Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-1/A Amendment No. 2 to Form S-1 HTML 1.91M
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 61K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 130K
4: EX-4.1 Instrument Defining the Rights of Security Holders HTML 125K
5: EX-10.2 Material Contract HTML 91K
6: EX-10.4 Material Contract HTML 61K
7: EX-21.1 Subsidiaries of the Registrant HTML 17K
8: EX-23.2 Consent of Experts or Counsel HTML 6K
9: EX-23.3 Consent of Experts or Counsel HTML 6K
EX-3.2 — Articles of Incorporation/Organization or By-Laws
Section 2.9 Consent of Stockholders in Lieu of Meeting
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Section 2.10 List of Stockholders Entitled to Vote
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Section 2.11 Record Date
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Section 2.12 Stock Ledger
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Section 2.13 Conduct of Meetings
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Section 2.14 Inspectors of Election
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Section 2.15 Nature of Business at Meetings of Stockholders
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Section 2.16 Nomination of Directors
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ARTICLE III DIRECTORS
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Section 3.1 Number and Election of Directors
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Section 3.2 Vacancies
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Section 3.3 Duties and Powers
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Section 3.4 Meetings
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Section 3.5 Organization
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Section 3.6 Resignations and Removals of Directors
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Section 3.7 Quorum
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Section 3.8 Actions of the Board by Written Consent
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Section 3.9 Meetings by Means of Conference Telephone
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Section 3.10 Committees
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Section 3.11 Compensation
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Section 3.12 Interested Directors
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ARTICLE IV OFFICERS
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Section 4.1 General
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Section 4.2 Election
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Section 4.3 Salaries of Elected Officers
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Section 4.4 Voting Securities Owned by the Corporation
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Section 4.5 Chairman of the Board of Directors
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Section 4.6 Chief Executive Officer
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Section 4.7 President
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Section 4.8 Vice Presidents
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Section 4.9 Secretary
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Section 4.10 Other Officers
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ARTICLE V STOCK
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Section 5.1 Form of Certificates
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Section 5.2 Signatures
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Section 5.3 Lost Certificates
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Section 5.4 Transfers
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Section 5.5 Dividend Record Date
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Section 5.6 Record Owners
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Section 5.7 Transfer and Registry Agents
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ARTICLE VI NOTICES
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Section 6.1 Notices
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Section 6.2 Waivers of Notice
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ARTICLE VII GENERAL PROVISIONS
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Section 7.1 Dividends
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Section 7.2 Disbursements
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Section 7.3 Fiscal Year
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Section 7.4 Corporate Seal
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ARTICLE VIII INDEMNIFICATION
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Section 8.1 Power to Indemnify in Actions, Suits or Proceedings other than Those by or
in the Right of the Corporation
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Section 8.2 Power to Indemnify in Actions, Suits or Proceedings by or in the Right of
the Corporation
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Section 8.3 Authorization of Indemnification
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Section 8.4 Good Faith Defined
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Section 8.5 Indemnification by a Court
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Section 8.6 Expenses Payable in Advance
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Section 8.7 Non-exclusivity of Indemnification and Advancement of Expenses
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Section 8.8 Insurance
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Section 8.9 Certain Definitions
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Section 8.10 Survival of Indemnification and Advancement of Expenses
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Section 8.11 Limitation on Indemnification
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Section 8.12 Indemnification of Employees and Agents
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ARTICLE IX AMENDMENTS
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Section 9.1 Amendments
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ARTICLE X DEFINITIONS
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Section 10.1 Certain defined terms
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BYLAWS
OF
RAILAMERICA, INC.
(hereinafter called the “Corporation”)
Adopted by the Board of Directors and Stockholders of RailAmerica, Inc. on April 7, 1992, as
amended by the Board of Directors of RailAmerica, Inc. on June 19, 2003 and as amended and restated
by the Board of Directors of RailAmerica, Inc. on , 2009 (as amended and restated, the
“Bylaws”).
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of the Corporation shall be in the
City of Wilmington, New Castle County, State of Delaware.
