Exhibit 4.2
BY-LAWS
OF
AIRBORNE, INC.
(A Delaware Corporation)
ARTICLE I
Offices
1. Registered Office. The registered office of the
corporation shall be located at such address as shall be
designated by the Board of Directors within the City of
Wilmington, Delaware.
2. Other Offices. The corporation may have other offices,
within or outside the State of Delaware and within or outside the
United States, at such place or places as the Board of Directors
may appoint from time to time or the business of the corporation
may require.
ARTICLE II
Shareholders' Meetings
1. All meetings of the shareholders shall be held at the
principal office of the corporation or at such other place as
shall be determined from time to time by the Board of Directors,
and the place at which such meeting shall be held shall be stated
in the notice and call of the meeting.
2. The annual meeting of the shareholders for the election
of directors and for the transaction of such other business as
may properly come before the meeting shall be held each year on
the fourth Tuesday in April, at the hour of 10 a.m., if not a
legal holiday, or, if a legal holiday, then on the day following,
at the same hour. If the annual meeting of the shareholders be
not held as herein prescribed, the election of directors may be
held at any meeting called pursuant to these By-laws and the laws
of the State of Delaware.
3. At an annual meeting of shareholders, an item of
business may be conducted, and a proposal may be considered and
acted upon, only if such item or proposal is brought before the
annual meeting (a) by, or at the direction of, the Board of
Directors, or (b) by any shareholder of the corporation who is
entitled to vote at the meeting and who complies with the
procedures set forth in the remainder of this Section 3. This
Section 3 shall not apply to matters of procedure, which shall
instead be subject to the authority of the presiding officer at
the meeting.
For an item of business or proposal to be brought before an
annual meeting by a shareholder, the shareholder must have given
timely notice thereof in writing to the Secretary of the
corporation. To be timely, a shareholder's notice must be
delivered to, or mailed and received at, the principal office of
the corporation not less than ninety (90) days prior to the date
scheduled for the annual meeting (regardless of any
postponements, deferrals or adjournments of that meeting to a
later date), or, if notice or public disclosure of the date
scheduled for the annual meeting is not given or made at least
one hundred (100) days prior thereto, not more than ten (10) days
following the day on which notice of the date scheduled for the
annual meeting is mailed or the day on which disclosure of that
date is made, whichever is earlier.
A shareholder's notice to the Secretary under this Section 3
shall set forth, as to each item of business or proposal the
shareholder intends to bring before the annual meeting (i) a
brief description of the item of business or proposal and the
reasons for bringing it before the annual meeting, (ii) the name
and address, as they appear on the corporation's books, of the
shareholder and of any other shareholders that the shareholder
knows or anticipates will support the item of business or
proposal, (iii) the number and class of shares of stock of the
corporation that are beneficially owned on the date of such
notice by the shareholder and by any such other shareholders,
(iv) any financial interest of the shareholder or any such other
shareholders in such item of business or proposal, (v) a
statement as to whether such shareholder and any such other
shareholders intend to solicit proxies in support of such
proposals and (vi) in the case of nominations of directors, the
existence and nature of any financial or other arrangements or
understandings between such directors and such shareholder or
such other shareholders pursuant to which such nominations are
being made.
The Board of Directors, or a designated committee thereof,
may reject a shareholder's notice that is not timely given in
accordance with the terms of this Section 3. If the Board of
Directors, or a designated committee thereof, determines that the
information provided in a shareholder's notice does not satisfy
the requirements of this Section 3 in any material respect, the
Secretary of the corporation shall notify the shareholder of the
deficiency in the notice. The shareholder shall have an
opportunity to cure the deficiency by providing additional
information to the Secretary within such period of time, not to
exceed five (5) days from the date such deficiency notice is
given to the shareholder, as the Board of Directors or such
committee shall reasonably determine. If the deficiency is not
cured within such period, or if the Board of Directors or such
committee determines that the additional information provided by
the shareholder, together with information previously provided,
does not satisfy the requirements of this Section 3 in any
material respect, then the Board of Directors or such committee
may reject the shareholder's notice.
Notwithstanding the procedures set forth above in this
Section 3, if a shareholder desires to bring an item of business
or proposal before an annual meeting (it being understood that,
except as may be required by law, a shareholder shall not have
the right to bring an item of business or proposal before a
special meeting), and neither the Board of Directors nor any
committee thereof has made a prior determination of whether the
shareholder has complied with the procedures set forth in this
Section 3 in connection with such item of business or proposal,
then the chairman of the annual meeting shall determine and
declare at the annual meeting whether the shareholder has so
complied. If the chairman determines that the shareholder has so
complied, then the chairman shall so state and ballots shall be
provided for use at the meeting with respect to such item of
business or proposal. If the chairman determines that the
shareholder has not so complied, then, unless the chairman, in
his sole and absolute discretion, determines to waive such
compliance, the chairman shall state that the shareholder has not
so complied and the item of business or proposal shall not be
brought before the annual meeting.
