UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): | October 25, 2012 |
WEX Inc.
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 001-32426 | 01-526993 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
97 Darling Avenue, South Portland, Maine | 04106 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | (207) 773-8171 |
Wright Express Corporation
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Effective October 25, 2012, Wright Express Corporation (the "Company") changed its name to WEX Inc. The name change did not require stockholder approval and was effected under Section 253 of the Delaware General Corporation Law by merging a wholly-owned Delaware subsidiary with and into the Company. The Company was the surviving corporation and, in connection with the merger, the Certificate of Incorporation of the Company was amended to change its name to WEX Inc. pursuant to the Certificate of Ownership and Merger filed with the Secretary of State of the State of Delaware. A copy of the Certificate of Ownership and Merger is attached hereto as Exhibit 3.1.
Effective October 25, 2012, the Board of Directors of the Company approved an amendment to and restatement of the Company’s amended and restated bylaws to reflect the name change. Except for the change in the Company’s name, there were no other changes to the Company’s Bylaws. A copy of the Company’s amended and restated bylaws is attached hereto as Exhibit 3.2.
The Company’s trading symbol, WXS, did not change. However, the Company’s common stock now trades under a new CUSIP number, 96208T 104.
Item 8.01 Other Events.
On October 25, 2012, the Company issued a news release entitled "Wright Express Changes Its Name to WEX Inc." A copy of the news release is furnished as exhibit 99.1 and is incorporated by reference in its entirety.
Item 9.01 Financial Statements and Exhibits.
3.1 Certificate of Ownership and Merger effective October 25, 2012
3.2 Amended and Restated Bylaws effective October 25, 2012
99.1 Press release of WEX Inc. dated October 25, 2012
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
WEX Inc. | ||||
October 30, 2012 | By: |
/s/ Steve Elder
|
||
|
||||
Name: Steve Elder | ||||
Title: Senior Vice President and Chief Financial Officer |
Exhibit Index
Exhibit No.
Description
Certificate of Ownership and Merger effective October 25, 2012
Amended and Restated Bylaws effective October 25, 2012
News release of WEX Inc. dated October 25, 2012
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
WEX TRANSITORY CORPORATION
(a Delaware corporation)
WITH AND INTO
WRIGHT EXPRESS CORPORATION
(a Delaware corporation)
Pursuant to Section 253 of the General Corporation Law of the State of Delaware, Wright Express Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the Corporation), does hereby certify to the following facts relating to the merger (the Merger) of WEX Transitory Corporation, a Delaware corporation (the Subsidiary), with and into the Corporation, with the Corporation remaining as the surviving corporation under the name of WEX Inc.:
FIRST : The Corporation was originally formed as an LLC under the name Wright Express LLC on the 18 th day of June, 1999. It filed a conversion and incorporation on the 16 th day of February, 2005 under the name Wright Express Corporation pursuant to the General Corporation Law of the State of Delaware.
SECOND : That the Corporation owns all of the issued and outstanding capital stock of WEX Transitory Corporation a corporation incorporated on the 15 th day of October, 2012 pursuant to the General Corporation Law of the State of Delaware.
THIRD : The Merger was approved pursuant to resolutions of the Board of Directors of the Corporation (the Board), attached hereto as Exhibit A , adopted by the Board on October 25, 2012.
FOURTH: The Corporation shall be the surviving corporation of the Merger.
FIFTH: The Certificate of Incorporation of the Corporation as in effect immediately prior to the effective time of the Merger shall be the certificate of incorporation of the surviving corporation, except that the name of the surviving corporation shall be WEX Inc.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Ownership and Merger to be signed by its authorized officer this 25 th day of October, 2012.
WRIGHT EXPRESS CORPORATION
By:
/s/ Hilary A. Rapkin
Name: Hilary A. Rapkin, Esq.
Title: Senior Vice President, General Counsel and Corporate Secretary
1
Exhibit A
Resolutions of the Board of Directors of Wright Express Corporation
Whereas the Board of Directors (the Board ) of Wright Express Corporation, a Delaware corporation (the Corporation ), has determined that it is advisable and in the best interest of the Corporation to change the name of the Corporation to WEX Inc. by merging its wholly owned subsidiary, WEX Transitory Corporation, a Delaware corporation (Merger Sub), with and into the Corporation (the Merger).
NOW, THEREFORE BE IT:
RESOLVED : That pursuant to Section 253 of the Delaware General Corporation Law (the DGCL), Merger Sub shall be merged with and into the Corporation, with the Corporation being the surviving corporation in the Merger (the Surviving Corporation). |
FURTHER
RESOLVED : That the Merger shall be effective upon the filing of a Certificate of Ownership and Merger with the Secretary of State of the State of Delaware (the Effective Time) and shall have the effects set forth in Section 259 of the DGCL. |
FURTHER |
RESOLVED : That pursuant to Section 253(b) of the DGCL, the name of the Surviving Corporation shall be changed to WEX Inc. |
FURTHER |
RESOLVED : That at the Effective Time, the certificate of incorporation of the Corporation, as in effect immediately prior to the Effective Time, shall be the certificate of incorporation of the Surviving Corporation, except that all references therein to the Corporation shall be deemed amended to refer to the name of the Surviving Corporation, until thereafter amended as provided therein and in accordance with the DGCL. |
FURTHER |
RESOLVED : That at the Effective Time, the by-laws of the Corporation, as in effect immediately prior to the Effective Time, shall be the by-laws of the Surviving Corporation, except that all references therein to the Corporation shall be deemed amended to refer to the name of the Surviving Corporation, until thereafter amended in accordance with the DGCL, the certificate of incorporation of the Surviving Corporation and such by-laws. |
FURTHER |
RESOLVED: That by virtue of the Merger and without any action on the part of the holder thereof, each then outstanding share of common stock of the Corporation shall remain unchanged and continue to remain outstanding as one share of common stock of the Corporation, held by the person who was the holder of such share of common stock of the Corporation immediately prior to the Merger. |
FURTHER |
RESOLVED : That by virtue of the Merger and without any action on the part of the holder thereof, each then outstanding share of common stock of the Merger Sub (all of which are owned by the Corporation) shall be cancelled and no consideration shall be issued in respect thereof. |
FURTHER |
RESOLVED : That the directors of the Corporation immediately prior to the Effective Time shall be the directors of the Surviving Corporation as of the Effective Time until their respective successors are duly elected and qualified, or their earlier death, resignation or removal, in accordance with the certificate of incorporation of the Surviving Corporation, the by-laws of the Surviving Corporation and the DGCL. |
FURTHER |
RESOLVED : That the officers of the Corporation immediately prior to the Effective Time shall be the officers of the Surviving Corporation as of the Effective Time until their respective successors are duly elected and qualified, or their earlier death, resignation or removal, in accordance with the certificate of incorporation of the Surviving Corporation, the by-laws of the Surviving Corporation and the DGCL. |
FURTHER |
RESOLVED : That the Chief Financial Officer, General Counsel, Treasurer and Secretary of the Corporation be, and each hereby is, authorized to execute and file or cause to be executed and filed such certificates, documents, instruments and agreements, and to perform any and all other acts as the officer so acting may, in such officers sole and absolute discretion, deem necessary or desirable to consummate the Merger. |
FURTHER |
RESOLVED: That the officers of the Surviving Corporation be, and each hereby is, authorized to execute and deliver such documents, agreements and instruments, and to perform any and all other acts as the officer so acting may, in such officers sole and absolute discretion, deem necessary or desirable to reflect the change in name of the Corporation resulting from the Merger. |
2
AMENDED AND RESTATED
BY-LAWS
OF
WEX INC.