Section 1.2 Other Offices. The Corporation may also have offices at such other places,
both within and without the State of Delaware, as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. Meetings of the stockholders for the election of directors
or for any other purpose shall be held at such time and place, either within or without the State
of Delaware, as shall be designated from time to time by the Board of Directors.
Section 2.2 Annual Meetings. The Annual Meeting of Stockholders for the election of
directors shall be held on such date and at such time as shall be designated from time to time by
the Board of Directors. Any other proper business may be transacted at the Annual Meeting of
Stockholders.
Section 2.3 Special Meetings. Unless otherwise required by law or by the certificate of
incorporation of the Corporation, as amended and restated from time to time (the “Certificate
of Incorporation”), Special Meetings of Stockholders, for any purpose or purposes, may be
called at any time by either (i) the Chairman of the Board of Directors, if there be one, or (ii)
the Chief Executive Officer, if there be one, and shall be called by any such officer at the
request in writing of (i) the Board of Directors, (ii) a committee of the Board of Directors that
has been duly designated by the Board of Directors and whose powers include the authority to call
such meetings or (iii) so long as the Fortress Stockholders (as defined in Section 10.1 of Article
X), collectively, beneficially own (as defined in Section 10.1 of Article X) at least twenty-five
percent (25%) of the then issued and outstanding shares of capital stock of the Corporation
entitled to vote in the election of directors (the “Voting Shares”), any stockholders that
collectively beneficially own at least twenty-five (25%) of the then issued and
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outstanding Voting Shares. Such request shall state the purpose or purposes of the proposed
meeting. At any time after the Fortress Stockholders cease, collectively, to beneficially own at
least twenty-five percent (25%) of the then issued and outstanding Voting Shares, then the ability
of the stockholders to call or cause a Special Meeting of Stockholders to be called is hereby
specifically denied. At a Special Meeting of Stockholders, only such business shall be conducted
as shall be specified in the notice of meeting (or any supplement thereto).
Section 2.4 Notice. Whenever stockholders are required or permitted to take any action at
a meeting, a written notice of the meeting shall be given which shall state the place, date and
hour of the meeting, and, in the case of a Special Meeting of Stockholders, the purpose or purposes
for which the meeting is called. Unless otherwise required by law, written notice of any meeting
shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder entitled to notice of and to vote at such meeting.
Section 2.5 Adjournments. Any meeting of the stockholders may be adjourned from time to
time to reconvene at the same or some other place, and notice need not be given of any such
adjourned meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice
of the adjourned meeting in accordance with the requirements of Section 2.4 hereof shall be given
to each stockholder of record entitled to notice of and to vote at the meeting.
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Section 2.6 Quorum. Unless otherwise required by applicable law or the Certificate of
Incorporation, the holders of a majority of the Corporation’s capital stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction of business. A quorum, once established,
shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however,
such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, in the manner provided in Section 2.5 hereof, until a
quorum shall be present or represented.
Section 2.7 Voting. Unless otherwise required by law, the Certificate of Incorporation or
these Bylaws or permitted by the rules of any stock exchange on which the Corporation’s shares are
listed and traded, any question brought before any meeting of the stockholders, other than the
election of directors, shall be decided by the vote of the holders of a majority of the total
number of votes of the Corporation’s capital stock represented at the meeting and entitled to vote
on such question, voting as a single class. Unless otherwise provided in the Certificate of
Incorporation, and subject to Section 2.11(a) of this Article II, each stockholder represented at a
meeting of the stockholders shall be entitled to cast one (1) vote for each share of the capital
stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by
proxy as provided in Section 2.8 of this Article II. The Board of Directors, in its discretion, or
the officer of the Corporation presiding at a meeting of the stockholders, in
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such officer’s discretion, may require that any votes cast at such meeting shall be cast by written
ballot.
Section 2.8 Proxies. Each stockholder entitled to vote at a meeting of the stockholders or
to express consent or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder as proxy, but no such proxy shall be voted
upon after three years from its date, unless such proxy provides for a longer period. Without
limiting the manner in which a stockholder may authorize another person or persons to act for such
stockholder as proxy, the following shall constitute a valid means by which a stockholder may grant
such authority:
(i) A stockholder may execute a writing authorizing another person or persons
to act for such stockholder as proxy. Execution may be accomplished by the
stockholder or such stockholder’s authorized officer, director, employee or agent
signing such writing or causing such person’s signature to be affixed to such
writing by any reasonable means, including, but not limited to, by facsimile
signature.
