Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
SAIA, INC.
ARTICLE I
OFFICES AND RECORDS
SECTION 1.01 Delaware Office. The principa1 office of Saia, Inc. (the
"Corporation") in the State of Delaware shall be located in the City of
Wilmington, County of New Castle, and the name and address of its registered
agent is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware
19801.
SECTION 1.02 Other Offices. The Corporation may have such other offices,
either within or without the State of Delaware, as the board of directors of the
Corporation (the "Board of Directors", and each member thereof, a "Director")
may designate or as the business of the Corporation may from time to time
require.
SECTION 1.03 Books and Records. The books and records of the Corporation
may be kept outside the State of Delaware at such place or places as may from
time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
SECTION 2.01 Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held on such date and at such time as may be fixed by
resolution of the Board of Directors.
SECTION 2.02 Special Meeting. Except as otherwise required by law and
subject to the rights of the holders of any class or series of stock having a
preference over the common stock, par value $0.001 per share, of the Corporation
(the "Common Stock") as to dividends or upon liquidation, special meetings of
stockholders of the Corporation for any purpose or purposes may be called only
by (a) the Board of Directors pursuant to a resolution stating the purpose or
purposes thereof approved by a majority of the total number of Directors which
the Corporation would have if there were no vacancies (the "Whole Board"), (b)
the Chairman of the Board of Directors (the "Chairman of the Board"), or (c) the
Chief Executive Officer of the Corporation (the "Chief Executive Officer"). Only
such business brought before the meeting pursuant to the Corporation's notice of
meeting shall be conducted at a special meeting of stockholders.
SECTION 2.03 Place of Meeting. The Board of Directors, the Chairman of the
Board, or the Chief Executive Officer, as the case may be, may designate the
place, if any, of meeting for any annual meeting or for any special meeting of
the stockholders. If no designation is so made, the place of meeting shall be
the principal office of the Corporation.
SECTION 2.04 Notice of Meeting. Notice, stating the place, day and hour of
the meeting and the purpose or purposes for which the meeting is called, shall
be delivered by the Corporation not less than ten (10) calendar days nor more
than sixty (60) calendar days before the date on which the meeting is to be
held, either personally, by mail or by other lawful means, to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail with
postage thereon prepaid, addressed to the stockholder at such person's address
as it appears on the stock transfer books of the Corporation. Such further
notice shall be given as may be required by law. Meetings may be held without
notice if all stockholders entitled to notice are present (except when
stockholders entitled to notice attend the meeting for the express purpose of
objecting, at the beginning of the meeting, because the meeting is not lawfully
called or convened), or if notice is waived by those not present in accordance
with Section 6.04. Any previously scheduled meeting of the stockholders may be
postponed, and any special meeting of the stockholders may be canceled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
SECTION 2.05 Quorum and Adjournment; Voting. Except as otherwise provided
by law or by the Certificate of Incorporation, the holders of a majority of the
voting power of all outstanding shares of the Corporation entitled to vote
generally in the election of Directors (the "Voting Stock") represented in
person or by proxy, shall constitute a quorum at a meeting of stockholders,
except that when specified business is to be voted on by a class or series of
stock voting as a class, the holders of a majority of the shares of such class
or series shall constitute a quorum of such class or series for the transaction
of such business. The chairman of the meeting may adjourn the meeting from time
to time, whether or not there is such a quorum. No notice of the time and place
of adjourned meetings need be given except as required by law. The stockholders
present at a duly called meeting at which a quorum is present may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 2.06 Proxies. At all meetings of stockholders, a stockholder may
vote by proxy executed in writing (or in such manner prescribed by the General
Corporation Law of the State of Delaware (the "DGCL")) by the stockholder, or by
such person's duly authorized attorney in fact.
SECTION 2.07 Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (A)
pursuant to the Corporation's notice of meeting pursuant to Section
2.04, (B) by or at the direction of the Board of Directors, or (C)
by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this By-Law,
who is entitled to vote at the meeting and who complies with the
notice procedures set forth in this By-Law.
