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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities
Exchange Act of 1934
Date of report (Date of earliest event
reported): February
15, 2024
PAM TRANSPORTATION SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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0-15057 |
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71-0633135 |
(State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer Identification No.) |
297 West Henri De Tonti, Tontitown, Arkansas
72770
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including
area code: (479) 361-9111
|
N/A |
|
|
(Former name or former address, if changed since last report) |
|
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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☐ |
Pre-commencement communications pursuant to Rule 13c-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock, $.01 par value |
PTSI |
NASDAQ Global Market |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Officers and Exclusive Forum |
On February 15, 2024, the Board of Directors
(the “Board”) of P.A.M. Transportation Services, Inc. (the “Company”) approved and adopted the Second
Amended and Restated By-Laws of the Company (the “Bylaws”), effective immediately. The Bylaws amend and restate the
Amended and Restated By-Laws, as amended, which were originally adopted on December 6, 2007, to update and modernize certain
provisions of the Bylaws consistent with current law, technology and practices. Among other things, the amendments to the
Bylaws:
| · | permit shareholder meetings to be held by means of remote communication if authorized by the Board in its discretion; |
| · | permit the Board and chairman of any shareholders’ meeting to prescribe certain rules for the conduct of shareholder meetings; |
| · | add details regarding the execution, delivery and irrevocability of shareholder proxies and require that a shareholder directly or
indirectly soliciting proxies from other shareholders use a proxy card color other than white; |
| · | adopt advance notice procedures that require shareholders to notify and provide certain information to the Company not less than 90
days nor more than 120 days prior to a shareholder meeting for an item of business or director nominee proposed by the shareholder outside
of the Company’s proxy materials to be properly brought before such meeting; |
| · | address the universal proxy rules adopted by the U.S. Securities and Exchange Commission, by (a) clarifying that no person may solicit
proxies in support of a director nominee other than the Board’s nominees unless such person has complied with Rule 14a-19 under
the Securities Exchange Act of 1934, as amended, including applicable notice and solicitation requirements, and (b) providing that if
any shareholder fails to comply with the requirements of Rule 14a-19, then the Company will disregard the nomination of each of the director
nominees proposed by such shareholder and any proxies or votes solicited for such nominees; |
| · | require the Board to call a special meeting of the Board if requested by a majority of our directors (instead of any two directors)
and require the request to be in writing; |
| · | confer general execution authority to certain officers on the Company’s behalf; |
| · | incorporate prior Bylaw amendments; and |
| · | make other technical, modernizing and clarifying changes that are consistent with current Company practices and Delaware law. |
The foregoing description of the Bylaws does not
purport to be complete and is qualified in its entirety by reference to the full text of the Bylaws, a copy of which is attached as Exhibit
3.1 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
P.A.M. TRANSPORTATION SERVICES, INC. |
|
|
(Registrant) |
|
|
|
Date: February
22, 2024 |
By: |
/s/ Lance
K. Stewart |
|
|
Lance K. Stewart
Vice President of Finance, Chief
Financial Officer, and Treasurer |
Exhibit 3.1
SECOND AMENDED AND RESTATED BY-LAWS
OF
P.A.M. TRANSPORTATION SERVICES, INC.
ARTICLE I.
SHAREHOLDERS MEETINGS
SECTION 1.1. PLACE OF MEETING.
The board of directors (the “Board of Directors”) of P.A.M. Transportation Services, Inc. (the “Corporation”)
may designate any place within or without the State of Delaware as the place of meeting for any annual or for any special meeting called
by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place within
or without the State of Delaware as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal office of the Corporation in the State of Arkansas.
If authorized by the Board of Directors in its
sole discretion, and subject to such guidelines and procedures as the Board of Directors may adopt, shareholders and proxyholders not
physically present at a meeting of shareholders may, by means of remote communication: (i) participate in a meeting of shareholders, and
(ii) be deemed present in person and vote at a meeting of shareholders, whether such meeting is to be held at a designated place or solely
by means of remote communication; provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is a shareholder or proxyholder; (B) the Corporation shall
implement reasonable measures to provide such shareholder and proxyholders a reasonable opportunity to participate in the meeting and
to vote on matters submitted to the shareholders, including an opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings, and (C) if any shareholder or proxyholder votes or takes other action at the meeting by means of remote
communication, a record of such vote or other action shall be maintained by the Corporation.
SECTION 1.2. ANNUAL MEETING.
The annual meeting of the shareholders of the Corporation shall be held on such date, at such time and at such place within or without
the State of Delaware as may be designated by the Board of Directors, or by means of remote communication, for the purpose of electing
directors and for the transaction of such other business as may be properly brought before the meeting.
SECTION 1.3. SPECIAL MEETINGS.
Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or the Amended and Restated
Certificate of Incorporation, may be called by the President, the Chief Executive Officer, or the Chairman of the Board of Directors,
if any. The President or Secretary shall call a special meeting when: (1) requested in writing by any two or more of the Directors; or
(2) requested in writing by shareholders owning at least seventy-five percent (75%) of the shares entitled to vote. Such written request
shall state the purpose or purposes of the proposed meeting. No business shall be transacted and no corporate action shall be taken other
than that stated in the notice of the meeting unless all of the shareholders are present in person or by proxy, in which case any and
all business may be transacted at the meeting even though the business is transacted without notice. The provisions of this Section shall
be amended, altered, changed or repealed only with the affirmative vote or consent of the holders of at least seventy-five percent (75%)
of the outstanding shares of the stock of the Corporation entitled to elect Directors, in addition to any approval of the Board of Directors
or any shareholder vote or consent required by law or any provision of the Amended and Restated Certificate of Incorporation or otherwise.
SECTION 1.4. NOTICE. Except as
otherwise required by statute or the Certificate of Incorporation, written notice of each meeting of the shareholders, whether annual
or special, shall be served, either personally or by electronic transmission in accordance with applicable law or mail, upon each shareholder
of record entitled to vote at such meeting, not less than ten (10) nor more than sixty (60) days before the meeting. If mailed, such notice
shall be directed to a shareholder at his or her post office address last shown on the records of the Corporation or at such other address
at which such shareholder shall have requested in writing and filed with the Secretary to receive notices from the Corporation. Notice
of any special meeting of shareholders shall state the purpose or purposes for which the meeting is called. Notice of any meeting of shareholders
shall not be required to be given to any shareholder who, in person or by his or her attorney thereunto authorized, either before or after
such meeting, shall waive such notice. Attendance of a shareholder at a meeting, either in person or by proxy, shall itself constitute
waiver of notice and waiver of any and all objections to the place and time of the meeting and manner in which it has been called or convened,
except when a shareholder attends a meeting solely for the purpose of stating, at the beginning of the meeting, any such objections to
the transaction of business. Notice of the time and place of any adjourned meeting need not be given otherwise than by the announcement
at the meeting at which adjournment is taken.