(ii) A stockholder may authorize another person or persons to act for such
stockholder as proxy by transmitting or authorizing the transmission of a
telegram, cablegram or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either set forth or be
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submitted with information from which it can be determined that such
transmission was authorized by the stockholder. If it is determined that such
telegrams, cablegrams or other means of electronic transmission are valid, the
inspectors or, if there are no inspectors, such other persons making that
determination shall specify the information on which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing, telegram, cablegram or transmission for any and all purposes for
which the original writing, telegram or cablegram could be used; provided, however, that such copy,
facsimile telecommunication or other reproduction shall be a complete reproduction of the entire
original writing or transmission.
Section 2.9 Consent of Stockholders in Lieu of Meeting. Any action required or permitted
to be taken by the stockholders of the Corporation at any meeting of stockholders may be taken
without a meeting if a consent in writing, setting forth the action so taken, is signed by all the
stockholders entitled to vote with respect to the subject matter thereof, provided,
however, that for so long as the Fortress Stockholders, collectively, beneficially own at
least twenty-five percent (25%) of the then issued and outstanding Voting Shares, any action
required or permitted to be taken by the stockholders of the Corporation at any meeting of
stockholders may be taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by stockholders holding at least a majority of the voting power of the then issued
and outstanding shares
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of capital stock of the Corporation entitled to vote with respect to the subject matter thereof.
Such consents shall have the same effect as a unanimous vote of stockholders.
Section 2.10 List of Stockholders Entitled to Vote. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of the stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting either (i) on a reasonably accessible
electronic network, provided that the information required to gain access to such list is provided
with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of
business of the Corporation. In the event that the Corporation determines to make the list
available on an electronic network, the Corporation may take reasonable steps to ensure that such
information is available only to stockholders of the Corporation. If the meeting is to be held at a
place, then the list shall be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 2.11 Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of the stockholders or any adjournment thereof, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by
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the Board of Directors, and which record date shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or to vote at a
meeting of the stockholders shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held. A determination of stockholders of record entitled to notice
of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than ten (10) days after the
date upon which the resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which proceedings of meetings of
the stockholders are recorded. Delivery made to the Corporation’s registered office shall be by
hand or by certified or registered
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mail, return receipt requested. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing without a meeting shall
be at the close of business on the day on which the Board of Directors adopts the resolution taking
such prior action.
Section 2.12 Stock Ledger. The stock ledger of the Corporation shall be the only evidence
as to who are the stockholders entitled to examine the stock ledger, the list required by Section
2.10 of this Article II or the books of the Corporation, or to vote in person or by proxy at any
meeting of the stockholders.
Section 2.13 Conduct of Meetings. The Board of Directors of the Corporation may adopt by
resolution such rules and regulations for the conduct of any meeting of the stockholders as it
shall deem appropriate. Except to the extent inconsistent with such rules and regulations as
adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the
right and authority to prescribe such rules, regulations and procedures and to do all such acts as,
in the judgment of such chairman, 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
chairman of the meeting, may include, without limitation, the following: (i) the establishment of
an agenda or order of business for the meeting; (ii) the determination of when the polls shall open
and close for any given matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at
or participation in the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other
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persons as the chairman of the meeting shall determine; (v) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (vi) limitations on the time allotted to
questions or comments by participants.
Section 2.14 Inspectors of Election. In advance of any meeting of the stockholders, the
Board of Directors, by resolution, the Chairman or the President shall appoint one or more
inspectors to act at the meeting and make a written report thereof. One or more other persons may
be designated as alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of the stockholders, the chairman of the meeting shall
appoint one or more inspectors to act at the meeting. Unless otherwise required by applicable law,
inspectors may be officers, employees or agents of the Corporation. Each inspector, before
entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the best of such
inspector’s ability. The inspector shall have the duties prescribed by law and shall take charge
of the polls and, when the vote is completed, shall make a certificate of the result of the vote
taken and of such other facts as may be required by applicable law.
