EXHIBIT 3(ii)
REVISED AND AMENDED BY-LAWS
OF
WERNER ENTERPRISES, INC.
(Amended September 14, 1993)
ARTICLE I.
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the
Shareholders shall be held on the second Tuesday in the month of
June in each year, or such other time on such other day within such
month as shall be fixed by the Board of Directors, for the purpose
of electing Directors and for the transaction of such other
business as may come before the meeting. If the day fixed for the
annual meeting shall be a legal holiday in the State of Nebraska,
such meeting shall be held on the next succeeding business day.
Annual meetings shall be held in the office of the corporation or
at such other place, either within or without the State of
Nebraska, as shall be determined by the Board of Directors. If the
election of Directors shall not be held on the day designated
herein for any annual meeting of the Shareholders, or at any
adjournment thereof, the Board of Directors shall cause the
election to be held at a special meeting of the Shareholders as
soon thereafter as conveniently may be.
Section 2. Special Meetings. Special meetings of the
Shareholders may be called by the Chairman of the Board, the
President or a majority of the Board of Directors. Special
meetings shall be held at such place, either within or without the
State of Nebraska, as shall be stated in the notice.
Section 3. Notice of Meeting. Written or printed notice
stating the place, day and hour of the meeting and, in the case of
a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered not less than ten (10) nor more than
fifty (50) days before the date of the meeting, either personally
or by mail, by or at the direction of the President, the Secretary,
or the officer or persons calling the meeting, to each Shareholder
of record entitled to vote at such meeting.
Section 4. Closing of Transfer Books or Fixing of Record
Date. For the purpose of determining
Shareholders entitled to notice of or to vote at any meeting of
Shareholders or any adjournment thereof, or Shareholders entitled
to receive payment of any dividend, or in order to make a
determination of Shareholders for any other proper purpose, the
Board of Directors of the corporation may provide that the stock
transfer books shall be closed for a stated period but not to
exceed, in any case, fifty (50) days. If the stock transfer books
shall be closed for the purpose of determining Shareholders
entitled to notice of or to vote at a meeting of Shareholders, such
books shall be closed for at least ten (10) days immediately
preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the
record date for any such determination of Shareholders, such date
in any case to be not more than fifty (50) days and, in the case of
a meeting of Shareholders, not less than ten (10) days prior to the
date on which the particular action, requiring such determination
of Shareholders, is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of
Shareholders entitled to notice of or to vote at a meeting of
Shareholders, or Shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the Board of Directors declaring
such dividend is adopted, as the case may be, shall be the record
date for such determination of Shareholders. When a determination
of Shareholders entitled to vote at any meeting of Shareholders has
been made as provided in this section, such determination shall
apply to any adjournment thereof.
Section 5. Voting Record. The officer or agent having
charge of the stock transfer books for shares of the corporation
shall make, at least ten (10) days before each meeting of
Shareholders, a complete record of the Shareholders entitled to
vote at such meeting, or any adjournment thereof, arranged in
alphabetical order with the address of and the number of shares
held by each. For a period of ten (10) days prior to such meeting,
the list shall be kept on file at the registered office of the
corporation and shall be subject to inspection by any Shareholder
at any time during usual business hours. Such record, or a
duplicate thereof, shall also be produced and kept open at the time
and place of the meeting and shall be subject to the inspection of
any Shareholder during the whole time of the meeting. The original
stock transfer book shall be prima facie evidence as to who are the
Shareholders entitled to examine such record or transfer books or
to vote at any meeting of Shareholders.
Section 6. Quorum. A majority of the outstanding shares
entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of Shareholders. The holders or
their representatives of a majority of the shares present at a
meeting, even though less than a majority of the shares
outstanding, may adjourn the meeting from time to time without
notice other than an announcement at the meeting, until such time
as a quorum is present. At any such adjourned meeting at which a
quorum is present, any business may be transacted which might have
been transacted at the original meeting. If a quorum is present,
the affirmative vote of the majority of the shares represented at
the meeting and entitled to vote on the subject matter shall be the
act of the Shareholders, unless the vote of a greater number is
required by law, by the Articles of Incorporation, or by these By-
Laws.
Section 7. Proxies. At all meetings of the Shareholders,
a Shareholder may vote either in person or by proxy executed in
writing by a Shareholder or his duly authorized attorney in fact.
