EXHIBIT 3.2
BY-LAWS
OF
P.A.M. TRANSPORTATION SERVICES, INC.
(RESTATED AS OF MAY 14, 2002)
ARTICLE I.
SHAREHOLDERS MEETINGS
SECTION 1. PLACE OF MEETING. The Board of Directors may designate any place
within or without the State of Delaware as the place of meeting for any annual
or for any special meeting called by the Board of Directors. A waiver of notice
signed by all shareholders entitled to vote at a meeting may designate any place
within or without the State of Delaware as the place for the holding of such
meeting. If no designation is made, or if a special meeting be otherwise called,
the place of meeting shall be the principal office of the Corporation in the
State of Arkansas.
SECTION 2. ANNUAL MEETING. The annual meeting of the shareholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as may be designated by the Board of Directors,
for the purpose of electing directors and for the transaction of such other
business as may be properly brought before the meeting.
SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute or the Amended and
Restated Certificate of Incorporation, may be called by the President, the Chief
Executive Officer, or the Chairman of the Board of Directors, if any. The
President or Secretary shall call a special meeting when: (1) requested in
writing by any two or more of the Directors; or (2) requested in writing by
shareholders owning at least seventy-five percent (75%) of the shares entitled
to vote. Such written request shall state the purpose or purposes of the
proposed meeting. No business shall be transacted and no corporate action shall
be taken other than that stated in the notice of the meeting unless all of the
shareholders are present in person or by proxy, in which case any and all
business may be transacted at the meeting even though the business is transacted
without notice. The provisions of this Section shall be amended, altered,
changed or repealed only with the affirmative vote or consent of the holders of
at least seventy-five percent (75%) of the outstanding shares of the stock of
the Corporation entitled to elect Directors, in addition to any approval of the
Board of Directors or any shareholder vote or consent required by law or any
provision of the Amended and Restated Certificate of Incorporation or otherwise.
SECTION 4. NOTICE. Except as otherwise required by statute or the
Certificate of Incorporation, written notice of each meeting of the
shareholders, whether annual or special, shall be served, either personally or
by mail, upon each shareholder of record entitled to vote at such meeting, not
less than ten (10) nor more than sixty (60) days before the meeting. If mailed,
such notice shall be directed to a shareholder at his post office address last
shown on the records of the Corporation. Notice of any special meeting of
shareholders shall state the purpose or purposes for which the meeting is
called. Notice of any meeting of shareholders shall not be required to be given
to any shareholder who, in person or by his attorney thereunto authorized,
either before or after such meeting, shall waive such notice. Attendance of a
shareholder at a meeting, either in person or by proxy, shall itself constitute
waiver of notice and waiver of any and all objections to the place and time of
the meeting and manner in which it has been called or convened, except when a
shareholder attends a meeting solely for the purpose of stating, at the
beginning of the meeting, any such objections to the transaction of business.
Notice of the time and place of any adjourned meeting need not be given
otherwise than by the announcement at the meeting at which adjournment is taken.
SECTION 5. QUORUM. The holders of a majority of the stock issued,
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the shareholders and shall
be requisite for the transaction of business, except as otherwise provided by
law, by the Certificate of Incorporation, or by these By-Laws. If, however, such
majority shall not be present or represented at any meeting of the shareholders,
the shareholders entitled to vote thereat, present in person or by proxy, shall
have the power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until the requisite amount of voting stock
shall be present. At such adjourned meeting at which a quorum shall be present
in person or by proxy, any business may be transacted that might have been
transacted at the meeting originally called.
SECTION 6. VOTING, PROXIES. At every meeting of the shareholders, any
shareholder having the right to vote shall be entitled to vote in person or by
proxy, but no proxy shall be voted after eleven months from its date, unless
said proxy provides for a longer period. Each shareholder shall have one vote
for each share of stock having voting power, registered in his name on the books
of the Corporation. If a quorum is present, the affirmative vote of the majority
of the shares represented at the meeting entitled to vote on the subject matter
shall be the act of the shareholders, except as otherwise provided by law, by
the Certificate of Incorporation or by these By-Laws.
