Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
PACER INTERNATIONAL, INC.
ARTICLE I
CORPORATE OFFICES
The registered office of the Corporation within the State of Tennessee
shall be located at CT Corporation, 530 Gay Street, Knoxville, TN, 37902. The
Corporation may also have such other offices, including its principal office, at
such places, within or without the State of Tennessee, as the board of directors
may from time to time designate or the business of the Corporation may require.
ARTICLE II
SHAREHOLDERS' MEETING
Section 1. Annual Meetings. The annual meeting of shareholders shall
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be held on such other date during the year and at such other time as may be
designated by the board of directors and stated in the notice of meeting, for
the purpose of electing directors and transacting such other business as may be
properly brought before the meeting.
Section 2. Special Meetings. Special meetings of shareholders may be
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called for any purpose or purposes by the board of directors.
Section 3. Notice of Meetings. A written notice of each meeting of
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shareholders stating the place, date and time of the meeting, and, in the case
of a special meeting, describing the purpose or purposes for which the meeting
is called, shall be given to each shareholder entitled to notice of such meeting
not less than ten days nor more than two months before the date of the meeting.
Section 4. Place of Meetings. Meetings of shareholders shall be held
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at such places, within or without the State of Tennessee, as may be designated
by the board of directors and stated in the notice of meeting.
Section 5. Quorum. The holders of shares entitled to vote as a
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separate voting group may take action on a matter at a meeting only if a quorum
exists with respect to that matter. Unless the charter or the Act provides
otherwise, the holders of a majority of the votes entitled to be cast on a
matter by a voting group constitute a quorum of that voting group for action on
that matter. Once a share is represented for any purpose at a meeting, the
holder is deemed present for quorum purposes for the remainder of the meeting
and for any adjournment of that meeting, unless a new record date is or must be
set for that adjourned meeting.
Section 6. Voting. Directors shall be elected by a plurality of the
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votes cast by shareholders entitled to vote in the election at a meeting at
which a quorum is present. Shareholder action on any other matter is approved by
a voting group, if the votes cast by shareholders within the voting group in
favor of the action exceed the votes cast by shareholders within the voting
group in opposition to such action, unless the charter or the Act provides
otherwise. If two or more groups are entitled to vote separately on a matter,
action on the matter is approved only when approved by each voting group.
Section 7. Adjournment. If a meeting of shareholders is adjourned to
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another date, time or place, notice need not be given of the adjourned meeting
if the new date, time and place are announced at the meeting before the
adjournment. At the adjourned meeting, the Corporation may transact any business
which might have been transacted at the time originally designated for the
meeting if a quorum existed at the time originally designated for the meeting;
provided, however, if a new record date is or must be fixed under the Act or
these bylaws, a notice of the adjourned meeting must be given to shareholders as
of the new record date.
Section 8. Proxies. A shareholder may appoint a proxy to vote at a
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meeting of shareholders or otherwise act for him by signing an appointment form,
either personally or by his attorney-in-fact. An appointment of a proxy is
effective when received by the secretary or other officer or agent authorized to
tabulate votes. An appointment is valid for eleven months, unless another period
is expressly provided for in the appointment form. An appointment of a proxy is
revocable by the shareholder, unless the appointment form conspicuously states
that it is irrevocable and the appointment is coupled with an interest.
Section 9. Action by Written Consent. Any action required or
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permitted to be taken at a meeting of the shareholders may be taken without a
meeting, if all shareholders consent to the taking of such action without a
meeting by signing one or more written consents describing the action taken and
indicating each shareholder's vote or abstention on the action. The affirmative
vote of the number of shares which would be necessary to authorize or take
action at a meeting of shareholders is the act of the shareholders without a
meeting. The written consent or consents shall be included in the minutes or
filed with the corporate records reflecting the action taken. Action taken by
written consent is effective when the last shareholder signs the consent, unless
the consent specifies a different effective date.
ARTICLE III
RECORD DATE
In order that the Corporation may determine the shareholders entitled
to notice of or to vote at any meeting of shareholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other action,
the board of directors may fix, in advance, a record date, which shall not be
more than seventy nor less than ten days before the date of such meeting, nor
more than seventy days prior to any other action. If no record date is fixed,
(i) the record date for determining shareholders entitled to notice of or to
vote at a meeting of shareholders shall be at the close of business on the day
before the day on which the first notice is given to such shareholders and (ii)
the record date for determining shareholders for any other purpose shall be at
the close of business on the day that the board of directors authorizes the
action. A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting,
unless the board of directors fixes a new record date. The board of directors
must fix a new record date, if the meeting is adjourned to a date more than four
months after the date fixed for the original meeting.