Proxies solicited on behalf of the management shall be voted as
directed by the Shareholder or, in the absence of such direction,
as determined by a majority of the Board of Directors. No proxy
shall be valid after eleven (11) months from the date of its
execution unless otherwise provided in the proxy.
Section 8. Voting of Shares. Subject to the provisions of
Sections 9 and 10 of this Article I, each Shareholder entitled to
vote shall be entitled to one (1) vote for each share of stock held
by him upon each matter submitted to a vote at a meeting of
Shareholders.
Section 9. Voting of Shares by Certain Holders. Treasury
shares shall not be voted at any meeting or counted in determining
the total number of outstanding shares at any given time.
Shares standing in the name of another corporation may be
voted by such officer, agent, or proxy as the By-Laws of such
corporation may prescribe, or in the absence of such provision, as
the Board of Directors of such corporation may determine.
Shares held by an administrator, executor, guardian, or
conservator may be voted by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing
in the name of a trustee may be voted by him, either in person or
by proxy.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may
be voted by such receiver without the transfer thereof into his
name if authority to do so be contained in an appropriate order of
the Court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to
vote such shares until the shares have been transferred into the
name of the pledgee and thereafter the pledgee shall be entitled to
vote the shares so transferred.
Section 10. Cumulative Voting. At each election for
directors, every Shareholder entitled to vote at such election
shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to
be elected and for whose election he has a right to vote, or to
cumulate said shares and give one candidate as many votes as the
number of directors multiplied by the number of his shares shall
equal, or to distribute them upon the same principle among as many
candidates as he shall think fit.
Section 11. Informal Action by Shareholders. Any action
required to be taken at a meeting of the Shareholders, or any
action which may be taken at a meeting of the Shareholders, may be
taken without a meeting if a consent in writing, setting forth the
action so taken, shall be signed by all of the Shareholders
entitled to vote with respect to the subject matter thereof. Such
consent shall have the same force and effect as a unanimous vote of
Shareholders and may be stated as such in any articles or document
filed with the Secretary of State under applicable state law.
Section 12. Inspectors of Election. In advance of any
meeting of Shareholders, the Board of Directors may appoint any
persons, other than nominees for office, as inspectors of election
to act at such meeting or any adjournment thereof. The number of
inspectors shall be either one (1) or three (3). If the Board of
Directors so appoints either one (1) or three (3) inspectors, that
appointment shall not be altered at the meeting. If inspectors of
election are not so appointed, the Chairman of the Board of
Directors or the President may make such appointment at the
meeting. In case any person appointed as inspector fails to appear
or fails or refuses to act, the vacancy may be filled by
appointment by the Board of Directors in advance of the meeting or
at the meeting by the Chairman of the Board of Directors or the
President.
Unless otherwise prescribed by applicable regulations, the
duties of such inspectors shall include: determining the number of
shares of stock and the voting power of each share, the shares of
stock represented at the meeting, the existence of a quorum, the
authenticity, validity, and effect of proxies; receiving votes,
ballots, or consents; hearing and determining all challenges and
questions in any way arising in connection with the right to vote;
counting and tabulating all votes or consents; determining the
result; and such acts as may be proper to conduct the election or
vote with fairness to all Shareholders.
Section 13. Nominations. The Board of Directors shall act
as a nominating committee for selecting the management nominees for
election as directors. Except in the case of a nominee substituted
as a result of the death or other incapacity of a management
nominee, the nominating committee shall deliver written nominations
to the Secretary no less than fifteen (15) days prior to the date
of the annual meeting. Provided such committee makes such
nominations, no nominations for directors except those made by the
nominating committee shall be voted upon at the annual meeting
unless other nominations by Shareholders are made in writing and
delivered to the Secretary of the corporation at least ten (10)
days prior to the date of the annual meeting.
Section 14. New Business. Any new business to be taken up
at the annual meeting shall be stated in writing and filed with the
Secretary of the corporation at least twenty (20) days before the
date of the annual meeting, and all business so stated, proposed
and filed shall be considered at the annual meeting, but no other
proposal shall be acted upon at the annual meeting. Any
Shareholder may make any other proposal at the annual meeting and
the same may be discussed and considered, but, unless stated in
writing and filed with the Secretary at least twenty (20) days
before the meeting, such proposal shall be laid over for action at
an adjourned, special, or annual meeting of the Shareholders taking
place thirty (30) days or more thereafter. This provision shall
not prevent the consideration and approval or disapproval at the
annual meeting of reports of officers, directors and committees,
but, in connection with such reports, no new business shall be
acted upon at such annual meeting unless stated and filed as herein
provided.