SECTION 7. FIXING OF RECORD DATE. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or shareholders entitled to receive payment of
dividends, the Board of Directors may fix in advance a date as the record date
for any such determination of shareholders, such date in any case to be not less
than ten (10) nor more than sixty (60) days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken.
If no record date is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders, or shareholders entitled to
receive payment of dividends, the date on which notice of the meeting is mailed,
or on the date on which the resolution of the Board of Directors declaring such
dividend is adopted, as the case may be, shall be the record date. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such determination shall apply to any
adjournment thereof.
SECTION 8. INFORMAL ACTIONS BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting if written
consent, setting forth the action so taken, shall be signed by the shareholders
of outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting of shareholders at
which all shares entitled to vote thereon were present and voted. Prompt notice
of the taking of any such corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing. Such consent shall have the same force and effect as a
unanimous vote of the shareholders.
ARTICLE II
DIRECTORS
SECTION 1. GENERAL POWERS. Except as may be otherwise provided by any legal
agreement among shareholders, the property and business of the Corporation shall
be managed by its Board of Directors. In addition to the powers and authority
expressly conferred by these By-Laws, the Board of Directors may exercise all
such powers of the Corporation and do all such lawful acts and things as are not
by law, or by any legal agreement among shareholders, or by the Certificate of
Incorporation or by these By-Laws directed or required to be exercised or done
by the shareholders.
SECTION 2. NUMBER, TENURE, QUALIFICATIONS, REMOVAL. The Board of Directors
shall consist of not less than three (3) nor more than fifteen (15) members, the
precise number to be fixed by resolution of the shareholders from time to time.
Each Director shall hold office until the annual meeting of shareholders held
next after his election and until his successor has been duly elected and has
qualified, or until his earlier resignation, removal from office, or death.
Directors need not be shareholders. Any Director may be removed at any time,
with or without cause, by the affirmative vote of the holders of seventy-five
percent (75%) of the outstanding shares of the stock of the Corporation entitled
to elect Directors, either at the annual meeting or at a special meeting called
for that purpose. This Section shall be amended, altered, changed or repealed
only with the affirmative vote or consent of the holders of at least
seventy-five percent (75%) of the outstanding shares of stock of the Corporation
entitled to elect Directors, in addition to any approval of the Board of
Directors or any shareholder vote or consent required by law or any provision of
the Amended and Restated Certificate of Incorporation of the Corporation or
otherwise.
SECTION 3. VACANCIES, HOW FILLED. If any vacancy shall occur among the
Directors by reason of the resignation, removal or death of a Director, the
remaining Directors shall continue to act, and such vacancies may be filled by
the vote of the majority of the Directors then in office, though less than a
quorum, and if not therefore filled by action of the Directors, may be filled by
the shareholders at any meeting held during the existence of such vacancy;
provided that whenever any Director shall have been elected by the holders of
any class of stock of the Corporation voting separately as a class under the
provisions of the Certificate of Incorporation, such Director may be removed and
the vacancy filled only by the holders of that class of stock voting separately
as a class. A Director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office.
SECTION 4. PLACE OF MEETING. The Board of Directors may hold its meetings
at such place or places within or without the State of Delaware as it may from
time to time determine.
SECTION 5. COMPENSATION. Directors may be allowed such compensation for
attendance at regular or special meetings of the Board of Directors and of any
special meeting or standing committees thereof as may be from time to time
determined by resolution of the Board of Directors.
SECTION 6. REGULAR MEETINGS. A regular annual meeting of the Board of
Directors shall be held without other notice than this By-Law immediately after,
and at the same place as, the annual meeting of shareholders. The Board of
Directors may provide, by resolution, the time and place within or without the
State of Delaware, for the holding of additional regular meetings without other
notice than such resolution.