This Section 3 shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of
officers, directors and committees of the Board of Directors,
but, in connection with such reports, no item of business may be
conducted, and no proposal may be considered and acted upon,
unless there has been compliance with the procedures set forth in
this Section 3 in connection therewith.
4. At the annual meeting of shareholders, the order of
business shall be as follows unless otherwise determined by the
presiding officer:
(a) Calling the meeting to order;
(b) Proof of notice of meeting and proxy report;
(c) Reading of minutes of last annual meeting;
(d) Reports of officers;
(e) Reports of committees;
(f) Confirmation of selection of independent
accountants;
(g) Election of directors; and
(h) Miscellaneous business.
5. Special meetings of the shareholders for any purpose
other than those regulated by statute may be called at any time
by the Board of Directors and shall be called by the Secretary at
any time, upon written request of the Chief Executive Officer or
of any two directors.
6. Notice of the time and place of the annual meeting or
of any special meeting of shareholders shall be given by
delivering or by mailing a written or printed notice of the same
at least ten days, and not more than sixty days, prior to the
meeting, with postage prepaid, to each shareholder of record
entitled to vote at such meeting and addressed to the
shareholder's last known post office address appearing on the
books of the corporation.
Notice of any shareholders' meeting may be waived in writing
by any shareholder at any time.
7. Except as otherwise required by the Certificate of
Incorporation or by law:
(a) A quorum at any annual or special meeting of
shareholders shall consist of shareholders
representing, either in person or by proxy, a
majority of the outstanding shares of the
corporation entitled to vote at such meeting;
(b) If a quorum be not present at a properly called
shareholders' meeting, the meeting may be
adjourned by those present, without new notice
being given; provided, however, that any meeting
at which directors are to be elected shall be
adjourned only from day to day until such
directors have been elected, and a quorum
established at any time during such meeting,
including adjournments thereof, shall constitute a
quorum for the purpose of electing directors;
(c) At any properly called meeting or adjourned
meeting of shareholders at which a quorum as in
this paragraph 7 is defined is present (i) in all
matters, other than the election of directors, the
affirmative vote of the majority of shares present
in person or represented by proxy and entitled to
vote on the subject matter shall be the act of the
shareholders, and (ii) directors shall be elected
by a plurality of the votes of the shares present
in person or represented by proxy at the meeting
and entitled to vote on the election of directors;
and
(d) Every shareholder entitled to vote shall have the
right to vote either in person or by proxy.
ARTICLE III
Stock
1. Certificates representing shares of stock shall be
issued in numerical order, and each shareholder shall be entitled
to a certificate bearing signature or facsimile signature of the
Chief Executive Officer, President or Vice President, and the
Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary, certifying to the number of shares owned.
Certificates bearing facsimile signatures of any of the foregoing
may be issued during a reasonable period following such person
leaving office.
2. Transfers of shares shall be made only upon the
transfer books of the corporation, kept at the office of the
corporation or Registrar duly authorized by the Board of
Directors; and before a new certificate is issued, the old
certificates shall be surrendered for cancellation.
3. Registered shareholders only shall be entitled to be
treated by the corporation as the holders in fact of the shares
standing in their respective names, and the corporation shall not
be bound to recognize any equitable or other claim to or interest
in any share on the part of any other person, whether or not it
shall have express or other notice thereof, except as expressly
provided by the laws of the State of Delaware.
4. In case of loss or destruction of any certificate
representing shares of stock, another may be issued in its place
upon proof of such loss or destruction and upon the giving of a
satisfactory bond or indemnity to the corporation in such sum or
in such manner as the Board of Directors may provide.
5. In order that the corporation may determine the
shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or 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 of Directors
may fix, in advance, a record date which shall not be more than
sixty nor less than ten days before the date of such meeting nor
more than sixty days prior to any other action.
ARTICLE IV
Board of Directors
1. The management of the affairs, property and interests
of the corporation shall be vested in the Board of Directors,
consisting of no less than eight and no more than twelve persons,
as determined from time to time by resolution of the Board of
Directors. The directors shall be classified with respect to the
time for which they shall severally hold office, by dividing them
into three classes, to be known as classes "A", "B", and "C".
The number of directors in each of the three classes shall be as
determined from time to time by resolution of the Board of
Directors.
