BYLAWS
OF
NORFOLK
SOUTHERN CORPORATION
As Amended January
25, 2022
ARTICLE I
Shareholders’
Meetings
SECTION 1. Annual
Meeting. The annual meeting of the shareholders of the corporation shall be held on such date in March, April, May or June
as the board of directors may designate. If the date of the annual meeting shall be a legal holiday, the meeting shall be held
on the next succeeding day not a legal holiday.
SECTION
2. Special Meetings. Special meetings of the shareholders shall be held (a) whenever called by the chair or
by a majority of the directors or (b) subject to the provisions of this Section 2, and all other applicable sections of these
bylaws, whenever called by the secretary of the corporation upon written request (a “Special Meeting Request”) of one
or more record holders of shares of stock of the corporation representing not less than 20% of the voting power of all outstanding
shares of all classes of stock of the corporation entitled to vote on the matter(s) proposed to be voted on at such meeting (the
“Requisite Percentage”). For purposes of this Section 2(b) and for determining the Requisite Percentage, a beneficial
owner shall be deemed to own the shares of stock of the corporation that such beneficial owner would be deemed to own pursuant
to Rule 200(b) under the Securities Exchange Act of 1934, as amended. For purposes of determining the Requisite Percentage,
the deemed ownership of any record holder or beneficial owner shall exclude any shares as to which such record holder or beneficial
owner, as the case may be, does not have the right to vote or direct the vote at the special meeting. The board of directors shall
determine in good faith whether all requirements set forth in this Section 2(b) have been satisfied and such determination shall
be binding on the corporation and its shareholders.
(i)
A Special Meeting Request must be delivered by hand or by registered U.S. mail, postage prepaid, return receipt requested, or
courier service, postage prepaid, to the attention of the secretary of the corporation at the principal executive offices of the
corporation (the date on which the secretary of the corporation receives the request is the “Delivery Date”). A Special
Meeting Request shall be valid only if it is signed and dated by each record holder submitting the Special Meeting Request (individually
“Requesting Shareholder” and together, “Requesting Shareholders”), and includes (A) a statement of the specific
purpose(s) of the special meeting (including the text of any resolution proposed for consideration) and the reasons for conducting
such business at the special meeting; (B) in the case of any director nominations proposed to be presented at the special meeting,
the information required by Section 7 of Article II; (C) in the case of any matter (other than a director nomination) proposed
to be conducted at the special meeting, the information required by Section 9(c) of this Article I; (D) a representation that
each Requesting Shareholder, or one or more representatives of each such shareholder, intends to appear in person at the special
meeting to present the proposal(s) or business to be brought before the special meeting; (E) an agreement by each Requesting Shareholder
to notify the corporation promptly in the event of any disposition prior to the record date for the special meeting of shares
of the corporation owned of record or beneficially; and (F) documentary evidence that the Requesting Shareholders own the Requisite
Percentage as of the Delivery Date; provided, however, that if the Requesting Shareholders are not the beneficial
owners of the shares representing the Requisite Percentage, then to be valid, the Special Meeting Request must also include documentary
evidence that the beneficial owners of such shares (i) join in the special meeting request and (ii) beneficially own the Requisite
Percentage as of the Delivery Date. In addition, the Requesting Shareholders shall: (1) notify the corporation of any inaccuracy
or change (within two business days of becoming aware of such inaccuracy or change) in any information previously provided in
the Special Meeting Request; and (2) promptly update and supplement the information provided in the Special Meeting Request, if
necessary, so that the information provided or required to be provided shall be true and complete as of the record date for the
special meeting, and such update and supplement shall be delivered to the secretary of the corporation at the principal executive
offices of the corporation not later than five business days after the record date.
(ii)
A Special Meeting Request shall not be valid, and a special meeting requested by shareholders shall not be held, if: (A) the Special
Meeting Request does not comply with these bylaws; (B) the Special Meeting Request relates to an item of business that is not
a proper subject for shareholder action or is otherwise unlawful; (C) the Special Meeting Request is delivered during the period
commencing 90 days prior to the anniversary of the date of the immediately preceding annual meeting of shareholders and ending
on the earlier of (x) the date of the next annual meeting and (y) 30 days after the first anniversary of the date of the
previous annual meeting; (D) an identical or substantially similar item (as determined in good faith by the board of directors,
a “Similar Item”), other than the election of directors, was included on the agenda at any annual or special meeting
of shareholders held not more than 12 months before the Special Meeting Request is delivered; (E) a Similar Item is included in
the corporation’s notice of meeting as an item of business to be brought before an annual or special meeting of shareholders called
by the board of directors for a date – or was included on the agenda of such a meeting on a date – within 90 days
of the Delivery Date (and, for purposes of this clause (E), the election or removal of directors shall be deemed to be a “Similar
Item” with respect to all items of business involving the election or removal of directors, changing the size of the board
of directors and the filling of vacancies and/or newly created directorships resulting from any increase in the authorized number
of directors); or (F) the Special Meeting Request was made in a manner that involved a violation of Regulation 14A under
the Securities Exchange Act of 1934, as amended, or other applicable law.
(iii)
Special meetings of shareholders called pursuant to this Section 2(b) must be held within 120 days after the Delivery Date.
(iv)
If none of the Requesting Shareholders appear or send a representative to present the business to be presented for consideration
specified in the Special Meeting Request, the corporation need not present such business for a vote at the special meeting, notwithstanding
that proxies in respect of such matter may have been received by the corporation.