SECTION 7. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by the Chairman of the Board, the Chief Executive Officer or the
President on not less than two (2) days' notice by mail, telegram, cablegram or
personal delivery to each Director and shall be called by the Chairman of the
Board, the Chief Executive Officer, the President or the Secretary in like
manner and on like notice on the written request of any two (2) or more
Directors. Any such special meeting shall be held at such time and place as
shall be stated in the notice of the meeting. Unless otherwise indicated in the
notice thereof, any and all business other than an amendment of these By-Laws
may be transacted at any special meeting, and an amendment of these By-Laws may
be acted upon if the notice of the meeting shall have stated that the amendment
of these By-Laws is one of the purposes of the meeting. At any meeting at which
every Director shall be present, even though without any notice, any business
may be transacted, including the amendment of these By-Laws.
SECTION 8. NOTICE, WAIVER BY ATTENDANCE. No notice of a meeting of the
Board of Directors need be given to any Director who signs a waiver of notice
either before or after the meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting and waiver of any and all
objections to the place of the meeting, the time of the meeting or the manner in
which it has been called or convened except when a Director states, at the
beginning of the meeting, any such objection or objections to the transaction of
business.
SECTION 9. QUORUM. At all meetings of the Board of Directors, the presence
of a majority of the Directors shall constitute a quorum for the transaction of
business. In the absence of a quorum a majority of the Directors present at any
meeting may adjourn from time to time until a quorum be had. Notice of the time
and place of any adjourned meeting need only be given by announcement at the
meeting at which adjournment is taken.
SECTION 10. MANNER OF ACTING. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
SECTION 11. EXECUTIVE COMMITTEE. In furtherance and not in limitation of
the powers conferred by statute, the Board of Directors may establish an
Executive Committee of two (2) or more Directors constituted and appointed by
the Board of Directors from their number who shall meet when deemed necessary.
They shall have authority to exercise all the powers of the Board which may be
lawfully delegated and not inconsistent with these By-Laws, at any time and when
the Board is not in session. The committee shall elect a Chairman, and a
majority of the whole committee shall constitute a quorum; and the act of a
majority of members present at a meeting at which a quorum is present shall be
the act of the committee provided all members of the committee have had notice
of such meeting or waived such notice. Notice of meetings of the Executive
Committee shall be the same as required for a special meeting of the Board of
Directors as outlined in Section 7 of this Article II.
SECTION 12. OTHER COMMITTEES. In addition to the Executive Committee, the
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, including without limitation a Compensation
Committee, each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided by resolution passed by a majority of the
whole Board, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and the affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending these By-Laws; and unless such
resolution, these By-Laws, or the Certificate of Incorporation expressly so
provide, no such committee shall have the power to authorize to declare a
dividend or to authorize the issuance of stock.
SECTION 13. ACTION WITHOUT FORMAL MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if written consent thereto is signed by all
members of the Board of Directors or of such committee, as the case may be, and
such written consent is filed with the Minutes of the proceedings of the Board
or committee.
SECTION 14. CONFERENCE CALL MEETINGS. Members of the Board of Directors, or
any committee designated by such Board, may participate in a meeting of such
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting.
ARTICLE III.
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a Chief
Executive Officer, a Chief Operating Officer, a Chief Financial Officer, a
President, one or more Executive Vice Presidents or Vice Presidents, a Secretary
and a Treasurer, and such additional officers, if any, as shall be elected by
the Board of Directors pursuant to the provisions of Section 11 of this Article
III. The Chief Executive Officer, the Chief Financial Officer, the President,
one or more Executive Vice Presidents or Vice Presidents, the Secretary and the
Treasurer, shall be elected by the Board of Directors at its first meeting after
each annual meeting of the shareholders. The failure to hold such election shall
not of itself terminate the term of office of any officer. Any number of offices
may be held simultaneously by the same person, except that the person serving as
Chief Financial Officer may not serve simultaneously as the Chief Executive
Officer. Any Chairman and Vice Chairman, if such positions are created by the
Board of Directors, shall be Directors of the Corporation. All other officers
may, but need not be, Directors. Any officer may resign at any time upon written
notice to the Corporation.
All officers, agents and employees shall be subject to removal, with or
without cause, at any time by the Board of Directors. The removal of an officer
without cause shall be without prejudice to his contract rights, if any. The
election or appointment of an officer shall not of itself create contract
rights. All agents and employees other than officers elected by the Board of
Directors shall also be subject to removal, with or without cause, at any time
by the officers appointing them.