A Delaware Corporation
Amended and Restated October 25, 2012
1
TABLE OF CONTENTS
2
AMENDED AND RESTATED
BY-LAWS
OF
WEX INC.
(hereinafter called the
Corporation
)
ARTICLE I
OFFICES
Section 1.
Registered Office
. The registered office of the Corporation shall be in the City
of Wilmington, County of New Castle, State of Delaware.
Section 2.
Other Offices
. The Corporation may also have offices at such other places, both
within and without the State of Delaware, as the board of directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.
Place of Meetings
. Meetings of the stockholders for the election of directors or
for any other purpose shall be held at such time and place, either within or without the State of
Delaware, as shall be designated from time to time by the board of directors.
Section 2.
Annual Meetings
. The annual meeting of stockholders for the election of
directors shall be held on such date and at such time as shall be designated from time to time by
the board of directors. Any other proper business may be transacted at the annual meeting of
stockholders.
Section 3.
Special Meetings
. Unless otherwise required by law, special meetings of
stockholders, for any purpose or purposes, may be called by (i) the Non-Executive Chairman of the
board of directors or the Chairman of the board of directors, if there be one, (ii) the President
or (iii) the board of directors. The ability of the stockholders to call a special meeting of
stockholders is hereby specifically denied.
Section 4.
Nature of Business at Meetings of Stockholders
. No business shall be conducted
at a special meeting of stockholders except for such business as shall have been brought before the
meeting pursuant to the Corporations notice of meeting.
In addition to any other applicable requirements, for business to be properly brought before an
annual meeting by a stockholder, the business must constitute a proper matter under Delaware law
for stockholder action and such stockholder must have given timely notice thereof in proper written
form to the Secretary of the Corporation.
To be timely, a stockholders notice to the Secretary must be delivered to or mailed and received
at the principal executive offices of the Corporation not less than ninety (90) days nor more than
one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual
meeting of stockholders;
provided
,
however
, that in the event that the annual
meeting is called for a date that is not within twenty-five (25) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so received not earlier
than one hundred twenty (120) days prior to the annual meeting and not later than the close of
business on the later of (A) the ninetieth (90th) day prior to the annual meeting and (B) the tenth
(10th) day following the day on which notice of the date of the annual meeting was mailed or public
disclosure of the date of the annual meeting was made, whichever first occurs. In no event shall
the adjournment or postponement of an annual meeting (or the public announcement thereof) commence
a new time period (or extend any time period) for the giving of a stockholders notice.
To be in proper written form, a stockholders notice to the Secretary must set forth: (A) as to
each matter the stockholder proposes to bring before the annual meeting (1) a brief description of
the business desired to be brought before the annual meeting, (2) the text of the proposal
(including the exact text of any resolutions proposed for consideration and, in the event that such
business includes a proposal to amend the By-laws, the exact text of the proposed amendment), and
(3) the reasons for conducting such business at the annual meeting, and (B) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the proposal is being made (1)
the name and address of such stockholder, as they appear on the Corporations books, and of such
beneficial owner, (2) the class and series and number of shares of stock of the Corporation that
are, directly or indirectly, owned, beneficially or of record, by such stockholder and such
beneficial owner, (3) a description of any material interest of such stockholder or such beneficial
owner and the respective affiliates and associates of, or others acting in concert with, such
stockholder or such beneficial owner in such business, (4) a description of any agreement,
arrangement or understanding between such stockholder and/or such beneficial owner and any other
person or persons (including their names) in connection with the proposal of such business or who
may participate in the solicitation of proxies in favor of such proposal, (5) a description of any
agreement, arrangement or understanding (including any derivative or short positions, swaps, profit
interests, options, warrants, stock appreciation or similar rights, hedging transactions, and
borrowed or loaned shares) that has been entered into by, or on behalf of, such stockholder or such
beneficial owner, the effect or intent of which is to mitigate loss to, manage risk or benefit of
share price changes for, or increase or decrease the voting power of, such stockholder or such
beneficial owner with respect to shares of stock of the Corporation, (6) any other information
relating to such stockholder and such beneficial owner 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 the business proposed pursuant to Section 14 of the Securities Exchange Act of 1934, as amended
(the Exchange Act) (or in any law or statute replacing such section), and the rules and
regulations promulgated thereunder, (7) a representation that such stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such business before the
meeting and (8) a representation whether such stockholder and/or such beneficial owner intends or
is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the Corporations outstanding capital stock required to approve or
adopt the proposal (and such representation shall be included in any such proxy statement and form
of proxy) and/or (y) otherwise to solicit proxies from stockholders in support of such proposal
(and such representation shall be included in any such solicitation materials). Not later than 10
days after the record date for the meeting, the information required by Items (A)(3) and (B)(1)-(6)
of the prior sentence shall be supplemented by the stockholder giving the notice to provide updated
information as of the record date.