(ii) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of
paragraph (a)(i) of this Section 2.07, the stockholder must have
given timely notice thereof in writing to the Secretary of the
Corporation and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholder's notice
must be delivered or mailed to and received at the principal
executive offices of the Corporation and such other business must
otherwise be delivered or mailed to and received at the principal
executive offices of the Corporation not later than the close of
business on the 90th calendar day nor earlier than the 120th
calendar day prior to the
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anniversary date of the first mailing of the Corporation's proxy
statement for the immediately preceding year's annual meeting. In no
event shall the public announcement of an adjournment of an annual
meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth
the following items:
(A) as to each person whom the stockholder proposes to
nominate for election or reelection as a Director all
information relating to such person that is required to be
disclosed in solicitations of proxies for election of
Directors in an election contest, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to
being named in the proxy statement as a nominee and to serving
as a Director if elected);
(B) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the
text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that
such business includes a proposal to amend these By-Laws, the
language of the proposed amendment), the reasons for
conducting such business at the meeting and any material
interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is
made; and
(C) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (1) the name and address of such stockholder
and of such beneficial owner, as they appear on the
Corporation's books, (2) the class and number of shares of the
Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (3) a representation
that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to propose such
business or nomination, and (4) a representation whether the
stockholder or the beneficial owner, if any, intends or is
part of a group which intends (x) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of
the Corporation's outstanding capital stock required to
approve or adopt the proposal or elect the nominee and/or (y)
otherwise to solicit proxies from stockholders in support of
such proposal or nomination.
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The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the Corporation of his
or her intention to present a proposal at an annual meeting in
compliance with Rule 14a-8 (or any successor thereof) promulgated
under the Exchange Act and such stockholder's proposal has been
included in a proxy statement that has been prepared by the
Corporation to solicit proxies for such annual meeting. The
Corporation may require any proposed nominee to furnish such other
information as it may reasonably require to determine the
eligibility of such proposed nominee to serve as a Director.
(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section 2.07 to the contrary, in the event
that the number of Directors to be elected to the Board of Directors
is increased and there is no public announcement by the Corporation
naming all of the nominees for Director or specifying the size of
the increased Board of Directors at least 30 calendar days before
the date of the annual meeting, a stockholder's notice required by
this By-Law shall also be considered timely (but only with respect
to nominees for any new positions created by such increase) if it
shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on
the 10th calendar day following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting under
Section 2.04. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which
Directors are to be elected pursuant to the Corporation's notice of
meeting (i) by or at the direction of the Board of Directors, or (ii)
provided that the Board of Directors has determined that Directors shall
be elected at such meeting, by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this
By-Law, who shall be entitled to vote at the meeting and who complies with
the notice procedures set forth in this By-Law. In the event the
Corporation calls a special meeting of stockholders for the purpose of
electing one or more Directors to the Board of Directors, any stockholder
may nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation's notice of meeting by
complying with the stockholder's notice requirement of paragraph (a)(ii)
of this Section 2.07 and delivering such notice to the Secretary at the
principal executive offices of the Corporation not earlier than the close
of business on the 120th calendar day prior to such special meeting and
not later than the close of business on the later of the 90th calendar day
prior to such special meeting or the 10th calendar day following the day
on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving
of a stockholder's notice as described above.
(c) General.
(i) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.07 shall be eligible to serve
as Directors and
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only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the
procedures set forth in this By-Law. Except as otherwise provided by
law, the Certificate of Incorporation or these By-Laws, the chairman
of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 2.07 (including whether the
stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicited (or is part of a group
which solicited) or did not so solicit, as the case may be, proxies
in support of such stockholder's nominee or proposal in compliance
with such stockholder's representation as required by clause
(a)(ii)(C)(4) of this Section 2.07) and, if any proposed nomination
or business is not in compliance with this By-Law, to declare that
such defective proposal or nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 2.07, if
the stockholder (or a qualified representative of the stockholder)
does not appear at the annual or special meeting of stockholders of
the Corporation to present a nomination or business, such nomination
shall be disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such vote may
have been received by the Corporation.
(ii) For purposes of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in
a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act .
(iii) Notwithstanding the foregoing provisions of this Section
2.07, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
2.07. Nothing in this Section 2.07 shall be deemed to affect any
rights (a) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (b) of the holders of any series of preferred stock
of the Corporation ("Preferred Stock") to elect Directors in
accordance with the rights of such Preferred Stock as contained in
the Certificate of Incorporation.
