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EXHIBIT 3.2
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SECOND AMENDED AND RESTATED
BYLAWS
OF
U.S. CONCRETE, INC.
EFFECTIVE AS OF AUGUST 17, 2000
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TABLE OF CONTENTS
Page No.
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ARTICLE I
STOCKHOLDERS............................................................. 1
Section 1.1 Annual Meetings.............................................. 1
Section 1.2 Special Meetings............................................. 1
Section 1.3 Notice of Meetings........................................... 1
Section 1.4 Adjournments................................................. 2
Section 1.5 Quorum....................................................... 2
Section 1.6 Organization................................................. 2
Section 1.7 Voting; Proxies.............................................. 2
Section 1.8 Fixing Date for Determination of Stockholders of Record...... 4
Section 1.9 List of Stockholders Entitled To Vote........................ 5
Section 1.10 Election of Directors....................................... 5
Section 1.11 Other Stockholder Business.................................. 7
Section 1.12 Action By Consent of Stockholders........................... 9
Section 1.13 Conduct of Meetings......................................... 9
ARTICLE II
BOARD OF DIRECTORS....................................................... 10
Section 2.1 Regular Meetings............................................. 10
Section 2.2 Special Meetings............................................. 10
Section 2.3 Telephonic Meetings.......................................... 10
Section 2.4 Organization................................................. 10
Section 2.5 Order of Business............................................ 10
Section 2.6 Notice of Meetings........................................... 10
Section 2.7 Quorum; Vote Required for Action............................. 11
Section 2.8 Informal Action by Directors................................. 11
ARTICLE III
BOARD COMMITTEES......................................................... 11
Section 3.1 Board Committees............................................. 11
Section 3.2 Board Committee Rules........................................ 12
ARTICLE IV
OFFICERS................................................................. 12
Section 4.1 Designation.................................................. 12
Section 4.2 CEO.......................................................... 12
Section 4.3 Powers and Duties of Other Officers.......................... 12
Section 4.4 Term of Office, etc.......................................... 13
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ARTICLE V
CAPITAL STOCK.......................................................... 13
Section 5.1 Certificates............................................. 13
Section 5.2 Transfer of Shares....................................... 13
Section 5.3 Ownership of Shares...................................... 13
Section 5.4 Regulations Regarding Certificates....................... 13
Section 5.5 Lost or Destroyed Certificates........................... 14
ARTICLE VI
INDEMNIFICATION........................................................ 14
Section 6.1 Right to Indemnification................................. 14
Section 6.2 Prepayment of Expenses................................... 14
Section 6.3 Claims................................................... 14
Section 6.4 Nonexclusivity of Rights................................. 15
Section 6.5 Other Sources............................................ 15
Section 6.6 Amendment or Repeal...................................... 15
Section 6.7 Other Indemnification and Prepayment of Expenses......... 15
ARTICLE VII
MISCELLANEOUS.......................................................... 15
Section 7.1 Fiscal Year.............................................. 15
Section 7.2 Seal..................................................... 15
Section 7.3 Interested Directors; Quorum............................. 15
Section 7.4 Form of Records.......................................... 16
Section 7.5 Bylaw Amendments......................................... 16
Section 7.6 Notices; Waiver of Notice................................ 16
Section 7.7 Resignations............................................. 17
Section 7.8 Reliance on Books, Reports and Records................... 17
Section 7.9 Certain Definitional Provisions.......................... 17
Section 7.10 Captions................................................. 17
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SECOND AMENDED AND RESTATED
BYLAWS
OF
U.S. CONCRETE, INC.
The Board of Directors of U.S. Concrete, Inc. (the "Corporation") by
resolution has duly adopted these Bylaws to govern the Corporation's internal
affairs.
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meetings. If required by applicable law, the
Corporation will hold an annual meeting of the holders of its capital stock
(each, a "Stockholder") for the election of directors of the Corporation (each,
a "Director") at such date, time and place as the Board of Directors of the
Corporation (the "Board") by resolution may designate from time to time. The
Corporation may transact any other business at an annual meeting which has
properly come before that meeting in accordance with Section 1.11.
Section 1.2 Special Meetings. Any of the following may call
special meetings of Stockholders for any purpose or purposes at any time and
designate the date, time and place of any such meeting: (i) the Board pursuant
to a resolution that a majority of the total number of Directors the Corporation
would have if there were no vacancies (the "Whole Board") has duly adopted; (ii)
any committee of the Board (each, a "Board Committee") the Board has duly
designated and empowered to call special meetings; and (iii) the chairman of the
Board (the "Chairman"). Except as the certificate of incorporation of the
Corporation (as amended from time to time and including each certificate of
designation, if any, respecting any class or series of preferred stock of the
Corporation which has been executed, acknowledged and filed in accordance with
applicable law, the "Certificate of Incorporation") or applicable law otherwise
provides, no other Person or Persons may call a special meeting of Stockholders.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
Section 1.3 Notice of Meetings. By or at the direction of the
Chairman or the secretary of the Corporation (the "Secretary") whenever
Stockholders are to take any action at a meeting, the Corporation will give a
notice of that meeting to the Stockholders entitled to vote at that meeting
which states the place, if any, date, the means of remote communications, if
any, by which stockholders and proxy holders may be deemed to be present in
person and vote at the meeting, and hour of that meeting and, in the case of a
special meeting, the purpose or purposes for which that meeting is called.