SECTION 3.
Time and Place. All meetings of the shareholders shall be held at the time and place, or by means of remote participation,
stated in the notice of meeting. If remote participation is permitted, such participation shall be considered “in person”
for the purposes of this Article I.
SECTION 4.
Quorum. The holders of a majority of the outstanding shares of capital stock entitled to vote, represented in person,
remotely, or by proxy, shall constitute a quorum at any meeting of the shareholders. If less than a quorum is present at
an annual or special meeting, then a majority in interest of the shareholders present in person, remotely, or by proxy may from
time to time adjourn the meeting to a fixed time and place, no further notice of any adjourned meeting being required unless the
Virginia Stock Corporation Act (“VSCA”) requires a new record date for the meeting. Each shareholder shall be
entitled to one vote in person, remotely, or by proxy for each share entitled to vote then outstanding in his or her name on the
books of the corporation.
SECTION 5.
Record Date. The board of directors may fix in advance a date as the record date for a determination of shareholders
for any purpose, such date to be not more than seventy days before the meeting or action requiring a determination of shareholders.
SECTION 6.
Electronic Transmission of Notice. Without limiting the manner by which notice otherwise may be given effectively
to shareholders, any notice to shareholders given by the corporation, under any provision of the VSCA, the corporation’s
articles of incorporation or these bylaws, shall be effective if given by a form of electronic transmission consented to by the
shareholder to whom the notice is given. Any such consent shall be revocable by the shareholder by written notice to the
corporation. Any such consent shall be deemed revoked if (i) the corporation is unable to deliver by electronic transmission
two consecutive notices given by the corporation in accordance with such consent and (ii) such inability becomes known to the
secretary of the corporation or any assistant secretary of the corporation or to the transfer agent, or other person responsible
for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action. Notice given pursuant to this Section 6 shall be deemed given: (1) if by facsimile
telecommunication, when directed to a number at which the shareholder has consented to receive notice; (2) if by electronic mail,
when directed to an electronic mail address at which the shareholder has consented to receive notice; (3) if by a posting on an
electronic network together with separate notice to the shareholder of such specific posting when such notice is directed to the
record address of the shareholder or to such other address at which the shareholder has consented to receive notice, upon the
later of such posting or the giving of such separate notice; and (4) if by any other form of electronic transmission, when consented
to by the shareholder.
SECTION 7.
Conduct of Meetings. The chair, or any officer or director he or she may designate, shall preside over all meetings
of the shareholders as chair. The chair of the meeting shall be authorized to declare whether any business is properly brought
before a meeting, and, if he or she shall declare that it is not so brought, such business shall not be transacted. The
chair of the meeting, at his or her discretion, may adjourn the meeting from time to time, whether or not there is a quorum, and
may determine the date, time and place that a meeting so adjourned is to reconvene. The chair of the meeting shall have
the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary
or desirable for the proper conduct of the meeting, including, without limitation, the maintenance of order and safety, limitation
on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting after the
time prescribed for the commencement thereof and the opening and closing of the voting polls. The secretary of the corporation,
or an assistant secretary of the corporation, shall act as secretary of all the meetings, if present. If the secretary of
the corporation or an assistant secretary of the corporation is not present, the chair of the meeting shall appoint a secretary.
The board of
directors, prior to the annual meeting of the shareholders each year, shall appoint one or more inspectors of election to act
at such annual meeting and at all other meetings of shareholders held during the ensuing year. In the event of the failure
of the board of directors to make such appointment or if any inspector of election shall for any reason fail to attend and to
act at such meeting, an inspector or inspectors of election, as the case may be, may be appointed by the chair of the meeting.
The inspectors of election shall determine the qualification of voters, the validity of proxies and the results of ballots.
SECTION 8.
Electronic Authorization. A shareholder or a shareholder’s duly authorized attorney-in-fact may authorize another
person or persons to act for him or her as proxy by transmitting or authorizing the transmission of a telegram, cablegram, internet
transmission, telephone transmission 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 transmission must either set forth or be submitted with
information from which the inspectors of election can determine that the transmission was authorized by the shareholder or the
shareholder’s duly authorized attorney-in-fact. If it is determined that any such transmission is valid, the inspectors
shall specify the information upon which they relied. Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission created pursuant to 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 9.