Section 2.15 Nature of Business at Meetings of Stockholders. Only such business (other
than nominations for election to the Board of Directors, which must comply with the provisions of
Section 2.16 of this Article II) may be transacted at an Annual Meeting as is either (a) specified
in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly brought before the
Annual Meeting by or at the direction of the Board of Directors (or any duly authorized committee
thereof), or (c)
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otherwise properly brought before the Annual Meeting by any stockholder of the Corporation (i) who
is a stockholder of record on the date of the giving of the notice provided for in this Section
2.15 and on the record date for the determination of stockholders entitled to notice of and to vote
at such Annual Meeting and (ii) who complies with the notice procedures set forth in this Section
2.15.
In addition to any other applicable requirements, for business to be properly brought before
an Annual Meeting by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder’s notice to the Secretary must be delivered to or be mailed and
received at the principal executive offices of the Corporation not less than ninety (90) days nor
more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding
Annual Meeting of Stockholders; provided, however, that in the event that the Annual Meeting is
called for a date that is not within twenty-five (25) days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such notice of the date of the Annual
Meeting was mailed or such public disclosure of the date of the Annual Meeting was made, whichever
first occurs. In no event shall the adjournment or postponement of an Annual Meeting, or the
public announcement of such an adjournment or postponement, commence a new time period (or extend
any time period) for the giving of a stockholder’s notice as described above.
To be in proper written form, a stockholder’s notice to the Secretary must set forth the
following information: (a) as to each matter such stockholder proposes to
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bring before the Annual Meeting, a brief description of the business desired to be brought
before the Annual Meeting and the reasons for conducting such business at the Annual Meeting, and
(b) as to the stockholder giving notice and the beneficial owner, if any, on whose behalf the
proposal is being made, (i) the name and address of such person, (ii) (A) the class or series and
number of all shares of capital stock of the Corporation which are owned beneficially or of record
by such person and any affiliates or associates of such person, (B) the name of each nominee holder
of shares of all capital stock of the Corporation owned beneficially but not of record by such
person or any affiliates or associates of such person, and the number of such shares of capital
stock of the Corporation held by each such nominee holder, (C) whether and the extent to which any
derivative instrument, swap, option, warrant, short interest, hedge or profit interest or other
transaction has been entered into by or on behalf of such person, or any affiliates or associates
of such person, with respect to capital stock of the Corporation and (D) whether and the extent to
which any other transaction, agreement, arrangement or understanding (including any short position
or any borrowing or lending of shares of capital stock of the Corporation) has been made by or on
behalf of such person, or any affiliates or associates of such person, the effect or intent of any
of the foregoing being to mitigate loss to, or to manage risk or benefit of stock price changes
for, such person, or any affiliates or associates of such person, or to increase or decrease the
voting power or pecuniary or economic interest of such person, or any affiliates or associates of
such person, with respect to capital stock of the Corporation; (iii) a description of all
agreements, arrangements, or understandings (whether written or oral) between or among such person,
or any affiliates or associates of such person, and any other person or
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persons (including their names) in connection with the proposal of such business and any
material interest of such person or any affiliates or associates of such person, in such business,
including any anticipated benefit therefrom to such person, or any affiliates or associates of such
person, (iv) a representation that the stockholder giving notice intends to appear in person or by
proxy at the Annual Meeting to bring such business before the meeting; and (v) any other
information relating to such person that would be required to be disclosed in a proxy statement or
other filing required to be made in connection with the solicitation of proxies by such person with
respect to the proposed business to be brought by such person before the Annual Meeting pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the
rules and regulations promulgated thereunder.
A stockholder providing notice of business proposed to be brought before an Annual Meeting
shall further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 2.15 shall be true and correct as
of the record date for determining the stockholders entitled to receive notice of the Annual
Meeting and such update and supplement shall be delivered to or be mailed and received by the
Secretary at the principal executive offices of the Corporation not later than five (5) business
days after the record date for determining the stockholders entitled to receive notice of the
Annual Meeting.