Unless the Certificate of Incorporation, these Bylaws or applicable law
otherwise
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provides, the Corporation will give the notice of any meeting of Stockholders
not less than 10 nor more than 60 days before the date of that meeting. If
mailed to any Stockholder, any such notice will be deemed given (whether or not
delivered) when deposited in the United States mail, postage prepaid, directed
to that Stockholder at his address as it appears in the stock records of the
Corporation.
Section 1.4 Adjournments. Any meeting of Stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business it
might have transacted at the original meeting. If the adjournment is for more
than 30 days, or if after the adjournment the Board fixes a new record date for
the adjourned meeting, the Corporation will give, in accordance with Section
1.3, notice of the adjourned meeting to each Stockholder of record and entitled
to vote at the adjourned meeting.
Section 1.5 Quorum. Except as the Certificate of Incorporation,
these Bylaws or applicable law otherwise provides: (i) at each meeting of
Stockholders the presence in person or by proxy of the holders of shares of
stock having a majority of the votes the holders of all outstanding shares of
stock entitled to vote at the meeting could cast will be necessary and
sufficient to constitute a quorum; and (ii) the holders of stock so present and
entitled to vote at any duly convened meeting at which the necessary quorum has
been ascertained may continue to transact business until that meeting adjourns
notwithstanding any withdrawal from that meeting of shares of stock counted in
determining the existence of that quorum. In the absence of a quorum, the
chairman of the meeting or the Stockholders so present may, by majority vote,
adjourn the meeting from time to time in the manner Section 1.4 provides until a
quorum attends. Shares of its own stock belonging to the Corporation or to
another corporation, limited liability company, partnership or other entity
(each, an "Entity"), if the Corporation, directly or indirectly, holds a
majority of the shares entitled to vote in the election of directors (or the
equivalent) of that other Entity, will be neither entitled to vote nor counted
for quorum purposes; provided, however, that the foregoing will not limit the
right of the Corporation to vote stock, including but not limited to its own
stock, it holds in a fiduciary capacity.
Section 1.6 Organization. The Chairman will chair and preside over
any meeting of Stockholders at which he is present. The Board will designate
the chairman and presiding officer over any meeting of Stockholders from which
the Chairman is absent. In the absence of such designation by the Board, the
chairman of the meeting will be chosen at the meeting. The Secretary will act
as secretary of meetings of Stockholders, but in his absence from any such
meeting the chairman of that meeting may appoint any person to act as secretary
of that meeting. The chairman of any meeting of Stockholders will announce at
that meeting the date and time of the opening and the closing of the polls for
each matter on which the Stockholders will vote at that meeting.
Section 1.7 Voting; Proxies. (a) Except as the Certificate of
Incorporation otherwise provides, each Stockholder entitled to vote at any
meeting of Stockholders will be entitled to one vote for each share of capital
stock of the Corporation he holds which has voting power on
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the matter in question. Each Stockholder entitled to vote at a meeting of
Stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
Stockholder by proxy, but no proxy will be voted or acted on after three years
from its date, unless that proxy provides for a longer period. A proxy will be
irrevocable if it states that it is irrevocable and if, and only so long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
Stockholder may revoke any proxy which is not irrevocable by attending that
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by delivering a proxy in accordance with applicable law bearing a later
date to the Secretary. Proxies for use at any meeting of Stockholders must be
filed, before or at the time of that meeting, with the Secretary or such other
person as the Board by resolution may designate from time to time.
(b) The secretary of any meeting of Stockholders will take charge of
and canvass all ballots delivered at that meeting and will decide all questions
relating to the qualification of voters, the validity of proxies and the
acceptance or rejection of votes at that meeting, unless the chairman has
appointed an inspector or inspectors to decide those questions. Voting at
meetings of Stockholders: (i) need not be by written ballot unless the Board,
in its discretion, by resolution so requires or, in the case of any such
meeting, the chairman of that meeting, in his discretion, so requires; and (ii)
unless applicable law otherwise requires, need not be conducted by inspectors of
election unless so determined by the holders of shares of stock having a
majority of the votes the holders of all outstanding shares of stock entitled to
vote thereon which are present in person or by proxy at that meeting could cast.
(c) The Corporation may, and shall if required by law, in advance of
any meeting of Stockholders, appoint one or more inspectors of election, who may
be employees of the Corporation, to act at the meeting or any adjournment
thereof and to make a written report thereof. The Corporation may designate one
or more persons as alternate inspectors to replace any inspector who fails to
act. In the event that no inspector so appointed or designated is able to act
at a meeting of Stockholders, the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath to execute
faithfully the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector or inspectors so appointed or
designated shall (i) ascertain the number of shares of capital stock of the
Corporation outstanding and the voting power of each such share, (ii) determine
the shares of capital stock of the Corporation represented at the meeting and
the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares of capital stock of the Corporation
represented at the meeting and such inspectors' count of all votes and ballots.