SECTION 1.5. CONDUCT OF MEETINGS.
The Board of Directors may adopt rules and regulations for the conduct of any meeting of the shareholders as it shall deem appropriate.
Except to the extent inconsistent with any such rules and regulations adopted by the Board of Directors, the chair of any meeting of the
shareholders shall have the right and authority to prescribe rules and regulations and do all acts, as, in the judgment of such chair,
are appropriate for the proper conduct of the meeting. Such rules, regulations, or procedures, whether adopted by the Board of Directors
or prescribed by the chair of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order
of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations
on attendance at or participation in the meeting to shareholders of record, their duly authorized and constituted proxies, or such other
persons as the chair of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement;
(e) limitations on the time allotted to questions or comments by participants; and (f) the determination of when the polls shall open
and close for any given matter to be voted on at the meeting.
SECTION 1.6. QUORUM; ADJOURNMENTS.
The holders of a majority of the stock issued, outstanding and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the shareholders and shall be requisite for the transaction of business, except as otherwise provided
by law, by the Certificate of Incorporation, or by these By-Laws. If, however, such majority shall not be present or represented at any
meeting of the shareholders, the shareholders entitled to vote thereat, present in person or by proxy, shall have the power to adjourn
the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of voting stock shall
be present. At such adjourned meeting at which a quorum shall be present in person or by proxy, any business may be transacted that might
have been transacted at the meeting originally called.
SECTION 1.7. PROXIES. At every
meeting of the shareholders, any shareholder having the right to vote shall be entitled to vote in person or by proxy, but no proxy shall
be voted after eleven months from its date, unless said proxy provides for a longer period. The authorization of a person to act as proxy
may be documented, signed, and delivered in accordance with Section 116 of the Delaware General Corporation Law provided that such authorization
shall set forth, or be delivered with, information enabling the Corporation to determine the identity of the shareholder granting such
authorization. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A shareholder may revoke any proxy that is not irrevocable by attending the meeting
and voting in person or by delivering to the Secretary a revocation of the proxy or a new proxy bearing a later date. Any shareholder
directly or indirectly soliciting proxies from other shareholders must use a proxy card color other than white, which shall be reserved
for the exclusive use by the Board of Directors.
SECTION 1.8. VOTING. Each shareholder
shall have one vote for each share of stock having voting power, registered in his or her name on the books of the Corporation. If a quorum
is present, the affirmative vote of the majority of the shares represented at the meeting entitled to vote on the subject matter shall
be the act of the shareholders, except as otherwise provided by law, by the Certificate of Incorporation or by these By-Laws.
SECTION 1.9. FIXING OF RECORD DATE.
For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof,
or shareholders entitled to receive payment of dividends, 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 less than ten (10) nor more than sixty (60) days prior to the date
on which the particular action, requiring such determination of shareholders, is to be taken. If 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 dividends,
the date on which notice of the meeting is mailed, or on 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. When a determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this Section, such determination shall apply to any adjournment thereof.
SECTION 1.10. INFORMAL ACTIONS BY SHAREHOLDERS.
Any action required to be taken at a meeting of the shareholders, or any other action which may be taken at a meeting of the shareholders,
may be taken without a meeting if written consent, setting forth the action so taken, shall be signed by the shareholders of outstanding
stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting of shareholders
at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of any such corporate action without
a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Such consent
shall have the same force and effect as a unanimous vote of the shareholders.
SECTION 1.11. ADVANCE NOTICE OF SHAREHOLDER
NOMINATIONS AND PROPOSALS.
| (a) | Annual Shareholders Meetings. At a meeting of the shareholders, only such nominations of persons
for the election of directors and such other business shall be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, nominations or such other business must be: |
| (i) | specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors or any committee thereof; |
| (ii) | otherwise properly brought before the meeting by or at the direction of the Board of Directors or any
committee thereof; or |
| (iii) | otherwise properly brought before an annual meeting by a shareholder who is a shareholder of record of
the Corporation at the time such notice of meeting is delivered, who is entitled to vote at the meeting, and who complies with applicable
law and the terms and procedures set forth in this Section 1.11. |
In addition, any
proposal of business (other than the nomination of persons for election to the Board of Directors) must be a proper matter for shareholder
action. For business (including, but not limited to, director nominations) to be properly brought before an annual meeting by a shareholder
pursuant to Section 1.11(a)(iii), the shareholder or shareholders of record intending to propose the business (the “Proposing
Shareholder”) must have given timely notice thereof pursuant to this Section 1.11(a), in writing to the Secretary even if such
matter is already the subject of any notice to the shareholders or Public Disclosure from the Board of Directors. To be timely, a Proposing
Shareholder’s notice for an annual meeting must be delivered to the Secretary at the principal executive offices of the Corporation:
(x) not later than the close of business on the 90th day, nor earlier than the close of business on the 120th day, in advance of the anniversary
of the previous year’s annual meeting if such meeting is to be held on a day which is not more than 30 days before and not later
than 60 days after the anniversary of the previous year’s annual meeting; and (y) with respect to any other annual meeting of shareholders,
including in the event that no annual meeting was held in the previous year, not earlier than the close of business on the 120th day prior
to the annual meeting and not later than the close of business on the later of: (1) the 90th day prior to the annual meeting and (2) the
close of business on the tenth (10th) day following the first date of Public Disclosure of the date of such meeting. In no event shall
the Public Disclosure of an adjournment or postponement of an annual meeting commence a new notice time period (or extend any notice time
period). For the purposes of this Section 1.11, “Public Disclosure” shall mean a disclosure made in a press release
reported by a national news service or in a document filed by the Corporation with the Securities and Exchange Commission (“SEC”)
pursuant to Section 13, 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
| (b) | Shareholder Nominations. For the nomination of any person or persons for election to the Board
of Directors pursuant to Section 1.11(a)(iii) or Section 1.11(d), a Proposing Shareholder’s notice to the Secretary shall set forth
or include: |
| (i) | the name, age, business address, and residence address of each nominee proposed in such notice; |
| (ii) | the principal occupation or employment of each such nominee; |
| (iii) | the class and number of shares of capital stock of the Corporation which are owned of record and beneficially
by each such nominee (if any); |
| (iv) | such other information concerning each such nominee as would be required to be disclosed in a proxy statement
soliciting proxies for the election of such nominee as a director in an election contest (even if an election contest is not involved),
or that is otherwise required to be disclosed, under Section 14(a) of the Exchange Act; |