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ARTICLE IV
DIRECTORS
Section 1. Number and Term. The business and affairs of the
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Corporation shall be managed under the direction of a board of directors
consisting of not less than five nor more than nine members, the number of which
shall be fixed by the board of directors. Each director shall hold office until
the next annual meeting of shareholders and until his successor is elected and
qualified or until his earlier resignation or removal. A decrease in the number
of directors shall not shorten an incumbent director's term.
Section 2. Committees. The board of directors, with the approval of a
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majority of all the directors in office when the action is taken, may create one
or more committees. A committee shall consist of one or more directors who serve
at the pleasure of the board of directors. Any such committee, to the extent
specified by the board of directors, may exercise the authority of the board of
directors in supervising the management of the business and affairs of the
Corporation, except that a Committee may not: (i) authorize distributions,
except according to a formula or method prescribed by the board of directors;
(ii) approve or propose to shareholders action required by law to be approved by
shareholders; (iii) fill vacancies on the board of directors or any of its
committees; (iv) amend the charter; (v) adopt, amend or repeal bylaws; (vi)
approve a plan of merger not requiring shareholder approval; (vii) authorize or
approve reacquisition of shares, except according to a formula or method
prescribed by the board of directors; or (vii) authorize or approve the issuance
or sale or contract for sale of shares, or determine the designation and
relative rights, preferences and limitations of a class or series of shares,
except that the board of directors may authorize a committee or senior executive
officer of the Corporation to do so within limits specifically prescribed by the
board of directors. The provisions of Sections 7, 8, 9, 10, 11 and 12 of this
Article IV and of Article V applicable to the board of directors shall also
apply to committees.
Section 3. Compensation. Directors shall receive such compensation as
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shall be fixed by the board of directors and shall be entitled to reimbursement
for any reasonable expenses incurred in attending meetings and otherwise
carrying out their duties. Directors may also serve the Corporation in any other
capacity and receive compensation therefor.
Section 4. Removal. Shareholders may remove one or more directors
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with or without cause. If a director is elected by a voting group of
shareholders, only shareholders of that voting group may participate in the vote
to remove him without cause. A director may be removed only if the number of
votes cast to remove him exceeds the number of votes cast not to remove him.
Section 5. Resignation. A director may resign at any time by
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delivering written notice to the Corporation, the board of directors, the
chairman or the president. A resignation is effective when the notice is
delivered, unless the notice specifies a later effective date.
Section 6. Vacancies. The board of directors may fill any vacancy
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occurring on the board of directors, including any vacancy resulting from an
increase in the number of directors or from the resignation or removal of a
director. If the directors remaining in office constitute fewer than a quorum,
the board of directors may fill the vacancy by the affirmative vote of a
majority of all the directors remaining in office.
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Section 7. Quorum and Voting. A quorum of the board of directors
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consists of a majority of the number of directors fixed by the board of
directors pursuant to Section 1 of this Article IV. If a quorum is present when
a vote is taken, the affirmative vote of a majority of directors present is the
act of the board of directors, unless the charter requires the vote of a greater
number of directors.
Section 8. Regular Meetings. Regular meetings of the board of
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directors may be held without notice at such places, within or without the
States of Tennessee and California, on such dates and at such times as the board
of directors may determine from time to time.
Section 9. Special Meetings. Special meetings of the board of
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directors may be called by the chairman of the board, the president or any two
directors and shall be held at such places, within or without the States of
Tennessee and California, on such dates and at such times as may be stated in
the notice of meeting.
Section 10. Notices. Special meetings of the board of directors must
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be preceded by at least one days' notice of the date, time and place of the
meeting. The notice need not describe the purpose of the meeting, unless the
purpose, or one of the purposes, of the meeting is to remove a director or
directors pursuant to Section 4 of this Article IV. Notice of an adjourned
meeting need not be given, if the time and place to which the meeting is
adjourned are fixed at the meeting at which the adjournment is taken and if the
period of any one adjournment does not exceed one month.
Section 11. Meeting by Telephone. Any or all directors may participate
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in a regular or special meeting by conference telephone or any other means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
Section 12. Action by Written Consent. Any action required or
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permitted to be taken at a meeting of the board of directors may be taken
without a meeting, if all directors consent to the taking of such action without
a meeting by signing one or more written consents describing the action taken
and indicating each director's vote or abstention on the action. The affirmative
vote of the number of directors that would be necessary to authorize or take
action at a meeting is the act of the board of directors without a meeting. The
written consent or consents shall be included in the minutes or filed with the
corporate records reflecting the action taken. Action taken by written consent
is effective when the last director signs the consent, unless the consent
specifies a different effective date.