Such certification and report shall specify such other information as may be
required by law. In determining the validity and counting of proxies and
ballots cast at any meeting of Stockholders of the Corporation, the inspectors
may consider such information as is permitted by applicable law. No person who
is a candidate for an office at an election may serve as an inspector at such
election.
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(d) At all meetings of Stockholders at which a quorum is present for
the election of Directors, a plurality of the votes cast by the holders of
outstanding shares of stock of the Corporation entitled to vote in the election
of Directors will be sufficient to elect, except as the Certificate of
Incorporation may otherwise provide. In the case of any question to which the
stockholder approval policy of any national securities exchange or quotation
system on which capital stock of the Corporation is traded or quoted on the
Corporation's application, the requirements under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any provision of the Internal Revenue
Code of 1986, as amended, or the rules and regulations thereunder (the "Code")
applies, in each case for which question the Certificate of Incorporation, these
Bylaws or the General Corporation Law of the State of Delaware, as amended (the
"DGCL"), does not specify a higher voting requirement, that question will be
decided by the requisite vote that stockholder approval policy, Exchange Act
requirement or Code provision, as the case may be, specifies (or the highest
requisite vote if more than one applies). A majority of the votes cast on the
question whether to approve the appointment of independent public accountants
(if that question is submitted for a vote of Stockholders) will be sufficient to
approve. All other elections and questions which have properly come before any
meeting will, unless the Certificate of Incorporation, these Bylaws or
applicable law otherwise provides, be decided by the vote of the holders of
shares of stock of the Corporation present in person or by proxy at that meeting
and having a majority of the votes entitled to vote thereon.
Section 1.8 Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the Stockholders entitled
to notice of or to vote at any meeting of Stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
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 lawful
action, the Board by resolution may fix a record date, which record date: (i)
must not precede the date on which the Board adopts that resolution; (ii) in the
case of a determination of Stockholders entitled to vote at any meeting of
Stockholders or adjournment thereof, will, unless applicable law otherwise
requires, not be more than 60 nor less than 10 days before the date of that
meeting; (iii) in the case of a determination of Stockholders entitled to
express consent to corporate action in writing without a meeting, will not be
more than 10 days from the date on which the Board adopts the resolution fixing
the record date; and (iv) in the case of any other action, will not be more than
60 days prior to that other action. If the Board does not fix a record date:
(i) the record date for determining Stockholders entitled to notice of or to
vote at a meeting of Stockholders will be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (ii) the record date for determining Stockholders entitled to express
consent to corporate action in writing without a meeting will be (A) if
applicable law does not require a prior action by the Board, the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation in accordance with applicable law; and (B)
if applicable law requires prior action by the Board, at the close of business
on the day on which the Board adopts the resolution taking that prior action;
and (iii) the record date for determining Stockholders for any other purpose
will be at the close of business on
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the day on which the Board adopts the resolution relating thereto. A
determination of Stockholders of record entitled to notice of or to vote at a
meeting of Stockholders will apply to any adjournment of that meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting.
Section 1.9 List of Stockholders Entitled To Vote. The Secretary
will prepare and make, at least 10 days before each meeting of Stockholders, a
list of the Stockholders entitled to vote at that meeting which complies with
the requirements of Section 219 of the DGCL as in effect at that time.
Section 1.1 Election of Directors. (a) Subject to such rights of
the holders of any class or series of the Corporation's capital stock as the
Certificate of Incorporation may prescribe, only persons who are nominated in
accordance with the procedures this Section 1.10 sets forth will be eligible for
election by Stockholders as Directors. Nominations of persons for election to
the Board may be made at any meeting of Stockholders at which Directors are to
be elected: (i) by or at the direction of the Board or any Board Committee the
Board has duly designated and empowered to nominate persons for election as
Directors; or (ii) by any Stockholder who (A) is a Stockholder of record at the
time that Stockholder gives the notice this Section 1.10 specifies below, (B)
will be entitled to vote at that meeting in the election of the Director for
which that Stockholder is making the nomination and (C) complies with this
Section 1.10.
(b) For a Stockholder to bring any nomination of a person for election
as a Director properly before any meeting of Stockholders held after the date
the first registration of any class or series of the Corporation's capital stock
becomes effective under the Exchange Act (that date being the "Exchange Act
Effective Date"), that Stockholder must have given timely notice of that
nomination (a "Nomination Notice") in proper written form to the Secretary. To
be timely, a Stockholder's Nomination Notice must be delivered to the Secretary,
or mailed and received by the Secretary, at the principal executive offices of
the Corporation: (i) if it relates to an election at any annual meeting of
Stockholders, not later than the close of business on the 90th day and not
earlier than the 120th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that (i) with respect to the first
annual meeting to be held after the Exchange Act Effective Date or in the event
that the date of the pending annual meeting is more than 30 days before or more
than 60 days after that anniversary date, that it will be timely if it is so
delivered not later than the last to occur of the close of business on (A) the
90th day prior to the pending annual meeting or (B) the 10th day following the
day on which the Corporation first makes a public announcement of the date of
the pending annual meeting; and (ii) if it relates to any special meeting of
Stockholders, provided that the Board of Directors has determined that directors
shall be elected at such meeting, not earlier than 120 days prior to that
special meeting and not later than the last to occur of the close of business on
(A) the 90th day prior to that special meeting or (B) the 10th day following the
day on which the Corporation first makes a public announcement of the date of
that special meeting. The public disclosure of an adjournment of any annual or
special meeting will not in any event commence a new time period for the giving
of any Nomination Notice.