In addition, notwithstanding anything in this
Section 4
to the contrary, a stockholder
intending to nominate one or more persons for election as a director at an annual or special
meeting of stockholders must comply with
Article II
,
Section 5
of these By-Laws for
such nominations to be properly brought before such meeting.
No business shall be conducted at the annual meeting of stockholders except business brought before
the annual meeting in accordance with the procedures set forth in this
Section 4
; provided
that any stockholder proposal which complies with Rule 14a-8 of the proxy rules promulgated under
the Exchange Act (or any successor provision) and is to be included in the Corporations proxy
statement for an annual meeting of stockholders shall be deemed to comply with the notice
requirements of this
Section 4
. A stockholder shall not have complied with this
Section 4
if the stockholder (or beneficial owner, if any, on whose behalf the proposal is
made) solicits or does not solicit, as the case may be, proxies in support of such stockholders
proposal in contravention of the representations with respect thereto required by this
Section
4
. The chairman of any annual meeting shall have the power and duty to determine whether
business was properly brought before the annual meeting in accordance with the provisions of this
Section 4
(including whether the stockholder or beneficial owner, if any, on whose behalf
the proposal is made solicited (or is part of a group which solicited) or did not so solicit, as
the case may be, proxies in support of such stockholders proposal in compliance with the
representation with respect thereto required by this
Section 4
), and if the chairman of an
annual meeting determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall not be transacted.
Except as otherwise required by law, nothing in this
Section 4
shall obligate the
Corporation or the board of directors to include in any proxy statement or other stockholder
communication distributed on behalf of the Corporation or the board of directors information with
respect to any proposal submitted by a stockholder.
Notwithstanding the foregoing provisions of this
Section 4
, if the stockholder (or a
qualified representative of the stockholder) does not appear at the annual meeting to present
business, such business shall not be considered, notwithstanding that proxies in respect of such
business may have been received by the Corporation. For purposes of this
Section 4
and
Article II,
Section 5
of these By-Laws, to be considered a qualified
representative of the stockholder, a person must be authorized by a written instrument executed by
such stockholder or an electronic transmission delivered by such stockholder to act for such
stockholder as proxy at the meeting of stockholders and such person must produce such written
instrument or electronic transmission, or a reliable reproduction of the written instrument or
electronic transmission, at the meeting of stockholders.
For purposes of this
Section 4
and
Article II,
Section 5
of these By-Laws,
public disclosure shall include disclosure in a press release reported by the Dow Jones New
Service, Associated Press or comparable 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 (or in any law or statute replacing such sections).
Section 5.
Nomination of Directors
. Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the Corporation, except as may
be otherwise provided in the certificate of incorporation of the Corporation, as amended and
restated from time to time (the
Certificate of Incorporation
), with respect to the right
of holders of preferred stock of the Corporation to elect directors under specified circumstances
and except for directors elected in accordance with
Article III,
Section 2
by the
board of directors to fill vacancies. Nominations of persons for election to the board of directors
may be made at any annual meeting of stockholders, or at any special meeting of stockholders called
for the purpose of electing directors, (a) by or at the direction of the board of directors (or any
duly authorized committee thereof) or (b) by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in this
Section
5
and on the record date for the determination of stockholders entitled to vote at such
meeting, (ii) who is entitled to vote at such meeting and (iii) who complies with the notice
procedures set forth in this
Section 5
.
In addition to any other applicable requirements, for a nomination to be made by a stockholder,
such stockholder must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholders notice to the Secretary must be delivered to or mailed and received
at the principal executive offices of the Corporation (a) in the case of an annual meeting, not
less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary
date of the immediately preceding annual meeting of stockholders;
provided
,
however
, that in the event that the annual meeting is called for a date that is not within
twenty-five (25) days before or after such anniversary date, notice by the stockholder in order to
be timely must be so received not earlier than one hundred twenty (120) days prior to the annual
meeting and not later than the close of business on the later of (A) the ninetieth (90th) day prior
to the annual meeting and (B) the tenth (10th) day following the day on which notice of the date of
the annual meeting was mailed or public disclosure of the date of the annual meeting was made,
whichever first occurs; and (b) in the case of a special meeting of stockholders called for the
purpose of electing directors, not earlier than one hundred twenty (120) days prior to the special
meeting and not later than the close of business on the later of (x) the ninetieth (90th) day prior
to the special meeting and (y) the tenth (10th) day following the day on which notice of the date
of the special meeting was mailed or public disclosure of the date of the special meeting was made,
whichever first occurs. In no event shall the adjournment or postponement of a meeting (or the
public announcement thereof) commence a new time period (or extend any time period) for the giving
of a stockholders notice.
To be in proper written form, a stockholders notice to the Secretary must set forth: (A) as to
each proposed nominee (1) such persons name, age, business address and residence address, (2) such
persons principal occupation or employment, (3) the class and series and number of shares of stock
of the Corporation that are, directly or indirectly, owned, beneficially or of record, by such
person, (4) 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 (x) the stockholder, the beneficial owner, if any, on whose behalf
the nomination is being made and the respective affiliates and associates of, or others acting in
concert with, such stockholder and such beneficial owner, on the one hand, and (y) each proposed
nominee, and his or her respective affiliates and associates, or others acting in concert with such
nominee(s), on the other hand, including all information that would be required to be disclosed
pursuant to Item 404 of Regulation S-K if the stockholder making the nomination and any beneficial
owner on whose behalf the nomination is made or any affiliate or associate thereof or person acting
in concert therewith were the registrant for purposes of such Item and the proposed nominee were
a director or executive officer of such registrant, and (5) any other information concerning such
person that must be disclosed as to nominees in proxy solicitations pursuant to Regulation 14A
under the Exchange Act (or any successor provision); and (B) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination is being made (1) the name
and address of such stockholder, as they appear on the Corporations books, and of such beneficial
owner, (2) the class and series and number of shares of stock of the Corporation that are, directly
or indirectly, owned, beneficially and of record, by such stockholder and such beneficial owner,
(3) a description of any agreement, arrangement or understanding between such stockholder and/or
such beneficial owner and each proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are being made or who may participate in the
solicitation of proxies in favor of electing such nominee(s), (4) a description of any agreement,
arrangement or understanding (including any derivative or short positions, swaps, profit interests,
options, warrants, stock appreciation or similar rights, hedging transactions, and borrowed or
loaned shares) that has been entered into by, or on behalf of, such stockholder or such beneficial
owner, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price
changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner
with respect to shares of stock of the Corporation, (5) any other information relating to such
stockholder and such beneficial owner 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 the election
of directors in a contested election pursuant to Section 14 of the Exchange Act (or in any law or
statute replacing such section) and the rules and regulations promulgated thereunder, (6) a
representation that such stockholder is a holder of record of stock of the Corporation entitled to
vote at such meeting and that such stockholder intends to appear in person or by proxy at the
meeting to nominate the person(s) named in its notice and (7) a representation whether such
stockholder and/or such beneficial owner intends or is part of a group which intends (x) to deliver
a proxy statement and/or form of proxy to holders of at least the percentage of the Corporations
outstanding capital stock reasonably believed by such stockholder or such beneficial owner to be
sufficient to elect the nominee (and such representation shall be included in any such proxy
statement and form of proxy) and/or (y) otherwise to solicit proxies from stockholders in support
of such nomination (and such representation shall be included in any such solicitation materials).