| (v) | a written statement and agreement executed by each such nominee acknowledging that such person: |
| (A) | consents to being named in a proxy statement as a nominee and to serving as a director if elected; |
| (B) | intends to serve as a director for the full term for which such person is standing for election; and |
| (C) | makes the following representations: (1) that the director nominee has read and agrees to adhere to the
Corporation’s Code of Ethics, Insider Trading Policy, and any other of the Corporation’s policies or guidelines applicable
to directors; (2) that the director nominee is not and will not become a party to any agreement, arrangement, or understanding with, and
has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation,
will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or
any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation,
with such person’s fiduciary duties under applicable law; and (3) that the director nominee is not and will not become a party to
any agreement, arrangement, or understanding with any person or entity other than the Corporation with respect to any direct or indirect
compensation, reimbursement, or indemnification that has not been disclosed to the Corporation in connection with such person’s
nomination for director or service as a director; and |
| (vi) | as to the Proposing Shareholder: |
| (A) | the name and address of the Proposing Shareholder as they appear on the Corporation’s books and
of the beneficial owner, if any, on whose behalf the nomination is being made, |
| (B) | the class and number of shares of the Corporation which are owned by the Proposing Shareholder (beneficially
and of record) and owned by the beneficial owner, if any, on whose behalf the nomination is being made, as of the date of the Proposing
Shareholder’s notice, and a representation that the Proposing Shareholder will notify the Corporation in writing of the class and
number of such shares owned of record and beneficially as of the record date for the meeting within five business days after the record
date for such meeting; |
| (C) | a description of any agreement, arrangement, or understanding with respect to such nomination between
or among the Proposing Shareholder or the beneficial owner, if any, on whose behalf the nomination is being made and any of their affiliates
or associates, and any others (including their names) acting in concert with any of the foregoing, and a representation that the Proposing
Shareholder will notify the Corporation in writing of any such agreement, arrangement, or understanding in effect as of the record date
for the meeting within five business days after the record date for such meeting; |
| (D) | a description of any agreement, arrangement, or understanding (including any derivative or short positions,
profit interests, options, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the Proposing
Shareholder’s notice by, or on behalf of, the Proposing Shareholder or the beneficial owner, if any, on whose behalf the nomination
is being made and any of their affiliates or associates, the effect or intent of which is to mitigate loss to, manage risk or benefit
of share price changes for, or increase or decrease the voting power of such person or any of their affiliates or associates with respect
to shares of stock of the Corporation, and a representation that the Proposing Shareholder will notify the Corporation in writing of any
such agreement, arrangement, or understanding in effect as of the record date for the meeting within five business days after the record
date for such meeting; |
| (E) | a representation that the Proposing Shareholder is a holder of record of shares of the Corporation entitled
to vote at the meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; |
| (F) | a representation whether the Proposing Shareholder intends 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 the nomination and/or
otherwise to solicit proxies from shareholders in support of the nomination; and |
| (G) | a representation whether the Proposing Shareholder intends to solicit the holders of shares representing
at least 67% of the shares entitled to vote on the election of directors in support of director nominees other than the Corporation’s
nominees in accordance with Rule 14a-19 under the Exchange Act (including the names of all nominees for whom the Proposing Shareholder
intends to solicit proxies). |
The Corporation may
require any proposed nominee to furnish a completed and signed directors’ questionnaire and such other information as it may reasonably
require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be
material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee. Any such update or supplement
shall be delivered to the Secretary at the Corporation’s principal executive offices no later than five business days after the
request by the Corporation for subsequent information has been delivered to the Proposing Shareholder.
| (c) | Other Shareholder Proposals. For all business other than director nominations, a Proposing Shareholder’s
notice to the Secretary shall set forth as to each matter the Proposing Shareholder proposes to bring before the annual meeting: |
| (i) | a brief description of the business desired to be brought before the annual meeting; |
| (ii) | the reasons for conducting such business at the annual meeting; |
| (iii) | the text of any proposal or business (including the text of any resolutions proposed for consideration
and in the event that such business includes a proposal to amend these By-Laws, the language of the proposed amendment); |
| (iv) | any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such
business of such shareholder and the beneficial owner (within the meaning of Section 13(d) of the Exchange Act), if any, on whose behalf
the business is being proposed; |
| (v) | any other information relating to such shareholder and beneficial owner, if any, on whose behalf the proposal
is being made, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of
proxies for the proposal and pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated
thereunder; |
| (vi) | a description of all agreements, arrangements, or understandings between or among such shareholder, the
beneficial owner, if any, on whose behalf the proposal is being made, any of their affiliates or associates, and any other person or persons
(including their names) in connection with the proposal of such business and any material interest of such shareholder, beneficial owner,
or any of their affiliates or associates, in such business, including any anticipated benefit therefrom to such shareholder, beneficial
owner, or their affiliates or associates; and |
| (vii) | the information required by Section 1.11(b)(vi) above. |
| (d) | Special Shareholders Meetings. Only such business shall be conducted at a special meeting of shareholders
as shall have been specified in the Corporation’s notice of meeting (or supplement thereto). Nominations of persons for election
to the Board of Directors may be made at a special meeting of shareholders called by the Board of Directors at which directors are to
be elected pursuant to the Corporation’s notice of meeting: |
| (i) | by or at the direction of the Board of Directors or any committee thereof; or |
| (ii) | provided that the Board of Directors has determined that directors shall be elected at such meeting, by
any shareholder of the Corporation who is a shareholder of record at the time the notice provided for in this Section 1.11(d) is delivered
to the Secretary, who is entitled to vote at the meeting, and upon such election and who complies with applicable law and the terms and
procedures set forth in this Section 1.11. |
In the event the
Corporation calls a special meeting of shareholders for the purpose of electing one or more directors to the Board of Directors, any such
shareholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation’s notice of meeting, if such shareholder delivers a shareholder’s notice that
complies with the requirements of Section 1.11(b) to the Secretary at the principal executive offices of the Corporation not earlier than
the close of business on the 120th day prior to such special meeting and not later than the close of business on the later of: (x) the
90th day prior to such special meeting; or (y) the tenth (10th) day following the date of the first Public Disclosure of the date of the
special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the Public Disclosure
of an adjournment or postponement of a special meeting commence a new time period (or extend any notice time period).