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(c) To be in proper written form, any Nomination Notice of a
Stockholder must: (i) set forth (A) as to each person whom that Stockholder
proposes to nominate for election as a Director, (1) the name, age and business
address of that person, (2) the principal occupation or employment of that
person, (3) the class or series and number of shares of capital stock of the
Corporation which that person owns beneficially or of record and (4) all other
information, if any, relating to that person which Section 14 of the Exchange
Act and the rules and regulations thereunder would require the Corporation or
that Stockholder to disclose in a proxy statement or any other filing in
connection with solicitations of proxies for an election of directors and (B) as
to that Stockholder and the beneficial owner, if any, of capital stock of the
Corporation on whose behalf the nomination is being made, (1) the name and
address of that Stockholder as they appear in the stock records of the
Corporation and the name and address of that beneficial owner, (2) the class or
series and the number of shares of capital stock of the Corporation which that
Stockholder and that beneficial owner each owns beneficially or of record, (3) a
description of all arrangements and understandings between that Stockholder or
that beneficial owner and each proposed nominee of that Stockholder and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made by that Stockholder, (4) a representation by that
Stockholder that he intends to appear in person or by proxy at that meeting to
nominate the person(s) named in that Nomination Notice, (5) a representation
whether the Stockholder or the beneficial owner, if any, intends or is part of a
group which intends (a) 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 elect the nominee and/or (b) to otherwise solicit proxies from
Stockholders in support of such nomination, and (6) all other information, if
any, relating to that Stockholder and that beneficial owner which Section 14 of
the Exchange Act and the rules and regulations thereunder would require the
Corporation or that Stockholder to disclose in a proxy statement or any other
filing in connection with solicitations of proxies for an election of directors;
and (ii) be accompanied by a written consent of each person that Stockholder
proposes to nominate for election as a Director to be named as such a nominee
and to serve as a Director if elected. 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 of the
Corporation.
(d) Except as the Certificate of Incorporation, these Bylaws or
applicable law otherwise provides, the chairman of any meeting of Stockholders
at which Directors are to be elected will have the power and duty to determine
whether nominations of persons for election as Directors have been made in
accordance with the procedures this Section 1.10 sets forth (including whether
the Stockholder or beneficial owner, if any, on whose behalf the nomination 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 in compliance
with such Stockholder's representation as required by clause (c)(i)(B)(5) of
this Section 1.10) and, if that chairman determines that any such nomination has
not been made in compliance with these procedures, to declare to that meeting
that such nomination is defective and will be disregarded. Notwithstanding the
foregoing provisions of this Section 1.10, 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, such
nomination shall
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be disregarded, notwithstanding that proxies in respect of such vote may have
been received by the Corporation.
(e) Notwithstanding anything in Section 1.10(b) to the contrary, if
the number of Directors to be elected at an annual meeting of Stockholders held
after the Exchange Act Effective Date is increased and the Corporation has not
made a public announcement (i) at least 90 days prior to the date of that
meeting, in the case of the first annual meeting of Stockholders held after the
Exchange Act Effective Date, or (ii) at least 100 days prior to the first
anniversary of the preceding year's annual meeting, in the case of any other
annual meeting of Stockholders held after the Exchange Act Effective Date, which
announcement (A) names all the nominees for Director of the Board or any duly
designated and empowered Board Committee or (B) specifies the size of the
increased Board, a Stockholder's Nomination Notice will be timely, but only with
respect to nominees for any new positions that increase creates, if that
Nomination Notice is delivered to the Secretary, or mailed and received by the
Secretary at, the principal executive offices of the Corporation not later than
the close of business on the 10th day following the day on which the Corporation
first makes that public announcement.
(f) For purposes of Section 1.11 and this Section 1.10, "public
announcement" means disclosure in a press release the Dow Jones News Service,
Associated Press or any comparable national news service in the United States
reports or in a document the Corporation publicly files with the Securities and
Exchange Commission (the "SEC") pursuant to the Exchange Act; provided, however,
that prior to the Exchange Act Effective Date, a written notice the Corporation
mails, postage prepaid, to Stockholders of record at their addresses as they
appear in the stock records of the Corporation will be a "public announcement"
three days after the date of that mailing.
(g) Notwithstanding the foregoing provisions of this Section 1.10, a
Stockholder also must comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters this
Section 1.10 sets forth.
Section 1.1 Other Stockholder Business. (a) At any annual meeting
the Corporation holds pursuant to Section 1.1, the Stockholders will transact
only such business, in addition to the election of Directors, as has been
properly brought before that meeting. Except as the Certificate of
Incorporation otherwise provides, to be brought properly before any annual
meeting, business other than the election of Directors ("Other Business") must
be (i) business the notice of that meeting (or any supplement thereto) given by
or at the direction of the Board specifies, (ii) business otherwise properly
brought before that meeting by or at the direction of the Board and (iii)
business (A) properly brought before that meeting by a Stockholder who (1) is a
Stockholder of record at the time that Stockholder gives the notice this Section
1.11 specifies below, (2) will be entitled to vote on that business at that
meeting and (3) complies with this Section 1.11, (B) that is a proper subject
for Stockholder action and (C) is properly introduced at that meeting.