ARTICLE II
DIRECTORS
Section 1. Number and Qualifications. The business and
affairs of the corporation shall be managed by a Board of Directors
consisting of not less than seven (7) nor more than nine (9)
directors. The directors need not be residents of the State of
Nebraska, nor Shareholders of the corporation. Although the number
and qualifications of the directors may be changed from time to
time by amendment to these By-Laws, no change shall affect the
incumbent directors during the terms for which they were elected.
Section 2. Election and Tenure. The directors shall be
elected for a term of one (1) year and until their successors are
elected and qualified.
Section 3. Removal and Vacancies. The removal of
directors shall be by vote of the holders of a majority of the
shares then entitled to vote at an election of directors. If less
than the entire board is to be removed, no one of the directors may
be removed if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election
of the entire Board of Directors. The filling of director
vacancies, which may occur for any reason, shall be filled by the
vote of the remaining directors, even if less than a quorum, or by
a sole remaining director. Any directors so chosen shall hold
office until the next election of directors and until their
successors shall be elected and qualified.
Section 4. Quorum. A majority of the number of directors
fixed by the By-Laws shall constitute a quorum for the transaction
of any business at any meeting of the Board of Directors. The act
of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors,
unless a greater number is specified by the Articles of
Incorporation or these By-Laws. If less than a quorum is present
at any meeting, the majority of these present may adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present.
Section 5. Annual Meeting. The annual meeting of the
Board of Directors shall be held without notice other than this By-
Law immediately following adjournment of the annual meeting of
Shareholders and shall be held at the same place as the annual
meeting of Shareholders unless some other place is agreed upon.
Section 6. Special Meetings. Special meetings of the
Board of Directors may be called by the Chairman of the Board or
the President or a majority of the Board of Directors, and shall be
held at the office of the corporation or at such other place,
either within or without the State of Nebraska, as the notice may
state.
Section 7. Notice. Notice of special meetings shall be
mailed to each director at his last known address at least five (5)
days prior to the date of holding said meetings. Any director at
a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose
of objecting 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 regular or special meeting
of the Board of Directors need be specified in the notice or waiver
of notice of such meeting.
Section 8. Action Without a Meeting. Any action required
to be taken at a meeting of the Board of Directors, or of any
committee, may be taken without a meeting, if a consent in writing,
setting forth the action so taken, shall be signed by all of the
directors, or all of the members of the committee, as the case may
be. Such consent shall have the same effect as a unanimous vote.
The consent may be executed by the directors in counterparts.
Section 9. Voting. At all meetings of the Board of
Directors, each director shall have one (1) vote irrespective of
the number of shares he may hold. Members of the Board of
Directors may vote and participate in meetings by means of
conference telephone or similar communications equipment by which
all persons participating in the meeting can hear each other.
Section 10. Presumption of Assent. A director of the
corporation who is present at a meeting of the Board of Directors
at which action on any corporate matter is taken shall be presumed
to have assented to the action taken unless his dissent shall be
entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as the
Secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to the Secretary of the
corporation immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a director who voted in favor
of such action.
Section 11. Compensation. By resolution of the Board of
Directors, the directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors, and may be
paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 12. Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board,
appoint an executive committee, an audit committee, and one or more
other committees, each committee to consist of two (2) or more
directors of the corporation, which committees shall, to the extent
permitted by law, have and may exercise such powers of the Board of
Directors in the management of the business and affairs of the
corporation as shall be delegated to them.
Section 13. Advisory Directors. The Board of Directors may
by resolution appoint advisory directors to the Board, who shall
serve as directors emeritus, and shall have such authority and
receive such compensation and reimbursement as the Board of
Directors shall provide. Advisory directors shall not have the
authority to participate by vote in the transaction of business.
ARTICLE III
OFFICERS
Section 1. Number and qualifications. The officers of the
corporation shall be a Chairman of the Board, a President, one or
more Vice-Presidents (as the Board of Directors shall determine),
a Secretary, and a Treasurer and such other officers and agents as
may be deemed necessary by the Board of Directors. Any two (2) or
more offices may be held by the same person.