| (e) | Effect of Noncompliance. Only such persons who are nominated in accordance with applicable law
and the terms and procedures set forth in this Section 1.11 shall be eligible to be elected at any meeting of shareholders of the Corporation
to serve as directors, and only such other business shall be conducted at a meeting as shall be brought before the meeting in accordance
with applicable law and the terms and procedures set forth in this Section 1.11. If any proposed nomination was not made or proposed in
compliance with applicable law and this Section 1.11, or other business was not made or proposed in compliance with applicable law and
this Section 1.11, then except as otherwise required by law, the chair of the meeting shall have the power and duty to declare that such
nomination shall be disregarded or that such proposed other business shall not be transacted. Notwithstanding anything in these By-Laws
to the contrary, unless otherwise required by law, if a Proposing Shareholder intending to propose business or make nominations at an
annual meeting or propose a nomination at a special meeting pursuant to this Section 1.11 does not provide the information required under
this Section 1.11 to the Corporation, including the updated information required by Section 1.11(b)(vi)(B)-(D) within five business days
after the record date for such meeting, or the Proposing Shareholder (or a qualified representative of the Proposing Shareholder) does
not appear at the meeting to present the proposed business or nominations, such business or nominations shall not be considered, notwithstanding
that proxies in respect of such business or nominations may have been received by the Corporation. For purposes of this paragraph (e),
to be considered a qualified representative of the Proposing Shareholder, a person must be a duly authorized officer, manager or partner
of such shareholder or must be authorized by a writing executed by such shareholder or an electronic transmission delivered by such shareholder
to act for such shareholder as proxy at such annual or special meeting of the shareholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or electronic transmission, at such meeting. |
| (f) | Rule 14a-8. This Section 1.11 shall not apply to a proposal proposed to be made by a shareholder
if the shareholder has notified the Corporation of the shareholder’s intention to present the proposal at an annual or special meeting
only pursuant to and in compliance with Rule 14a-8 under the Exchange Act and such proposal has been included in a proxy statement that
has been prepared by the Corporation to solicit proxies for such meeting. |
| (g) | Rule 14a-19. Notwithstanding the foregoing provisions of this Section 1.11, unless otherwise
required by law, (i) no Proposing Shareholder shall solicit proxies in support of director nominees other than the Corporation’s
nominees unless such Proposing Shareholder has complied with Rule 14a-19 under the Exchange Act in connection with the solicitation of
such proxies, including, without limitation, the provision to the Corporation of notices required thereunder in a timely manner and (ii)
if any Proposing Shareholder (1) provides notice pursuant to Rule 14a-19(a)(1) and (b) under the Exchange Act and (2) subsequently (A)
notifies the Corporation that such shareholder no longer intends to solicit proxies in support of director nominees other than the Corporation’s
director nominees in accordance with Rule 14a-19 or (B) fails to comply with the requirements of Rule 14a-19, then the Proposing Shareholder’s
nominations shall be deemed null and void and the Corporation shall disregard any proxies or votes solicited for any nominee proposed
by the Proposing Shareholder. Upon request by the Corporation, if any Proposing Shareholder provides notice pursuant to Rule 14a-19(a)(1)
and (b) under the Exchange Act, such Proposing Shareholder shall deliver to the Corporation, no later than five business days prior to
the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19 under the Exchange Act. |
ARTICLE II
DIRECTORS
SECTION 2.1. GENERAL POWERS.
Except as may be otherwise provided by any legal agreement among shareholders, the property and business of the Corporation shall be managed
by its Board of Directors. In addition to the powers and authority expressly conferred by these By-Laws, the Board of Directors may exercise
all such powers of the Corporation and do all such lawful acts and things as are not by law, or by any legal agreement among shareholders,
or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the shareholders.
SECTION 2.2. NUMBER, TENURE, QUALIFICATIONS,
REMOVAL. The Board of Directors shall consist of not less than three (3) nor more than fifteen (15) members, the precise number
to be fixed by resolution of the shareholders or the Board of Directors from time to time. Each Director shall hold office until the annual
meeting of shareholders held next after his or her election and until his or her successor has been duly elected and has qualified, or
until his or her earlier resignation, removal from office, or death. Directors need not be shareholders. Any Director may be removed at
any time, with or without cause, by the affirmative vote of the holders of seventy-five percent (75%) of the outstanding shares of the
stock of the Corporation entitled to elect Directors, either at the annual meeting or at a special meeting called for that purpose. This
Section shall be amended, altered, changed or repealed only with the affirmative vote or consent of the holders of at least seventy-five
percent (75%) of the outstanding shares of stock of the Corporation entitled to elect Directors, in addition to any approval of the Board
of Directors or any shareholder vote or consent required by law or any provision of the Amended and Restated Certificate of Incorporation
of the Corporation or otherwise.
SECTION 2.3. VACANCIES AND ADDITIONAL
DIRECTORSHIPS. Any newly created directorships resulting from any increase in the authorized number of Directors and any vacancies
on the Board of Directors resulting from resignation, removal, death, or other cause, may be filled by the vote of the majority of the
Directors then in office, though less than a quorum, and if not therefore filled by action of the Directors, may be filled by the shareholders
at any meeting held during the existence of such vacancy; provided that whenever any Director shall have been elected by the holders of
any class of stock of the Corporation voting separately as a class under the provisions of the Certificate of Incorporation, such Director
may be removed and the vacancy filled only by the holders of that class of stock voting separately as a class. A Director elected in accordance
with this Section shall hold office until the annual meeting of shareholders held next after his or her election and until his or her
successor has been duly elected and qualified, or until his or her earlier resignation, removal or death. During any period when there
is a vacancy on the Board of Directors, including any vacancy resulting from an increase in the authorized number of Directors, the remaining
Directors shall continue to act.
SECTION 2.4. PLACE OF MEETING.
The Board of Directors may hold its meetings at such place or places within or without the State of Delaware as it may from time to time
determine.
SECTION 2.5. COMPENSATION. Directors
may be allowed such compensation for attendance at regular or special meetings of the Board of Directors and of any special meeting or
standing committees thereof as may be from time to time determined by resolution of the Board of Directors.
SECTION 2.6. REGULAR MEETINGS.
A regular annual meeting of the Board of Directors shall be held without other notice than this By-Law immediately after, and at the same
place as, the annual meeting of shareholders. The Board of Directors may provide, by resolution, the time and place within or without
the State of Delaware, for the holding of additional regular meetings without other notice than such resolution.
SECTION 2.7. SPECIAL MEETINGS, NOTICE.
Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the Chief Executive Officer, the President,
or upon the written request of a majority of the members of the Board of Directors. The person or persons calling a special meeting of
the Board of Directors may fix the time and place of the meeting. Notice of any special meeting shall be given to each Director personally
or by telephone, or by mail, express mail, courier service, facsimile, electronic mail or other means of electronic transmission, addressed
to each Director at the Director's usual place of business or residence, or the Director's address as it is shown on the records of the
Corporation. If the notice is by mail, the notice shall be deemed adequately delivered when deposited in the United States mail at least
four (4) days prior to the time set for the meeting. If the notice is by express mail or courier service, such notice shall be deemed
adequately delivered when delivered to the express mail or courier service at least two (2) days prior to the time set for such meeting.
If the notice is given personally or by telephone, or by facsimile, electronic mail or other means of electronic transmission, such notice
will be deemed adequately delivered when the notice is transmitted at least one (1) day prior to the time set for the meeting. An oral
notice given personally or by telephone may be communicated either to the Director or to a person at the office of the Director whom the
person giving the notice has reason to believe will promptly communicate it to the Director. Any such special meeting shall be held at
such time and place as shall be stated in the notice of the meeting. Unless otherwise indicated in the notice thereof, any and all business
other than an amendment of these By-Laws may be transacted at any special meeting, and an amendment of these By-Laws may be acted upon
if the notice of the meeting shall have stated that the amendment of these By-Laws is one of the purposes of the meeting. At any meeting
at which every Director shall be present, even though without any notice, any business may be transacted, including the amendment of these
By-Laws.
SECTION 2.8. NOTICE, WAIVER BY ATTENDANCE.
No notice of a meeting of the Board of Directors need be given to any Director who signs a waiver of notice either before or after the
meeting. The attendance of a Director at a meeting shall constitute a waiver of notice of such meeting and waiver of any and all objections
to the place of the meeting, the time of the meeting or the manner in which it has been called or convened except when a Director states,
at the beginning of the meeting, any such objection or objections to the transaction of business.
SECTION 2.9. QUORUM. At all meetings
of the Board of Directors, the presence of a majority of the Directors shall constitute a quorum for the transaction of business. In the
absence of a quorum, a majority of the Directors present at any meeting may adjourn from time to time until a quorum be had. Notice of
the time and place of any adjourned meeting need only be given by announcement at the meeting at which adjournment is taken.
SECTION 2.10. MANNER OF ACTING.
The act of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
SECTION 2.11. EXECUTIVE COMMITTEE.
In furtherance and not in limitation of the powers conferred by statute, the Board of Directors may establish an Executive Committee of
two (2) or more Directors constituted and appointed by the Board of Directors from their number who shall meet when deemed necessary.
They shall have authority to exercise all the powers of the Board which may be lawfully delegated and not inconsistent with these By-Laws,
at any time and when the Board is not in session. If not elected by the full Board of Directors, the committee shall elect a Chairman,
and a majority of the whole committee shall constitute a quorum; and the act of a majority of members present at a meeting at which a
quorum is present shall be the act of the committee provided all members of the committee have had notice of such meeting or waived such
notice. Except as otherwise provided by resolution of the Board of Directors, meetings of the Executive Committee may be called by any
member of the Executive Committee. Notice of meetings of the Executive Committee may be given in the same manner as provided for special
meetings of the Board of Directors in Section 2.7 hereof, or waived as provided in Section 2.8 hereof, or as otherwise permitted by applicable
law.
SECTION 2.12. OTHER COMMITTEES.
In addition to the Executive Committee, the Board of Directors may, by resolution passed by a majority of the whole Board, designate one
or more committees, including without limitation a Compensation Committee, each committee to consist of one or more of the Directors of
the Corporation. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present
at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent
provided by resolution passed by a majority of the whole Board, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and the affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate
of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all
or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending these By-Laws; and unless such resolution, these By-Laws, or the Certificate of Incorporation
expressly so provide, no such committee shall have the power to authorize to declare a dividend or to authorize the issuance of stock.
Except as otherwise provided by resolution of the Board of Directors, or for the Executive Committee, meetings of any committee may be
called by the chairperson, any two members of the committee, or if the committee has only one member, such member. Notice of meetings
of any committee may be given in the same manner as provided for special meetings of the Board of Directors in Section 2.7 hereof, or
waived as provided in Section 2.8 hereof, or as otherwise permitted by applicable law.
SECTION 2.13. ACTION WITHOUT FORMAL MEETING.
Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without
a meeting if all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing or by electronic
transmission, and such writing or writings or electronic transmission or transmissions are filed with the minutes of the proceedings of
the Board or committee in the same paper or electronic form as the minutes are maintained.
SECTION 2.14. CONFERENCE CALL MEETINGS.
Members of the Board of Directors, or any committee designated by such Board, may participate in a meeting of such Board or committee
by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this Section shall constitute presence in person at such meeting.
SECTION 2.15. CHAIRMAN OF THE BOARD.
The Board of Directors may at any time appoint from its members a Chairman of the Board, who shall serve in that capacity at the discretion
of the Board of Directors. Unless otherwise determined by the Board of Directors, the Chairman of the Board, if any, shall preside at
all meetings of the shareholders and of the Board of Directors at which the Chairman of the Board is present. The Chairman of the Board
shall have such other duties as may from time to time be assigned to the Chairman of the Board by these By-Laws or by the Board of Directors.
Unless expressly determined otherwise by the Board of Directors with respect to a particular director serving as Chairman of the Board,
the position of Chairman of the Board shall not be deemed an officer position of the Corporation.
SECTION 2.16. VICE CHAIRMEN OF THE BOARD.
The Board of Directors may at any time appoint from its members one of more Vice Chairmen of the Board, who shall serve in that capacity
at the discretion of the Board of Directors. Unless otherwise determined by the Board of Directors, in case of the absence of the Chairman
of the Board, the Vice Chairman, if any, (or if more than one, one of the Vice Chairmen as designated by the Board of Directors) shall
preside at all meetings of the shareholders and the Board of Directors at which he or she shall be present. The Vice Chairmen of the Board
shall have such other duties as may from time to time be assigned to them by the Board of Directors. Unless expressly determined otherwise
by the Board of Directors with respect to a particular director serving as a Vice Chairman of the Board, the position of Vice Chairman
of the Board shall not be deemed an officer position of the Corporation.
ARTICLE III.