At each annual election, the successors to the class of
directors whose terms shall expire in that year shall be elected
to hold office for the term of three years so that the terms of
office of one class of directors shall expire in each year. The
terms of office of directors in Class A shall expire in 2001 and
every three years thereafter; the terms of office of directors in
Class B shall expire in 2002 and every three years thereafter;
and the terms of office of directors in Class C shall expire in
2000, and every three years thereafter.
Upon any increase in the size of the Board of Directors, the
additional position(s) shall be filled by a vote of a majority of
the directors then in office, who shall designate, in conformity
with the terms of this Section 1, the class to which each
additional director shall be assigned. Notwithstanding any other
provision of these By-laws or of law, no amendment of these
By-laws that would have the effect of increasing the number of
directors of the corporation to a number larger than 12 shall be
valid unless approved by vote of the shareholders of the
corporation.
2. Nominations of candidates for election as directors at
an annual meeting of shareholders may only be made (a) by, or at
the direction of, the Board of Directors, or (b) by any
shareholder of the corporation who is entitled to vote at the
meeting and who complies with the procedures set forth in the
remainder of this Section 2.
If a shareholder proposes to nominate one or more candidates
for election as directors at an annual meeting, the shareholder
must have given timely notice thereof in writing to the Secretary
of the corporation. To be timely, a shareholder's notice must be
delivered to, or mailed and received at, the principal office of
the corporation not less than seventy (70) days prior to the date
scheduled for the annual meeting (regardless of any
postponements, deferrals or adjournments of that meeting to a
later date), or, if notice or public disclosure of the date
scheduled for the annual meeting is not given or made at least
eighty (80) days prior thereto, not more than ten (10) days
following the day on which notice of the date scheduled for the
annual meeting is mailed or the day on which disclosure of that
date is made, whichever is earlier.
A shareholder's notice to the Secretary under this Section 2
shall set forth, as to each person whom the shareholder proposes
to nominate for election as a director (a) the name, age,
business address and residence address of such person, (b) the
principal occupation or employment of such person, (c) the number
and class of shares of stock of the corporation that are
beneficially owned on the date of such notice by such person, and
(d) any other information relating to such person required to be
disclosed in solicitations of proxies with respect to nominees
for election as directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934, including but not limited to
information required to be disclosed by Schedule 14A of
Regulation 14A, and any other information that the shareholder
would be required to file with the Securities and Exchange
Commission in connection with the shareholder's nomination of
such person as a candidate for director or the shareholder's
opposition to any candidate for director nominated by, or at the
direction of, the Board of Directors. In addition to the above
information, a shareholder's notice to the Secretary under this
Section 2 shall (i) set forth (A) the name and address, as they
appear on the corporation's books, of the shareholder and of any
other shareholders that the shareholder knows or anticipates will
support any candidate or candidates nominated by the shareholder,
and (B) the number and class of shares of stock of the
corporation that are beneficially owned on the date of such
notice by the shareholder and by any such other shareholders, and
(ii) be accompanied by a written statement, signed and
acknowledged by each candidate nominated by the shareholder, that
the candidate agrees to be so nominated and to serve as a
director of the corporation if elected at the annual meeting.
The Board of Directors, or a designated committee thereof,
may reject any shareholder's nomination of one or more candidates
for election as directors if the nomination is not made pursuant
to a shareholder's notice timely given in accordance with the
terms of this Section 2. If the Board of Directors, or a
designated committee thereof, determines that the information
provided in a shareholder's notice does not satisfy the
requirements of this Section 2 in any material respect, the
Secretary of the corporation shall notify the shareholder of the
deficiency in the notice. The shareholder shall have an
opportunity to cure the deficiency by providing additional
information to the Secretary within such period of time, not to
exceed five (5) days from the date such deficiency notice is
given to the shareholder, as the Board of Directors or such
committee shall reasonably determine. If the deficiency is not
cured within such period, or if the Board of Directors or such
committee determines that the additional information provided by
the shareholder, together with information previously provided,
does not satisfy the requirements of this Section 2 in any
material respect, then the Board of Directors or such committee
may reject the shareholder's notice.
Notwithstanding the procedures set forth above in this
Section 2, if a shareholder proposes to nominate one or more
candidates for election as directors at an annual meeting, and
neither the Board of Directors nor any committee thereof has made
a prior determination of whether the shareholder has complied
with the procedures set forth in this Section 2 in connection
with such nomination, then the chairman of the annual meeting
shall determine and declare at the annual meeting whether the
shareholder has so complied. If the chairman determines that the
shareholder has so complied, then the chairman shall so state and
ballots shall be provided for use at the meeting with respect to
such nomination. If the chairman determines that the shareholder
has not so complied, then, unless the chairman, in his sole and
absolute discretion, determines to waive such compliance, the
chairman shall state that the shareholder has not so complied and
the defective nomination shall be disregard.