SECTION 2.08 Procedure for Election of Directors; Required Vote for Other
Matters. Election of Directors at all meetings of the stockholders at which
Directors are to be elected shall be by ballot, and, subject to the rights of
the holders of any series of Preferred Stock to elect Directors contained in the
Certificate of Incorporation, a plurality of the votes cast thereat shall elect
Directors. Except as otherwise provided by law, the Certificate of
Incorporation, applicable stock exchange rules or other rules and regulations
applicable to the Corporation or these By-Laws, in all matters other than the
election of Directors, the affirmative vote of a majority of the voting power of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the matter shall be the act of the stockholders.
SECTION 2.09 Inspectors of Elections; Opening and Closing the Polls.
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(a) The Board of Directors by resolution shall appoint, or authorize
an officer of the Corporation to appoint, one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation
in other capacities, including, without limitation, as officers,
employees, agents or representatives, to act at the meetings of
stockholders and make a written report thereof. One or more persons may be
designated as alternate inspector(s) to replace any inspector who fails to
act. If no inspector or alternate has been appointed to act or is able to
act at a meeting of stockholders, the chairman of the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector,
before discharging such person's duties shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of such person's ability. The inspector(s) shall
have the duties prescribed by law.
(b) The date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting by the person presiding over the meeting. The
Board of Directors may adopt by resolution such rules and regulations for
the conduct of the meeting of stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as
adopted by the Board of Directors, the person presiding over any meeting
of stockholders shall have the right and authority to convene and to
adjourn the meeting, to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such presiding officer, are
appropriate for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the Board of Directors or prescribed by
the presiding officer of the meeting, may include, without limitation, the
following: (i) an agenda or order of business for the meeting; (ii) rules
and procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation in the
meeting to stockholders of record of the Corporation, their duly
authorized and constituted proxies or such other persons as the chairman
of the meeting shall determine; (iv) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (v) limitations on
the time allotted to questions or comments by participants. The presiding
officer at any meeting of stockholders in addition to making any other
determinations that may be appropriate to the conduct of the meeting,
shall, if the facts warrant, determine and declare to the meeting that a
matter or business was not properly brought before the meeting and if such
presiding officer should so determine, such person shall so declare to the
meeting that any such matter or business not properly brought before the
meeting shall not be transacted or considered. Unless and to the extent
determined by the Board of Directors or the person presiding over the
meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01 General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
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SECTION 3.02 Chairman of the Board. The Board of Directors shall elect a
member of the Board of Directors as Chairman of the Board at its first meeting
after every annual meeting of stockholders. The Chairman of the Board shall hold
office until his successor is elected and qualified or until his earlier
resignation, removal from office (as Chairman of the Board or director) or death
except as otherwise required by law. The Chairman of the Board shall preside at
all meetings of the stockholders and of the Board of Directors. The Chairman of
the Board may also serve as an officer of the Corporation, if so elected by the
Board of Directors. The Directors also may elect a Vice-Chairman to act in the
place of the Chairman of the Board upon his or her absence or inability to act.
In the absence or inability of the Chairman of the Board and the Vice Chairman
of the Board to act, or if the offices of Chairman of the Board and Vice
Chairman of the Board shall be vacant, the Chief Executive Officer shall have
and exercise all the powers and duties of such office.
SECTION 3.03 Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this By- Law in conjunction with the
annual meeting of stockholders. The Board of Directors may, by resolution,
provide the time and place for the holding of additional regular meetings
without other notice than such resolution.
SECTION 3.04 Special Meetings. Special meetings of the Board of Directors
shall be called at the request of the Chairman of the Board, the Chief Executive
Officer or a majority of the Board of Directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
the place and time of the meetings.
SECTION 3.05 Notice. Notice of any special meeting of Directors shall be
given to each Director at such person's business or residence in writing by hand
delivery, first-class or overnight mail or courier service, telegram or
facsimile transmission, orally by telephone or any other lawful means. If mailed
by first-class mail, such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed, with postage thereon prepaid,
at least 5 calendar days before such meeting. If by telegram, overnight mail or
courier service, such notice shall be deemed adequately delivered when the
telegram is delivered to the telegraph company or the notice is delivered to the
overnight mail or courier service company at least 24 hours before such meeting.
