AMENDED AND RESTATED BY-LAWS
OF
CONSOLIDATED DELIVERY & LOGISTICS, INC.
(adopted as of September 8, 1995, as amended through November 6, 1997)
ARTICLE I
OFFICES
The principal place of business or office of the Corporation as well
as all branch or subordinate places of business or offices may be established at
any time by the board of directors (the "Board") at any place or places where
the Corporation is qualified to do business or where qualification is not
required.
ARTICLE II
SHAREHOLDERS
2.1. Annual Meeting. -- The annual meeting of Shareholders shall be
held upon not less than ten (10) nor more than sixty (60) days written notice of
the time, place and purposes of the meeting. The meeting shall be held at the
time and at the place determined by the Board. At the meeting, the Shareholders
shall elect Directors and transact any other business that properly comes before
the meeting.
2.2. Special Meetings. -- A special meeting of Shareholders may be
called for any purpose by either the Chairman of the Board or the Board. The
meeting shall be held at the time and at the place determined by either the
Chairman of the Board, or the Board.
2.3. Record Date. -- The Board may fix in advance a record date for
determination of Shareholders entitled to notice of and to vote at any meeting
of Shareholders. The record date shall not be more than sixty (60) days nor less
than ten (10) days before the date of the meeting.
2.4. Notice of Meeting. -- Whenever Shareholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any meeting
shall be given personally or by mail, not less than ten (10) nor more than sixty
(60) days before the date of the meeting, to each Shareholder entitled to vote
at such meeting. If mailed, notice shall be deemed given when deposited in the
United States mail, postage prepaid, directed to the Shareholder at his address
as it appears on the records of the Corporation.
2.5 Adjournments. -- When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If, however, the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each Shareholder of record entitled to vote at the meeting. Any
previously scheduled meeting of the Shareholders may be postponed, and unless
the Certificate of Incorporation otherwise provides, any special meeting of the
Shareholders may be canceled by resolution of the Board upon public notice given
prior to the date previously scheduled for such meeting.
2.6. Quorum. -- The presence at a meeting in person or by proxy of the
holders of shares entitled to cast a majority of the votes of all shares
entitled to vote shall constitute a quorum for the purpose of transacting
business. In the absence of a quorum, the presiding officer at the meeting or
the Shareholders present, even though less than a quorum, may adjourn the
meeting to another time and place and, except as provided in the Section 2.5 of
these By-Laws, notice of the adjourned meeting need not be given.
2.7 Presiding Officer and Secretary. -- The Chairman of the Board, or
in his absence the President, shall preside at all Shareholder meetings. The
Secretary, or in his absence the appointee of the presiding officer of the
meeting, shall act as the Secretary of the meeting.
2.8 Vote of Shareholders.
a. Action without a Meeting. -- Whenever the vote of the holders of
shares of any class or series is required or permitted to be taken for or in
connection with any corporate action, the meeting and vote of such holders may
be dispensed with if such action is taken with the written consent of such
holders having a majority of the total number of votes which might have been
cast for or in connection with the proposed corporate action if a meeting were
held; provided that such written consent shall not be given by holders having
less than the minimum percentage of the vote required by statute for such
action, and further provided that prompt notice is given to all such holders of
the taking of corporate action without a meeting and by less than unanimous
written consent.
b. Votes per Share. -- Except as otherwise provided these By-Laws or
by the Certificate of Incorporation, each holder of record of stock of the
Corporation entitled to vote on any matter at any meeting of Shareholders shall
be entitled to one vote for each share of such stock registered in his name on
the stock ledger of the Corporation on the record date for the determination of
the Shareholders entitled to vote at the meeting. Except as otherwise provided
in Section 2.8(d), the method of voting and the manner in which votes are
counted shall be discretionary with the presiding officer at the meeting.
c. Vote by Proxy. -- Each Shareholder entitled to vote at a meeting of
Shareholders may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after three (3) years from its
date, unless such proxy provides for a longer period. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
duly authorizing another to act as proxy 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 for the entire original writing or transmission. A duly executed
proxy shall be irrevocable if it so states and if, and only as long as it is,
coupled with an interest sufficient in law to support an irrevocable power. A
Shareholder may revoke any proxy which is not irrevocable by attending the
meeting in person, by filing an instrument in writing revoking the proxy or by
filing another duly executed proxy bearing a later date with the Secretary of
the Corporation.
d. Election of Directors. -- Whenever Directors are to be elected at a
meeting, they shall be elected by a plurality of the votes cast at the meeting
by the Shareholders entitled to vote thereat. The vote for election of Directors
shall be by written ballot. Whenever any corporate action, other than the
election of Directors, is to be taken by vote of Shareholders at a meeting, it
shall, except as otherwise required by the Certificate of Incorporation or by
these By-Laws, be authorized by a majority of the votes cast at the meeting by
the Shareholders entitled to vote thereat.