Notice of Business Other Than Nominations for Director. No business may be transacted at an annual or special meeting
of shareholders 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, (b) otherwise properly brought before the meeting by or at the direction of the
board of directors or (c) otherwise properly brought before the meeting by a shareholder (i) who is a shareholder on the date
of the giving of the notice provided for in this Section 9 and on the record date for the determination of shareholders entitled
to vote at such meeting and (ii) who gives to the corporation notice in writing of the proposal, provided that such written notice
is received at the principal executive office of the corporation, addressed to the secretary of the corporation, (A) in the case
of an annual meeting, not less than one hundred twenty (120) nor more than one hundred fifty (150) calendar days prior to the
anniversary of the date that the corporation mailed its proxy statement in connection with the previous year’s annual meeting;
provided, however, that if no annual meeting was held the previous year or the date of the annual meeting is more than thirty
(30) days before or more than sixty (60) days after the preceding year’s annual meeting, notice must be received not less
than sixty (60) days before the date of the applicable annual meeting and, (B) in the case of a special meeting, not later than
the tenth calendar day next following the date on which notice of the holding of the special meeting is mailed to shareholders
or public disclosure of the date of the special meeting was made, whichever first occurs. Clause (c) of this Section 9,
shall be the exclusive means for a shareholder to submit business (other than matters properly brought under Rule 14a-8 under
the Securities Exchange Act of 1934, as amended and included in the corporation’s notice of meeting) before an annual or special
meeting. The written notice given to the corporation shall include (i) the specific language on which shareholders will
be asked to vote, (ii) the name and address of the proposing shareholder, (iii) (A) the class or series and number of shares of
the capital stock of the corporation which are, directly or indirectly, owned beneficially and/or of record by such shareholder
and any Shareholder Affiliate (as defined below) and (B) any derivative positions with respect to the corporation’s securities
held or beneficially held by the proposing shareholder and any Shareholder Affiliate and whether and to the extent to which the
proposing shareholder or Shareholder Affiliate is, or within the preceding twelve months was, a party to or participant in any
hedging or other transaction or series of transactions has been entered into by or on behalf of such shareholder or any Shareholder
Affiliate with respect to the corporation’s securities, (iv) a representation as to the existence and nature of any agreement
or understanding between the proposing shareholder and any Shareholder Affiliate (including the identity(ies) of any Shareholder
Affiliate) in connection with bringing the proposal, and (v) a representation as to any material interest of the proposing shareholder
and any Shareholder Affiliate in the subject matter of the proposal. The requirements of this Section 9 are in addition
to any other applicable requirements. Notwithstanding the foregoing provisions of this Section 9, if the proposing shareholder
(or a designated representative of such shareholder) does not appear at the annual or special meeting of shareholders of the corporation
to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such
vote may have been received by the corporation.
“Shareholder
Affiliate” of any shareholder means (x) any person directly or indirectly controlling or controlled by, or under common control
or acting in concert with, such shareholder, (y) any beneficial owner of shares of stock of the corporation owned of record or
beneficially by the shareholder and (z) any person directly or indirectly controlling or controlled by, or under common control
or acting in concert with such Shareholder Affiliate.
SECTION 10. Proxy
Access for Director Nominations. The corporation shall include in its proxy statement and on its form of proxy for any annual
meeting of shareholders at which directors are to be elected the name, together with the Required Information (as defined below),
of any person nominated for election to the board of directors (a “Shareholder Nominee”) identified in a notice that
satisfies Section 7 of Article II and is received at the principal executive office of the corporation, addressed to the secretary
of the corporation, not less than one hundred twenty (120) calendar days prior to the anniversary date of the immediately preceding
mailing date for the notice of annual meeting of shareholders, delivered by one or more shareholders who – at the time the
request is delivered – satisfy the ownership and other requirements of both this Section 10 and Section 7 of Article II
(such shareholder or shareholders, and any Associated Person (as defined below) of such shareholder or shareholders, the “Eligible
Shareholder”), and who expressly elects as a part of providing the notice required by this Section (the “Notice”)
to have its nominee included in the corporation’s proxy materials pursuant to this Section 10. In no event shall an adjournment
or recess of an annual meeting, or a postponement of an annual meeting for which notice has been given or with respect to which
there is a public announcement of the date of the meeting, commence a new time period (or extend any time period) for the giving
of the Notice as described in this Section 10.
(a) For purposes of this Section 10, the “Required Information” that the corporation shall include in its proxy
statement is (i) the information concerning the Shareholder Nominee and Eligible Shareholder that, as determined by the corporation,
is required to be disclosed in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission,
and (ii) if the Eligible Shareholder so elects, a Statement (as defined below). For purposes of this Section 10, “Associated
Person” means any affiliate or associate of, or any other party acting in concert with or on behalf of, (i) a shareholder
nominating a Shareholder Nominee or (ii) any beneficial owner on whose behalf the shareholder is acting.
(b) The number of Shareholder Nominees (including any Shareholder Nominees elected to the board of directors at either of the
two preceding annual meetings who are standing for reelection and any Shareholder Nominees that were submitted by an Eligible
Shareholder for inclusion in the corporation’s proxy materials pursuant to this Section 10 but either are subsequently withdrawn
or that the board of directors or any committee designated by the board of directors decided to nominate for election to the board
of directors (a “Board Nominee”)) appearing in the corporation’s proxy materials with respect to a meeting of
shareholders shall not exceed the greater of (i) two Shareholder Nominees and (ii) 20% of the number of directors in office as
of the last day on which Notice may be delivered, or if such amount is not a whole number, the closest whole number below 20%.
In the event that the number of Shareholder Nominees submitted by Eligible Shareholders pursuant to this Section 10 exceeds this
maximum number, each Eligible Shareholder shall select one Shareholder Nominee for inclusion in the corporation’s proxy
materials until the maximum number is reached, going in the order of the amount (largest to smallest) of shares of the corporation’s
stock eligible to vote in the election of directors each Eligible Shareholder disclosed as owned in the Notice of the nomination
submitted to the corporation. If the maximum number is not reached after each Eligible Shareholder has selected one Shareholder
Nominee, this selection process shall continue as many times as necessary, following the same order each time, until the maximum
number is reached.