If by facsimile transmission, such notice shall be deemed adequately delivered
when the notice is transmitted at least 12 hours before such meeting. If by
telephone, by hand delivery or by other lawful means, the notice shall be given
at least 12 hours prior to the time set for the meeting. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
Board of Directors need be specified in the notice of such meeting, except for
amendments to these By-Laws, as provided under Section 8.01. A meeting may be
held at any time without notice if all the Directors are present (except when
Directors attend for the express purpose of objecting, at the beginning of the
meeting, because it is not lawfully called or conveyed) or if those not present
waive notice of the meeting either before or after such meeting.
SECTION 3.06 Action By Consent of Board of Directors. 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 all members of the Board of
Directors or committee, as the case may be, consent thereto in accordance with
applicable law.
SECTION 3.07 Conference Telephone Meetings. Members of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or such
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committee by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other, and
such participation in a meeting shall constitute presence in person at such
meeting.
SECTION 3.08 Quorum. Subject to Article VII of the Certificate of
Incorporation, a whole number of Directors equal to at least a majority of the
Whole Board shall constitute a quorum for the transaction of business, but if at
any meeting of the Board of Directors there shall be less than a quorum present,
a majority of the Directors present may adjourn the meeting from time to time
without further notice. 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 3.09 Executive and Other Committees.
(a) The Board of Directors may designate an Executive Committee to
exercise, subject to applicable provisions of law, all the powers of the
Board of Directors in the management of the business and affairs of the
Corporation when the Board of Directors is not in session, including
without limitation the power to declare dividends, to authorize the
issuance of the Corporation's capital stock and to adopt a certificate of
ownership and merger pursuant to Section 253 of the DGCL, by resolution
similarly adopted, designate one or more other committees. The Executive
Committee and each such other committee shall consist of one or more
Directors. The Board of Directors 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. Any such committee,
other than the Executive Committee (the powers of which are expressly
provided for herein), may to the extent permitted by law exercise such
powers and shall have such responsibilities as shall be specified in the
designating resolution. In the absence or disqualification of any member
of such committee or committees, the member or members thereof present at
any meeting and not disqualified from voting, whether or not constituting
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. Each committee shall keep written minutes of its proceedings and
shall report such proceedings to the Board of Directors when required.
(b) A majority of any committee may determine its action and fix the
time and place of its meetings, unless the Board of Directors shall
otherwise provide. Notice of such meetings shall be given to each member
of the committee in the manner provided for in Section 3.05. The Board of
Directors shall have power at any time to fill vacancies in, to change the
membership of or to dissolve any such committee. Nothing herein shall be
deemed to prevent the Board of Directors from appointing one or more
committees consisting in whole or in part of persons who are not
Directors; provided, however, that no such committee shall have or may
exercise any authority of the Board of Directors.
SECTION 3.10 Records. The Board of Directors shall cause to be kept a
record containing the minutes of the proceedings of the meetings of the Board of
Directors and of the stockholders, appropriate stock books and registers and
such books of records and accounts as may be necessary for the proper conduct of
the business of the Corporation.
SECTION 3.11 Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the directors.
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ARTICLE IV
OFFICERS
SECTION 4.01 Elected Officers. The elected officers of the Corporation
shall consist of a Chief Executive Officer, a President (who may be, but need
not be, the Chief Executive Officer), a Secretary, and a Chief Financial
Officer. The Board of Directors may elect such additional officers as it deems
necessary, including Vice Presidents and Assistant Secretaries. All officers
elected by the Board of Directors shall each have such powers and duties as
generally pertain to their respective offices, subject to the specific
provisions of this Article IV. Such officers shall also have such powers and
duties as from time to time may be conferred by the Board of Directors or by any
committee thereof. Any number of offices may be held by the same individual,
except that the offices of President and Secretary may not be held by the same
individual.
SECTION 4.02 Election and Term of Office. The elected officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held in conjunction with the annual meeting of
the stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as convenient. Each officer shall
hold office until such person's successor shall have been duly elected and shall
have qualified or until such person's death or until he shall resign or be
removed pursuant to Section 4.08.
SECTION 4.03 Chief Executive Officer. The Chief Executive Officer shall be
the senior officer of the Corporation and shall be responsible for the
supervision and control of all of the business and affairs of the Corporation.
In addition, he shall perform all such other duties as are properly required of
him by the Board of Directors. He shall make reports to the Board of Directors
and the stockholders, and shall see that all orders and resolutions of the Board
of Directors and of any committee thereof are carried into effect.