No business shall be conducted at the Annual Meeting of Stockholders except business brought
before the Annual Meeting in accordance with the procedures set forth in this Section 2.15;
provided, however, that, once business has been properly
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brought before the Annual Meeting in accordance with such procedures, nothing in this Section
2.15 shall be deemed to preclude discussion by any stockholder of any such business. If the
chairman of an Annual Meeting determines that business was not properly brought before the Annual
Meeting in accordance with the foregoing procedures, the chairman shall declare to the meeting that
the business was not properly brought before the meeting and such business shall not be transacted.
Nothing contained in this Section 2.15 shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under
the Exchange Act (or any successor provision of law).
Section 2.16 Nomination of Directors. Only persons who are nominated in accordance with
the following procedures shall be eligible for election as directors of the Corporation, except as
may be otherwise provided in the Certificate of Incorporation with respect to the right of holders
of preferred stock of the Corporation to nominate and elect a specified number of directors in
certain circumstances and except as otherwise provided under the Stockholders Agreement.
Nominations of persons for election to the Board of Directors may be made at any Annual Meeting of
Stockholders, or at any Special Meeting of Stockholders called for the purpose of electing
directors, (a) by or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 2.16 and on the record date for the
determination of stockholders entitled to notice of and to vote at such Annual Meeting or Special
Meeting and (ii) who complies with the notice procedures set forth in this Section 2.16.
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In addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation.
To be timely, a stockholder’s notice to the Secretary must be delivered to or be mailed and
received at the principal executive offices of the Corporation (a) in the case of an Annual
Meeting, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding Annual Meeting of Stockholders; provided, however,
that in the event that the Annual Meeting is called for a date that is not within twenty-five (25)
days before or after such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the tenth (10th) day following the day on which
such notice of the date of the Annual Meeting was mailed or such public disclosure of the date of
the Annual Meeting was made, whichever first occurs; and (b) in the case of a Special Meeting of
Stockholders called for the purpose of electing directors, not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the Special Meeting was
mailed or public disclosure of the date of the Special Meeting was made, whichever first occurs.
In no event shall the adjournment or postponement of an Annual Meeting or a Special Meeting called
for the purpose of electing directors, or the public announcement of such an adjournment or
postponement, commence a new time period (or extend any time period) for the giving of a
stockholder’s notice as described above.
To be in proper written form, a stockholder’s notice to the Secretary must set forth the
following information: (a) as to each person whom the stockholder proposes
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to nominate for election as a director (i) the name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) (A) the class or series and number of all
shares of capital stock of the Corporation which are owned beneficially or of record by such person
and any affiliates or associates of such person, (B) the name of each nominee holder of shares of
all capital stock of the Corporation owned beneficially but not of record by such person or any
affiliates or associates of such person, and the number of such shares of capital stock of the
Corporation held by each such nominee holder, (C) whether and the extent to which any derivative
instrument, swap, option, warrant, short interest, hedge or profit interest or other transaction
has been entered into by or on behalf of such person, or any affiliates or associates of such
person, with respect to capital stock of the Corporation and (D) whether and the extent to which
any other transaction, agreement, arrangement or understanding (including any short position or any
borrowing or lending of shares of capital stock of the Corporation) has been made by or on behalf
of such person, or any affiliates or associates of such person, the effect or intent of any of the
foregoing being to mitigate loss to, or to manage risk or benefit of stock price changes for, such
person, or any affiliates or associates of such person, or to increase or decrease the voting power
or pecuniary or economic interest of such person, or any affiliates or associates of such person,
with respect to capital stock of the Corporation; and (iv) any other information relating to such
person that would be required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors pursuant to Section 14
of the Exchange Act, and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice, and the
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beneficial owner, if any, on whose behalf the nomination is
being made, (i) the name and record address of such person; (ii) (A) the class or series and number
of all shares of capital stock of the Corporation which are owned beneficially or of record by such