Not later than 10 days after the record date for the meeting, the information required by Items
(A)(1)-(5) and (B)(1)-(5) of the prior sentence shall be supplemented by the stockholder giving the
notice to provide updated information as of the record date. In addition, to be effective, the
stockholders notice must be accompanied by the written consent of the proposed nominee to serve as
a director if elected. The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required to determine the eligibility of such proposed nominee to
serve as a director of the Corporation or whether such nominee would be independent under
applicable Securities and Exchange Commission and stock exchange rules and the Corporations
publicly disclosed corporate governance guidelines.
No person shall be eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this
Section 5
. A stockholder shall not have
complied with this
Section 5
if the stockholder (or beneficial owner, if any, on whose
behalf the nomination is made) solicits or does not solicit, as the case may be, proxies in support
of such stockholders nominee in contravention of the representations with respect thereto required
by this
Section 5
. The chairman of any meeting shall have the power and duty to determine
whether a nomination was made in accordance with the provisions of this
Section 5
(including whether the stockholder or beneficial owner, if any, on whose behalf the nomination is
made solicited (or is part of a group which solicited) or did not so solicit, as the case may be,
proxies in support of such stockholders nominee in compliance with the representations with
respect thereto required by this
Section 5
), and if the chairman of the meeting determines
that a nomination was not made in accordance with the foregoing procedures, the chairman shall
declare to the meeting that the nomination was defective and such defective nomination shall be
disregarded.
Except as otherwise required by law, nothing in this
Section 5
shall obligate the
Corporation or the board of directors to include in any proxy statement or other stockholder
communication distributed on behalf of the Corporation or the board of directors information with
respect to any nominee for director submitted by a stockholder.
Notwithstanding the foregoing provisions of this
Section 5
, if the stockholder (or a
qualified representative of the stockholder) does not appear at the meeting to present a
nomination, such nomination shall not be brought before the meeting, notwithstanding that proxies
in respect of such nominee may have been received by the Corporation.
For purposes of this
Section
5, the terms qualified representative of the stockholder and
public disclosure shall have the same meaning as in
Article II
,
Section 4
.
Section 6.
Notice
. Whenever stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall state the place, date and hour
of the meeting, and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise required by law, written notice of any meeting shall be given
not less than ten (10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to notice of and to vote at such meeting.
Section 7.
Adjournments
. Any meeting of the stockholders may be adjourned from time to time
to reconvene at the same or some other place, and notice need not be given of any such adjourned
meeting if the time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned
meeting in accordance with the requirements of
Section 6
hereof shall be given to each
stockholder of record entitled to notice of and to vote at the meeting.
Section 8.
Quorum
. Unless otherwise required by applicable law or the Certificate of
Incorporation, the holders of one-third of the Corporations capital stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction of business. A quorum, once established,
shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however,
such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, in the manner provided in
Section 7
hereof, until
a quorum shall be present or represented.
Section 9.
Voting
. Unless otherwise required by law, the Certificate of Incorporation or
these By-Laws, any question brought before any meeting of the stockholders, other than the election
of directors, shall be decided by the vote of the holders of a majority of the total number of
votes of the Corporations capital stock represented and entitled to vote thereat, voting as a
single class. Unless otherwise provided in the Certificate of Incorporation, and subject to
Article II
,
Section 12
, each stockholder represented at a meeting of the
stockholders shall be entitled to cast one (1) vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy as provided in
Article
,
Section 10
. The board of directors, in its discretion, or the chairman of
the meeting of the stockholders, in such officers discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 10.
Proxies
. Each stockholder entitled to vote at a meeting of the stockholders may
authorize another person or persons to act for such stockholder as proxy, but no such proxy shall
be voted upon after three years from its date, unless such proxy provides for a longer period.
Without limiting the manner in which a stockholder may authorize another person or persons to act
for such stockholder as proxy, the following shall constitute a valid means by which a stockholder
may grant such authority:
(i) A stockholder may execute a writing authorizing another person or persons to act for such
stockholder as proxy. Execution may be accomplished by the stockholder or such stockholders
authorized officer, director, employee or agent signing such writing or causing such persons
signature to be affixed to such writing by any reasonable means, including, but not limited to, by
facsimile signature.
(ii) A stockholder may authorize another person or persons to act for such stockholder as proxy by
transmitting or authorizing the transmission of a telegram or cablegram 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 telegram or
cablegram, provided that any such telegram or cablegram must either set forth or be submitted with
information from which it can be determined that the telegram or cablegram was authorized by the
stockholder. If it is determined that such telegrams or cablegrams are valid, the inspectors or, if
there are no inspectors, such other persons making that determination shall specify the information
on which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the writing, telegram or
cablegram authorizing another person or persons to act as proxy for a stockholder may be
substituted or used in lieu of the original writing, telegram or cablegram for any and all purposes
for which the original writing, telegram or cablegram could be used;
provided
,
however
, that such copy, facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing, telegram or cablegram.
Section 11.