(c) An Eligible Shareholder must have owned (as defined in subsection (e) of this Section 10) 3% or more of the outstanding
shares of the corporation’s stock eligible to vote in the election of directors continuously for at least three years (the
“Required Shares”) as of both the date the Notice is delivered to or mailed and received by the corporation and the
record date for determining shareholders entitled to vote at the meeting and must continue to own the Required Shares through
the meeting date. For purposes of satisfying the foregoing ownership requirement under this Section 10,
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(1)
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the
shares of stock of the corporation owned by one or more shareholders, or by the person
or persons who own shares of the corporation’s stock and on whose behalf any shareholder
is acting, may be aggregated, provided that the number of shareholders and other persons
whose ownership of shares is aggregated for such purpose shall not exceed 20, and further
provided that the group of shareholders shall have provided to the secretary of the corporation
as a part of providing the Notice a written agreement executed by each member of the
group of shareholders designating one of the members as the exclusive member to interact
with the corporation for purposes of this Section 10 and Section 7 of Article II on behalf
of all members, and
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(2)
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two
or more funds that are (A) under common management and investment control, (B) under
common management and funded primarily by the same employer, or (C) a “group of
investment companies,” as such term is defined in Section 12(d)(1)(G)(ii)
of the Investment Company Act of 1940, as amended, shall be treated as one shareholder
or person for this purpose. Whenever an Eligible Shareholder consists of a group of shareholders
or persons, any and all requirements and obligations for an Eligible Shareholder set
forth in this Section 10 must be satisfied by and as to each such shareholder or person,
except that shares may be aggregated as specified in this Section 10(c) and except as
otherwise provided in this Section 10.
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(d) Within the time period specified in this Section 10 for providing the Notice, an Eligible Shareholder must provide in writing
to the secretary of the corporation the information required to be provided by Section 7 of Article II. Within five business days
of providing the Notice, an Eligible Shareholder also must provide in writing to the secretary of the corporation the following
additional information:
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(1)
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one
or more written statements from the record holder of the shares (and from each intermediary
through which the shares are or have been held during the requisite three-year holding
period) verifying that, as of a date within seven calendar days prior to the date the
Notice is delivered to or mailed and received by the corporation, the Eligible Shareholder
owns, and has owned continuously for the preceding three years, the Required Shares,
and the Eligible Shareholder’s agreement to provide, within five business days
after the record date for the meeting, written statements from the record holder and
intermediaries verifying the Eligible Shareholder’s continuous ownership of the
Required Shares through the record date,
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(2)
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the
written consent of each Shareholder Nominee to be named in the proxy statement as a nominee
and to serve as a director if elected,
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(3)
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a
copy of the Schedule 14N that has been filed with the Securities and Exchange Commission
as required by Rule 14a-18 under the Exchange Act,
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(4)
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a
representation that the Eligible Shareholder (A) acquired the Required Shares in the
ordinary course of business and not with the intent to change or influence control of
the corporation, and does not presently have such intent, (B) has not nominated and will
not nominate for election to the board of directors at the meeting any person other than
the Shareholder Nominee(s) being nominated pursuant to this Section 10, (C) has not engaged
in and will not engage in, and has not and will not be, a “participant” in
another person’s “solicitation” within the meaning of Rule 14a-1(1)
under the Exchange Act in support of the election of any individual as a director at
the meeting other than its Shareholder Nominee(s) or a Board Nominee, (D) will not distribute
to any shareholder any form of proxy for the meeting other than the form distributed
by the corporation, (E) intends to continue to own the Required Shares through the date
of the meeting, and (F) will provide facts, statements and other information in all communications
with the corporation and its shareholders that are or will be true and correct in all
material respects, and does not and will not omit to state a material fact necessary
in order to make the statements made, in light of the circumstances under which they
were made, not misleading, and
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(5)
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an
undertaking that the Eligible Shareholder agrees to (A) assume all liability stemming
from any legal or regulatory violation arising out of the Eligible Shareholder’s
communications with the corporation’s shareholders or out of the information that
the Eligible Shareholder provided to the corporation, (B) indemnify and hold harmless
the corporation and each of its directors, officers and employees individually against
any liability, loss or damages in connection with any threatened or pending action, suit
or proceeding, whether legal, administrative or investigative, against the corporation
or any of its directors, officers or employees arising out of any nomination submitted
by the Eligible Shareholder pursuant to this Section 10, (C) file with the Securities
and Exchange Commission all soliciting and other materials as required under subsection
(j) of this Section 10, and (D) comply with all other applicable laws, rules, regulations
and listing standards with respect to any solicitation in connection with the meeting.
The inspectors of elections shall not give effect to the Eligible Shareholder’s
votes with respect to the election of directors if the Eligible Shareholder does not
comply with each of the representations in clause (4) above.
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(e) For
purposes of this Section 10:
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(1)
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an
Eligible Shareholder shall be deemed to “own” only those outstanding shares
of the corporation’s stock as to which a shareholder who is the Eligible Shareholder
or is included in the group that constitutes the Eligible Shareholder possesses both
(A) the full voting and investment rights pertaining to the shares and (B) the full economic
interest in (including the opportunity for profit and risk of loss on) such shares; provided
that the number of shares calculated in accordance with clauses (A) and (B) shall not
include any shares (i) sold by or on behalf of such shareholder in any transaction that
has not been settled or closed, (ii) borrowed by or on behalf of such shareholder for
any purpose or purchased by such shareholder pursuant to an agreement to resell or (iii)
subject to any option, warrant, forward contract, swap, contract of sale, other derivative
or similar agreement entered into by or on behalf of such shareholder whether any such
instrument or agreement is to be settled with shares or with cash based on the notional
amount of value of outstanding shares of the corporation’s stock, in any such case
which instrument or agreement has, or is intended to have, the purpose or effect of (x)
reducing in any manner, to any extent or at any time in the future, such shareholder’s
full right to vote or direct the voting of any such shares, and/or (y) hedging, offsetting
or altering to any degree gain or loss arising from the full economic ownership of such
shares by such shareholder.
