1
EXHIBIT 3.2
RAILAMERICA TRANSPORTATION CORP.
BYLAWS
ARTICLE I
OFFICES
1.1 The principal office of the corporation shall be located in Boca
Raton, Florida.
1.2 The corporation may also have offices at such other places both
within and without the State of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.1 Meetings of shareholders for any purpose may be held at such time
and place within or without the State of Florida or the State of Delaware as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
2.2 The annual meeting of shareholders shall be held annually at such
date and time as shall be designated from time to time by the board of directors
and stated in the notice of meeting.
2.3 Special meetings of the shareholders for any purpose or purposes
may be called by the president and shall be called by the president or secretary
at the request in writing of a majority of the board of directors, or at the
request in writing of shareholders owning ten percent (10%) of all the shares
entitled to vote at the meetings. A request for a special meeting shall state
the purpose or purposes of the proposed meeting, and business transacted at any
special meeting of shareholders shall be limited to the purposes stated in the
notice.
2.4 Written notice stating the place, day and hour of the meeting and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called, shall be delivered not less than ten (10) nor more than sixty (60)
days before the date of the meeting, either personally or by mail, by or at the
direction of the president, the secretary or the officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting.
2.5 With respect to any matter, the holders of a majority of the shares
issued and outstanding and entitled to vote thereon, present in person or
represented by proxy, shall
2
constitute a quorum at all meetings of the shareholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, a quorum shall not be present or represented at any
meeting of the shareholders, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting until
such time and to such place as may be determined by a vote of the holders of a
majority of the shares at that meeting, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such
adjourned meeting, provided a quorum shall be present or represented thereat,
any business may be transacted which might have been transacted if the meeting
had been held in accordance with the original notice thereof.
2.6 If a quorum is present at any meeting, the vote of the holders of a
majority of the shares entitled to vote, present in person or represented by
proxy, shall decide any question brought before such meeting, unless the
question is one upon which a different vote is required by law or by the
articles of incorporation.
2.7 Each outstanding share having voting power shall be entitled to one
vote on each matter submitted to a vote at a meeting of shareholders. A
shareholder may vote either in person or by proxy executed in writing by the
shareholder or by his duly authorized attorney-in-fact.
2.8 Any action required or which may be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all or less than all, if the
articles of incorporation so provide, the shareholders entitled to vote with
respect to the subject matter thereof. Whenever action by shareholders is
proposed to be taken by consent in writing without a meeting of the
shareholders, the board of directors may fix a record date for the purpose of
determining shareholders entitled to consent to that action, which record date
shall not precede, and shall not be more than ten (10) days after, the date upon
which the resolution fixing the record date is adopted by the board of
directors. If no record date has been fixed by the board of directors and the
prior action of the board of directors is not required by the Delaware General
Corporation Law, the record date for determining shareholders entitled to
consent to action in writing without a meeting shall be the first date on which
a signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation by delivery to its registered office, its
principal place of business, or an officer or agent of the corporation having
custody of the books in which proceedings of the meetings of shareholders are
recorded. Delivery shall be by hand or by certified or registered mail, return
receipt requested. Delivery to the corporation's principal place of business
shall be addressed to the president or the principal executive officer of the
corporation. If no record date shall have been fixed by the board of directors
and prior action of the board of directors is required by the Delaware General
Corporation Law, the record date for determining shareholders entitled to
consent to action in writing without a meeting shall be at the close of business
on the date on which the board of directors adopts a resolution taking the prior
action.
2
3
ARTICLE III
DIRECTORS
3.1 The number of directors which shall constitute the whole board of
directors shall be not less than one. Such number of directors shall from time
to time be fixed and determined by the directors and shall be set forth in the
notice of any meeting of shareholders held for the purpose of electing
directors. The director(s) shall be elected at the annual meeting of
shareholders, except as provided in Section 3.2 or 3.3, and each director
elected shall hold office until his successor shall be elected and qualify.