Any vacancy caused by the death of any officer, his resignation, his
removal, or otherwise, may be filled by the Board of Directors, and any officer
so elected shall hold office at the pleasure of the Board of Directors.
In addition to the powers and duties of the officers of the Corporation as
set forth in these By-Laws, the officers shall have such authority and shall
perform such duties as from time to time may be determined by the Board of
Directors.
SECTION 2. POWERS AND DUTIES OF THE CHAIRMAN. The Chairman, if any, shall
preside at all meetings of the shareholders and of the Board of Directors at
which he shall be present and shall have such other duties as may from time to
time be assigned by these By-Laws or by the Board of Directors.
SECTION 3. POWERS AND DUTIES OF THE VICE CHAIRMAN. The Vice Chairman or
Chairmen, if any, shall have such powers and perform such duties as may from
time to time by assigned by the Board of Directors or the Chairman. In the
absence of the Chairman, the Vice Chairman, if any, (or if more than one, one of
the Vice Chairmen as designated by the Board of Directors ) shall preside at all
meetings of the shareholders and the Board of Directors at which he shall be
present.
SECTION 4. POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER. The Chief
Executive Officer shall be the chief executive officer of the Corporation and,
subject to the control of the Board of Directors, shall have general charge and
control of all its business and affairs and shall perform all duties incident to
the office of Chief Executive Officer; he may sign and execute, in the name of
the Corporation, all authorized deeds, mortgages, bonds, notes and other
evidence of indebtedness, contracts or other instruments, except in cases in
which the signing and execution thereof shall have been expressly excluded from
the Chief Executive Officer and delegated to some other officer or agent of the
Corporation by the Board of Directors. In the absence or disability of the
Chairman and all Vice Chairmen, or if the Board of Directors has not elected a
Chairman or Vice Chairman, the Chief Executive Officer shall preside at all
meetings of the shareholders and of the Board of Directors and shall have such
other powers and perform such other duties as may from time to time be assigned
to him by these By-Laws or by the Board of Directors.
SECTION 5. POWERS AND DUTIES OF THE CHIEF OPERATING OFFICER. The Chief
Operating Officer shall be the principal operating officer of the Corporation
with authority as such, and at the request of the Chief Executive Officer or in
his absence or disability to act, shall perform the duties and exercise the
functions of the Chief Executive Officer, and when so acting shall have such
other powers and perform such other duties as may from time to time be assigned
to him by the Board of Directors or the Chief Executive Officer.
SECTION 6. POWERS AND DUTIES OF THE CHIEF FINANCIAL OFFICER. The Chief
Financial Officer shall be the chief accounting officer of the Corporation; he
shall see that the books and account and other accounting records of the
Corporation are kept in proper form and accurately; and, in general, he shall
perform all the duties incident to the office of Chief Financial Officer of the
Corporation and such other duties as may from time to time be assigned to him by
the Board of Directors or the Chief Executive Officer.
SECTION 7. POWERS AND DUTIES OF THE PRESIDENT. The President shall act as a
general executive officer of the Corporation and shall have such other powers
and perform such other duties as may from time to time be assigned to him by
these By-Laws or by the Board of Directors or by the Chief Executive Officer.
SECTION 8. POWERS AND DUTIES OF THE EXECUTIVE VICE PRESIDENT OR VICE
PRESIDENT. Each Executive Vice President or Vice President shall perform all
duties incident to such office and shall have such powers and perform such
duties as may from time to time be assigned to him by these By-Laws or by the
Board of Directors or the Chief Executive Officer.
SECTION 9. POWERS AND DUTIES OF THE SECRETARY. The Secretary shall keep the
minutes of meetings of the Board of Directors and the minutes of all meetings of
the shareholders in books provided for that purpose; he shall attend to the
giving or serving of all notices of the Corporation; he shall have the custody
of the corporate seal of the Corporation and shall affix the same to such
documents and other papers as the Board of Directors or the Chief Executive
Officer shall authorize and direct; he shall have charge of the stock
certificate books, transfer books and stock ledgers and such other books and
papers as the Board of Directors or the Chief Executive Officer shall direct,
all of which shall at all reasonable times be open to the examination of any
Director, upon application, at the offices of the Corporation during business
hours; and he shall perform such other duties as may from time to time be
assigned to him by these By-Laws or the Board of Directors or the Chief
Executive Officer.