person and any affiliates or associates of such person, (B) the name of each nominee holder of
shares of the Corporation owned beneficially but not of record by such person or any affiliates or
associates of such person, and the number of shares of capital stock of the Corporation held by
each such nominee holder, (C) whether and the extent to which any derivative instrument, swap,
option, warrant, short interest, hedge or profit interest or other transaction has been entered
into by or on behalf of such person, or any affiliates or associates of such person, with respect
to capital stock of the Corporation and (D) whether and the extent to which any other transaction,
agreement, arrangement or understanding (including any short position or any borrowing or lending
of shares of capital stock of the Corporation) has been made by or on behalf of such person, or any
affiliates or associates of such person, the effect or intent of any of the foregoing being to
mitigate loss to, or to manage risk or benefit of stock price changes for, such person, or any
affiliates or associates of such person, or to increase or decrease the voting power or pecuniary
or economic interest of such person, or any affiliates or associates of such person, with respect
to capital stock of the Corporation; (iii) a description of all agreements, arrangements, or
understandings (whether written or oral) between such person, or any affiliates or associates of
such person, and any proposed nominee or any other person or persons (including their names)
pursuant to which the nomination(s) are being made by such person, and any material interest of
such person, or any affiliates or associates of such person, in such nomination, including any
anticipated benefit
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therefrom to such person, or any affiliates or associates of such person; (iv)
a representation that the stockholder giving notice intends to appear in person or by proxy at the
Annual Meeting or Special Meeting to nominate the persons named in its notice; and (v) any other
information relating to such person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with the solicitation of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being
named as a nominee and to serve as a director if elected.
A stockholder providing notice of any nomination proposed to be made at an Annual Meeting or
Special Meeting shall further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to this Section 2.16 shall
be true and correct as of the record date for determining the stockholders entitled to receive
notice of the Annual Meeting or Special Meeting, and such update and supplement shall be delivered
to or be mailed and received by the Secretary at the principal executive offices of the Corporation
not later than five (5) business days after the record date for determining the stockholders
entitled to receive notice of such Annual Meeting or Special Meeting.
No person shall be eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 2.16. If the Chairman of the meeting
determines that a nomination was not made in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the nomination was defective and such defective nomination shall
be disregarded.
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ARTICLE III
DIRECTORS
Section 3.1 Number and Election ofDirectors. The Board of Directors shall consist
of not less than three nor more than nine members, the exact number of which shall be fixed from
time to time by resolution adopted by the affirmative vote of a majority of the entire Board of
Directors. The directors shall be divided into three classes, designated Class I, Class II and
Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number
of directors constituting the entire Board of Directors. The initial division of the Board of
Directors into classes shall be made by the decision of the affirmative vote of a majority of the
entire Board of Directors. The term of the initial Class I directors assigned at the time of the
filing of the Certificate of Incorporation shall terminate on the date of the 2010 Annual Meeting;
the term of the initial Class II directors assigned at the time of the filing of the Certificate of
Incorporation shall terminate on the date of the 2011 Annual Meeting; and the term of the initial
Class III directors assigned at the time of the filing of the Certificate of Incorporation shall
terminate on the date of the 2012 Annual Meeting. At each succeeding Annual Meeting of Stockholders
beginning in 2010, successors to the class of directors whose term expires at that Annual Meeting
shall be elected for a three-year term and until their successors are duly elected and qualified.
If the number of directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal as possible, and
any additional director of any class elected to fill a vacancy resulting from an increase in such
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class or from the removal from office, death, disability, resignation or disqualification of a
director or other cause shall hold office for a term that shall coincide with the remaining term of
that class, but in no case will a decrease in the number of directors shorten the term of any
incumbent director. Except as provided in Section 3.2 of this Article III, directors shall be
elected by a plurality of the votes of the shares of capital stock of the Corporation present in
person or represented by proxy and entitled to vote on the election of directors.