OFFICERS
SECTION 3.1. OFFICERS. The officers
of the Corporation shall include a Chief Executive Officer, a Chief Financial Officer, a President, a Secretary and a Treasurer, and may
include a Chief Operating Officer, one or more Executive Vice Presidents or Vice Presidents, and such additional officers, if any, as
shall be elected by the Board of Directors pursuant to the provisions of Section 3.9 hereof. The Chief Executive Officer, the Chief Financial
Officer, the President, one or more Executive Vice Presidents or Vice Presidents, the Secretary and the Treasurer, shall be elected by
the Board of Directors at its first meeting after each annual meeting of the shareholders. The failure to hold such election shall not
of itself terminate the term of office of any officer. Any number of offices may be held simultaneously by the same person, except that
the person serving as Chief Financial Officer may not serve simultaneously as the Chief Executive Officer. Any officer may, but need not
be, a Director. Any officer may resign at any time upon written notice to the Corporation.
All officers, agents and employees shall be subject
to removal, with or without cause, at any time by the Board of Directors. The removal of an officer without cause shall be without prejudice
to his or her contract rights, if any. The election or appointment of an officer shall not of itself create contract rights. All agents
and employees other than officers elected by the Board of Directors shall also be subject to removal, with or without cause, at any time
by the officers appointing them.
Any vacancy caused by the death of any officer,
his or her resignation, his or her removal, or otherwise, may be filled by the Board of Directors, and any officer so elected shall hold
office at the pleasure of the Board of Directors.
In addition to the powers and duties of the officers
of the Corporation as set forth in these By-Laws, the officers shall have such authority and shall perform such duties as from time to
time may be determined by the Board of Directors.
SECTION 3.2. POWERS AND DUTIES OF THE
CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be the chief executive officer of the Corporation and, subject to the
control of the Board of Directors, shall have general charge and control of all its business and affairs and shall perform all duties
incident to the office of Chief Executive Officer; he or she may sign and execute, in the name of the Corporation, all authorized deeds,
mortgages, bonds, notes and other evidence of indebtedness, contracts or other instruments, except in cases in which the signing and execution
thereof shall have been expressly excluded from the Chief Executive Officer and delegated to some other officer or agent of the Corporation
by the Board of Directors. In the absence or disability of the Chairman and all Vice Chairmen, or if the Board of Directors has not appointed
a Chairman or Vice Chairman, the Chief Executive Officer shall preside at all meetings of the shareholders and of the Board of Directors,
and in any event may so preside to the extent determined by the Board of Directors. The Chief Executive Officer shall have such other
powers and perform such other duties as may from time to time be assigned to him or her by these By-Laws or by the Board of Directors.
SECTION 3.3. POWERS AND DUTIES OF THE
CHIEF OPERATING OFFICER. The Chief Operating Officer shall be the principal operating officer of the Corporation with authority
as such, and at the request of the Chief Executive Officer or in his or her absence or disability to act, shall perform the duties and
exercise the functions of the Chief Executive Officer, and when so acting shall have such other powers and perform such other duties as
may from time to time be assigned to him or her by the Board of Directors or the Chief Executive Officer. The Chief Operating Officer
may sign and execute, in the name of the Corporation, all authorized deeds, mortgages, bonds, notes and other evidence of indebtedness,
contracts or other instruments, except in cases in which the signing and execution thereof shall have been expressly excluded from the
Chief Operating Officer and delegated to some other officer or agent of the Corporation by the Board of Directors.
SECTION 3.4. POWERS AND DUTIES OF THE
CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall be the chief accounting officer of the Corporation; he or she shall
see that the books and account and other accounting records of the Corporation are kept in proper form and accurately; and, in general,
he or she shall perform all the duties incident to the office of Chief Financial Officer of the Corporation and such other duties as may
from time to time be assigned to him or her by the Board of Directors or the Chief Executive Officer. The Chief Financial Officer may
sign and execute, in the name of the Corporation, all authorized deeds, mortgages, bonds, notes and other evidence of indebtedness, contracts
or other instruments, except in cases in which the signing and execution thereof shall have been expressly excluded from the Chief Financial
Officer and delegated to some other officer or agent of the Corporation by the Board of Directors.
SECTION 3.5. POWERS AND DUTIES OF THE
PRESIDENT. The President shall act as a general executive officer of the Corporation and shall have such other powers and perform
such other duties as may from time to time be assigned to him or her by these By-Laws or by the Board of Directors or by the Chief Executive
Officer.
SECTION 3.6. POWERS AND DUTIES OF THE
EXECUTIVE VICE PRESIDENT OR VICE PRESIDENT. Each Executive Vice President or Vice President shall perform all duties incident
to such office and shall have such powers and perform such duties as may from time to time be assigned to him or her by these By-Laws
or by the Board of Directors or the Chief Executive Officer.
SECTION 3.7. POWERS AND DUTIES OF THE
SECRETARY. The Secretary shall keep the minutes of meetings of the Board of Directors and the minutes of all meetings of the shareholders
in books provided for that purpose; he or she shall attend to the giving or serving of all notices of the Corporation; he or she shall
have the custody of the corporate seal of the Corporation and shall affix the same to such documents and other papers as the Board of
Directors or the Chief Executive Officer shall authorize and direct; he or she shall have charge of the stock certificate books, transfer
books and stock ledgers and such other books and papers as the Board of Directors or the Chief Executive Officer shall direct, all of
which shall at all reasonable times be open to the examination of any Director, upon application, at the offices of the Corporation during
business hours; and he or she shall perform such other duties as may from time to time be assigned to him or her by these By-Laws or the
Board of Directors or the Chief Executive Officer.
SECTION 3.8. POWERS AND DUTIES OF THE
TREASURER. The Treasurer shall have custody of, and when proper shall pay out, disburse or otherwise dispose of, all funds and
securities of the Corporation which may have come into his or her hands; he or she may endorse on behalf of the Corporation for collection
checks, notes and other obligations and shall deposit them to the credit of the Corporation in such bank or banks or depositary or depositaries
as the Board of Directors, the Chief Executive Officer or the Chief Financial Officer may designate; he or she shall sign all receipts
and vouchers for payments made to the Corporation; he or she shall enter or cause to be entered regularly in the books of the Corporation
kept for the purpose full and accurate accounts of moneys received or paid or otherwise disposed of by him or her and whenever required
by the Board of Directors or the Chief Executive Officer shall render statements of such accounts; and he or she shall perform all duties
incident to the office of Treasurer and shall also have such other powers and shall perform such other duties as may from time to time
be assigned to him or her by these By-Laws or by the Board of Directors or the Chief Executive Officer.
SECTION 3.9. ADDITIONAL OFFICERS.
The Board of Directors may from time to time elect such other officers (who may but need not be Directors), including Controllers, Assistant
Treasurers, Assistant Secretaries and Assistant Financial Officers, as the Board may deem advisable and such officers shall have such
authority and shall perform such duties as may from time to time be assigned to them by the Board of Directors or the Chief Executive
Officer.