SECTION 4.04 President. The President shall act in a general executive
capacity and shall assist the Chief Executive Officer in the administration and
operation of the Corporation's business and general supervision of its policies
and affairs. The President shall act in the place of the Chief Executive Officer
in his absence or in the event of his death, inability or refusal to act. He
shall perform all duties and have all powers which are delegated him by the
Board of Directors or the Chief Executive Officer. He shall have power to sign
all stock certificates, contracts and other instruments of the Corporation which
are authorized. In the event of the absence, death, inability or refusal to act
of the President, the officer designated by the Board of Directors shall perform
the duties and exercise the powers of the President. If the Board of Directors
does not elect a Chief Executive Officer, the President shall also perform the
duties and exercise the powers of the Chief Executive Officer.
SECTION 4.05 Vice Presidents. Each Senior Vice President, Executive Vice
President and any Vice President shall have such powers and shall perform such
duties as from time to time may be assigned by the Board of Directors, the Chief
Executive Officer or the President.
SECTION 4.06 Chief Financial Officer. The Chief Financial Officer shall
exercise general supervision over the receipt, custody and disbursement of
corporate funds. The
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Chief Financial Officer shall cause the funds of the Corporation to be deposited
in such banks as may be authorized by the Board of Directors, or in such banks
as may be designated as depositories in the manner provided by resolution of the
Board of Directors. In general, the Chief Financial Officer shall perform the
duties incident to the office of Chief Financial Officer and such further duties
as from time to time may be assigned by the Board of Directors, the Chief
Executive Officer or the President.
SECTION 4.07 Secretary. The Secretary shall keep or cause to be kept in
one or more books provided for that purpose, the minutes of all meetings of the
Board of Directors, the committees of the Board of Directors and the
stockholders. The Secretary shall see that the books, reports, statements,
certificates and other documents and records required by law to be kept and
filed are properly kept and filed. The Secretary shall see that all notices are
duly given in accordance with the provisions of these By-Laws and as required by
law and shall be custodian of the records and the seal of the Corporation. In
general, the Secretary shall perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned by the
Board of Directors, the Chief Executive Officer or the President.
SECTION 4.08 Removal. Any officer elected, or agent appointed, by the
Board of Directors may be removed by the affirmative vote of a majority of the
Board of Directors whenever, in their judgment, the best interests of the
Corporation would be served thereby. Any officer or agent appointed by the Chief
Executive Officer or the President may be removed by him or her whenever, in
such person's judgment, the best interests of the Corporation would be served
thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of such person's successor, such person's death, such person's
resignation or such person's removal, whichever event shall first occur, except
as otherwise provided in an employment contract or under an employee benefit
plan.
SECTION 4.09 Vacancies. A newly created elected office and a vacancy in
any elected office because of death, resignation, or removal may be filled by
the Board of Directors for the unexpired portion of the term at any meeting of
the Board of Directors. Any vacancy in an office appointed by the Chief
Executive Officer or the President because of death, resignation, or removal may
be filled by the Chief Executive Officer or the President.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
SECTION 5.01 Stock Certificates. The interest of each stockholder of the
Corporation shall be evidenced by certificates for shares of stock in such form
as the Corporation may from time to time prescribe. The certificates of stock
shall be signed, countersigned and registered in such manner as the Board of
Directors may by resolution prescribe or as may otherwise be permitted by
applicable law, which resolution may permit all or any of the signatures on such
certificates to be in facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of
issue. Notwithstanding the foregoing provisions regarding share certificates,
the Corporation may provide that, subject to the rights of stockholders under
applicable law, some or all of any or all classes or series of the Corporation's
common or any preferred shares may be uncertificated shares.
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SECTION 5.02 Transfers of Stock. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by such person's attorney, upon surrender for cancellation
of certificates for at least the same number of shares, with an assignment and
power of transfer endorsed thereon or attached thereto, duly executed, with such
proof of the authenticity of the signature as the Corporation or its agents may
reasonably require.
SECTION 5.03 Registered Shareholders. The Corporation shall be entitled to
treat the holder of record of any share or shares as the holder in fact thereof
and, accordingly, shall not be bound to recognize any equitable or other claim
to or interest in such share or shares 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 5.05 Fixing of Record Date. The Board of Directors may fix in
advance a date, not exceeding sixty (60) days preceding the date of any meeting
of stockholders, or the date for the payment of any dividend, or the date for
the allotment of rights, or the date when any change or conversion or exchange
of shares shall go into effect, as a record date for the determination of the
stockholders entitled to notice of, and to vote at any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or entitled to exercise the rights in respect of
any such change, conversion or exchange of shares. In such case only the
stockholders who are stockholders of record on the record date so fixed shall be
entitled to such notice of and to vote at such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the date of closing
of the transfer books or the record date fixed as aforesaid.