SECTION 10. POWERS AND DUTIES OF THE TREASURER. The Treasurer shall have
custody of, and when proper shall pay out, disburse or otherwise dispose of, all
funds and securities of the Corporation which may have come into his hands; he
may endorse on behalf of the Corporation for collection checks, notes and other
obligations and shall deposit sham to the credit of the Corporation in such bank
or banks or depositary or depositaries as the Board of Directors may designate;
he shall sign all receipts and vouchers for payments made to the Corporation; he
shall enter or cause to be entered regularly in the books of the Corporation
kept for the purpose full and accurate accounts of moneys received or paid or
otherwise disposed of by him and whenever required by the Board of Directors or
the Chief Executive Officer shall render statements of such accounts; and he
shall perform all duties incident to the office of Treasurer and shall also have
such other powers and shall perform such other duties as may from time to time
be assigned to him by these By-Laws or by the Board of Directors or the Chief
Executive Officer.
SECTION 11. ADDITIONAL OFFICERS. The Board of Directors may from time to
time elect such other officers (who may but need not be Directors), including
Controllers, Assistant Treasurers, Assistant Secretaries and Assistant Financial
Officers, as the Board may deem advisable and such officers shall have such
authority and shall perform such duties as may from time to time be assigned to
them by the Board of Directors or the Chief Executive Officer.
The Board of Directors may from time to time by resolution delegate to any
Assistant Treasurer or Assistant Treasurers any of the powers or duties herein
assigned to the Treasurer; and may similarly delegate to any Assistant Secretary
or Assistant Secretaries any of the powers or duties herein assigned to the
Secretary.
SECTION 12. GIVING OF BOND BY OFFICERS. All officers of the Corporation, if
required to do so by the Board of Directors, shall furnish bonds to the
Corporation for the faithful performance of their duties, in such amounts and
with such conditions and security as the Board shall require.
SECTION 13. VOTING UPON STOCKS. Unless otherwise ordered by the Board of
Directors, the Chief Executive Officer, the Chief Operating Officer, the Chief
Financial Officer, the President, any Executive Vice President or Vice President
shall have full power and authority on behalf of the Corporation to attend and
to act and to vote, or in the name of the Corporation to executive proxies to
vote, at any meetings of shareholders of any corporation in which the
Corporation may hold stock, and at any such meetings shall possess and may
exercise, in person or by proxy, any and all rights, powers and privileges
incident to the ownership of such stock. The Board of Directors may from time to
time, by resolution, confer like powers upon any other person or persons.
SECTION 14. COMPENSATION OF OFFICERS. The officers of the Corporation shall
be entitled to receive such compensation for their services as shall from time
to time be determined by the Board of Directors or by a committee of the Board
to which the Board of Directors has delegated such responsibility.
ARTICLE IV.
CAPITAL STOCK
SECTION 1. FORM. The interest of each shareholder shall be evidenced by a
certificate representing shares of stock of the Corporation, which shall be in
such form as the Board of Directors may from time to time adopt and shall be
numbered and shall be entered in the books of the Corporation as they are
issued. Each certificate shall exhibit the holder's name, the number of shares
and class of shares and series, if any, represented thereby, a statement that
the Corporation is organized under the laws of the State of Delaware, and the
par value of each share or a statement that the shares are without par value.
Each certificate shall be signed by the Chairman of the Board, the President or
a vice President and the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer and shall be sealed with the seal of the Corporation. In
case any officer or officers who shall have signed any such certificate or
certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates had not ceased to be such
officer or officers of the Corporation.
SECTION 2. TRANSFER. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate, or by attorney lawfully
constituted in writing, and upon surrender of the certificate thereof, or in the
case of a certificate alleged to have been lost, stolen or destroyed, upon
compliance with the provisions of Section 4, Article IV of these By-Laws.