2.9 Judges of Election. -- The Board may at any time appoint two or
more persons to serve as judges of election at any meeting of Shareholders to
act as judges and tellers with respect to all votes by ballot at such meeting.
If any judge appointed is absent or refuses to act, or if his office becomes
vacant and is not filled by the Board, the judges then present may act, provided
that such judges constitute a majority of the judges appointed. Otherwise, if
there is a failure to elect or appoint judges, the presiding officer of the
meeting may appoint one or more judges for such meeting. No Director or Officer
of the Corporation shall be eligible for election or appointment as judge. The
judges appointed to act at any meeting of the Shareholders, before entering upon
the discharge of their duties, shall be sworn faithfully to execute the duties
of judges at such meeting with strict impartiality and according to the best of
their ability, and the oath so taken shall be subscribed by them.
2.10. List of Shareholders Entitled to Vote. -- The Secretary shall
prepare and make, at least ten (10) days before every meeting of Shareholders, a
complete list of Shareholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each Shareholder and the number
of shares registered in the name of each Shareholder. Such list shall be open to
the examination of any Shareholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any Shareholder who is present. The share ledger
shall be the only evidence as to who are the Shareholders entitled to examine
the share ledger, the list of Shareholders or the books of the Corporation, or
to vote in person or by proxy at any meeting of Shareholders.
ARTICLE III
BOARD OF DIRECTORS
3.1 Number and Term of Office - (a) The Board of Directors shall
consist of not less than three (3) nor more than twenty-one (21) directors, the
actual number of which is to be fixed from time to time by the Board.
(b) The Board shall be divided into three classes, the members of each
class to serve for three years. The number of directors in each class shall be
fixed by the Board at the time the number of directors is fixed, and the number
of directors in each class shall be as nearly equal as possible as the then
total number of directors constituting the entire Board permits. This paragraph
may only be amended by the shareholders of the Corporation.
(c) At the annual meeting of stockholders at which the stockholders
approve the provision in the by-laws authorizing a classified Board, directors
of the first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting of stockholders, directors of the second class
shall be elected to hold office for a term expiring at the second succeeding
annual meeting of stockholders, and directors of the third class shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. At each annual meeting thereafter, directors shall be elected to fill
the directorships of the class of directors whose terms have expired. Those
directors shall hold office until the third successive annual meeting after
their election and until their successors have been elected and qualified, so
that the term of office of one class of directors shall expire at each annual
meeting.
3.2. Regular Meetings. -- A regular meeting of the Board shall be held
without notice immediately following and at the same place as the annual
Shareholders' meeting for the purpose of electing Officers and conducting any
other business that may come before the meeting. The Board may decide to have
additional regular meetings that may be held without notice.
3.3. Special Meetings. -- A special meeting of the Board may be called
for any purpose at any time by the Chairman or by the Board. The meeting shall
be held upon not less than one (1) day notice if given by telegram, orally
(either by telephone or in person), by same-day courier service or by facsimile
transmission, upon not less than two (2) days notice if given by overnight
courier delivery service, or upon not less than five (5) days notice if given by
depositing the notice in the United States mails, first class postage prepaid.
The notice shall be deemed given at the time it is given orally, the facsimile
transmission is originated (and there is no reason to believe it was not
received), it is delivered to the overnight courier service, or it is deposited
in the United States mails. The notice shall specify the time and place and may,
but need not, specify the purposes of the meeting.
3.4. Action Without Meeting. -- The Board or any committee thereof may
act without a meeting if, prior or subsequent to the action, each member of the
Board or of such committee consents in writing to the action. The written
consent or consents shall be filed with the proceedings of the Board or
committee.