The Board of Directors may from time to time by
resolution delegate to any Assistant Treasurer or Assistant Treasurers any of the powers or duties herein assigned to the Treasurer; and
may similarly delegate to any Assistant Secretary or Assistant Secretaries any of the powers or duties herein assigned to the Secretary.
SECTION 3.10. GIVING OF BOND BY OFFICERS.
All officers of the Corporation, if required to do so by the Board of Directors, shall furnish bonds to the Corporation for the faithful
performance of their duties, in such amounts and with such conditions and security as the Board shall require.
SECTION 3.11. VOTING UPON STOCKS.
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer,
the President, any Executive Vice President or Vice President shall have full power and authority on behalf of the Corporation to attend
and to act and to vote, or in the name of the Corporation to execute proxies to vote, at any meetings of shareholders of any corporation
in which the Corporation may hold stock, and at any such meetings or by written consent in lieu of a meeting shall possess and may exercise,
in person or by proxy, any and all rights, powers and privileges incident to the ownership of such stock. The Board of Directors may from
time to time, by resolution, confer like powers upon any other person or persons.
SECTION 3.12. COMPENSATION OF OFFICERS.
The officers of the Corporation shall be entitled to receive such compensation for their services as shall from time to time be determined
by the Board of Directors or by a committee of the Board to which the Board of Directors has delegated such responsibility.
ARTICLE IV.
CAPITAL STOCK
SECTION 4.1. SHARE CERTIFICATES AND UNCERTIFICATED
SHARES. Shares of the Corporation’s stock may be represented by certificates or uncertificated, as provided under Delaware
law, and shall be entered in the books of the Corporation as they are issued. Any certificates representing shares of stock shall be in
such form as the Board of Directors may from time to time determine. Each certificate shall include the holder’s name, the number
of shares and class of shares and series, if any, represented thereby, a statement that the Corporation is organized under the laws of
the State of Delaware, and the par value of each share or a statement that the shares are without par value.
Each certificate shall be signed by the Chairman
of the Board, the Chief Executive Officer, the President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer. Any or all of the signatures on the certificates 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 such certificate is issued, it may be issued by the Corporation with the same effect as if such person were
such officer, transfer agent or registrar at the date of issue.
If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof, and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation may issue
to represent such class or series of stock or, in the case of uncertificated shares, contained in a written notice that shall be sent
to the registered owner within a reasonable time after the issuance or transfer of such uncertificated stock, provided that, except as
otherwise provided in Section 202 of the Delaware General Corporation Law, in lieu of the foregoing requirements, there may be set
forth on the face or back of the certificate which the Corporation may issue to represent such class or series of stock or, in the case
of uncertificated shares, contained in the written notice sent to the registered holder as set forth above, a statement that the Corporation
will furnish without charge to each shareholder who so requests the powers, designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof, and the qualifications, limitations or restrictions of such preferences
and/or rights.
Except as otherwise expressly provided by law,
the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of certificates representing
shares of the same class and series shall be identical.
SECTION 4.2. TRANSFER. Upon surrender
to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence
of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate or evidence of
the issuance of uncertificated shares to the person entitled thereto, cancel the old certificate and record the transaction upon the Corporation’s
books. Upon the receipt of proper transfer instructions from the registered owner of uncertificated shares, such uncertificated shares
shall be cancelled, issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto
and the transaction shall be recorded upon the stock transfer books of the Corporation.
SECTION 4.3. REGISTERED SHAREHOLDERS.
The Corporation shall have the right to treat the person registered on its books as the owner of shares as the absolute owner thereof,
and shall not be bound to recognize any equitable or other claim to or interest in any of such shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as otherwise provided by Delaware law.
SECTION 4.4. LOST OR DESTROYED CERTIFICATES.
Any person claiming a certificate of stock to be lost, stolen or destroyed shall make an affidavit or affirmation of the fact in such
manner as the Board of Directors may require and shall, if the Board of Directors so requires, give the Corporation a bond of indemnity
in the form and amount and with one or more sureties satisfactory to the Board of Directors, whereupon a new certificate of stock or uncertificated
share may be issued in lieu of the one claimed to have been lost, stolen or destroyed.
ARTICLE V.
FISCAL YEAR
The fiscal year of the Corporation shall be established
by the Board of Directors of the Corporation.
ARTICLE VI.
SEAL
The corporate seal shall be in such form as the
Board of Directors may from time to time determine. The seal may be used by causing it or a facsimile to be impressed, affixed, reproduced
or otherwise, as may be prescribed by law or custom or by the Board of Directors.
ARTICLE VII.
ANNUAL STATEMENTS
No later than four months after the close of each
fiscal year, and in any case prior to the next annual meeting of shareholders, the Corporation shall prepare:
| (a) | A balance sheet showing in reasonable detail the financial condition of the Corporation as of the close
of the fiscal year, and |
| (b) | A profit and loss statement showing the results of its operation during the fiscal year. |
Upon written request, the Corporation shall mail
promptly to any shareholder of record a copy of the most recent such balance sheet and profit and loss statement.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. ACTION BY PERSONS OTHER
THAN THE CORPORATION. Under the circumstances prescribed in Sections 8.3 and 8.4 hereof, the Corporation shall indemnify and hold
harmless any person who was or is a party or is threatened to be made a party of any, threatened, pending or completed action, suit or
proceeding, or investigation, whether civil, criminal or administrative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was a Director, Officer, employee or agent of the Corporation, against expenses (including attorney’s
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action,
suit or proceeding if he or she acted in a manner which he or she reasonably believed to be in or not opposed to the best interest of
the Corporation, and, with respect to criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in a manner which he or she reasonably
believed to be in or not opposed to the best interest of the Corporation, and with respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
SECTION 8.2. ACTIONS BY OR IN THE NAME
OF THE CORPORATION. Under the circumstances prescribed in Sections 8.3 and 8.4 hereof, the Corporation shall indemnify and hold
harmless any person who was or is a party or is threatened to be made a party of any, threatened, pending or completed action, suit by
or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he or she is or was a Director, Officer,
employee or agent of the Corporation, against expenses (including attorney’s fees) actually and reasonably incurred by him or her
in connection with the defense or settlement of such action or suit, if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interest of the Corporation; except that no indemnification shall be made in respect to any
claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of
his or her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expense which the court shall deem proper.
SECTION 8.3. SUCCESSFUL DEFENSE.
To the extent that a Director, Officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Sections 8.1 and 8.2 hereof, or in defense of any claim, issue or matter therein, he
or she shall be indemnified against expenses (including attorney’s fees) actually and reasonably incurred by him or her in connection
therewith.