SECTION 3. RIGHTS OF HOLDER. The Corporation shall be entitled to treat the
holder of any share of the Corporation as the person entitled to vote such
share, to receive any dividend or other distribution with respect to such share,
and for all other purposes and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
SECTION 4. LOST OR DESTROYED CERTIFICATES. Any person claiming a
certificate of stock to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in such manner as the Board of Directors may require and
shall if the Board of Directors so requires, give the Corporation a bond of
indemnity in the form and amount and with one or more sureties satisfactory to
the Board of Directors, whereupon an appropriate new certificate may be issued
in lieu of the one alleged to have been lost, stolen or destroyed.
ARTICLE V.
FISCAL YEAR
The fiscal year of the Corporation shall be established by the Board of
Directors of the Corporation.
ARTICLE VI.
SEAL
The corporate seal shall be in such form as the Board of Directors may from
time to time determine.
ARTICLE VII.
ANNUAL STATEMENTS
No later than four months after the close of each fiscal year, and in any
case prior to the next annual meeting of shareholders, the Corporation shall
prepare:
(a) A balance sheet showing in reasonable detail the financial condition of
the Corporation as of the close of the fiscal year, and
(b) A profit and loss statement showing the results of its operation during
the fiscal year.
Upon written request, the Corporation shall mail promptly to any
shareholder of record a copy of the most recent such balance sheet and profit
and loss statement.
ARTICLE VIII.
INDEMNIFICATION
SECTION 1. ACTION BY PERSONS OTHER THAN THE CORPORATION. Under the
circumstances prescribed in Sections 3 and 4 of this Article, the Corporation
shall indemnify and hold harmless any person who was or is a party or is
threatened to be made a party of any, threatened, pending or completed action,
suit or proceeding, or investigation, whether civil, criminal or administrative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a Director, Officer, employee or agent of the
Corporation, or is now serving at the request of the Corporation as a Director,
Officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in a
manner which he reasonably believed to be in or not opposed to the best interest
of the Corporation, and, with respect to criminal action or proceeding, he had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in a manner which he reasonably believed
to be in or not opposed to the best interest of the Corporation, and with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
SECTION 2. ACTIONS BY OR IN THE NAME OF THE CORPORATION. Under the
circumstances prescribed in Sections 3 and 4 of this Article, the Corporation
shall indemnify and hold harmless any person who was or is a party or is
threatened to be made a party of any, threatened, pending or completed action,
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a Director, Officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
Corporation; except that no indemnification shall be made in respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expense which the
court shall deem proper.
SECTION 3. SUCCESSFUL DEFENSE. To the extent that a Director, Officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections 1
and 2 of this Article, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorney's fees) actually and
reasonably incurred by him in connection therewith.
SECTION 4. AUTHORIZATION OF INDEMNIFICATION. Except as provided in Section
3 of this Article and except as may be ordered by a court, any indemnification
under Sections 1 and 2 of this Article shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
Director, Officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 1 and 2. Such
determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting of
Directors who were not parties to such action, suit or proceeding; or
(2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Directors so directs, by the firm of independent legal counsel
then employed by the Corporation, in a written opinion.
SECTION 5. PREPAYMENT OF EXPENSES. Expenses incurred in defending a civil
or criminal action, suit or proceeding may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding as authorized by the
Board of Directors upon receipt of an undertaking by or on behalf of the
Director, Officer, employee or agent to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article.
SECTION 6. NON-EXCLUSIVE RIGHT. The indemnification provided by this
Article shall not be deemed exclusive of any other right to which the person
indemnified hereunder shall be entitled and shall inure to the benefit of the
heirs, executors or administrators of such persons.
SECTION 7. INSURANCE. The corporation may purchase and maintain insurance
on behalf of any person who is or was a Director, Officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this section.
SECTION 8. INTERPRETATION OF ARTICLE. It is the intent of this Article VIII
to provide for indemnification of the Directors, Officers, employees and agents
of the Corporation to the full extent permitted under the laws of State of
Delaware. This Article VIII shall be construed in a manner consistent with such
intent.
ARTICLE IX.