3.5. Use of Communications Equipment. -- Any Director may participate
in a meeting of the Board by means of conference telephone or any other means of
communication by which all persons participating in the meeting are able to hear
each other.
3.6. Quorum; Votes Required. -- The presence at a meeting of persons
entitled to cast a majority of the votes of the entire Board shall constitute a
quorum for the transaction of business. Any action approved by a majority of the
votes of Directors present at a meeting at which a quorum is present shall be
the act of the Board. In the absence of a quorum, the Directors present may
adjourn any meeting from time to time until a quorum is present and no notice of
an adjourned meeting need be given other than by announcement at the meeting
which is being adjourned. At such adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting originally called.
3.7. Vacancies in Board of Directors. -- Any vacancy in the Board,
including a vacancy caused by an increase in the number of Directors, may be
filled by a majority of the votes of the remaining Directors, even though less
than a quorum of the Board, or by a sole remaining Director, and Directors so
chosen shall hold office for a term expiring at the next annual meeting of
Shareholders. No decrease in the number of Directors constituting the Board
shall shorten the term of any incumbent Director.
3.8 Compensation of Directors. -- Directors who are not Officers of
the Corporation shall receive such compensation as may be fixed by the Board for
service on the Board or any committee thereof.
3.9 Removal. -- Any Director or Directors may be removed from office
at any time either with or without by the affirmative vote of (i) the majority
of the holders of voting power of the then outstanding shares of stock of the
Corporation entitled to vote generally in the election of Directors, voting
together as a single class, or (ii) a majority of the Board.
ARTICLE VI
COMMITTEES OF THE BOARD
4.1 Executive Committee. -- The Corporation shall have an Executive
Committee consisting of seven members, including (i) the Chairman of the Board,
the President and the Executive Officer appointed as Chief Financial Officer,
each of whom shall be ex-officio members and (ii) four (4) additional Directors
appointed by the Board. The Chairman of the Board, or in his absence, the
President, shall preside at meetings of the Executive Committee.
The Executive Committee shall exercise such powers as may be assigned
to it by the Board and may consider and make recommendations to the Board
regarding any matters relating to the affairs of the Corporation.
Meetings of the Executive Committee shall be held at such times and
places as the Executive Committee shall determine or upon call of the Chairman
of the Board or the President. One-third of the members of the Executive
Committee, including at least one ex-officio member and at least one other
member, shall constitute a quorum of the Executive Committee for the transaction
of business.
4.2 Other Committees. -- The Board may from time to time, by
resolution adopted by a majority of the whole Board, designate one or more other
committees, each committee to consist of two or more Directors of the
Corporation. Any such committee shall exercise those powers as may be assigned
to it by the Board.
4.3 Committee Rules; Quorum; Manner of Acting. -- Each committee may
adopt rules consistent with these By-Laws governing the method of calling
meetings and determining the time and place for holding such meetings. One-half
of any committee for which a quorum is not otherwise set forth in these By-Laws
shall constitute a quorum for the transaction of business, unless the Board
shall otherwise provide, and the act of a majority of the members of such
committee present at a meeting at which a quorum is present shall be the act of
such committee.
ARTICLE V
WAIVERS OF NOTICE
Any notice required by these By-Laws, by the Certificate of
Incorporation, or by the Delaware General Corporation Law may be waived in
writing by any person entitled to notice. The waiver, or waivers, may be
executed either before or after the event with respect to which the notice is
waived. Each Director or Shareholder attending a meeting without protesting the
lack of proper notice prior to the conclusion of such meeting shall be deemed
conclusively to have waived notice of the meeting.
ARTICLE VI
OFFICERS
6.1. Titles. -- The Corporation shall have the following Officers: a
Chairman of the Board, a President, one or more Vice Presidents, including
Executive Vice Presidents and Senior Vice Presidents, a Secretary and a
Treasurer. In addition, such other Officers as may be appointed by the Board at
any time or from time to time. The Board may by resolution delegate to the
Executive Committee, and to such other Officers as the Board may designate, the
authority (i) to appoint Officers below the level of Executive Vice President or
its equivalent, (ii) to assign powers and duties to any Officer below the level
of Executive Vice President or its equivalent, (iii) to rescind or terminate the
appointment of any Officer below the level of Executive Vice President or its
equivalent, and (iv) to accept the resignation of any Officer. Any one or more
Vice Presidents may be designated Senior Executive Vice President, Executive
Vice President or Senior Vice President. One person may hold any two or more
offices and perform the duties thereof.