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(2)
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A
shareholder shall “own” shares held in the name of a nominee or other intermediary
so long as the shareholder retains the right to instruct how the shares are voted with
respect to the election of directors and possesses the full economic interest in the
shares.
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(3)
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A
shareholder’s ownership of shares shall be deemed to continue during (A) any period
in which the shareholder has delegated any voting power by means of a proxy, power of
attorney or other instrument or arrangement that is revocable at any time by the shareholder,
or (B) loaned such shares, provided that the person has the power to recall such loaned
shares on not more than five business days’ notice.
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(4)
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Whether
outstanding shares of the corporation’s stock are “owned” for these
purposes shall be determined by the board of directors, which determination shall be
conclusive and binding on the corporation and its shareholders.
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(f) The
Eligible Shareholder may provide to the secretary of the corporation, within the time period specified for providing the Notice,
a written statement for inclusion in the corporation’s proxy statement for the meeting, not to exceed 500 words, in support
of the Shareholder Nominee’s candidacy (“the “Statement”). Notwithstanding anything to the contrary contained
in this Section, the corporation may omit from its proxy materials any information or Statement that it believes would violate
any applicable law, rule, regulation or listing standard.
(g) The
corporation shall not be required to include, pursuant to this Section 10, a Shareholder Nominee in its proxy materials
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(1)
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for
any special meeting of shareholders,
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(2)
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if
the nominating Notice does not expressly elect to have its nominee included in the corporation’s
proxy materials pursuant to this Section 10,
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(3)
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if
the Eligible Shareholder who has nominated such Shareholder Nominee has engaged in or
is currently engaged in, or has been or is a “participant” in another person’s
“solicitation” within the meaning of Rule 14a-1(1) under the Exchange Act
in support of the election of any individual as a director at the meeting other than
its Shareholder Nominee(s) or a Board Nominee,
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(4)
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who
is not independent under the listing standards of the principal exchange upon with the
corporation’s stock is traded, any applicable rules of the Securities and Exchange
Commission and any publicly disclosed standards used by the board of directors in determining
and disclosing the independence of the corporation’s directors, as determined by
the board of directors,
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(5)
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whose
election as a member of the board of directors would cause the corporation to be in violation
of these bylaws, the corporation’s articles of incorporation, the listing standards
of the principal exchange upon which the corporation’s stock is traded, or any
applicable state or federal law, rule or regulation,
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(6)
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who
is or has been, within the past three years, an officer or director of a competitor,
as defined in Section 8 of the Clayton Antitrust Act of 1914,
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(7)
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who
is named subject of a pending criminal proceeding (excluding traffic violations and other
minor offenses) or has been convicted in such a proceeding within the past 10 years,
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(8)
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who
is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated
under the Securities Act of 1933, as amended,
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(9)
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if
such Shareholder Nominee or the applicable Eligible Shareholder shall have provided information
to the corporation in respect to such nomination that was untrue in any material respect
or omitted to state a material fact necessary in order to make the statements made, in
light of the circumstances under which they were made, not misleading, as determined
by the board of directors, or
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(10)
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if
the Eligible Shareholder or applicable Shareholder Nominee otherwise breaches any of
its or their obligations, agreements or representations under this Section 10 or Section
7 of Article II.
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(h) Notwithstanding
anything to the contrary set forth herein, the chair of the meeting shall declare a nomination by an Eligible Shareholder to be
invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received
by the corporation, if the Shareholder Nominee(s) and/or the applicable Eligible Shareholder shall have breached its or their
obligations, agreements or representations under this Section 10 or Section 7 of Article II, as determined by the board of
directors or the chair of the meeting.
(i) In addition to the information required to be provided by the Eligible Shareholder by this Section 10 and Section 7 of
Article II, each Shareholder Nominee and each Board Nominee shall provide to the secretary of the corporation, within two weeks
of receipt of the secretary of the corporation’s written request therefore, the following information:
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(1)
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a
completed copy of the corporation’s form of director’s questionnaire and
a written consent of the Shareholder Nominee or the Board Nominee to the corporation
following such process for evaluation of such nominee as the corporation follows in evaluating
any other potential Board Nominee, as provided by the secretary of the corporation;
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(2)
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the
Shareholder Nominee’s or the Board Nominee’s agreement to comply with the
corporation’s corporate governance, conflict of interest, confidentiality, stock
ownership and stock trading policies, as provided by the secretary of the corporation
or chief legal officer; and
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(3)
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written
confirmation that the Shareholder Nominee or the Board Nominee (A) does not have, and
will not have, any agreement or understanding as to how he or she will vote on any matter
and (B) is not a party to, and will not become a party to, any outside compensation arrangement
relating to service as a director of the corporation that has not been disclosed to the
secretary of the corporation.
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(j) The
Eligible Shareholder shall file with the Securities and Exchange Commission any solicitation or other communication with the corporation’s
shareholders relating to the meeting at which the Shareholder Nominee will be nominated, regardless of whether any such filing
is required under Regulation 14A of the Exchange Act, or whether any exemption from filing is available for such solicitation
or other communication under Regulation 14A of the Exchange Act.