SECTION 5.07 Lost, Stolen or Destroyed Certificates. No certificate for
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or any financial officer may in its or such
person's discretion require.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01 Fiscal Year. The fiscal year of the Corporation shall begin
on the first day of January and end on the last day of December of each year.
SECTION 6.02 Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
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SECTION 6.03 Seal. The corporate seal shall have inscribed thereon the
words "Corporate Seal," the year of incorporation and the word "Delaware."
SECTION 6.04 Waiver of Notice. Whenever any notice is required to be given
to any stockholder or Director under the provisions of the DGCL or these
By-Laws, a waiver thereof given in accordance with applicable law shall be
deemed equivalent to the giving of such notice. Neither the business to be
transacted at, nor the purpose of, any annual or special meeting of the
stockholders or the Board of Directors or committee thereof need be specified in
any waiver of notice of such meeting.
SECTION 6.05 Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the Board of Directors, and it shall be
the duty of the Board of Directors to cause such audit to be done annually.
SECTION 6.06 Resignations. Any Director or any officer, whether elected or
appointed, may resign at any time by giving written notice of such resignation
to the Chairman of the Board, the Chief Executive Officer, the President or the
Secretary, and such resignation shall be deemed to be effective as of the close
of business on the date said notice is received by the Chairman of the Board,
the Chief Executive Officer, the President, or the Secretary, or at such later
time as is specified therein. No formal action shall be required of the Board of
Directors or the stockholders to make any such resignation effective.
ARTICLE VII
CONTRACTS, PROXIES, ETC.
SECTION 7.01 Contracts. Except as otherwise required by law, the
Certificate of Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on the behalf of the
Corporation by such officer or officers of the Corporation as the Board of
Directors may from time to time direct. Such authority may be general or
confined to specific instances as the Board of Directors may determine. The
Chief Executive Officer, the President or any Vice President may execute bonds,
contracts, deeds, leases and other instruments to be made or executed or for or
on behalf of the Corporation. Subject to any restrictions imposed by the Board
of Directors, either the Chief Executive Officer, the President or any Vice
President of the Corporation may delegate contractual powers to others under
such person's jurisdiction, it being understood, however, that any such
delegation of power shall not relieve such officer of responsibility with
respect to the exercise of such delegated power.
SECTION 7.02 Proxies. Unless otherwise provided by resolution adopted by
the Board of Directors, the Chief Executive Officer, the President or any Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation, to cast
the votes which the Corporation may be entitled to cast as the holders of stock
or other securities in any other entity, any of whose stock or other securities
may be held by the Corporation, at meetings of the holders of the stock or other
securities of such other entity, or to consent in accordance with applicable
law, in the name of the Corporation as such holder, to any action by such other
entity, and may instruct the person or persons so appointed as to the manner of
casting such votes or giving such consent, and may execute or cause to be
executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise, all such proxies or other instruments as he may deem
necessary or proper in the premises.
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ARTICLE VIII
AMENDMENTS
SECTION 8.01 Amendments. The By-Laws may be altered or repealed and new
By-Laws may be adopted (a) at any annual or special meeting of stockholders by
the affirmative vote of the holders of a majority of the voting power of the
Voting Stock, voting as a single class; provided, however, that any proposed
alteration or repeal of, or the adoption of any By-Law inconsistent with,
Section 2.02, Section 2.07, or Section 8.01 of these By-Laws by the stockholders
shall require the affirmative vote of the holders of at least two-thirds of the
voting power of all Voting Stock then outstanding, voting together as a single
class, and provided, further, however, that, in the case of any such stockholder
action at a special meeting of stockholders, notice of the proposed alteration,
repeal or adoption of the new By-Law or By-Laws must be contained in the notice
of such special meeting, or (b) by the affirmative vote of a majority of the
Whole Board.
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I HEREBY CERTIFY that the foregoing is a full, true, and correct copy of
the By-Laws of Saia, Inc., a Delaware corporation, as in effect on the date
hereof.
Dated: ___________, 2006
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Name:
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Title:
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