Section 3.2 Vacancies. Unless otherwise required by law or the Certificate of
Incorporation, and subject to the terms of any one or more classes or series of preferred stock of
the Corporation, any vacancy on the Board of Directors that results from an increase in the number
of directors may be filled by a majority of the Board of Directors then in office, provided that a
quorum is present, and any other vacancy occurring on the Board of Directors, other than for a
vacancy resulting from the removal of a director as provided in Section 3.6 which may be filled in
the first instance by the stockholders, may be filled by a majority of the Board of Directors then
in office, even if less than a quorum, or by a sole remaining director. Any director of any class
elected to fill a vacancy resulting from an increase in the number of directors of such class shall
hold office for a term that shall coincide with the remaining term of that class. Any director
elected to fill a vacancy not resulting from an increase in the number of directors shall have the
same remaining term as that of his or her predecessor.
Section 3.3 Duties and Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as
Section 3.4 Meetings. The Board of Directors and any committee thereof may hold meetings,
both regular and special, either within or without the State of Delaware. Regular meetings of the
Board of Directors or any committee thereof may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors or such committee,
respectively. Special meetings of the Board of Directors may be called by the Chairman, if there
be one, the President, or by any two directors. Special meetings of any committee of the Board of
Directors may be called by the chairman of such committee, if there be one, the President or any
director serving on such committee. Notice thereof stating the place, date and hour of the meeting
shall be given to each director (or, in the case of a committee, to each member of such committee)
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
telegram or electronic means on twenty-four (24) hours’ notice, or on such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 3.5 Organization. At each meeting of the Board of Directors or any committee
thereof, the Chairman of the Board of Directors or the chairman of such committee, as the case may
be, or, in his or her absence or if there be none, a director chosen by a majority of the directors
present, shall act as chairman. Except as provided below, the Secretary of the Corporation shall
act as secretary at each meeting of the Board of Directors and of each committee thereof. In case
the Secretary shall be absent from any meeting of the Board of Directors or of any committee
thereof, an Assistant
21
Secretary shall perform the duties of secretary at such meeting; and in the
absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairman of
the meeting may appoint any person to act as secretary of the meeting. Notwithstanding the
foregoing, the members of each committee of the Board of Directors may appoint any person to act as
secretary of any meeting of such committee and the Secretary or any Assistant Secretary of the
Corporation may, but need not if such committee so elects, serve in such capacity.
Section 3.6 Resignations and Removals of Directors. Any director of the Corporation may
resign from the Board of Directors or any committee thereof at any time, by giving notice in
writing or electronic transmission to (i) the Chairman of the Board of Directors, if there be one,
or to the President, if there is no Chairman, and (ii) the Secretary of the Corporation and, in the
case of a committee, to the chairman of such committee, if there be one. Such resignation shall
take effect at the time therein specified or, if no time is specified, immediately; and, unless
otherwise specified in such notice, the acceptance of such resignation shall not be necessary to
make it effective. Except as otherwise required by applicable law and subject to the rights, if
any, of the holders of shares of preferred stock of the Corporation then outstanding, any director
or the entire Board of Directors may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least eighty percent (80%) of the voting power of
the then issued and outstanding Voting Shares, provided, however, that for so long
as the Fortress Stockholders, collectively, beneficially own at least forty percent (40%) of the
then issued and outstanding Voting Shares, any director or the entire Board of Directors may be
removed from office at any time, with or without cause, by the
22
affirmative vote of the holders of at least a majority of the voting power of the then issued and outstanding Voting Shares. The
vacancy in the Board of Directors caused by any such removal shall be filled by the stockholders
or, if not so filled, by the Board of Directors as provided in Section 3.2. Any director serving
on a committee of the Board of Directors may be removed from such committee at any time by the
Board of Directors.
Section 3.7 Quorum. Except as otherwise required by law, the Certificate of Incorporation
or the rules and regulations of any securities exchange or quotation system on which the
Corporation’s securities are listed or quoted for trading, at all meetings of the Board of
Directors or any committee thereof, a majority of the entire Board of Directors or a majority of
the directors constituting such committee, as the case may be, shall constitute a quorum for the
transaction of business and the act of a majority of the directors or committee members present at
any meeting at which there is a quorum shall be the act of the Board of Directors or such
committee, as applicable. If a quorum shall not be present at any meeting of the Board of
Directors or any committee thereof, the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting of the time and place of the
adjourned meeting, until a quorum shall be present.
