
meeting without protesting, prior to or at its commencement, the lack of notice to him. Such
notice shall state the place, day and time of the meeting and the purpose or purposes for which the
meeting is called.
SECTION 3.10.
Telephone Meetings
. Directors may attend any meeting of the Board of
Directors or any committee thereof by conference telephone, radio, television, or similar means of
communication by which all persons participating in the meeting can hear each other, and all
members so attending shall be deemed present at the meeting for all purposes including the
determination of whether a quorum is present.
SECTION 3.11.
Quorum
. A majority of the members of the Board of Directors shall
constitute a quorum for the transaction of business, but if at any meeting of the Board of
Directors there is less than a quorum present, the majority of those present or any director solely
present may adjourn the meeting from time to time without further notice until a quorum is present.
At any such adjourned meeting, a quorum being present, any business may be transacted which might
have been transacted at the original meeting. Except as otherwise provided by law, the Certificate
of Incorporation, or these Bylaws, all actions of the Board of Directors shall be decided by vote
of a majority of the directors present at a meeting at which a quorum is in attendance.
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SECTION 3.12.
Procedure
. At meetings of the Board of Directors, business shall be
transacted in such order as from time to time the Board may determine. The Chairman of the Board,
if such office has been filled, and, if not or if the Chairman of the Board of Directors is absent
or otherwise unable to act, the President, if he is a director, shall preside at all meetings of
the Board of Directors. In the absence or inability to act of either such officer, a chairman
shall be chosen by the Board of Directors from among the directors present. The Secretary of the
corporation shall act as the secretary of each meeting of the Board of Directors unless the Board
of Directors appoints another person to act as secretary of the meeting. The Board of Directors
shall keep regular minutes of its proceedings which shall be placed in the minute book of the
corporation.
SECTION 3.13.
Presumption of Assent
. A director of the corporation who is present at
the meeting of the Board of Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any dissent by certified
or registered mail to the Secretary of the corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who votes in favor of such action.
SECTION 3.14.
Compensation
. Directors, who are not officers of the corporation, shall
receive such compensation as shall be fixed by resolution of the Board of Directors for their
services as directors and as members of committees. Officers of the corporation shall not receive
any compensation for serving on the Board of Directors or any of its committees. All directors are
entitled to reimbursement for fees and expenses incurred for attendance at each meeting. Nothing
herein contained shall be construed to preclude any director from serving the corporation in any
other capacity as an officer, agent or otherwise, and receiving compensation therefor.
SECTION 3.15.
Action Without Meeting
. Unless otherwise restricted by the Certificate
of Incorporation or by 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 prior to
such action a 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
proceedings of the Board or committee. Such consent shall have the same force and effect as a vote
of the Board of Directors or committee members, as the case may be, and may be stated as such in
any certificate or document filed with the Secretary of State of the State of Delaware or in any
certificate delivered to any person.
ARTICLE IV COMMITTEES
SECTION 4.1.
Designation; Powers
. The Board of Directors may, by resolution adopted
by a majority of the entire Board of Directors, designate one or more committees. Each committee
shall have and may exercise such of the powers of the Board of Directors in the management of the
business and affairs of the corporation as may be provided in such resolution and as permitted by
applicable law.
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SECTION 4.2.
Number; Qualification; Term
. Each committee shall consist of one or more
directors appointed by resolution adopted by a majority of the entire Board of Directors. The
number of committee members may be increased or decreased from time to time by resolution adopted
by a majority of the entire Board of Directors. Each committee member shall serve as such until
the earliest of (i) the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a director.
SECTION 4.3.
Committee Changes
. The Board of Directors shall have the power at any
time to fill vacancies in, to change the membership of, and to discharge any committee.
SECTION 4.4.
Alternate Members of Committees
. The Board of Directors may designate
one or more directors as alternate members of any committee. Any such alternate member may replace
any absent or disqualified member at any meeting of the committee. If no alternate committee
members have been so appointed to a committee or each such alternate committee members is absent or
disqualified, the member or members of such committee 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.
SECTION 4.5.
Regular Meetings
. Regular meetings of any committee may be held without
notice at such time and place as may be designated from time to time by resolution by the committee
and communicated to all members thereof.
SECTION 4.6.