Section 2. Election and Tenure. The officers of the
corporation shall be elected by the Board of Directors at its
annual meeting. Each officer shall hold office for a term of one
(1) year or until his successor shall have been duly elected and
shall have become qualified, unless his service is specified by an
employment contract of greater length or is terminated sooner
because of death, resignation, or otherwise. The Board of
Directors may authorize the corporation to enter into an employment
contract with any officer in accordance with state law.
Section 3. Removal. Any officer or agent of the
corporation, elected or appointed by the Board of Directors, may be
removed by the Board of Directors whenever in its judgment the best
interests of the corporation should be served thereby, but such
removal shall be without prejudice to the contract rights, if any,
of the person so removed. Election or appointment of an officer or
agent shall not of itself create contract rights.
Section 4. Vacancies. Vacancies occurring in any office
by reason of death, resignation, or otherwise may be filled by the
Board of Directors at any meeting.
Section 5. Chairman of the Board. The Chairman of the
Board shall be the Chief Executive Officer of the corporation and,
subject to the control of the Board of Directors, shall, in
general, supervise and control all of the business and affairs of
the corporation. He shall, when present, preside at all meetings
of the Shareholders and of the Board of Directors. He may sign,
with the Secretary or any other proper officer of the corporation
thereunto authorized by the Board of Directors, certificates for
shares of the corporation, any deeds, mortgages, bonds, contracts,
or other instruments which the Board of Directors has authorized to
be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or
by the By-Laws to some other officer or agent of the corporation,
or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incidental to the office of
President and such other duties as may be prescribed by the Board
of Directors from time to time.
Section 6. The President. The President shall be the
principal operating officer of the corporation and, subject to the
control of the Board of Directors and the direction of the Chairman
of the Board, shall in general supervise and control the operation
of the business and affairs of the corporation. He shall, in the
absence of the Chairman of the Board, preside at all meetings of
the Shareholders and of the Board of Directors. He may sign, with
the Secretary or any other proper officer of the corporation,
certificates for shares of the corporation, and deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors
has authorized to be executed, except in cases where the signing
and execution thereof shall be expressly delegated by the Board of
Directors or by these By-Laws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or
executed; and in general, shall perform all duties incident to the
office of President and such other duties as may be prescribed by
the Board of Directors from time to time.
Section 7. The Vice-Presidents. In the absence of the
President or in the event of his death, inability, or refusal to
act, the Vice-President (or in the event there shall be more than
one Vice-President, the Vice-Presidents in the order designated at
the time of their election, or in the absence of any such
designation, then in the order of their election) shall perform the
duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the
President. Any Vice-President may sign with the Secretary or any
other proper officer of the corporation, certificates for shares of
the corporation; and shall perform such other duties as from time
to time may be assigned to him by the President or by the Board of
Directors.
Section 8. Secretary. The Secretary shall: (a) keep
minutes of the proceedings of the Shareholders and of 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 By-Laws or as required by law; (c) be the 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 by such
Shareholder (e) sign with the Chairman of the Board of Directors,
President or a Vice-President, certificates for shares of the
corporation, the issuance of which shall be authorized by
resolution of the Board of Directors; (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 and such
other duties as from time to time may be assigned to him by the
President or by the Board of Directors.
Section 9. The Treasurer. The Treasurer shall: (a) have
charge and custody of and be responsible for all funds and
securities of the corporation; (b) receive and give receipts for
monies due and payable to the corporation from any source
whatsoever, and deposit all such monies in the name of the
corporation in such banks, trust companies, or in other
depositories as shall be selected in accordance with the provisions
of these By-Laws; and (c) in general perform all of the duties
incident to the office of Treasurer and such other duties as from
time to time may be assigned by the President or by the Board of
Directors. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his duties in such
sum and with such surety or sureties as the Board of Directors
shall determine.
Section 10. Other Officers. Other officers shall perform
such duties and have such powers as may be assigned to them by the
Board of Directors.
Section 11. Salaries. The salaries of the officers shall
be fixed from time to time by the Board of Directors, and no
officer shall be prevented from receiving such salary by reason of
the fact that he is also a director of the corporation.
ARTICLE IV
SEAL
The corporate seal of the corporation shall contain the name
of the corporation and shall be in such form as the Board of
Directors shall prescribe.