List of Stockholders Entitled to Vote
. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of the stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting (i) 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 or (ii) during ordinary business hours,
at the principal place of business of the Corporation. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 12.
Record Date
. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, the
board of directors may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the board of directors, and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If
no record date is fixed by the board of directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of the stockholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall
apply to any adjournment of the meeting; provided, however, that the board of directors may fix a
new record date for the adjourned meeting.
Section 13.
Stock Ledger
. The stock ledger of the Corporation shall be the only evidence as
to who are the stockholders entitled to examine the stock ledger, the list required by
Article
II
,
Section 11
or the books of the Corporation, or to vote in person or by proxy at any
meeting of the stockholders.
Section 14.
Conduct of Meetings
. The board of directors of the Corporation may adopt by
resolution such rules and regulations for the conduct of any meeting of the stockholders as it
shall deem appropriate. Unless otherwise proscribed by the board of directors, the Chairman of the
board of directors shall preside at any stockholder meetings. Except to the extent inconsistent
with such rules and regulations as adopted by the board of directors, the chairman of any meeting
of the stockholders shall have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the board
of directors or prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the meeting; (ii) the
determination of when the polls shall open and close for any given matter to be voted on at the
meeting; (iii) rules and procedures for maintaining order at the meeting and the safety of those
present; (iv) limitations on attendance at or participation in the meeting to stockholders of
record of the Corporation, their duly authorized and constituted proxies or such other persons as
the chairman of the meeting shall determine; (v) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or
comments by participants.
Section 15.
Inspectors of Election
. In advance of any meeting of the stockholders, the
board of directors, by resolution, the Chairman, the Vice Chairman or the President shall appoint
one or more inspectors to act at the meeting and make a written report thereof. One or more other
persons may be designated as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of the stockholders, the chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Unless otherwise required by applicable
law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before
entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the best of such
inspectors ability. The inspector shall have the duties prescribed by law and shall take charge of
the polls and, when the vote is completed, shall make a certificate of the result of the vote taken
and of such other facts as may be required by applicable law.
ARTICLE III
DIRECTORS
Section 1.
Number and Election of Directors
. The board of directors shall consist of such
number of directors as from time to time is fixed exclusively by resolution of the board of
directors. The directors shall be divided into three classes, designated Class I, Class II and
Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number
of directors constituting the entire board of directors. The initial division of the board of
directors into classes shall be made by the decision of the affirmative vote of a majority of the
entire board of directors. The term of the initial Class I directors shall terminate on the date of
the 2006 annual meeting; the term of the initial Class II directors shall terminate on the date of
the 2007 annual meeting; and the term of the initial Class III directors shall terminate on the
date of the 2008 annual meeting. At each succeeding annual meeting of stockholders beginning in
2006, successors to the class of directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. Except as provided in
Article III
,
Section 2
,
directors shall be elected by a plurality of the votes cast at each annual meeting of stockholders
and each director so elected shall hold office until such directors term expires and until such
directors successor is duly elected and qualified, or until such directors earlier death,
resignation or removal. Directors need not be stockholders.
A director shall hold office until the annual meeting for the year in which his or her term expires
and until his or her successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office.
Section 2.
Vacancies
. Any vacancy on the board of directors that results from an increase
in the number of directors shall be filled by a majority of the board of directors then in office,
provided that a quorum is present, and any other vacancy occurring on the board of directors shall
be filled by a majority of the board of directors then in office, even if less than a quorum, or by
a sole remaining director. Any director of any class elected to fill a vacancy resulting from an
increase in the number of directors of such class shall hold office for a term that shall coincide
with the remaining term of that class. Any director elected to fill a vacancy not resulting from an
increase in the number of directors shall have the same remaining term as that of his or her
predecessor.
Section 3.
Duties and Powers
. The business and affairs of the Corporation shall be managed
by or under the direction of the board of directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws required to be exercised or done by the stockholders.
Section 4.
Meetings
. The board of directors may hold meetings, both regular and special,
either within or without the State of Delaware. Regular meetings of the board of directors may be
held without notice at such time and at such place as may from time to time be determined by the
board of directors. Special meetings of the board of directors may be called by (i) the Chairman of
the board of directors, if there be one, (ii) the Vice Chairman of the board of directors, if there
be one (iii) the President or (iv) the board of directors. Notice thereof stating the place, date
and hour of the meeting shall be given to each director either by mail not less than forty-eight
(48) hours before the date of the meeting, by electronic transmission, telephone or telegram on
twenty-four (24) hours notice, or on such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate in the circumstances.
Section 5.
Organization
. At each meeting of the board of directors, the Chairman of the
board of directors, or, in his or her absence, the Vice Chairman of the board of directors, or, in
his or her absence, a director chosen by a majority of the directors present, shall act as
chairman. The Secretary of the Corporation shall act as secretary at each meeting of the board of
directors. In case the Secretary shall be absent from any meeting of the board of directors, an
Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from
any such meeting of the Secretary and all the Assistant Secretaries, the chairman of the meeting
may appoint any person to act as secretary of the meeting.
Section 6.
Resignations and Removals of Directors
. Any director of the Corporation may
resign at any time, by giving notice in writing to the Chairman of the board of directors, the Vice
Chairman of the board of directors, the President or the Secretary of the Corporation. Such
resignation shall take effect at the time therein specified or, if no time is specified,
immediately; and, unless otherwise specified in such notice, the acceptance of such resignation
shall not be necessary to make it effective. Except as otherwise required by applicable law and
subject to the rights, if any, of the holders of shares of preferred stock then outstanding, any
director or the entire board of directors may be removed from office at any time, but only for
cause, and only by the affirmative vote of the holders of at least 60% of the voting power of the
shares entitled to vote at an election of directors. Notwithstanding the foregoing, whenever the
holders of any one or more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies, and other features of
such directors shall be governed by the terms of the Certificate of Incorporation , applicable
thereto, and such directors so elected shall not be divided into classes pursuant to this
Article III
unless expressly provided by such terms.
Section 7.
Quorum
Except as otherwise required by law or the Certificate of Incorporation,
at all meetings of the board of directors, a majority of the entire board of directors shall
constitute a quorum for the transaction of business and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the board of directors. If a
quorum shall not be present at any meeting of the board of directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting of
the time and place of the adjourned meeting, until a quorum shall be present.