Special Meetings
. Special meetings of any committee may be held whenever
called by the chairman of such committee who shall cause notice of such special meeting, including
therein the day, time and place of such special meeting, to be given to each committee member at
least 24 hours before such special meeting.
SECTION 4.7.
Quorum; Majority Vote
. At meetings of any committee, a majority of the
number of members designated by the Board of Directors shall constitute a quorum for the
transaction of business. If a quorum is not present at a meeting of any committee, a majority of
the members present may adjourn the meeting from time to time, without notice other than an
announcement at the meeting, until a quorum is present. The act of a majority of the members
present at any meeting at which a quorum is in attendance shall be the act of a committee, unless
the act of a greater number is required by law, the Certificate of Incorporation, or these Bylaws.
SECTION 4.8.
Minutes
. Each committee shall cause minutes of its proceedings to be
prepared and shall report the same to the Board of Directors upon the request of the Board. The
minutes of the proceedings of each committee shall be delivered to the Secretary of the corporation
for placement in the minute books of the corporation.
SECTION 4.9.
Compensation
. Committee members may, by resolution of the Board of
Directors, be allowed a fixed sum and expenses of attendance, if any, for attending any committee
meetings or a stated salary.
ARTICLE V OFFICERS
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SECTION 5.1.
Officers
. The officers of the corporation shall consist of at least a
President and a Secretary, and shall be elected by the Board of Directors. In addition, the Board
of Directors may elect a Chairman, a Chief Executive Officer, a Chief Financial Officer, a
Treasurer, a Senior Vice President, one or more Vice Presidents and such Assistant Secretaries and
Assistant Treasurers as it may deem proper. Each officer shall hold office until his successor
shall have been duly elected and shall have qualified, until his death, until he shall resign or
shall have been removed in the manner hereinafter provided, and, in the case of the Chairman of the
Board, until he shall cease to be a director. Except for the Chairman of the Board, none of the
officers of the corporation need be directors. The officers shall be elected at such times as the
Board of Directors shall determine. More than two offices may be held by the same person.
SECTION 5.2.
Removal and Resignation
. Any officer or agent elected or appointed by
the Board of Directors may be removed by the Board of Directors at any time, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights. Any officer may
resign at any time by giving written notice to the corporation;
provided
,
however
,
that written notice to the Board of Directors, the Chairman of the Board, the President or the
Secretary shall be deemed to constitute notice to the corporation. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time specified therein, and unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 5.3.
Vacancies
. Any vacancy occurring in any office of the corporation (by
death, resignation, removal, or otherwise) may be filled by the Board of Directors.
SECTION 5.4.
Authority
. Officers shall have such authority and perform such duties in
the management of the corporation as are provided in these Bylaws or as may be determined by
resolution of the Board of Directors not inconsistent with these Bylaws.
SECTION 5.5.
Compensation
. The compensation, if any, of officers and agents shall be
fixed from time to time by the Board of Directors;
provided
,
however
, that the
Board of Directors may delegate to a committee of the Board, the Chairman of the Board or the
President the power to determine the compensation of any officer or agent (other than the officer
to whom such power is delegated).
SECTION 5.6.
Chairman
. The Chairman of the Board, if one be elected, shall preside at
all meetings of the Board of Directors. The Chairman shall also preside at all meetings of the
stockholders and he shall have and perform such other duties as from time to time may be assigned
to him by the Board of Directors.
SECTION 5.7.
President
. The President shall have general powers of oversight,
supervision and management of the business and affairs of the corporation, and see that all orders
and resolutions of the Board of Directors are carried into effect. The President shall have the
power to appoint and remove subordinate officers, agents and employees, including Assistant
Secretaries and Assistant Treasurers, except that the President may not remove those elected or
appointed by the Board of Directors.
14
In the event another executive officer has been designated Chief Executive Officer of the
corporation by the Board of Directors, then (i) such other executive officer shall have all of the
powers granted by these Bylaws to the President and such other responsibilities, duties and powers
as may from time to time be designated by the Board of Directors; and (ii) the President shall,
subject to the powers of supervision and control thereby conferred upon the Chief Executive
Officer, be the chief operating officer of the corporation and shall have all necessary powers to
discharge such responsibility including general supervision of the affairs of the corporation and
general and active control of all of its business.