ARTICLE V
WAIVER OF NOTICE
A shareholder or director may waive any notice required to be given by
the Act, the charter or these bylaws before or after the date and time stated in
the notice. The waiver must be in writing, signed by the shareholder or
director entitled to the notice and delivered to the Corporation and filed in
the Corporation's minutes or corporate records, except that a shareholder's or
director's attendance at or participation in a meeting may constitute a waiver
of notice under the Act. Neither the business to be transacted at, nor the
purpose of, any meeting of the shareholders or directors need be specified in
any waiver of notice.
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ARTICLE VI
OFFICERS
Section 1. Election and Term. At the first meeting of the board of
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directors following the annual meeting of shareholders, or as soon thereafter as
is conveniently possible, the board of directors shall elect a president and a
secretary and such other officers as the board of directors may determine,
including a chairman of the board, a vice chairman of the board, one or more
vice presidents (any one or more of which may be designated as a senior or
executive vice president), a treasurer, a controller and one or more assistant
vice presidents, assistant treasurers, assistant controllers and assistant
secretaries. The board of directors may elect officers at such additional times
as it deems advisable. Each officer of the Corporation shall serve until his
successor is elected and qualified or until his earlier resignation or removal.
Any number of offices may be held by the same person, except that the president
may not serve as the secretary.
Section 2. Compensation. The salaries and other compensation of the
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officers of the Corporation shall be determined by the board of directors or a
committee thereof.
Section 3. Removal. The board of directors may remove any officer at
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any time, with or without cause, but no such removal shall affect the contract
rights, if any, of the person so removed.
Section 4. Resignation. An officer of the Corporation may resign at
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any time by delivering notice to the Corporation. A resignation is effective
when the notice is delivered, unless the notice specifies a later effective
date. If a resignation is made effective at a later date and the Corporation
accepts the future effective date, the board of directors may fill the pending
vacancy before the effective date if it provides that the successor does not
take office until the effective date. An officer's resignation does not affect
the Corporation's contract rights, if any, with the officer.
Section 5. Duties. The duties and powers of the officers of the
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corporation shall be as follows:
(a) Chief Executive Officer - The chief executive officer shall (i)
be chosen from among the members of the board of directors (ii) be primarily
responsible for the general management of the business affairs of the
Corporation and for implementing the policies and directives of the board of
directors, (iii) preside at all meetings of shareholders and the board of
directors, (iv) have authority to make contracts on behalf of the Corporation in
the ordinary course of the corporation's business and (v) perform such other
duties as from time to time may be assigned by the board of directors or any
committee therof.
(b) President - The president shall (i) preside at all meetings of
the shareholders and the board of directors during the absence or disability of
the chairman of the board, (ii) be primarily responsible for the general
management of the business of the Corporation and for implementing the policies
and directives of the board of directors during the absence or disability of the
chairman of the board, (iii) have authority to make contracts on behalf of the
Corporation in the ordinary course of the Corporation's business and (iv)
perform such other duties as from time to time may be assigned by the chairman
of the board or the board of directors or any committee thereof.
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(c) Vice Presidents - The vice presidents in the order designated by
the board of directors, shall exercise the functions of the president during the
absence or disability of the president and shall perform such other duties as
may be assigned by the chairman of the board, the president or the board of
directors or any committee thereof.
(d) Chief Financial Officer - The chief financial officer shall (i)
have general supervision over the funds of the Corporation and the investment or
deposit thereof, (ii) advise the officers and, if requested, the board of
directors regarding the financial condition of the Corporation and (iii) perform
such other duties as may be assigned by the chairman of the board or the board
of directors or any committee thereof.
(e) Secretary - The secretary shall (i) attend the meetings of the
shareholders, the board of directors and committees of the board of directors
and prepare minutes of all such meetings in a book to be kept for that purpose,
(ii) give, or cause to be given, such notice as may be required of all meetings
of the shareholders, board of directors and committees of the board of
directors, (iii) authenticate records of the Corporation and (iv) perform such
other duties as may be assigned by the chairman of the board or the board of
directors or any committee thereof.