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(b) For a Stockholder to bring any Other Business properly before any
annual meeting of Stockholders held after the Exchange Act Effective Date, that
Stockholder must have given timely notice thereof (a "Business Notice") in
proper written form to the Secretary. To be timely, a Stockholder's Business
Notice must be delivered to the Secretary, or mailed and received by the
Secretary at, the principal executive offices of the Corporation not later than
the close of business on the 90th day and not earlier than the 120th day prior
to the first anniversary of the preceding year's annual meeting; provided,
however, that with respect to the first annual meeting to be held after the
Exchange Act Effective Date or in the event that the date of the pending annual
meeting is more than 30 days before or more than 60 days after that anniversary
date, that Business Notice will be timely if it is so delivered not later than
the last to occur of the close of business on (A) the 90th day prior to that
pending annual meeting or (B) the 10th day following the day on which the
Corporation first makes a public announcement of the date of the pending
meeting. The public disclosure of an adjournment of any annual meeting will not
in any event commence a new time period for the giving of any Business Notice.
(c) To be in proper written form, any Business Notice of a Stockholder
must set forth: (i) as to each matter of Other Business that Stockholder
proposes to bring before an annual meeting, (A) a brief description of that
Other Business, (B) 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 the Bylaws of the Corporation, the language of the
proposed amendment), (C) the reasons for conducting that Other Business at an
annual meeting and (D) each material interest in that Other Business of that
Stockholder and the beneficial owner, if any, of capital stock of the
Corporation on whose behalf that proposal is being made; and (ii) as to that
Stockholder and each such beneficial owner, (A) the name and address of that
Stockholder as they appear on the Corporation's books and the name and address
of that beneficial owner, (B) the class or series and the number of shares of
capital stock of the Corporation which that Stockholder and that beneficial
owner each owns beneficially or of record, (C) a description of all arrangements
and understandings between that Stockholder or that beneficial owner and any
other person or persons (including their names) in connection with that Other
Business, (D) a representation by that Stockholder that he intends to appear in
person or by proxy at that meeting to bring that Other Business before that
meeting , and (E) a representation whether the Stockholder or the beneficial
owner, if any, intends or is part of a group which intends (a) 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 and/or (b) otherwise to solicit proxies from Stockholders in support of
such proposal. 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.
(d) Except as applicable law otherwise provides, the chairman of any
annual meeting of Stockholders will have the power and duty to determine whether
proposals by Stockholders of any Other Business to be brought before that
meeting have been made in accordance
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with the procedures this Section 1.11 sets forth (including whether the
Stockholder or beneficial owner, if any, on whose behalf the 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 proposal in compliance
with such Stockholder's representation as required by clause (c)(ii)(E) of this
Section 1.11) and, if that chairman determines that any such proposal has not
been made in compliance with these procedures, to declare to that meeting that
such proposal is defective and will be disregarded.
(e) At any special meeting the Corporation holds pursuant to Section
1.2, the Stockholders will transact only such business as (i) the notice given
of that meeting pursuant to Section 1.3 sets forth and (ii) constitutes matters
incident to the conduct of that meeting as the chairman of that meeting
determines to be appropriate.
(f) Notwithstanding the foregoing provisions of this Section 1.11,
after the Exchange Act Effective Date, a Stockholder also must comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters this Section 1.11 sets forth.
Section 1.12 Action By Consent of Stockholders. Unless the
Certificate of Incorporation otherwise provides, Stockholders may, prior to the
Exchange Act Effective Date but not thereafter, without a meeting, prior notice
or a vote, take any action they must or may take at any annual or special
meeting, if the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take that action at a
meeting at which all shares entitled to vote thereon were present consent to
that action which sets forth that action and cause the delivery of that consent
in accordance with applicable law to the Corporation (i) at its registered
office in the State of Delaware or its principal place of business or (ii) to an
officer or agent of the corporation having custody of the books in which the
Corporation records minutes of proceedings or other actions of Stockholders.
Stockholders may execute any consent pursuant to this Section 1.12 in
counterparts, all of which together will constitute a single consent. The
Corporation will give prompt notice of the taking pursuant to this Section 1.12
of any action without a meeting by less than unanimous consent, to the extent
required by law, to those Stockholders who have not consented to that action and
who, if the action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of holders to take the action
were delivered to the Corporation.
Section 1.13 Conduct of Meetings. The Board may adopt by resolution
such rules and regulations for the conduct of meetings of Stockholders as it
deems appropriate. Except to the extent inconsistent with those rules and
regulations, if any, the chairman of any meeting of Stockholders will have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of that chairman, are appropriate for the
proper conduct of that meeting. Those rules, regulations or procedures whether
adopted by the Board or prescribed by the chairman of the meeting may include,
without limitation, the following: (i) the establishment of 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
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meeting to Stockholders of record, their duly authorized and constituted proxies
or such other persons as the chairman of the meeting may 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. Except to the extent the Board or the chairman of any meeting
otherwise prescribes, no rules or parliamentary procedure will govern any
meeting of Stockholders.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Regular Meetings. The Board will hold its regular
meetings at such places, on such dates and at such times as the Board by
resolution may determine from time to time, and any such resolution will
constitute due notice to all Directors of the regular meeting or meetings to
which it relates. By notice pursuant to Section 2.6, the Chairman or a majority
of the Board may change the place, date or time of any regular meeting of the
Board.