The President or, if applicable, the Chief Executive Officer, shall perform all the duties and
have all the powers of the Chairman of the Board in the absence, inability to act or refusal to
act, of the Chairman of the Board. As between the corporation and third parties, any action taken
by the President in the performance of the duties of the Chairman of the Board shall be conclusive
evidence that there is no Chairman of the Board or that the Chairman of the Board is absent or
unable or refuses to act.
SECTION 5.8.
Chief Financial Officer
. The Chief Financial Officer shall, subject to
the power of the Chief Executive Officer and President, have general and active control of all of
the financial matters of the corporation and shall have all necessary powers to discharge such
responsibility, and shall perform such other duties as the Board of Directors, the Chief Executive
Officer, the President, or the Chairman may prescribe.
He shall be authorized to execute bonds, mortgages, and other contracts on behalf of the
corporation, except where required or permitted by law or these Bylaws to be otherwise executed and
except where the execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the corporation.
SECTION 5.9.
Vice President
. Each Vice President shall have such powers and shall
perform such duties as shall be assigned to him by the Board of Directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the Board of Directors,
or in the absence of such determination, as determined by the length of time they have held the
office of Vice President) shall exercise the powers of the President during that officers absence,
inability to act or refusal to act. As between the corporation and third parties, any action taken
by a Vice President in the performance of the duties of the President shall be conclusive evidence
of the absence or inability or refusal to act of the President at the time such action was taken.
SECTION 5.10.
Treasurer
. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate account of receipts and disbursements in books
belonging to the corporation. He shall deposit all monies and other valuables in the name and to
the credit of the corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may be ordered by the Board of
Directors, the Chief Executive Officer, the Chief Financial Officer or the President, taking proper
vouchers for such disbursements.
SECTION 5.11.
Secretary
. The Secretary shall give, or cause to be given, notice of all
meetings of stockholders and directors, and all other notices required by law or by these Bylaws,
and in case of his absence or refusal or neglect so to do, any such notice may be given by any
15
person thereunto directed by the Chief Executive Officer and President, or by the directors
upon whose requisition the meeting is called as provided in these Bylaws. He shall record, or cause
to be recorded, all the proceedings of the meetings of the corporation and of directors in a book
to be kept for that purpose. He shall keep in safe custody the seal of the corporation, and when
authorized by the Board of Directors, affix the same to any instrument requiring it, and when so
affixed, it shall be attested by his signature or by the signature of any Assistant Secretary.
SECTION 5.12.
Assistant Treasurers and Assistant Secretaries
. Assistant Treasurers and
Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such
duties as shall be assigned to them, respectively, by the Board of Directors, the Chairman of the
Board, or the President. The Assistant Treasurers (in the order of their seniority as determined
by the Board of Directors or, in the absence of such a determination, as determined by the length
of time they have held the office of Assistant Treasurer) shall exercise the powers of the
Treasurer during that officers absence or inability or refusal to act, but such delegation shall
not relieve the Treasurer from his responsibilities and liabilities of office. The Assistant
Secretaries (in the order of their seniority as determined by the Board of Directors or, in the
absence of such a determination, as determined by the length of time they have held the office of
Assistant Secretary) shall exercise the powers of the Secretary during that officers absence or
inability or refusal to act.
ARTICLE VI SHARES AND STOCKHOLDERS
SECTION 6.1.
Certificates Representing Shares
. The shares of stock of the corporation
may be issued in book-entry form or evidenced by certificates. However, 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, President or a Vice President and the Treasurer,
Secretary, Assistant Treasurer or Assistant Secretary of the corporation, certifying the number of
shares owned by him in the corporation. Any and all signatures on a certificate for shares of stock
of the corporation may be facsimiles, engraved or printed and may be sealed with the seal of the
corporation (which seal may be a facsimile, engraved or printed). If any officer, transfer agent,
or registrar who has signed, or whose facsimile signature has been placed upon, a certificate has
ceased to be such officer, transfer agent, or registrar before such certificate is issued, such
certificate may be issued by the corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue. Certificates for shares of stock of the
corporation shall be consecutively numbered and shall be entered in the books of the corporation as
they are issued and shall exhibit the holders name and the number of shares. 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 any
certificate which the corporation shall issue to represent such class or series of 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 any certificate which
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 designations,
preferences, and relative, participating, optional or other special rights of each
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class of stock or series thereof and the qualifications, limitations, or restrictions of such
preferences and rights.