NOTICES: WAIVER OF NOTICE
SECTION 1. NOTICES. Except as otherwise provided in these By-Laws, whenever
under the provisions of these By-Laws notice is required to be given to any
shareholder, Director or Officer, such notice shall be given either by personal
notice or by cable or telegraph, or by mail by depositing the same in the post
office or letter box in a postpaid sealed wrapper, addressed to such
shareholder, Officer or Director at such address as appears on the books of the
Corporation, and such notice shall be deemed to be given at the time when the
same shall be thus sent or mailed.
SECTION 2. WAIVER OF NOTICE. Whenever any notice whatsoever is required to
be given by law, by the Articles of Incorporation or by these By-Laws, a waiver
thereof by the person or persons entitled to said notice given before or after
the time stated therein, in writing, which shall include a waiver given by
telegraph or cable, shall be deemed equivalent thereto. No notice of any meeting
need be given to any person who shall attend such meeting.
ARTICLE X.
CHECKS, NOTES, DRAFTS, LOANS, ETC.
SECTION 1. CHECKS, NOTES, DRAFTS. All checks, drafts, bills of exchange,
acceptances, notes or other obligations or orders for the payment of money shall
be signed and, if so required by the Board of Directors, countersigned by such
officers of the Corporation and/or other persons as shall from time to time be
designated by the Board of Directors or pursuant to authority delegated by the
Board.
Checks, drafts, bills of exchange, acceptances, notes, obligations and
orders for the payment of money made payable to the Corporation may be endorsed
for deposit to the credit of the Corporation with a duly authorized depository
by the Treasurer and/or such other officers or persons as shall from time to
time be designated by the Treasurer.
SECTION 2. LOANS. No loans and no renewals of any loans shall be contracted
on behalf of the Corporation except as authorized by the Board of Directors.
When authorized so to do, any officer or agent of the Corporation may effect
loans and advances for the Corporation from any bank, trust company or other
institution or from any firm, corporation or individual, and for such loans and
advances may make, execute and deliver promissory notes, bonds or other
evidences of indebtedness of the Corporation. When authorized so to do, any
officer or agent of the Corporation may pledge, hypothecate or transfer, as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general or confined
to specific instances.
ARTICLE XI.
OFFICES
Except as otherwise required by the laws of the State of Delaware, the
Corporation may have an office or offices and keep its books, documents and
papers outside of the State of Delaware at such place or places as from time to
time may be determined by the Board of Directors or the President.
ARTICLE XII.
REIMBURSEMENT OF DISALLOWED
PAYMENTS TO OFFICERS AND EMPLOYEES
In the event any payments to an Officer or employee of the Corporation,
such as salary, commission, bonus, interest, rent or entertainment expenses
incurred by him, is thereafter disallowed in whole or in part by the Internal
Revenue Service as a proper deduction for income tax purposes under Section 162
of the Internal Revenue Code of 1954, as amended (or disallowed under any
similar Code section which may subsequently replace Section 162), such
disallowed payments shall be deemed to be an obligation owed by such Officer or
employee to the Corporation. Such disallowed payments shall be reimbursed by
such Officer or employee to the Corporation on or before ninety (90) days
following the final determination of such disallowance by the Internal Revenue
Service or entry of the final judgment of such determination if adjudicated. It
shall be the duty of the Board of Directors to enforce reimbursement of each
such amount disallowed, including the withholding from future compensation
payments to such Officer or employee until the amount owed to the Corporation
has been recovered.
ARTICLE XIII.
AMENDMENTS
Except as otherwise indicated in these By-Laws, the By-Laws of the
Corporation may be altered or amended and new By-Laws may be adopted by the
shareholders or by the Board of Directors at any regular or special meeting of
the Board of Directors; provided, however, that, if such action is to be taken
at a meeting of the shareholders or Board of Directors, notice of the general
nature of the proposed change in the By-Laws shall have been given in the notice
of a meeting. Except as otherwise indicated in these By-Laws, action by the
shareholders with respect to By-Laws shall be taken by an affirmative vote of a
majority of the shares entitled to elect Directors, and action by the Directors
with respect to By-Laws shall be taken by an affirmative vote of a majority of
all Directors then holding office.