6.2 Appointment, Term and Compensation of Officers. -- The Chairman of
the Board and the President shall be appointed by the Board to hold office until
the next annual meeting of the Board and until their successors are appointed
and qualified. The term of office of all other Officers shall be at the pleasure
of the Board. Subject to the terms of any agreement binding on the Corporation,
the compensation of all Officers of the Corporation shall be fixed by resolution
of the Board, except that the Board may authorize the Chairman or the President
to fix the compensation of any person in any official position and to delegate
such authority to any other Officers designated by the Board.
6.3 Duties and Authority of the Chairman of the Board. -- The Chairman
of the Board shall be the Chief Executive Officer of the Corporation. Subject
only to the direction and control of the Board, the Chairman have general charge
and supervision over, and responsibility for, the business and affairs of the
Corporation. Unless otherwise directed by the Board, all other Officers shall be
subject to the authority and supervision of the Chairman. The Chairman may enter
into and execute in the name of the Corporation contracts and other instruments
in the regular course of business which are authorized, either generally or
specifically, by the Board. The Chairman shall have the general powers and
duties of management usually vested in the Chairman of a business corporation
and shall have such other powers and duties as may be prescribed by the Board.
6.4 Duties and Authority of President. -- In the event of the
Chairman's absence or inability to act, or if the Board has so designated, the
President shall be the Chief Executive Officer of the Corporation. Otherwise,
the President shall be the Chief Operating Officer of the Corporation and shall
be responsible only to the Chairman and to the Board for those areas of
operation of the business and affairs of the Corporation as shall be delegated
to the President by the Board or by the Chairman. Unless otherwise specified by
the Board or by the Chairman, all other Officers of the Corporation (except the
Chairman) shall be subject to the authority and supervision of the President.
The President may enter into and execute in the name of the corporation
contracts or other instruments in the regular course of business that are
authorized, either generally or specifically, by the Board.
6.5 Duties and Authority of Vice Presidents. -- Each Vice President
shall perform the duties and have the authority that may be delegated to him or
her from time to time by the Chairman, by the President or by the Board. In the
absence of the President, or in the event of the President's death, inability,
or refusal to act (unless the Board determines otherwise), the Vice President
designated as successor for these purposes by the Board or, if there is none,
the most Senior Vice President, shall perform the duties and be vested with the
authority of the President.
6.6 Duties and Authority of Treasurer. -- Unless otherwise designated
by the Board, the Treasurer shall be the Chief Financial Officer of the Company.
The Treasurer, or any Assistant Treasurer, shall have custody of the funds and
securities of the corporation and shall keep or cause to be kept regular books
of account for the Corporation. The Treasurer, and each Assistant Treasurer,
shall perform such other duties and possess such other powers as are incident to
their respective offices or as shall be assigned to him or her by the Chairman,
by the President or by the Board.
6.7 Duties and Authority of Secretary. -- The Secretary, or any
Assistant Secretary, shall cause notices of all meetings to be served as
prescribed in these By-Laws and shall keep or cause to be kept the minutes of
all meetings and written consents of the Shareholders and the Board. The
Secretary, and each Assistant Secretary, shall perform such other duties and
possess such other powers as are incident to their respective offices or as
shall be assigned to him or her by the Chairman, by the President or by the
Board.
ARTICLE VII
CAPITAL STOCK AND OTHER SECURITIES
7.1. Issuance of Stock and Other Securities.--Certificates of any
class of capital stock of the Corporation and certificates representing any
other securities of the Corporation shall be signed by the Chairman, the
President, or any Vice President and countersigned by the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer. The signature of
each Officer may be an engraved or printed facsimile. If an Officer or transfer
agent or registrar whose facsimile signature has been placed upon certificates
ceases to hold the official capacity in which he or she signed, the certificates
may continue to be used. The certificates may, but need not, be sealed with the
seal of the Corporation, or a facsimile of the seal. The certificates shall be
countersigned and registered in whatever manner the Board may prescribe.