SECTION 6.2.
Transfer of Shares
. Subject to valid transfer restrictions, by agreement
or otherwise, and to stop-transfer orders directed in good faith by the corporation to any transfer
agent to prevent possible violations of federal or state securities laws, rules, or regulations, or
for any other lawful purpose, shares of stock of the corporation shall be transferable only on the
books of the corporation by the holders in person or by their duly authorized attorneys or legal
representatives on surrender of the certificates therefore properly endorsed and by registered
owners of uncertificated shares. Subject to the restrictions and provisions of the immediately
preceding sentence, upon surrender to the corporation or the transfer agent of the corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, and upon payment of all taxes as may be imposed by law, the
corporation or its transfer agent shall issue a new certificate (or provide for book-entry form for
such shares) to the person entitled thereto, cancel the old certificate, and record the transaction
upon its books.
SECTION 6.3.
Fixing Record Date
.
(a) 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, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than
sixty days nor less than ten days before the date of such meeting. If no record date is fixed by
the Board of Directors, the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day next preceding the
date on which notice is given, or, if notice is waived, at the close of business on the date next
preceding the day on which the meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of 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.
(b) In order that the corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the stockholders entitled to
receive any rights in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted, and which record date
shall be not more than sixty days prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating thereto.
SECTION 6.4.
Registered Stockholders
. The corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of any share or shares to
receive dividends, and to vote as such owner, and for all other purposes as such owner; and the
corporation shall not be bound to recognize any equitable or other claim to or interest in such
17
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 the State of Delaware.
SECTION 6.5.
Lost Certificates
. 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 legal representative, to advertise the same
in such manner as it shall require and give the corporation a bond with a surety or sureties
satisfactory to the corporation in such sum as it may direct as indemnity against any claim, or
expense resulting from a claim, that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen, or destroyed.
SECTION 6.6.
Regulations
. The Board of Directors may make such rules and regulations
as it may deem expedient, not inconsistent with the Bylaws, concerning the issuance, transfer and
registration of certificated or uncertificated shares of stock of the corporation. It may appoint,
or authorize any officer or officers to appoint, one or more transfer clerks or one or more
transfer agents and one or more registrars, and may require all certificates for stock to bear the
signature or signatures of any of them.
ARTICLE VII MISCELLANEOUS PROVISIONS
SECTION 7.1.
Method of Notice
. Whenever by statute, the Certificate of Incorporation,
or these Bylaws, notice is required to be given to any committee member, director, or stockholder
and no provision is made as to how such notice shall be given, personal notice shall not be
required and any such notice may be given (a) in writing, by mail, postage prepaid, addressed to
such committee member, director or stockholder at his address as it appears on the books or (in the
case of a stockholder) the stock transfer records of the corporation, or (b) by any other method
permitted by law (including but not limited to overnight courier service, telegram, telex or
telefax). Any notice required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as aforesaid. Any notice
required or permitted to be given by overnight courier service shall be deemed to be delivered and
given at the time delivered to such service with all charges prepaid and addressed as aforesaid.
Any notice required or permitted to be given by telegram, telex or telefax shall be deemed to be
delivered and given at the time transmitted with all charges prepaid and addressed as aforesaid.
SECTION 7.2.
Waiver of Notice
. Whenever any notice is required to be given to any
stockholder, director or committee member of the corporation by statute, the Certificate of
Incorporation, or these Bylaws, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice. Attendance of a stockholder, director, or committee member at a meeting
shall constitute a waiver of notice of such meeting, except where such person attends for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
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SECTION 7.3.
Dividends
. Subject to the provisions of the Certificate of Incorporation,
the Board of Directors may, out of funds legally available therefor at any regular or special
meeting, declare dividends upon the capital stock of the corporation as and when they deem
advisable. Before declaring any dividends there may be set apart out of any funds of the
corporation available for dividends, such sum or sums as the directors from time to time in their
discretion deem proper working capital or as a reserve fund to meet contingencies or for equalizing
dividends or for such other purposes as the directors shall deem conducive to the interests of the
corporation.