3. Notwithstanding the power and authority of the Board of
Directors to amend these By-laws, including, without limitation,
provisions relating to the number of directors, the number of
directors may at any time be increased or decreased by a vote of
the majority of the voting stock issued and outstanding, at any
regular or special meeting of shareholders, if the notice of such
meeting contains a statement of the proposed increase or
decrease; and in case of any such increase, the Board of
Directors or the shareholders, at any general or special meeting
held before the Board of Directors takes action, shall have power
to elect such additional directors, to hold office until the next
annual meeting of the shareholders and until their successors are
elected and qualified.
4. All vacancies in the Board of Directors, whether caused
by resignation, death, or otherwise, may, except as otherwise
provided in the Certificate of Incorporation, be filled by a
majority of the remaining directors attending a stated or special
meeting called for that purpose, even though less than a quorum
be present, or by the shareholders at any regular or special
meeting held prior to the filling of such vacancies by the Board
of Directors as above provided. A director thus elected to fill
any vacancy shall hold office for the unexpired term of the newly
created position and until a successor is elected and qualified.
5. Regular meetings of the Board of Directors may be held
without notice at the principal office of the corporation or at
such other place or places as the Board of Directors may
designate from time to time. The annual meeting of the Board
shall be held without notice immediately following the
adjournment of the annual meeting of shareholders.
6. Special meetings of the Board of Directors may be
called at any time by the Chairman or by any two directors, to be
held at the principal office of the corporation or at such other
place or places as the Board of Directors may designate from time
to time.
7. The notice of all special meetings of the Board of
Directors shall be given to each director by delivering,
telegraphing, or mailing a written or printed notice of the same
at least three days prior to the meeting and, if by mail, with
postage prepaid, Sundays and holidays excluded; provided that if
a meeting by telephone is to be held as permitted by statute,
verbal or written notice thereof shall be given at least three
hours prior to the scheduled time for such meeting.
8. The presence of one-half or more of the members of the
whole Board of Directors shall be necessary at all meetings to
constitute a quorum for the transaction of business, but less
than a quorum may adjourn any meeting which may be held on a
subsequent date without further notice, provided a quorum be
present at such deferred meeting.
9. There may be an Executive Committee of the Board of
Directors, which, if constituted, shall meet on call of the Chief
Executive Officer or any two Committee members and shall be
comprised of two salaried officer-members and two outside
members, or as otherwise determined by the Board of Directors.
The Executive Committee may act for the full Board between
meetings and shall have such specific powers as delegated by the
Board.
Other standing or temporary committees may be appointed from
its own number by the Board of Directors from time to time, and
the Board of Directors may invest from time to time such
Committee with powers as it may see fit, subject to such other
conditions as may be prescribed by the Board.
Each committee of the Board shall keep regular minutes of
the transaction of its meetings and shall cause them to be
recorded in books kept for that purpose in the office of the
corporation and shall report the same to the Board of Directors
at its next meeting.
10. By resolution of the Board of Directors, a fixed annual
sum and attendance fee, together with expenses of attendance, if
any, may be allowed the directors who are not salaried by the
corporation for their services and for attendance at each regular
or special meeting of such Board; provided, that nothing herein
contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee
meetings.
ARTICLE V
Officers
1. The officers of the corporation may include a Chairman
of the Board and Chief Executive Officer, a Vice Chairman of the
Board, a President, one or more Vice Presidents, a Secretary, and
a Treasurer and may include one or more Executive Vice
Presidents, one or more Senior Vice Presidents, one or more
Assistant Vice Presidents, one or more Assistant Secretaries, one
or more Assistant Treasurers, a Comptroller, and one or more
Assistant Comptrollers, all of whom shall hold office in the
discretion of the Board of Directors. The Chairman of the Board
and Chief Executive Officer shall be a director, and any of the
other officers may be directors of the corporation. Any person
may hold more than one office, if permitted by law. The officers
of the corporation shall have the following duties, subject at
all times to action of the Board of Directors:
2. Chairman of the Board: The Chairman of the Board shall
be chairman of and preside at all meetings of the Board of
Directors and all meetings of the shareholders of the
corporation; shall determine the agenda for all such meetings;
and may call special meetings of the Board of Directors at such
times, at such places, and for such purposes as the Chairman
shall determine. The Chairman of the Board shall also be the
Chief Executive Officer and shall have general management and
direction of the business and of other officers of the
corporation, including all powers ordinarily incident thereto.