(k) No person may be a member of more than one group of persons constituting an Eligible Shareholder under this Section 10.
(l) Any
Shareholder Nominee who is included in the corporation’s proxy materials for a particular meeting of shareholders but
either (1) withdraws from or becomes ineligible or unavailable for election at the meeting, or (2) does not receive at least
25% of the votes cast in favor of the Shareholder Nominee’s election, shall be ineligible to be a Shareholder
Nominee pursuant to this Section 10 for the next two annual meetings of shareholders following the meeting for which the
Shareholder Nominee has been included in the corporation’s proxy materials.
ARTICLE II
Board of Directors
SECTION 1. Election,
Number and Term. The board of directors shall be chosen at the annual meeting of the shareholders. The number
of directors shall be twelve (12), provided, however, that the board of directors may increase or decrease that number from time
to time. The directors shall hold office for terms as provided in the corporation’s articles of incorporation. This
number may be increased or decreased at any time by amendment of these bylaws, but shall always be a number of not less than three.
Directors need not be shareholders. Directors shall hold office until their successors are elected.
SECTION 2.
Manner of Election. Except as provided in Section 4 of this Article II, each director shall be elected by a
majority of votes cast with respect to the director nominee at any meeting for the election of directors at which a quorum is
present; provided, however, that if, as of the expiration of the time when a shareholder may give notice of a nomination of a
director pursuant to Section 7 of this Article II, the number of director nominees exceeds the number of directors to be elected,
one or more of whom are properly proposed by shareholders, the directors shall be elected by a plurality of the votes properly
cast in such election.
If an incumbent
director is not reelected, the director shall offer his or her resignation promptly to the board of directors. Within 90
days following certification of the election results, the board of directors shall act on the offered resignation. In determining
whether to accept the offered resignation, the board of directors shall consider any recommendation of the Governance and Nominating
Committee, the factors considered by that Committee and any additional information and factors that the board of directors believes
to be relevant. Any director who tenders his or her resignation pursuant to this provision shall not participate in the
Governance and Nominating Committee recommendation or board of directors’ action regarding whether to accept the offered resignation.
SECTION 3.
Quorum. A majority of the number of directors fixed by these bylaws shall constitute a quorum. If less than
a quorum is present at a meeting, then a majority of those present may adjourn the meeting to a fixed time and place, no further
notice of any adjourned meeting being required.
SECTION 4.
Vacancies. Any vacancy arising among the directors, may be filled by a majority vote of the remaining directors though
less than a quorum unless sooner filled by the shareholders.
SECTION 5.
Meetings. Meetings of the board of directors shall be held at times fixed by resolution of the board of directors
or upon the call of the chief executive officer, chair, or lead director, if one has been appointed by the board of directors,
or of one-third of the members of the board of directors. Notice of any meeting not held at a time fixed by a resolution
of the board of directors shall be given to each director at least two days before the meeting by delivering such notice to him
or her at his residence or business address or by telephoning or electronically transmitting it to him or her as set forth in
this Section 5 at least one calendar day before the meeting. Notice may be given by a form of electronic transmission consented
to by the director to whom the notice is given. Any such consent shall be revocable by the director by written notice to
the corporation. Notice given pursuant to this Section 5 shall be deemed given: (1) if by facsimile telecommunication,
when directed to a number at which the director has consented to receive notice; (2) if by electronic mail, when directed to an
electronic mail address at which the director has consented to receive notice; (3) if by a posting on an electronic network together
with separate notice to the director of such specific posting when such notice is directed to the record address of the director
or to such other address at which the director has consented to receive notice, upon the later of such posting or the giving of
such separate notice; and (4) if by any other form of electronic transmission, when consented to by the director. Any such
notice shall contain the time and place of the meeting. Meetings may be held without notice if all the directors are present
or those not present waive notice before or after the meeting. The chair, or any director he or she may designate, shall
preside over all meetings of directors. The chair, if an outside director, or the lead director, if one has been appointed
by the board of directors, shall preside over meetings of the outside directors.
SECTION 6.
Committees. The board of directors may by resolution designate an executive committee and one or more other committees,
each of which shall consist of two or more directors. Any such committee, to the extent provided in the resolution of the board
of directors and except as otherwise provided by law, shall have and may exercise the powers and authority of the board of directors
in the management of the business and affairs of the corporation.
SECTION 7.