SECTION 7.4.
Seal
. The corporate seal shall be circular in form and shall contain the
name of the corporation, the year of its creation, and the words CORPORATE SEAL DELAWARE. Said
seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise
reproduced.
SECTION 7.5.
Fiscal Year
. The fiscal year of the corporation shall be determined by
resolution of the Board of Directors.
SECTION 7.6.
Securities of Other Corporations
. With the prior approval of a majority
of the corporations Board of Directors, the Chairman of the Board, the President, or any Vice
President, the corporation shall have the power and authority to transfer, endorse for transfer,
vote, consent, or take any other action with respect to any securities of another issuer which may
be held or owned by the corporation and to make, execute, and deliver any waiver, proxy or consent
with respect to any such securities.
SECTION 7.7.
Invalid Provisions
. If any part of these Bylaws shall be held invalid or
inoperative for any reason, the remaining parts, so far as it is possible and reasonable, shall
remain valid and operative.
SECTION 7.8.
Mortgages, etc
. With respect to any deed, deed of trust, mortgage or
other instrument executed by the corporation through its duly authorized officer or officers, the
attestation to such execution by the Secretary of the corporation shall not be necessary to
constitute such deed, deed of trust, mortgage or other instrument a valid and binding obligation
against the corporation unless the resolutions, if any, of the Board of Directors authorizing such
execution expressly state that such attestation is necessary.
SECTION 7.9.
Headings
. The headings used in these Bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in interpretation.
SECTION 7.10.
References
. Whenever herein the singular number is used, the same shall
include the plural where appropriate, and words of any gender should include each other gender
where appropriate.
ARTICLE VIII INDEMNIFICATION
SECTION 8.1.
Indemnification
.
(a) The corporation shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
19
whether civil, criminal, administrative or investigative (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 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 attorneys 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 good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe 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 good faith
and in a manner which he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that 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 attorneys 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
interests of the corporation and 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 to the
corporation unless and only to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
(c) To the extent that a present or former 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 subsections (a) and (b), or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in subsections (a)
and (b). Such determination shall be made, with respect to a person who is a director or officer at
the time of determination, (1) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum, or (3) if there are
no such directors, or if such directors so direct, by independent legal counsel in a written
opinion, or (4) by the stockholders.
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(e) Expenses (including attorneys fees) incurred by an officer or director in defending any
civil, criminal, administrative or investigative action, suit or proceeding may 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 the director or officer 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 VIII
. Such expenses (including attorneys fees) incurred by former
directors and officers or other employees or agents shall be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted pursuant to, the
other subsections of this
Article VIII
shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation, any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such persons official capacity and as to action in another
capacity while holding such office.
(g) The corporation shall have the power to 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
Article VIII
.
(h) For purposes of this
Article VIII
, references to the corporation shall include,
in addition to the resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this
Article
VIII
with respect to the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
(i) For purposes of this
Article VIII
, references to other enterprises shall include
employee benefit plans; references to fines shall include any excise taxes assessed on a person
with respect to any employee benefit plan; and references to serving at the request of the
corporation shall include any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in
good faith and in a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to
the best interests of the corporation as referred to in this
Article VIII
.
(j) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Article VIII
shall, unless otherwise provided when authorized or ratified,
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continue as to a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a person.
(k) A directors or officers right to indemnification and advancement of expenses vests at
the time such person becomes a director or officer of the corporation or begins serving at the
request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(l) Any repeal or amendment of this
Article VIII
shall be prospective only and shall
not limit the rights of any such director or officer or the obligations of the corporation with
respect to any claim arising from or related to the services of such director or officer prior to
any such repeal or amendment of this
Article VIII
.
ARTICLE IX AMENDMENTS
These Bylaws may be altered, amended or repealed or new bylaws may be adopted at any annual
meeting of the stockholders, or at any special meeting of the stockholders if notice thereof is
contained in the notice of such special meeting, by the affirmative vote of 75% of the stock issued
and outstanding and entitled to vote thereat, or by the affirmative vote of the Board of Directors
at any regular meeting of the Board of Directors, or at any special meeting of the Board of
Directors if notice thereof is contained in the notice of such special meeting.
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