SECTION 8.4. AUTHORIZATION OF INDEMNIFICATION.
Except as provided in Section 8.3 hereof and except as may be ordered by a court, any indemnification under Sections 8.1 and 8.2 hereof
shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director, Officer,
employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Sections 8.1
and 8.2. Such determination shall be made:
| (a) | by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding;
or |
| (b) | if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Directors so directs, by the firm of independent
legal counsel then employed by the Corporation, in a written opinion. |
SECTION 8.5. PREPAYMENT OF EXPENSES.
Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors upon receipt of an undertaking by or on behalf of the Director,
Officer, employee or agent to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified
by the Corporation as authorized in this Article.
SECTION 8.6. NON-EXCLUSIVE RIGHT.
The indemnification provided by this Article shall not be deemed exclusive of any other right to which the person indemnified hereunder
shall be entitled and shall inure to the benefit of the heirs, executors or administrators of such persons.
SECTION 8.7. INSURANCE. The Corporation
may purchase and maintain insurance on behalf of any person who is or was a Director, Officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a Director, Officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him or her and incurred by him or her in any such capacity,
or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such
liability under the provisions of this Section.
SECTION 8.8. INTERPRETATION OF ARTICLE.
It is the intent of this Article VIII to provide for indemnification of the Directors, Officers, employees and agents of the Corporation
to the full extent permitted under the laws of State of Delaware. This Article VIII shall be construed in a manner consistent
with such intent.
ARTICLE IX.
NOTICES; WAIVER OF NOTICE
SECTION 9.1. NOTICES. Except
as otherwise provided in these By-Laws, whenever under the provisions of these By-Laws notice is required to be given to any shareholder,
Director or Officer, such notice shall be given either by personal notice, by electronic transmission in accordance with applicable law,
or by mail by depositing the same in the post office or letter box in a postpaid sealed wrapper, addressed to such shareholder, Officer
or Director at such address as appears on the books of the Corporation, and such notice shall be deemed to be given at the time when the
same shall be thus sent or mailed.
SECTION 9.2. WAIVER OF NOTICE.
Whenever any notice whatsoever is required to be given by law, by the Certificate of Incorporation or by these By-Laws, a waiver thereof
by the person or persons entitled to said notice given before or after the time stated therein, in writing, which shall include a waiver
given by electronic transmission, shall be deemed equivalent thereto. No notice of any meeting need be given to any person who shall attend
such meeting.
ARTICLE X.
CHECKS, NOTES, DRAFTS, LOANS, ETC.
SECTION 10.1. CHECKS, NOTES, DRAFTS.
All checks, drafts, bills of exchange, acceptances, notes or other obligations or orders for the payment of money shall be signed and,
if so required by the Board of Directors, countersigned by such officers of the Corporation and/or other persons as shall from time to
time be designated by these By-Laws or the Board of Directors or pursuant to authority delegated by the Board.
Checks, drafts, bills of exchange, acceptances,
notes, obligations and orders for the payment of money made payable to the Corporation may be endorsed for deposit to the credit of the
Corporation with a duly authorized depository by the Treasurer and/or such other officers or persons as shall from time to time be designated
by the Treasurer.
SECTION 10.2. LOANS. No loans
and no renewals of any loans shall be contracted on behalf of the Corporation except as authorized by the Board of Directors. When
authorized so to do, any officer or agent of the Corporation may effect loans and advances for the Corporation from any bank, trust company
or other institution or from any firm, corporation or individual, and for such loans and advances may make, execute and deliver promissory
notes, bonds or other evidences of indebtedness of the Corporation. When authorized so to do, any officer or agent of the Corporation
may pledge, hypothecate or transfer, as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation,
any and all stocks, securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and
deliver the same, and may grant mortgages and other security interests in real property at any time held by the Corporation. Such
authority may be general or confined to specific instances.
ARTICLE XI.
OFFICES
Except as otherwise required by the laws of the
State of Delaware, the Corporation may have an office or offices and keep its books, documents and papers outside of the State of Delaware
at such place or places as from time to time may be determined by the Board of Directors, the Chief Executive Officer or the President.
ARTICLE XII.
AMENDMENTS
Except as otherwise indicated in these By-Laws,
the By-Laws of the Corporation may be altered or amended and new By-Laws may be adopted by the shareholders or by the Board of Directors
at any regular or special meeting of the Board of Directors; provided, however, that, if such action is to be taken at a meeting of the
shareholders or Board of Directors, notice of the general nature of the proposed change in the By-Laws shall have been given in the notice
of a meeting. Except as otherwise indicated in these By-Laws, action by the shareholders with respect to By-Laws shall be taken by an
affirmative vote of a majority of the shares entitled to elect Directors, and action by the Directors with respect to By-Laws shall be
taken by an affirmative vote of a majority of all Directors then holding office.
ARTICLE XIII.
EXCLUSIVE FORUM
Unless the Corporation consents in writing to
the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery in the State of Delaware
lacks jurisdiction, the federal district court for the State of Delaware) shall be the sole and exclusive forum for (a) any derivative
action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any
current or former director, officer, employee or shareholder of the Corporation to the Corporation or the Corporation’s shareholders,
including a claim alleging the aiding and abetting of such a breach of fiduciary duty, (c) any action asserting a claim against the Corporation
or any current or former director, officer, employee or shareholder of the Corporation arising pursuant to any provision of Delaware General
Corporation Law, the Corporation’s Amended and Restated Certificate of Incorporation or these By-Laws, in each case, as amended
or restated from time to time, (d) any action asserting a claim against the Corporation or any current or former director, officer, employee
or shareholder of the Corporation governed by the internal affairs doctrine, or (e) any action asserting an “internal corporate
claim” as the term is defined in Section 115 of the Delaware General Corporation Law, in all cases subject to the court’s
having personal jurisdiction over the indispensable parties named as defendants. If any action the subject matter of which is within the
scope of this Article XIII is filed in a court other than a court located within the State of Delaware (a “Foreign Action”)
in the name of any shareholder, such shareholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal
courts located within the State of Delaware in connection with any action brought in any such court to enforce this Article XIII (an “Enforcement
Action”); and (ii) having service of process made upon such shareholder in any such Enforcement Action by service upon such
shareholder’s counsel in the Foreign Action as agent for such shareholder. Unless the Corporation consents in writing to the selection
of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of
any complaint asserting a cause of action arising under the Securities Act of 1933. Any person or entity purchasing or otherwise acquiring
any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article
XIII.
Adopted effective as of February 15, 2024.
v3.24.0.1
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