ARTICLE VII
DIRECTOR INDEMNIFICATION
To the maximum extent permitted by law, subject to the limitations
contained in this Article VIII, the Corporation shall indemnify an individual
who is a party to a proceeding because such individual is or was an officer of
the Corporation against any liability incurred in the proceeding and, prior to
the disposition thereof, advance the reasonable expenses incurred by such
officer in connection with the proceeding, except that the Corporation shall not
be required to indemnify or advance expenses to any officer, (i) if it is
determined that the officer did not conduct himself in good faith and in the
reasonable belief that his conduct was not opposed to the Corporation's best
interests and, in the case of a criminal proceeding, had no reasonable cause to
believe his conduct was unlawful, (ii) if it is determined that the officer is
liable for profits made from the purchase or sale by the officer of securities
of the Corporation pursuant to the provisions of Section 16(b) of the Securities
and Exchange Act of 1934, as amended, or any similar provisions of any federal
or state statutes or regulations or (iii) in connection with a proceeding
initiated by or on behalf of such officer or to which such officer voluntarily
becomes a party, other than a suit to enforce indemnification rights. No
indemnification shall be made by the Company for any amount paid in settlement
without the Corporation's prior written consent. Conduct with respect to an
employee benefit plan for a purpose reasonably believed to be in the interest of
the participants in and beneficiaries of the plan is conduct that is not opposed
to the Corporation's best interests. The termination of a proceeding by a
judgment, order, settlement, conviction or upon a pleas of nolo contendere or
its equivalent is not, of itself, determinative whether the conduct in question
was opposed to the Corporation's best interests. The determination on behalf of
the Company of whether an officer is entitled to indemnification or advancement
of expenses under this Article VIII shall be made by the board of directors or a
committee thereof or by independent special legal counsel in accordance with the
provisions of Section 48-18-506 of the Act relating to indemnification of
directors. An officer's rights to advancement of expenses are also conditioned
upon the officer's furnishing the Corporation: (a) a written affirmation,
personally signed by or on behalf of the officer, of his good faith belief that
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he is or will be entitled to indemnification for liability under the terms of
this Article XIV and (b) a written undertaking (in the form of an unlimited
general obligation of the officer, which need not be secured) personally signed
by or on behalf of the officer to repay any advances, if a judgment or other
final adjudication adverse to the officer establishes his liability contrary to
his affirmation. An officer's rights to indemnification and advancement of
expenses as provided in this Article VIII are intended to be greater than those
which are otherwise provided for in the Act notwithstanding a failure to meet
the standard of conduct required for permissive indemnification under the Act,
are contractual in nature between the Corporation and the officer and are
mandatory. An officer's rights to indemnification and advancement of expenses
under this bylaw shall not be exclusive of other rights to which an officer may
be entitled under an insurance policy, the Act, the charter, a resolution of
shareholders or directors or an agreement providing for indemnification.
ARTICLE VIII
EMERGENCY BYLAW
In the event that a quorum of directors cannot be readily assembled
because of a catastrophic event, the board of directors may take action by the
affirmative vote of a majority of those directors present at a meeting and may
exercise any emergency power granted to a board of directors under the act not
inconsistent with this bylaw. If less than three regularly elected directors
are present, the director present having the greatest seniority as a director
may appoint one or more persons (not to exceed the number most recently fixed by
the board pursuant to Section 1 of Article IV) from among the officers or other
executive employees of the Corporation to serve as substitute directors. If no
regularly elected director is present, the officer present having the greatest
seniority as an officer shall serve as a substitute director, shall appoint up
to four additional persons from among the officers or other executive employees
of the Corporation to serve as substitute directors. Special meetings of the
board of directors may be called in an emergency by the director or, if no
director is present at the Corporation's principal offices, by the officer
present having the greatest seniority as an officer.
ARTICLE IX
CORPORATE SEAL
The Corporation may have a corporate seal, but the use of or failure
to use any such seal shall not have any legal effect on any action taken or
instrument executed by or on behalf of the Corporation. The seal may be used by
impressing or affixing it to an instrument or by causing a facsimile thereof to
be printed or otherwise reproduced thereon.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall begin the 1st business day of
January each year.
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ARTICLE XI
AMENDMENT
The board of directors may amend or repeal these bylaws, unless (i)
the charter or the Act reserves this power exclusively to shareholders of (ii)
the shareholders, in amending or repealing a particular bylaw, provide expressly
that the board of directors may not amend or repeal that bylaw. Shareholders
may amend or repeal any bylaw, even though the bylaws may also be amended or
repealed by the board of directors.
ARTICLE XII
DEFINITION
The term "Act" as used in these bylaws refers to the Tennessee
Business Corporation Act, as amended from time to time. Terms defined in the
Act shall have the same meanings when used in these bylaws.
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