Section 2.2 Special Meetings. The Board will hold a special
meeting at any place or time whenever the Chairman or a majority of the Board by
resolution calls that meeting by notice pursuant to Section 2.6.
Section 2.3 Telephonic Meetings. Members of the Board may hold and
participate in any Board meeting by means of conference telephone or other
communications equipment that permits all persons participating in the meeting
to hear each other, and participation of any Director in a meeting pursuant to
this Section 2.3 will constitute the presence in person of that Director at that
meeting for purposes of these Bylaws, except in the case of a Director who so
participates only for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting has
not been called or convened in accordance with applicable law or these Bylaws.
Section 2.4 Organization. The Chairman will chair and preside over
meetings of the Board at which he is present. A majority of the Directors
present at any meeting of the Board from which the Chairman is absent will
designate one of their number as chairman and presiding officer over that
meeting. The Secretary will act as secretary of meetings of the Board, but in
his absence from any such meeting the chairman of that meeting may appoint any
person to act as secretary of that meeting.
Section 2.5 Order of Business. The Board will transact business at
its meetings in such order as the Chairman or the Board by resolution will
determine.
Section 2.6 Notice of Meetings. To call a special meeting of the
Board, the Chairman or a majority of the Board must give a timely notice to each
Director of the time and place of, and the general nature of the business the
Board will transact at, all special meetings of the Board. To change the time or
place of any regular meeting of the Board, the Chairman or a majority of the
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Board must give a timely notice to each Director of that change. To be timely,
any notice this Section 2.6 requires must be delivered to each Director
personally or by mail, telegraph, telecopier or other communication at least one
day before the meeting to which it relates; provided, however, that notice of
any meeting of the Board need not be given to any Director who waives the
requirement of that notice (whether after that meeting or otherwise) or is
present at that meeting.
Section 2.7 Quorum; Vote Required for Action. At all meetings of
the Board, the presence in person of a majority of the total number of Directors
then in office will constitute a quorum for the transaction of business, and the
participation by a Director in any meeting of the Board will constitute that
Director's presence in person at that meeting unless that Director expressly
limits that participation to objecting, at the beginning of the meeting, to the
transaction of any business at that meeting on the ground that the meeting has
not been called or convened in accordance with applicable law or these Bylaws.
Except in cases in which the Certificate of Incorporation or these Bylaws
otherwise provide, the vote of a majority of the Directors present at a meeting
at which a quorum is present will be the act of the Board.
Section 2.8 Informal Action by Directors. Unless the Certificate
of Incorporation or these Bylaws otherwise provides, the Board may, without a
meeting, prior notice or a vote, take any action it must or may take at any
meeting, if all members of the Board consent thereto in writing or electronic
transmission, and the written consents or electronic transmissions are filed
with the minutes of proceedings of the Board the Secretary will keep.
ARTICLE III
BOARD COMMITTEES
Section 3.1 Board Committees. (a) The Board may designate one or
more Board Committees consisting of one or more of the Directors. The Board may
designate one or more Directors as alternate members of any Board Committee, who
may replace any absent or disqualified member at any meeting of that committee.
The member or members present at any meeting of any Board Committee and not
disqualified from voting at that meeting may, whether or not constituting a
quorum, unanimously appoint another Director to act at that meeting in any place
of any member of that committee who is absent from or disqualified to vote at
that meeting.
(b) The Board by resolution may change the membership of any Board
Committee at any time and fill vacancies on any of those committees. A majority
of the members of any Board Committee will constitute a quorum for the
transaction of business by that committee unless the Board by resolution
requires a greater number for that purpose. The Board by resolution may elect a
chairman of any Board Committee. The election or appointment of any Director to
a Board Committee will not create any contract rights of that Director, and the
Board's removal of any member of any Board Committee will not prejudice any
contract rights that member otherwise may have.
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(c) Pursuant to Section 3.1(a), the Board may designate an executive
committee (the "Executive Committee") to exercise, subject to applicable
provisions of law, all the powers of the Board in the management of the business
and affairs of the Corporation when the Board is not in session, including the
powers to (i) declare dividends and (ii) authorize the issuance by the
Corporation of any class or series of its capital stock. The Executive
Committee will include the Chairman among its members.
(d) Each other Board Committee the Board may designate pursuant to
Section 3.1(a) will, subject to applicable provisions of law, have and may
exercise all the powers and authorities of the Board to the extent the Board
resolution designating that committee so provides.
Section 3.2 Board Committee Rules. Unless the Board otherwise
provides, each Board Committee may make, alter and repeal rules for the conduct
of its business. In the absence of those rules, each Board Committee will
conduct its business in the same manner as the Board conducts its business
pursuant to Article II.