Directors need not be residents of Delaware or shareholders of the corporation.
3.2 Any vacancy occurring in the board of directors may be filled by a
majority of the remaining directors, if any, though less than a quorum of the
board of directors. If a vacancy occurs in the board of directors and no other
directors exist to elect someone to fill such vacancy, such vacancy shall be
filled by election at a special meeting of shareholders. A director elected to
fill a vacancy shall be elected for the unexpired term of his predecessor in
office.
3.3 The number of directors may be increased or decreased from time to
time by amendment to these bylaws but no decrease shall have the effect of
shortening the term of any incumbent director. Any directorship to be filled by
reason of an increase in the number of directors may be filled by the board of
directors for a term of office continuing only until the next election of one or
more directors by the shareholders; provided that the board of directors may not
fill more than two such directorships during the period between any two
successive annual meetings of shareholders.
3.4 Any director may be removed either for or without cause at any
special meeting of shareholders duly called and held for such purpose.
MEETINGS OF THE BOARD OF DIRECTORS
3.5 Meetings of the board of directors, regular or special, may be held
either within or without the State of Delaware.
3.6 The first meeting of each newly elected board of directors shall be
held at such time and place as shall be fixed by the vote of the shareholders at
the annual meeting and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present. In the event that the shareholders fail to fix the time and
place of such first meeting, it shall be held without notice immediately
following the annual meeting of shareholders, and at the same place, unless by
the unanimous consent of the directors then elected and serving such time or
place shall be changed.
3
4
3.7 Regular meetings of the board of directors may be held upon such
notice, or without notice, and at such time and at such place as shall from time
to time be determined by the board.
3.8 Special meetings of the board of directors may be called by the
chairman of the board of directors or the president and shall be called by the
secretary on the written request of two directors. Notice of each special
meeting of the board of directors shall be given to each director at least two
days before the date of the meeting.
3.9 Attendance of a director at any meeting shall constitute a waiver
of notice of such meeting, except where a director attends for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened. Except as may be otherwise provided
by law or by the articles of incorporation or by these bylaws, neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the board of directors need be specified in the notice or waiver of notice of
such meeting.
3.10 At all meetings of the board of directors a majority of the
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, unless otherwise specifically
provided by law, the articles of incorporation or these bylaws. If a quorum
shall not be present thereat the directors may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
3.11 The board of directors, by resolution passed by a majority of the
full board, may from time to time designate a member or members of the board of
directors to constitute committees, including an executive committee, which
shall in each case consist of one or more directors and shall have and may
exercise such powers, as the board of directors may determine and specify in the
respective resolutions appointing them. A majority of all the members of any
such committee may determine its action and fix the time and place of its
meetings, unless the board of directors shall otherwise provide. The board of
directors shall have power at any time to change the number, subject as
aforesaid, and members of any such committee, to fill vacancies and to discharge
any such committee.
3.12 Any action required or permitted to be taken at a meeting of the
board of directors or any committee may be taken without a meeting if a consent
in writing, setting forth the action so taken, is signed by all the members of
the board of directors or committee, as the case may be.
3.13 By resolution of the board of directors, the directors may be paid
their expenses, if any, of attendance at each meeting of the board of directors
and may be paid a fixed sum for attendance at each meeting of the board of
directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
4
5
ARTICLE IV
NOTICES
4.1 Any notice to directors or shareholders shall be in writing and
shall be delivered personally or mailed to the directors or shareholders at
their respective addresses appearing on the records of the corporation. Notice
by mail shall be deemed to be given at the time when the same shall be deposited
in the United States mail, postage prepaid. Notice to directors may also be
given by telegram, telecopy or fax.