7.2. Lost, Stolen and Destroyed Certificates.--In case of lost, stolen
or destroyed certificates, new certificates may be issued to take their place
upon receipt by the Corporation of an appropriate affidavit accompanied by bond
of indemnity and under whatever regulations may be prescribed by the Board. The
giving of a bond of indemnity may be waived.
7.3. Transfer of Securities.--The shares of the capital stock or any
other registered securities of the Corporation shall be transferable on the
books of the Corporation by the holder thereof in person or by that person's
authorized agent, or by the transferee, upon surrender for cancellation to the
transfer agent of an outstanding certificate or certificates for the same number
of shares or other security with an assignment and authorization to transfer
endorsed thereon or attached thereto, duly executed, together with such proof of
the authenticity of the signature and of the power of the assignor to transfer
the securities as the Corporation or its agents may require.
7.4. Record Date for Dividends or Rights.--The Board may fix a record
date in advance as of which shares of stock shall be held of record to entitle a
Shareholder to the payment of any dividend, to the allotment of rights, or to
exercise rights in respect to any change, conversion or exchange of capital
stock of the Corporation. The record date shall not precede by more than sixty
(60) days the date of the dividend payment, or the allotment of rights, or the
date when the change, conversion or exchange of capital stock shall take effect.
Only Shareholders of record on the record date shall be entitled to receive or
exercise the rights or benefits when they shall accrue, notwithstanding any
transfer of any stock on the books of the Corporation subsequent to the record
date.
7.5. Issuance of Shares.--Shares of the capital stock of the
Corporation which have been authorized but not issued may be sold or issued from
time to time for such consideration as may be determined by the Board.
ARTICLE VIII
CORPORATE SEAL
The Seal of the Corporation shall be in such form as may be
approved from time to time by the Board and said seal, or a facsimile thereof,
may be imprinted or affixed by any process or in any manner reproduced. The
Secretary and any other Officers authorized by resolution of the Board shall be
empowered to use and attest the corporate seal on all documents.
ARTICLE IX
MISCELLANEOUS
9.1. Inspection of Corporate Records. -- The share register, or
duplicate share register, and minutes of proceedings of the Shareholders shall
be open to inspection for any proper purpose upon the written demand of any
person who has been a Shareholder of record or holder of a voting trust
certificate for at least six months immediately preceding that person's demand,
or any person holding, or so authorized in writing by the holders of, at least
five percent of the outstanding shares of any class. The inspection may be made
at any reasonable time not less than five days after the person has given
written notice of the demand to the Corporation. The inspection may be made in
person or by an agent or attorney and shall include the right to make extracts.
Demand for inspection shall be made in writing upon the President or Secretary
of the Corporation.
9.2. Checks, Drafts, Etc.--All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the Corporation, shall be signed or endorsed by the person or
persons and in such manner, manually or by facsimile signature, as shall be
determined from time to time by the Board.
9.3. Execution of Contracts.--The Board may authorize any Officer or
Officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the Corporation. The authority may be general or
confined to specific instances. No Officer, agent or employee shall have any
power or authority to bind the Corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount
unless so authorized by the Board or these By-Laws.
9.4. Voting Shares of Other Corporations.--The Chairman, the
President, or any Vice President are each authorized to vote, represent and
exercise on behalf of this Corporation all rights incident to any and all shares
of stock of any other corporation or corporations standing in the name of this
Corporation. The authority herein granted may be exercised by those Officers
either in person or by proxy or by power of attorney duly executed by the
Officer.
ARTICLE X
AMENDMENTS TO AND EFFECT OF BY-LAWS
10.1. Force and Effect of By-Laws. -- These By-Laws are subject to the
provisions of the Delaware General Corporation Law and the Corporation's
certificate of incorporation, as each may be amended from time to time. If any
provision in these By-Laws is inconsistent with a provision in that Act or the
certificate of incorporation, the provision of that Act or the certificate of
incorporation shall govern.
10.2. Amendments to By-Laws. -- These By-Laws may be altered, amended,
or repealed by the Shareholders or the Board. Any by-law adopted or amended by
the Shareholders may be amended or repealed by the Board, unless the resolution
of the Shareholders adopting the by-law expressly reserves to the Shareholders
the right to amend or repeal it.