ARTICLE IV
OFFICERS
Section 4.1 Designation. The officers of the Corporation will
consist of a chief executive officer ("CEO"), chief financial officer, chief
operating officer, chief accounting officer, president, secretary, treasurer and
such senior or other vice presidents, assistant secretaries, assistant
treasurers and other officers as the Board or the CEO may elect or appoint from
time to time. Any person may hold any number of offices of the Corporation.
Section 4.2 CEO. The CEO will, subject to the control of the
Board: (i) have general supervision and control of the affairs, business,
operations and properties of the Corporation; (ii) see that all orders and
resolutions of the Board are carried into effect; (iii) have the power to
appoint and remove all subordinate officers, employees and agents of the
Corporation, except for those the Board elects or appoints; and (iv) sign and
execute, under the seal of the Corporation, all contracts, instruments,
mortgages and other documents (collectively, "documents") of the Corporation
which require that seal, except as applicable law otherwise requires or permits
any document to be signed and executed and except as these Bylaws, the Board or
the CEO authorize other officers of the Corporation to sign and execute
documents. The CEO also will perform such other duties and may exercise such
other powers as generally pertain to his office or these Bylaws or the Board by
resolution assigns to him from time to time.
Section 4.3 Powers and Duties of Other Officers. The other
officers of the Corporation will have such powers and duties in the management
of the Corporation as the Board by resolution may prescribe and, except to the
extent so prescribed, as generally pertain to their respective offices, subject
to the control of the Board. The Board may require any officer, agent or
employee to give security for the faithful performance of his duties.
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Section 4.4 Term of Office, etc. Each officer will hold office
until the first meeting of the Board after the annual meeting of Stockholders
next succeeding his election, and until his successor is elected and qualified
or until his earlier resignation or removal. No officer of the Corporation will
have any contractual right against the Corporation for compensation by reason of
his election or appointment as an officer of the Corporation beyond the date of
his service as such, except as a written employment or other contract otherwise
may provide. The Board may remove any officer with or without cause at any
time, but any such removal will not prejudice the contractual rights of that
officer, if any, against the Corporation. The Board by resolution may fill any
vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise for the unexpired portion of the term of that office at any
time.
ARTICLE V
CAPITAL STOCK
Section 5.1 Certificates. Shares of capital stock of the
Corporation will be evidenced by certificates in such form or forms as the Board
by resolution may approve from time to time or, if and to the extent the Board
so authorizes by resolution, may be uncertificated. The Chairman, the president
or any vice president of the Corporation and the Secretary or any assistant
secretary of the Corporation may sign certificates evidencing certificated
shares. Any of or all the signatures and the Corporation's seal on each such
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before the Corporation issues that certificate, the Corporation may issue that
certificate with the same effect as if he were such officer, transfer agent or
registrar at the date of that issue.
Section 5.2 Transfer of Shares. The Corporation may act as its own
transfer agent and registrar for shares of its capital stock or use the services
of such one or more transfer agents and registrars as the Board by resolution
may appoint from time to time. Shares of the Corporation's capital stock will
be transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives on
surrender and cancellation of certificates for a like number of shares.
Section 5.3 Ownership of Shares. The Corporation will be entitled
to treat the holder of record of any share or shares of its capital stock as the
holder in fact thereof and, accordingly, will 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 has express or other notice thereof, except
as the applicable laws of the State of Delaware otherwise provide.
Section 5.4 Regulations Regarding Certificates. The Board will
have the power and authority to make all such rules and regulations as it may
deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the Corporation.
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Section 5.5 Lost or Destroyed Certificates. The Board may
determine the conditions on which a new certificate of stock may be issued in
place of a certificate alleged to have been lost, stolen or destroyed and may,
in its discretion, require the owner of the allegedly lost, stolen or destroyed
certificate or his legal representative to give bond, with sufficient surety, to
indemnify the Corporation and each transfer agent and registrar against any and
all losses or claims that may arise by reason of the issue of a new certificate
in the place of the one allegedly so lost, stolen or destroyed.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Right to Indemnification. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person (a "Covered
Person") who was or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding"), by reason of the fact that he,
or a person for whom he is the legal representative, is or was a Director or
officer of the Corporation or, while a Director or officer of the Corporation,
is or was serving at the request of the Corporation as a Director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such Covered Person.
Notwithstanding the preceding sentence, except as otherwise provided in Section
6.3, the Corporation shall be required to indemnify a Covered Person in
connection with a proceeding (or part thereof) commenced by such Covered Person
only if the commencement of such proceeding (or part thereof) by the Covered
Person was authorized by the Board of Directors of the Corporation.
Section 6.2 Prepayment of Expenses. The Corporation shall pay the
expenses (including attorneys' fees) incurred by a Covered Person in defending
any proceeding in advance of its final disposition, provided, however, that, to
the extent required by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an under
taking by the Covered Person to repay all amounts advanced if it should be
ultimately determined that the Covered Person is not entitled to be indemnified
under this Article VI or otherwise.
Section 6.3 Claims. If a claim for indemnification or advancement
of expenses under this Article VI is not paid in full within thirty days after a
written claim therefor by the Covered Person has been received by the
Corporation, the Covered Person may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the Corporation shall
have the burden of proving that the Covered Person is not entitled to the
requested indemnification or advancement of expenses under applicable law.