4.2 Whenever any notice is required to be given under the provisions of
the statutes or of the articles of incorporation or of these bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
ARTICLE V
OFFICERS
5.1 The officers of the corporation shall be elected by the board of
directors and shall consist of a president and a secretary. The board of
directors may also establish the positions of chairman of the board, treasurer,
vice president, an assistant president, assistant vice presidents, and one or
more assistant secretaries and assistant treasurers. Two or more offices may be
held by the same person.
5.2 The board of directors shall elect officers of the corporation,
none of whom need be a member of the board of directors. The board of directors
shall have the power to enter into contracts for the employment and compensation
of officers for such terms as the board of directors deems advisable.
5.3 The board of directors may appoint such other officers and
assistant officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall have such authority and exercise such powers
and perform such duties as shall be determined from time to time by the board of
directors by resolution not inconsistent with these bylaws.
5.4 The salaries of all officers and agents of the corporation shall be
fixed by the board of directors.
5.5 The officers of the corporation shall hold office until their
successors are elected or appointed and qualify, or until their death or until
their resignation or removal from office. Any officer elected or appointed by
the board of directors may be removed at any time by the board of directors, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not of
itself create
5
6
contract rights. Any vacancy occurring in any office of the corporation by
death, resignation, removal or otherwise shall be filled by the board of
directors.
THE CHAIRMAN OF THE BOARD OF DIRECTORS
5.6 The chairman of the board of directors, if one be elected, shall
preside at all meetings of the board of directors and shall have such other
powers and duties as may from time to time be prescribed by the board of
directors, upon written directions given to him pursuant to resolutions duly
adopted by the board of directors.
THE PRESIDENT
5.7 The president shall be the chief executive officer of the
corporation, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect. He shall preside at all meetings of the
shareholders.
THE VICE PRESIDENTS
5.8 The vice presidents in the order of their seniority, unless
otherwise determined by the board of directors, shall, in the absence or
disability of the president, perform the duties and have the authority and
exercise the powers of the president. They shall perform such other duties and
have such other authority and powers as the board of directors may from time to
time prescribe or as the president may from time to time delegate.
THE SECRETARY AND ASSISTANT SECRETARIES
5.9 The secretary shall attend all meetings of the board of directors
and all meetings of shareholders and record all of the proceedings of the
meetings of the board of directors and of the shareholders in a minute book to
be kept for that purpose and shall perform like duties for the standing
committees when required. He shall give, or cause to be given, notice of all
meetings of the shareholders and special meetings of the board of directors, and
shall perform such other duties as may be prescribed by the board of directors
or president, under whose supervision he shall act. He shall keep in safe
custody the seal of the corporation and, when authorized by the board of
directors, shall affix the seal to any instrument requiring it and, when so
affixed, it shall be attested by his signature or by the signature of an
assistant secretary or of the treasurer.
5.10 The assistant secretaries in the order of their seniority, unless
otherwise determined by the board of directors, shall, in the absence or
disability of the secretary, perform the duties and exercise the powers of the
secretary. They shall perform such other duties and
6
7
have such other powers as the board of directors may from time to time prescribe
or as the President may from time to time delegate.
THE TREASURER AND ASSISTANT TREASURERS
5.11 The treasurer shall have custody of the corporate funds and
securities and shall keep full and accurate accounts and records of receipts,
disbursements and other transactions in books belonging to the corporation, and
shall deposit all moneys and other valuable effects in the name and to the
credit of the corporation in such depositories as may be designated by the board
of directors.
5.12 The treasurer shall disburse the funds of the corporation as may
be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render the president and the board of directors, at its
regular meetings, or when the president or board of directors so requires, an
account of all his transactions as treasurer and of the financial condition of
the corporation.
5.13 If required by the board of directors, the treasurer shall give
the corporation a bond of such type, character and amount as the board of
directors may require.
5.14 The assistant treasurers in the order of their seniority, unless
otherwise determined by the board of directors, shall, in the absence or
disability of the treasurer, perform the duties and exercise the powers of the
treasurer. They shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe or the president may from
time to time delegate.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
6.1 The shares of the corporation shall be represented by certificates
signed by the president and may be sealed with the seal of the corporation or a
facsimile thereof.