Section 8.
Actions of the Board by Written Consent
. Unless otherwise provided in the
Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any
meeting of the board of directors or of any committee thereof may be taken without a meeting, if
all the members of the board of directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the board of
directors or committee.
Section 9.
Meetings by Means of Conference Telephone
. Unless otherwise provided in the
Certificate of Incorporation or these By-Laws, members of the board of directors of the
Corporation, or any committee thereof, may participate in a meeting of the board of directors or
such committee by means of a conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this
Section 9
shall constitute presence in person at such meeting.
Section 10.
Committees
. The board of directors may designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The board of directors may
designate one or more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of any such committee. In the absence or disqualification of
a member of a committee, and in the absence of a designation by the board of directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the board of directors to act at the
meeting in the place of any absent or disqualified member. Any committee, to the extent permitted
by law and provided in the resolution establishing such committee, shall have and may exercise all
the powers and authority of the board of directors in the management of the business and affairs of
the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which
may require it. Each committee shall keep regular minutes and report to the board of directors when
required.
Section 11.
Chairman of the Board
. The board of directors, by resolution or resolutions
passed by a majority of the board, shall designate a director to the position of Chairman with such
duties as shall be given such person as hereinafter provided or as may otherwise be specifically
given such person by the board of directors. The Chairman may resign as Chairman at any time by
giving written notice of such persons resignation to the board of directors. Any such resignation
shall take effect at the time specified therein or, if the time when it shall become effective
shall not be specified therein, when accepted by the board of directors. Except as aforesaid, the
acceptance of such resignation shall not be necessary to make it effective. The Chairman of the
board of directors shall continue as such only as long as such person remains a director and may be
removed as Chairman at any time, with or without cause, by a majority of the board of directors.
The Chairman will lead all meetings of the board of directors at which he or she is present. The
Chairman will serve on appropriate committees as reasonably requested by the board of directors,
set meeting schedules and agendas, manage information flow to the board of directors to assure
appropriate understanding and discussion regarding matters of interest or concern to the board of
directors. The Chairman will also have such additional powers and perform such additional duties
consistent with organizing and leading the actions of the board of directors as the board of
directors may from time to time prescribe. If the Chairman ceases to serve in such capacity, then
the board of directors shall elect, by the affirmative vote of a majority of the total number of
directors then in office, a successor Chairman.
Section 12.
Vice Chairman
. The board of directors, by resolution or resolutions passed by a
majority of the board, may designate a director to the position of Vice Chairman with such duties
as shall be given such person as hereinafter provided or as may otherwise be specifically given
such person by the board of directors. The Vice Chairman may resign as Vice Chairman at any time by
giving written notice of such persons resignation to the board of directors. Any such resignation
shall take effect at the time specified therein or, if the time when it shall become effective
shall not be specified therein, when accepted by the board of directors. Except as aforesaid, the
acceptance of such resignation shall not be necessary to make it effective. The Vice Chairman of
the board of directors shall continue as such only as long as such person remains a director and
may be removed as Vice Chairman at any time, with or without cause, by a majority of the board of
directors.
The Vice Chairman will serve on appropriate committees as reasonably requested by the board of
directors, and, in the absence of the Chairman, set meeting schedules and agendas, manage
information flow to the board of directors to assure appropriate understanding and discussion
regarding matters of interest or concern to the board of directors. If the Vice Chairman ceases to
serve in such capacity, then the board of directors may elect, by the affirmative vote of a
majority of the total number of directors then in office, a successor Vice Chairman. If the
Chairman is not present at a meeting of the stockholders or the board of directors, the Vice
Chairman shall preside at such meeting.
Section 13.
Compensation
. The directors may be paid their expenses, if any, of attendance
at each meeting of the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary for service as director, Chairman of the board
of directors, Vice Chairman of the board, or chairman of a committee of the board of directors,
payable in cash or securities. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for service as committee members.
Section 14.
Interested Directors
. No contract or transaction between the Corporation and
one or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its directors or officers
are directors or officers or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the board of directors or committee thereof which authorizes the contract or transaction, or solely
because any such directors or officers vote is counted for such purpose if: (i) the material
facts as to the directors or officers relationship or interest and as to the contract or
transaction are disclosed or are known to the board of directors or the committee, and the board of
directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to the directors or officers relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith by
vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the board of directors, a committee thereof or
the stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the board of directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1.
General
. The officers of the Corporation shall be chosen by the board of
directors and shall be a President, a Chief Financial Officer, a Secretary and a Treasurer. The
board of directors, in its discretion, also may choose one or more Executive Vice Presidents, Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices
may be held by the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these By-Laws. The officers of the Corporation need not be stockholders of the
Corporation nor need such officers be directors of the Corporation.
Section 2.
Election
. The board of directors, at its first meeting held after each annual
meeting of stockholders, shall elect the officers of the Corporation who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall be determined from
time to time by the board of directors; and each officer of the Corporation shall hold office until
such officers successor is elected and qualified, or until such officers earlier death,
resignation or removal. Any officer elected by the board of directors may be removed at any time by
the board of directors. Any vacancy occurring in any office of the Corporation shall be filled by
the board of directors. The salaries of all officers of the Corporation shall be fixed by the board
of directors.
Section 3.
Voting Securities Owned by the Corporation
. Powers of attorney, proxies, waivers
of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President, any
Executive Vice President, any Vice President or any other officer authorized to do so by the board
of directors and any such officer may, in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and power incident to the ownership of
such securities and which, as the owner thereof, the Corporation might have exercised and possessed
if present. The board of directors may, by resolution, from time to time confer like powers upon
any other person or persons.
Section 4.
President
. The President shall, subject to the direction of the board of
directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the board of directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these By-Laws, the board of directors or the President. Unless the board of
directors shall otherwise designate, the President shall be the Chief Executive Officer of the
Corporation. The President shall also perform such other duties and may exercise such other powers
as may from time to time be assigned to such officer by these By-Laws or by the board of directors.
Section 5.