Nominations of Directors. Except as otherwise provided in the corporation’s articles of incorporation, only persons
who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of
persons for election to the board of directors may be made at any annual meeting of the shareholders (a) by or at the direction
of the board of directors or (b) by any shareholder (i) who is a shareholder on the date of the giving of the notice provided
for in this Section 7 and on the record date for the determination of shareholders entitled to vote at such meeting and (ii) who
gives to the corporation notice in writing of the nomination, provided that such written notice is received at the principal executive
office of the corporation, addressed to the secretary of the corporation, not less than one hundred twenty (120) nor more than
one hundred fifty (150) calendar days prior to the anniversary of the date that the corporation mailed its proxy statement in
connection with the previous year’s annual meeting; provided, however, that if no annual meeting was held the previous year
or the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after the preceding year’s
annual meeting, notice must be received not less than sixty (60) days before the date of the applicable annual meeting; clause
(b) of this Section 7 shall be the exclusive means for a shareholder to make nominations, and any candidate proposed by a shareholder
not nominated in accordance with clause (b) and the other provisions of this Section 7 shall not be considered or acted upon for
election to the board of directors at such meeting of shareholders. The written notice given to the corporation shall include
all the information about each nominee that would be required by applicable rules and regulations of the Securities and Exchange
Commission to be included for nominees listed in the proxy statement for such meeting and shall also include (i) the name and
address of the nominating shareholder, (ii) (A) the class or series and number of shares of the capital stock of the corporation
which are, directly or indirectly, owned beneficially and/or of record by such shareholder and any Shareholder Affiliate and (B)
any derivative positions with respect to the corporation’s securities held or beneficially held by the nominating shareholder
and any Shareholder Affiliate (defined in Article I, Section 9) and whether and to the extent to which any hedging or other transaction
or series of transactions has been entered into by or on behalf of such shareholder or any Shareholder Affiliate with respect
to the corporation’s securities, and (iii) a representation as to the existence and nature of any agreement or understanding between
any of the nominee, the nominating shareholder and the Shareholder Affiliate (including the identity(ies) of any Shareholder Affiliate)
in connection with the nomination of the candidate(s) entered into or in effect within the preceding three years. Such notice
must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
Notwithstanding the foregoing provisions of this Section 7, if the shareholder (or a designated representative of the shareholder)
does not appear at the annual or special meeting of shareholders of the corporation to present a nomination, such nomination shall
be disregarded, notwithstanding that proxies in respect of such vote may have been received by the corporation.
ARTICLE III
Officers
SECTION 1.
Election, Number and Term. The board of directors, promptly after its election in each year, may elect a chair of
the board of directors and shall elect a president (one of whom shall be designated chief executive officer), a secretary of the
corporation and a treasurer, and may elect one or more vice chair and vice presidents and may appoint such other officers as it
may deem proper. Any officer may hold more than one office except that the same person shall not be president and secretary
of the corporation. Each officer shall hold office until his or her successor is elected or until his or her death or until
he or she resigns or is removed in the manner hereinafter provided.
SECTION 2.
Removal. Any officer may be removed at any time by the vote of the board of directors and any officer or agent appointed
otherwise than by the board of directors may be removed by any officer having authority to appoint that officer or agent.
SECTION 3.
Vacancies. Vacancies among the officers elected by the board of directors shall be filled by the board of directors.
SECTION 4.
The Chief Executive Officer. The chief executive officer, subject to the control of the board of directors, shall
in general supervise and control all of the business and affairs of the corporation. All officers and agents, other than
officers or agents elected or appointed by the board of directors, shall be appointed by the chief executive officer or by the
heads of departments, subject to the approval of the chief executive officer. Unless otherwise specifically provided in
these bylaws or by direction of the board of directors, the chief executive officer or, at his or her direction, any officer,
employee or agent of the corporation designated by him or her, may sign and execute all representations, securities, conveyances
of real and personal property, leases, licenses, releases, contracts and other obligations and instruments in the name of the
corporation.
SECTION 5.
The Vice Chairs and Vice Presidents. The vice chairs and the vice presidents shall perform such duties as from time
to time may be assigned to them by the chief executive officer, chair, or by the board of directors. In the absence of the
chief executive officer, or in the event of his or her death, inability or refusal to act, the officer designated by the chief
executive officer or the board of directors shall perform the duties of the chief executive officer, and, when so acting, shall
have all the powers of and be subject to all the restrictions upon the chief executive officer. Any vice chair or vice president
may sign, with the secretary of the corporation or an assistant secretary of the corporation, certificates for shares of the corporation.
SECTION 6.
The Secretary. The secretary of the corporation shall: (a) keep the minutes of the meetings of the shareholders
and the board of directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation
and see that the seal of the corporation is affixed to all documents the execution of which on behalf of the corporation under
its seal is duly authorized; (d) keep a register of the post office address of each shareholder which shall be furnished to the
secretary of the corporation by such shareholders; (e) sign with the chair of the board, a vice chair, the president, or a vice
president, certificates for shares of the corporation, the issuance of which shall have been authorized in accordance with the
VSCA; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to
the office of secretary of the corporation and such other duties as from time to time may be assigned to him or her by the chief
executive officer or by the board of directors.
SECTION 7.
The Treasurer. If required by the board of directors, the treasurer shall give a bond for the faithful discharge
of his or her duties in such sum and with such surety or sureties as the board of directors shall determine. He or she shall:
(a) have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for
moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation
in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Article IV of these
bylaws; (b) when duly authorized, disperse all moneys belonging or coming to the corporation; and (c) in general perform all the
duties incident to the office of treasurer and such other duties as from time to time may be assigned to him or her by the chief
executive officer or by the board of directors.
SECTION 8.
Assistant Secretaries and Assistant Treasurers. The assistant secretaries, when authorized by the board of directors,
may sign with the chair of the board, a vice chair, the president or a vice president certificates for shares of the corporation
the issuance of which shall have been authorized in accordance with the VSCA. The assistant treasurers shall respectively,
if required by the board of directors, give bonds for the faithful discharge of their duties in such sums and with such sureties
as the board of directors shall determine. The assistant secretaries and assistant treasurers, in general, shall perform
such duties as shall be assigned to them by the secretary of the corporation or the treasurer, respectively, or by the chief executive
officer or the board of directors.
SECTION 9.