6.2 The signature of the president upon a certificate may be a
facsimile if the certificate is countersigned by a transfer agent, or registered
by a registrar, other than the corporation itself or an employee of the
corporation. In case the president who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be president before
such certificate is issued, it may be issued by the corporation at the date of
its issue.
7
8
LOST CERTIFICATES
6.3 The board of directors may direct a new certificate to be issued in
place of any certificate theretofore issued by the corporation alleged to have
been lost or destroyed. When authorizing such issue of a new certificate, the
board of directors, in its discretion and as a condition precedent to the
issuance thereof, may prescribe such terms and conditions as it deems expedient
and may require such indemnities as it deems adequate to protect the corporation
from any claim that may be made against it with respect to any such certificate
alleged to have been lost or destroyed.
6.4 Upon surrender to the corporation or the transfer agent of the
corporation of a certificate representing shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto and the old
certificate cancelled and the transaction recorded upon the share transfer
records of the corporation.
CLOSING OF SHARE TRANSFER RECORDS
6.5 For the purpose of determining 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 in order to make a determination
of shareholders for any other proper purpose, other than determining
shareholders entitled to consent to action by shareholders proposed to be taken
without a meeting under section 2.8, the board of directors may provide that the
share transfer records shall be closed for a stated period but not to exceed, in
any case, sixty (60) days. If the share transfer records shall be closed for the
purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such records shall be closed for at least ten (10) days
immediately preceding such meeting. In lieu of closing the share transfer
records, the board of directors may fix in advance a date as the record date for
any such determination of shareholders, such date in any case to be not more
than sixty (60) days and, in case of a meeting of shareholders, not less than
ten (10) days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If the share transfer records are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the board of directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this section, such determination shall be applied to any adjournment thereof
except where the determination has been made through the closing of the share
transfer records and the stated period of closing has expired.
8
9
REGISTERED SHAREHOLDERS
6.6 The corporation shall be entitled to recognize the exclusive right
of a person registered on its records as the owner of shares to receive
dividends, and to vote as such owner, and 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 the laws of Delaware.
LIST OF SHAREHOLDERS
6.7 The officer or agent having charge of the share transfer records
shall make, at least ten (10) days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at such meeting, arranged in
alphabetical order, with the address of each and the number of shares held by
each, which list, for a period of ten (10) days prior to such meeting, shall be
kept on file at the registered office or principal place of business of the
corporation and shall be subject to inspection by any shareholder at any time
during usual business hours. Such list shall also be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original share ledger or
transfer record, or a duplicate thereof, shall be prima facie evidence as to who
are the shareholders entitled to examine such list or share ledger or transfer
record or to vote at any meeting of shareholders.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
7.1 Subject to the provisions of the articles of incorporation relating
thereto, if any, dividends may be declared by the board of directors, in its
discretion, at any regular or special meeting, pursuant to law. Dividends may be
paid in cash, in property or in the corporation's own shares, subject to any
provisions of the articles of incorporation.
7.2 Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors, from time to time in their absolute discretion, think proper as a
reserve fund for meeting contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
9
10
CHECKS
7.3 All checks or demands for money and notes of the corporation shall
be signed by such officer or officers or such other person or persons as the
board of directors may from time to time designate.
FISCAL YEAR
7.4 The fiscal year of the corporation shall be fixed by resolution of
the board of directors.
SEAL
7.5 The corporate seal shall be in such form as may be prescribed by
the board of directors. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any manner reproduced.
BOOKS AND RECORDS
7.6 The corporation shall keep correct and complete books and records
of account and shall keep minutes of the proceedings of its shareholders and
board of directors, and shall keep at its registered office or principal place
of business, or at the office of its transfer agent or registrar, a record of
its shareholders, giving the names and addresses of all shareholders and the
number and class of the shares held by each.