Chief Financial Officer
. The Chief Financial Officer shall have the
responsibility for the financial affairs of the Corporation and shall exercise supervisory
responsibility for the performance of the duties of the Treasurer and the controller, if any, of
the Corporation. The Chief Financial Officer shall also perform such other duties and may exercise
such other powers as may from time to time be assigned to such officer by these By-Laws or by the
board of directors, all in accordance with the basic policies established by and subject to the
oversight of the board of directors.
Section 6.
Executive Vice Presidents and Vice Presidents
. At the request of the President
or in the Presidents absence or in the event of the Presidents inability or refusal to act, the
Executive Vice Presidents or Vice Presidents (in the order designated by the board of directors),
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Executive Vice President or Vice President
shall perform such other duties and have such other powers as the board of directors from time to
time may prescribe. If there be no Executive Vice President or Vice President, the board of
directors shall designate the officer of the Corporation who, in the absence of the President or in
the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7.
Secretary
. The Secretary shall attend all meetings of the board of directors and
all meetings of the stockholders and record all the proceedings thereat in a book or books to be
kept for that purpose; the Secretary shall also perform like duties for committees of the board of
directors when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall perform such other
duties as may be prescribed by the board of directors under whose supervision the Secretary shall
be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of
the stockholders and special meetings of the board of directors, and if there be no Assistant
Secretary, then either the board of directors, the Chairman of the board, the Vice Chairman of the
board or the President may choose another officer to cause such notice to be given. The Secretary
shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if
there be one, shall have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The board of directors may give general authority to any other officer to
affix the seal of the Corporation and to attest to the affixing by such officers signature. The
Secretary shall see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the case may be.
Section 8.
Treasurer
. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the board of
directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the board
of directors, taking proper vouchers for such disbursements, and shall render to the President, the
Chairman of the board, the Vice Chairman of the board and the board of directors, at its regular
meetings, or when the board of directors so requires, an account of all transactions as Treasurer
and of the financial condition of the Corporation. If required by the board of directors, the
Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall
be satisfactory to the board of directors for the faithful performance of the duties of the office
of the Treasurer and for the restoration to the Corporation, in case of the Treasurers death,
resignation, retirement or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in the Treasurers possession or under the Treasurers control belonging
to the Corporation.
Section 9.
Assistant Secretaries
. Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by the board of
directors or the Secretary, and in the absence of the Secretary or in the event of the Secretarys
inability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
Section 10.
Assistant Treasurers
. Assistant Treasurers, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the board of directors,
the President, any Executive Vice President, if there be one, any Vice President, if there be one,
or the Treasurer, and in the absence of the Treasurer or in the event of the Treasurers inability
or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Treasurer. If required by the board
of directors, the Chairman of the Board, the Vice Chairman of the board, an Assistant Treasurer
shall give the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the duties of the office of
Assistant Treasurer and for the restoration to the Corporation, in case of the Assistant
Treasurers death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in the Assistant Treasurers possession or under the
Assistant Treasurers control belonging to the Corporation.
Section 11.
Other Officers
. Such other officers as the board of directors may choose shall
perform such duties and have such powers as from time to time may be assigned to them by the board
of directors. The board of directors may delegate to any other officer of the Corporation the power
to choose such other Executive Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant
Treasurers and other officers.
ARTICLE V
STOCK
Section 1.
Stock Certificates; Uncertificated Shares
. The shares of the Corporation shall
be represented by certificates, provided that the board of directors may provide by resolution or
resolutions that some or all of any or all classes or series of the Corporations stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation. Every holder of stock in the Corporation
represented by certificates shall be entitled to have a certificate signed by, or in the name of
the Corporation (i) by the Chairman of the board of directors, the Vice Chairman of the board of
directors, or the President or an Executive Vice President or Vice President and (ii) by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such stockholder in the Corporation that are registered in
certificate form.
Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation
shall send to the registered owner thereof a written notice containing the information required to
be set forth or stated on certificates pursuant to the General Corporation Law of the State of
Delaware.
Section 2.
Signatures
. Any or all of the signatures on a certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
Section 3.
Lost Certificates
. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the board of directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owners
legal representative, to advertise the same in such manner as the board of directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation on account of the alleged loss, theft or destruction of
such certificate or the issuance of such new certificate.
Section 4.
Transfers
. Stock of the Corporation shall be transferable in the manner
prescribed by applicable law and in these By-Laws. Transfers of stock shall be made only on the
books of the Corporation or by transfer agents designated to transfer shares of stock of the
Corporation. Subject to applicable law, shares of stock represented by certificates shall be
transferred only on the books of the Corporation only by the person named in the certificate or by
such persons attorney lawfully constituted in writing and upon the surrender of the certificate
therefor, properly endorsed for transfer and payment of all necessary transfer taxes; provided,
however, that such surrender and endorsement or payment of taxes shall not be required in any case
in which the officers of the Corporation shall determine to waive such requirement. Every
certificate exchanged, returned or surrendered to the Corporation shall be marked Cancelled, with
the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the
transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any
purpose until it shall have been entered in the stock records of the Corporation.
Section 5.
Dividend Record Date
. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the board of directors adopts the
resolution relating thereto.
Section 6.
Record Owners
. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise required by law.
Section 7.
Transfer and Registry Agents
. The Corporation may from time to time maintain one
or more transfer offices or agencies and registry offices or agencies at such place or places as
may be determined from time to time by the board of directors.
Section 8.
Regulations
. The issue, transfer, conversion and registration of shares of
stock of the Corporation shall be governed by such other regulations as the board of directors may
establish.
ARTICLE VI
NOTICES
Section 1.
Notices
. Whenever written notice is required by law, the Certificate of
Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder,
such notice may be given by mail, addressed to such director, member of a committee or stockholder,
at such persons address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited
in the United States mail. Written notice may also be given personally or by telegram, telex or
cable. Notwithstanding the foregoing, notices to members of the board of directors regarding
meetings may be given in accordance with
Article III,
Section 4
.
Section 2.
Waivers of Notice
. Whenever any notice is required by applicable law, the
Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee
or stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of
a person at a meeting, present in person or represented by proxy, shall constitute a waiver of
notice of such meeting, except where the person attends the meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any
annual or special meeting of stockholders or any regular or special meeting of the directors or
members of a committee of directors need be specified in any written waiver of notice unless so
required by law, the Certificate of Incorporation or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1.