Except where by law the signature of the President is required,
the Chief Executive Officer shall possess the same power to sign
all certificates, contracts, and other instruments of the
corporation which may be authorized by the Board of Directors.
The Board of Directors shall from time to time determine who
shall exercise the functions of the Chief Executive Officer
during the absence or disability of such officer.
3. Vice Chairman of the Board: The Vice Chairman of the
Board, if one is appointed, shall exercise the functions of the
Chairman during the absence or disability of the Chairman.
4. President: The President shall be the principal
operating officer of the corporation and shall exercise the
functions of the Chairman in the absence or disability of the
Chairman and the Vice Chairman.
5. Vice Presidents: The Executive Vice Presidents, Senior
Vice Presidents, Vice Presidents, and Assistant Vice Presidents
shall have such powers and discharge such duties as may be
assigned from time to time by the Chief Executive Officer or the
Board of Directors.
6. The Secretary and/or Assistant Secretary shall issue
notices for all meetings, except that notice for special meetings
of directors called at the request of two directors as provided
in Section 6 of Article IV of the By-laws may be issued by such
directors; shall keep minutes of all meetings; shall have charge
of the seal and the corporate books; and shall make such reports
and perform such other duties as are incident to the office or
are properly required by the Board of Directors.
7. The Treasurer and/or Assistant Treasurer shall have the
custody of all moneys and securities of the corporation and shall
keep regular books of account; shall disburse the funds of the
corporation in payment of the just demands against the
corporation or as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements; shall render to
the Board of Directors from time to time as may be required an
account of all transactions as may be assigned from time to time
by Chief Executive Officer or the Board of Directors.
8. In the case of absence or inability to act of any
officer of the corporation and of any person herein authorized to
act in place thereof, the Board of Directors may from time to
time delegate the powers or duties of such officer to any other
officer or any director or other person whom it may select.
9. Vacancies in any office arising from any cause may be
filled by the directors at any regular or special meeting.
10. The Board of Directors may appoint such other officers
and agents as it shall deem necessary or expedient, who shall
hold their offices for such terms and shall exercise such powers
and perform such duties as shall be determined from time to time
by the Board of Directors.
11. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors.
12. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or
appointed by the Board of Directors may be removed at any time,
with or without cause, by the affirmative vote of a majority of
the whole Board of Directors.
13. The Board of Directors may, by resolution, require any
and all of the officers to give bonds to the corporation, with
sufficient surety or sureties, conditioned for the faithful
performance of the duties of their respective offices and to
comply with such other conditions as may from time to time be
required by the Board of Directors.
ARTICLE VI
Dividends and Finance
1. Dividends may be declared by the Board of Directors and
paid out of the annual net profits of the corporation or out of
its net assets in excess of its capital, subject to the
conditions and limitations imposed by the Certificate of
Incorporation of the corporation and the laws of the State of
Delaware.
2. Before making any distribution of profits, there may be
set aside out of the net profits of the corporation such sums as
the directors from time to time in their absolute discretion deem
expedient as a reserve fund to meet contingencies, or for
equalizing dividends, or for maintaining any property of the
corporation, or for any other purposes, and any profits of any
year not distributed as dividends shall be deemed to have been
thus set apart until otherwise disposed of by the Board of
Directors.
3. The moneys of the corporation shall be deposited in the
name of the corporation in such bank or banks or trust company or
trust companies as the Board of Directors shall designate, and
shall be drawn out only by instrument signed by persons
designated by resolution by the Board of Directors.
ARTICLE VII
Notices
1. Whenever the provisions of the statute or these By-laws
require notice to be given to any director, officer, or
shareholder, they shall not be construed to mean personal notice;
such notice may be given in writing by depositing the same in a
post office or letter box, in a postpaid, sealed wrapper,
addressed to such director, officer, or shareholder at his or her
address as the same appears on the books of the corporation, and
the time when the same shall be mailed shall be deemed to be the
time of the giving of such notice. Notice may also be given by
telegraph, in which event proof of delivery shall be required.
2. A waiver of any notice in writing, signed by a
shareholder, director, or officer, whether before or after the
time stated in said waiver for holding a meeting, shall be deemed
equivalent to a notice required to be given to any director,
officer, or shareholder.
ARTICLE VIII
Seal
The corporate seal of the corporation shall be in the form
prescribed by the Board of Directors.
ARTICLE IX
Amendments
These By-laws may be altered, amended, or repealed by the
Board of Directors.
The foregoing By-laws were duly adopted as the By-laws of
Airborne, Inc., a Delaware corporation, on the 8th day of August,
2000, by the Board of Directors.
By:/s/David C. Anderson
Secretary