ARTICLE VIII
AMENDMENTS
8.1 The bylaws may be altered, amended, or repealed or new bylaws may
be adopted by a majority of the whole board of directors at any regular or
special meeting.
10
11
ARTICLE IX
INDEMNIFICATION OF DIRECTORS
OFFICERS, EMPLOYEES AND AGENTS
9.1 The corporation shall indemnify directors, officers, employees, and
agents of the corporation to the fullest extent required by Section 145 of the
Delaware General Corporation Law and may indemnify such persons to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law, subject
in each case to restrictions, if any, in the Certificate of Incorporation. The
corporation shall have the power to purchase and maintain at its cost and
expense insurance on behalf of such persons to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law.
9.2 ADVANCE PAYMENT. The right to indemnification conferred in this
Article IX shall include the right to be paid or reimbursed by the corporation
for the reasonable expenses incurred by a person of the type entitled to be
indemnified under Section 9.1 who was, is or is threatened to be made a named
defendant or respondent in a proceeding in advance of the final disposition of
the proceeding and without any determination as to the person's ultimate
entitlement to indemnification; PROVIDED, HOWEVER, that the payment of such
expenses incurred by any such person in advance of the final disposition of a
proceeding, shall be made only upon delivery to the corporation of a written
affirmation by such director or officer of his or her good faith belief that he
or she has met the standard of conduct necessary for indemnification under this
Article IX and a written undertaking, by or on behalf of such person, to repay
all amounts so advanced if it shall ultimately be determined that such
indemnified person is not entitled to be indemnified under this Article IX or
otherwise.
9.3 INDEMNIFICATION OF EMPLOYEES AND AGENTS. The corporation, by
adoption of a resolution of the board of directors, may indemnify and advance
expenses to an employee or agent of the corporation to the same extent and
subject to the same conditions under which it may indemnify and advance expenses
to directors and officers under this Article IX; and, the corporation may
indemnify and advance expenses to persons who are not or were not directors,
officers, employees or agents of the corporation while serving at the request of
the corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise against any liability asserted against him and
incurred by him in such a capacity or arising out of his status as such a person
to the same extent that it may indemnify and advance expenses to directors under
this Article IX.
9.4 APPEARANCE AS A WITNESS. Notwithstanding any other provision of
this Article IX, the. corporation may pay or reimburse expenses incurred by a
director or officer in connection with his or her appearance as a witness or
other participation in a proceeding at a time when he or she is not a named
defendant or respondent in the proceeding.
11
12
9.5 NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement and payment of expenses conferred in this Article IX shall not be
exclusive of any other right which a director or officer or other person
indemnified pursuant to Section 9.3 of this Article IX may have or hereafter
acquire under any law (common or statutory), provision of the articles of
incorporation of the corporation or these bylaws, agreement, vote of
shareholders or disinterested directors or otherwise.
9.6 INSURANCE. The corporation may purchase and maintain insurance, at
its expense, to protect itself and any person who is or was serving as a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, partnership, joint venture, proprietorship, employee
benefit plan, trust or other enterprise against any expense, liability or loss,
whether or not the corporation would have the power to indemnify such person
against such expense, liability or loss under this Article IX.
9.7 SHAREHOLDER NOTIFICATION. To the extent required by law, any
indemnification of or advance of expenses to a director or officer in accordance
with this Article IX shall be reported in writing to the shareholders with or
before the notice or waiver of notice of the next shareholders' meeting or with
or before the next submission to shareholders of a consent to action without a
meeting and, in any case, within the 12-month period immediately following the
date of the indemnification or advance.
9.8 SAVINGS CLAUSE. If this Article IX or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify and hold harmless each director,
officer or any other person indemnified pursuant to this Article IX as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, to the full extent permitted
by any applicable portion of this Article IX that shall not have been
invalidated and to the fullest extent permitted by applicable law.
12