Dividends
. Dividends upon the capital stock of the Corporation, subject to the
requirements of the General Corporation Law of the State of Delaware (the
DGCL
) and the
provisions of the Certificate of Incorporation, if any, may be declared by the board of directors
at any regular or special meeting of the board of directors (or any action by written consent in
lieu thereof in accordance with
Article II
,
Section 8
), and may be paid in cash, in
property, or in shares of the Corporations capital stock. Before payment of any dividend, there
may be set aside out of any funds of the Corporation available for dividends such sum or sums as
the board of directors from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants,
rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness
of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for any proper purpose, and the board of directors may modify or abolish any
such reserve.
Section 2.
Disbursements
. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as the board of
directors may from time to time designate.
Section 3.
Fiscal Year
. The fiscal year of the Corporation shall be fixed by resolution of
the board of directors.
Section 4.
Corporate Seal
. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words Corporate Seal, Delaware. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Indemnification
. The Corporation shall indemnify its directors and officers to
the fullest extent authorized or permitted by law, as now or hereafter in effect, and such right to
indemnification shall continue as to a person who has ceased to be a director or officer of the
Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal
representatives;
provided
,
however
, that, except for proceedings to enforce rights
to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or
his or her heirs, executors or personal or legal representatives) in connection with a proceeding
(or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized
or consented to by the board of directors. The right to indemnification conferred by this
Article VIII
shall include the right to be paid by the Corporation the expenses incurred in
defending or otherwise participating in any proceeding in advance of its final disposition upon
receipt by the Corporation of an undertaking by or on behalf of the director or officer receiving
advancement to repay the amount advanced if it shall ultimately be determined that such person is
not entitled to be indemnified by the Corporation under this
Article VIII
.
The Corporation may, to the extent authorized from time to time by the board of directors, provide
rights to indemnification and to the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this
Article VIII
to directors and officers of
the Corporation.
The rights to indemnification and to the advancement of expenses conferred in this
Article
VIII
shall not be exclusive of any other right which any person may have or hereafter acquire
under the Certificate of Incorporation, these By-Laws of the Corporation, any statute, agreement,
vote of stockholders or disinterested directors or otherwise.
Any repeal or modification of this
Article VIII
shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or officer of the Corporation
existing at the time of such repeal or modification with respect to any acts or omissions occurring
prior to such repeal or modification.
ARTICLE IX
AMENDMENTS
Section 1.
Amendments
. In furtherance and not in limitation of the powers conferred upon it
by the laws of the State of Delaware, the board of directors shall have the power to adopt, amend,
alter or repeal the Corporations By-Laws. The affirmative vote of at least a majority of the
entire board of directors shall be required to adopt, amend, alter, change or repeal the
Corporations By-Laws. The Corporations By-Laws also may be adopted, amended, altered, changed or
repealed by the affirmative vote of the holders of at least 60% of the voting power of the shares
entitled to vote at an election of directors.
Section 2.
Entire Board of Directors
. As used in this
Article IX
and in these
By-Laws generally, the term entire board of directors means the total number of directors which
the Corporation would have if there were no vacancies.
* * *
Originally adopted as of: February 16, 2005
Amended and restated as of: March 3, 2006
Amended and restated as of: December 19, 2007
Amended and restated as of: May 16, 2008
Amended and restated as of: November 14, 2008
Last Amended and Restated as of: October 25, 2012
3
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No business shall be conducted at an annual meeting of stockholders, other than business that is
either (a) specified in the notice of meeting (or any supplement thereto) given by or at the
direction of the board of directors (or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the direction of the board of directors (or any
duly authorized committee thereof), or (c) otherwise properly brought before the annual meeting by
any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of
the notice provided for in this
Section 4
and on the record date for the determination of
stockholders entitled to vote at such annual meeting, (ii) who is entitled to vote at such annual
meeting and (iii) who complies with the notice procedures set forth in this
Section 4
.
Wright Express Corporation Changes Name to WEX Inc.
New brand reflects Companys evolution to an international provider of physical, digital and
virtual corporate card payment solutions
SOUTH PORTLAND, Maine October 25, 2012 Wright Express Corporation (NYSE: WXS), today announced its name change to WEX Inc. The new name reflects the Companys transformation and growth strategies which are focused on physical, digital and virtual corporate card payment solutions for businesses internationally. The Company will continue to be listed on the New York Stock Exchange under the ticker WXS.
Today begins a new chapter in our Companys evolution with the launch of our new, international brand, WEX Inc. This new brand is built on a foundational set of Company values ¯ integrity, innovation and execution ¯ that have remained constant as we have grown, said Michael E. Dubyak, chairman, president and CEO of WEX Inc. Over the last 30 years, we have achieved a leadership position in the rapidly changing corporate payments industry through our passion to deliver precision solutions, combined with our persistence in delivering an exceptional customer experience. The ongoing execution of our growth strategy further enables WEX Inc. to diversify its business and expand our international footprint, while maintaining our focus on expanding our core Americas fleet business.
Since its beginnings as a fleet card provider in 1983, through a successful initial public offering in 2005, WEX Inc. has grown exponentially to become an international company with 2011 revenues of approximately $553 million.
About WEX Inc.
WEX Inc. (NYSE: WXS) is a leading international provider of physical, digital and virtual
corporate card payment solutions. From its roots as a pioneer in fleet card payments in 1983, WEX
now provides its more than 350,000 customers ¯ representing more than 6.5 million cardholders ¯
with exceptional payment security and control across a wide spectrum of business sectors. The
Companys operations include WEX Bank, Fleet One, Pacific Pride, rapid! PayCard, Wright Express
Prepaid Cards Australia, Wright Express Fuel Cards Australia, Wright Express New Zealand and
CorporatePay Limited, England, as well as a majority equity position in UNIK S.A., Brazil. WEX and
its subsidiaries employ more than 1,300 associates. For more information about WEX, please visit
WEXInc.com
.
SOURCE: WEX Inc.
WEX Inc.
News media contact:
Jessica Roy, 207-523-6763
Jessica.Roy@WEXInc.com
or
Investor Relations contact:
Michael E. Thomas, 207-523-6743
Michael.Thomas@WEXInc.com