ARTICLE V
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares. The shares of the
corporation shall be represented by certificates signed by the
Chairman of the Board of Directors or by the President or a Vice-
President and by the Treasurer or by the Secretary of the
corporation, and may be sealed with the seal of the corporation or
a facsimile thereof. Any or all of the signatures upon a
certificate may be facsimiles if the certificate is countersigned
by a transfer agent, or registered by a registrar, other than the
corporation itself or an employee of the corporation. If an
officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such officer before
the certificate is issued, it may be issued by the corporation with
the same effect as if he were such officer at the date of its
issue.
Section 2. Form of Share Certificates. Each certificate
representing shares shall state upon the face thereof; that the
corporation is organized under the laws of the State of Nebraska;
the name of the person to whom issued; the number and class of
shares; the designation of the series, if any, which such
certificate represents; the par value of each share represented by
such certificate, or a statement that the shares are without par
value. Other matters in regard to the form of the certificates
shall be determined by the Board of Directors.
Section 3. Loss or Destruction. In case of loss or
destruction of a certificate of stock, no new certificate shall be
issued in lieu thereof except upon satisfactory proof to the Board
of Directors of such loss or destruction, and upon the giving of
satisfactory security by bond or otherwise against loss to the
corporation.
Section 4. Transfer of Shares. Transfer of shares of
capital stock of the corporation shall be made only on its stock
transfer books. Authority for such transfer shall be given only by
the holder of record thereof or by his legal representative, who
shall furnish proper evidence of such authority, or by his attorney
thereunto authorized by power of attorney duly executed and filed
with the corporation. Such transfer shall be made only on
surrender for cancellation of the certificate for such shares. The
person in whose name shares of capital stock stand on the books of
the corporation shall be deemed by the corporation to be the owner
thereof for all purposes.
ARTICLE VI
DIVIDENDS AND BANK ACCOUNT
Section 1. Dividends. In addition to other dividends
authorized by law, the Board of Directors, by resolution, may from
time to time declare dividends to be paid out of the unreserved and
unrestricted earned surplus of the corporation, but no dividend
shall be paid when the corporation is insolvent, when the payment
thereof would render the corporation insolvent or when otherwise
prohibited by law.
Section 2. Bank Account. The funds of the corporation
shall be deposited in such banks, trust funds, or depositories as
the Board of Directors may designate and shall be withdrawn upon
the signature of the President and upon the signatures of such
other person or persons as the directors may by resolution
authorize.
ARTICLE VII
AMENDMENTS
These By-Laws may be altered, amended or repealed and new By-
Laws may be adopted by the Board of Directors at any regular or
special meeting of the Board of Directors.
ARTICLE VIII
WAIVER OF NOTICE
Whenever any notice is required to be given to any Shareholder
or Director of the corporation under the provisions of the Articles
of Incorporation or under the provisions of applicable state law,
a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated
therein, shall be equivalent to the giving of such notice.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
At the discretion of the Board of Directors, and subject to
the provisions of the Articles of Incorporation, the corporation
may indemnify any person who is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or
other agent of another corporation, partnership, trust, or other
enterprise as permitted by the Nebraska Business Corporation Act,
as amended from time to time.
ARTICLE X
DIRECTORS' INTEREST IN CONTRACTS
In the absence of fraud, no contract or other transaction
between the corporation and any other person, corporation, firm,
syndicate, association, partnership or joint venture shall be
either void or voidable or otherwise affected by reason of the fact
that one or more directors of the corporation are or become
directors or officers of such other corporation, firm, syndicate or
association or members of such partnership or joint venture, or are
pecuniarily or otherwise interested in such contract or
transaction, provided that (1) the fact such director or directors
of the corporation are so situated or so interested, or both, is
disclosed or known to the Board of Directors or committee which
authorizes, approves, or ratifies the contract or transaction by a
vote or consent sufficient for the purpose without counting the
votes or consents of such interested directors; (2) that such fact
is disclosed or known to the Shareholders entitled to vote and they
authorize, approve, or ratify such contract or transaction by vote
or written consent; or (3) the contract or transaction is fair and
reasonable to the corporation. Any director of the corporation who
is also a director or officer of such other corporation, firm,
syndicate, or association, or a member of such partnership or joint
venture or is pecuniarily or otherwise interested in such contract
or transaction, may be counted for the purpose of determining the
presence of a quorum at any meeting of the Board of Directors which
shall authorize any such contract or transaction.
ARTICLE XI
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the
corporation shall begin on the 1st day of March in each year, or at
such other time as may be determined by the Board of Directors.