Salaries. The salaries of the officers elected by the board of directors and designated as “executive officers”
shall be fixed by the board of directors and the salaries of other board-elected officers shall be fixed by the chief executive
officer. The salaries of all other officers shall be fixed by the chief executive officer or by the heads of departments,
subject to the approval of the chief executive officer.
ARTICLE IV
Checks and
Deposits
SECTION 1.
Checks and Drafts. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in
such manner as shall from time to time be determined by resolution of the board of directors.
SECTION 2.
Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit
of the corporation in such banks, trust companies or other depositories as may be selected in a manner authorized by the board
of directors.
ARTICLE V
Certificate
of Stock
Each shareholder
shall be entitled to a certificate or certificates of stock in such form as may be approved by the board of directors signed by
the chair of the board, a vice chair, the president or a vice president and by the secretary of the corporation or an assistant
secretary of the corporation or the treasurer or any assistant treasurer, provided that stock of the corporation may be held in
uncertificated form.
The holding and
all transfers of stock of the corporation held in uncertificated form shall be effected through a direct registration system operated
by a securities depository (as defined in Section 501.01 of the New York Stock Exchange Listed Company Manual). Within a
reasonable amount of time after the issuance or transfer of uncertificated shares, the corporation shall send, or cause to be
sent, to the registered holder thereof a written notice that includes the information required by subsections B and C of Section
13.1-647 of the VSCA.
All transfers
of stock of the corporation held in certificated form shall be made upon its books by surrender of the certificate for the shares
transferred accompanied by an assignment in writing by the holder and may be accomplished either by the holder in person or by
a duly authorized attorney in fact. All transfers of stock of the corporation held in uncertificated form shall be made
upon proper instructions from the holder thereof.
In case of the
loss, mutilation or destruction of a certificate of stock, a duplicate certificate or uncertificated shares in the place of the
previously issued certificate may be issued upon such terms not in conflict with law as the board of directors may prescribe.
The board of
directors may also appoint one or more transfer agents and registrars and may require stock certificates to be countersigned by
a transfer agent or registered by a registrar or may require stock certificates to be both countersigned by a transfer agent and
registered by a registrar. If certificates of capital stock of the corporation are signed by a transfer agent or by a registrar
(other than the corporation itself or one of its employees), the signature thereon of the officers of the corporation and the
seal of the corporation thereon may be facsimiles, engraved or printed. In case any officer or officers who shall have signed,
or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such
officer or officers of the corporation, whether because of death, resignation or otherwise, such certificate or certificates may
nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile
signature or signatures shall have been used thereon had not ceased to be such officer or officers of the corporation.
ARTICLE VI
Seal
The seal of the
corporation shall be a flat-faced circular die, of which there may be any number of counterparts, with the word “SEAL”
and the name of the corporation and the state and year of incorporation engraved thereon.
ARTICLE VII
Fiscal
Year
The fiscal year
of the corporation shall begin on the first day of January and end on the thirty-first day of December in each year.
ARTICLE VIII
Voting of
Stock Held
Unless otherwise
ordered by the board of directors, the chief executive officer, or his or her designee, shall have full power and authority in
behalf of the corporation to attend and to act and to vote at any meetings of shareholders of any corporation in which the corporation
may hold stock, and at any such meeting shall possess and may exercise any and all the rights and powers incident to the ownership
of such stock, which, as the owner thereof, the corporation might have possessed and exercised if present, and may sign proxies
on behalf of the corporation with respect to any such meeting or sign consents on behalf of the corporation with respect to corporate
actions permitted without a meeting of shareholders. The board of directors, by resolution, from time to time, may confer
like powers upon any other person or persons.
ARTICLE IX
Amendments
These bylaws
may be altered, amended or repealed and new bylaws may be adopted by the board of directors at any regular or special meeting
of the board of directors.
ARTICLE X
Control Share
Acquisitions
Article 14.1
of the VSCA (“Control Share Acquisitions”) shall not apply to acquisitions of shares of stock of the corporation.
ARTICLE XI
Forum for
Adjudication of Disputes
Unless the corporation
consents in writing to the selection of an alternative forum (an “Alternative Forum Consent”), the sole and exclusive
forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach
of a legal or fiduciary duty owed by any director, officer, employee or agent of the corporation to the corporation or the corporation’s
shareholders, (iii) any action asserting a claim against the corporation or any director, officer, employee or agent of the corporation
arising out of or relating to any provision of the VSCA or the corporation’s articles of incorporation or these bylaws (as
either may be amended from time to time), or (iv) any action against the corporation or any director, officer, employee or agent
of the corporation governed by the internal affairs doctrine shall be a circuit court in any of the cities of Chesapeake, Norfolk
or Virginia Beach or any federal district court in the Eastern District of Virginia, unless no such court has personal jurisdiction
over an indispensable party named as a defendant. Failure to enforce the foregoing provisions would cause the corporation irreparable
harm and the corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce
the foregoing provisions. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the
corporation shall be deemed to have notice of and consented to the provisions of this Article XI. If any action the subject matter
of which is within the scope of this Article XI is filed in a court other than a court located within the Commonwealth of Virginia
(a “Foreign Action”) by or in the name of any shareholder, such shareholder shall be deemed to have consented to (i)
the personal jurisdiction of the state and federal courts located within the Commonwealth of Virginia in connection with any action
brought in any such court to enforce the provisions of this Article XI and (ii) having service of process made upon such shareholder
in any such action by service upon such shareholder’s counsel in the Foreign Action as agent for such shareholder.