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Section 6.4 Nonexclusivity of Rights. The rights conferred on any
Covered Person by this Article VI shall not be exclusive of any other rights
which such Covered Person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, these Bylaws, agreement, vote of
Stockholders or disinterested Directors or otherwise.
Section 6.5 Other Sources. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Covered Person who was or is serving at
its request as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise or non-profit enterprise.
Section 6.6 Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VI shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
Section 6.7 Other Indemnification and Prepayment of Expenses. This
Article VI shall not limit the right of the Corporation, to the extent and in
the manner permitted by law, to indemnify and to advance expenses to persons
other than Covered Persons when and as authorized by appropriate corporate
action.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Fiscal Year. The Board by resolution will determine
the fiscal year of the Corporation.
Section 7.2 Seal. The corporate seal will have the name of the
Corporation inscribed thereon and will be in such form as the Board by
resolution may approve from time to time.
Section 7.3 Interested Directors; Quorum. No contract or
transaction between the Corporation and one or more of its Directors or
officers, or between the Corporation and any other Entity in which one or more
of its Directors or officers are directors or officers (or hold equivalent
offices or positions), or have a financial interest, will be void or voidable
solely for this reason, or solely because the Director or officer is present at
or participates in the meeting of the Board or Board Committee which authorizes
the contract or transaction, or solely because his or their votes are counted
for that purpose, if: (i) the material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known to the Board or
the Board Committee, and the Board or Board Committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested Directors, even though the disinterested Directors be less than a
quorum; or (ii) the material facts as to the Director's or officer's
relationship or interest and as to
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the contract or transaction are disclosed or are known to the Stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of those Stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified by the Board, a Board Committee or the Stockholders. Common
or interested Directors may be counted in determining the presence of a quorum
at a meeting of the Board or of a Board Committee which authorizes the contract
or transaction.
Section 7.4 Form of Records. Any records the Corporation maintains
in the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time.
Section 7.5 Bylaw Amendments. The Board has the power to adopt,
amend and repeal from time to time the Bylaws of the Corporation, subject to the
right of Stockholders entitled to vote with respect thereto to amend or repeal
those Bylaws as adopted or amended by the Board. Bylaws of the Corporation may
be adopted, amended or repealed by the affirmative vote of the holders of at
least 66.7% of the combined voting power of the outstanding shares of all
classes of capital stock of the Corporation entitled to vote generally in the
election of Directors, voting together as a single class, at any annual meeting,
or at any special meeting if notice of the proposed amendment is contained in
the notice of that special meeting, or by the Board as specified in the
preceding sentence.
Section 7.6 Notices; Waiver of Notice. Whenever any notice is
required to be given to any Stockholder, Director or member of any Board
Committee under the provisions of the DGCL, the Certificate of Incorporation or
these Bylaws, that notice will be deemed to be sufficient if given (i) by
telegraphic, facsimile, cable or wireless transmission or other lawful means or
(ii) by deposit of the same in the United States mail, with postage paid
thereon, addressed to the person entitled thereto at his address as it appears
in the records of the Corporation, and that notice will be deemed to have been
given on the day of such transmission or mailing, as the case may be.
Whenever any notice is required to be given to any Stockholder or
Director under the provisions of the DGCL, the Certificate of Incorporation or
these Bylaws, a waiver thereof in writing signed by the person or persons
entitled to that notice or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time stated therein, will be
equivalent to the giving of that notice. Attendance of a person at a meeting
will constitute a waiver of notice of that meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Stockholders, the Board or any Board
Committee need be specified in any written waiver of notice or any waiver by
electronic transmission unless the Certificate of Incorporation or these Bylaws
so require.
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Section 7.7 Resignations. Any Director or officer of the
Corporation may resign at any time. Any such resignation will take effect at
the time specified in that resignation, or, if that resignation does not specify
any time, at the time of its receipt by the Chairman or the Secretary. The
acceptance of a resignation will not be necessary to make it effective, unless
that resignation expressly so provides.
Section 7.8 Reliance on Books, Reports and Records. Each Director
and each member of any Board Committee designated by the Board will, in the
performance of his duties, be fully protected in relying in good faith on the
books of account or reports made to the Corporation by any of its officers, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board or by any such committee, or in relying in good
faith upon other records of the Corporation.
Section 7.9 Certain Definitional Provisions. (a) When used in
these Bylaws, the words "herein," "hereof" and "hereunder" and words of similar
import refer to these Bylaws as a whole and not to any provision of these
Bylaws, and the words "Article" and "Section" refer to Articles and Sections of
these Bylaws unless otherwise specified.
(b) Whenever the context so requires, the singular number includes the
plural and vice versa, and a reference to one gender includes the other gender
and the neuter.
(c) The word "including" (and, with correlative meaning, the word
"include") means including, without limiting the generality of any description
preceding that word, and the words "shall" and "will" are used interchangeably
and have the same meaning.
Section 7.10 Captions. Captions to Articles and Sections of these
Bylaws are included for convenience of reference only, and these captions do not
constitute a part hereof for any other purpose or in any way affect the meaning
or construction of any provision hereof.
End of Bylaws
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