Section 3.8 Actions of the Board by Written Consent. Unless otherwise provided in the
Certificate of Incorporation or these Bylaws, 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 the members of the Board of Directors or such committee, as the case may be, consent thereto in
writing or by electronic transmission, and the writing or writings or electronic transmission or
23
transmissions are filed with the minutes of proceedings of the Board of Directors or such
committee.
Section 3.9 Meetings by Means of Conference Telephone. Unless otherwise provided in the
Certificate of Incorporation or these Bylaws, members of the Board of Directors of the Corporation,
or any committee thereof, may participate in a meeting of the Board of Directors or such committee
by means of a conference telephone or other 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 3.9 shall constitute presence in person at such meeting.
Section 3.10 Committees. The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. Each member of a
committee must meet the requirements for membership, if any, imposed by applicable law and the
rules and regulations of any securities exchange or quotation system on which the securities of the
Corporation are listed or quoted for trading. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting of any such committee. Subject to the rules and regulations of any securities
exchange or quotation system on which the securities of the Corporation are listed or quoted for
trading, in the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously appoint another
qualified member of the
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Board of Directors to act at the meeting in the place of any absent or
disqualified member. Any committee, to the extent permitted by law and provided in the resolution
establishing such committee, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it. Each committee shall
keep regular minutes and report to the Board of Directors when required. Notwithstanding anything
to the contrary contained in this Article III, the resolution of the Board of Directors
establishing any committee of the Board of Directors and/or the charter of any such committee may
establish requirements or procedures relating to the governance and/or operation of such committee
that are different from, or in addition to, those set forth in these Bylaws and, to the extent that
there is any inconsistency between these Bylaws and any such resolution or charter, the terms of
such resolution or charter shall be controlling.
Section 3.11 Compensation. The Board of Directors, by affirmative vote of a majority of
the directors then in office, and irrespective of any personal interest of any of its members, may
establish reasonable compensation (including reasonable pensions, disability or death benefits, and
other benefits or payments) of directors for services to the Corporation as directors, or may
delegate such authority to an appropriate committee. The directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary for service as director,
payable in cash or securities. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members of
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special or standing committees may be allowed like compensation for service as committee members.
Section 3.12 Interested Directors. No contract or transaction between the Corporation and
one or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its directors or officers
are directors or officers or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or transaction, or solely
because any such director’s or officer’s vote is counted for such purpose if: (i) the material
facts as to the director’s or officer’s relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board of
Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to the director’s or officer’s relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith by
vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or
the stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
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ARTICLE IV
OFFICERS
Section 4.1 General. The officers of the Corporation shall be chosen by the Board of
Directors and shall be a Chief Executive Officer, a President and a Secretary. The Board of
Directors, in its discretion, also may choose a Chairman of the Board of Directors (who must be a
director but is not required to be an employee of the Corporation), a Treasurer and one or more
Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of
offices may be held by the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these Bylaws. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors (who must be a
director), need such officers be directors of the Corporation.
Section 4.2 Election. The Board of Directors shall elect the officers of the Corporation
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; and each officer of the
Corporation shall hold office until such officer’s successor is elected and qualified, or until
such officer’s earlier death, resignation or removal. Any officer elected by the Board of
Directors may be removed at any time by the Board of Directors, including by unanimous written
consent. Any vacancy occurring in any office of the Corporation shall be filled by the Board of
Directors.
Section 4.3 Salaries of Elected Officers. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors.
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Section 4.4 Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or any
Vice President or any other officer authorized to do so by the Board of Directors and any such
officer may, in the name of and on behalf of the Corporation, take all such action as any such
officer may deem advisable to vote in person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any such meeting shall possess and
may exercise any and all rights and power incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any other person or
persons.
Section 4.5 Chairman of the Board of Directors. The Chairman of the Board of Directors, if
there be one, shall preside at all meetings of the stockholders and of the Board of Directors. The
Chairman of the Board of Directors shall be designated by the Board of Directors and, except where
by law the signature of the President is required, the Chairman of the Board of Directors shall
possess the same power as the President to sign all contracts, certificates and other instruments
of the Corporation which may be authorized by the Board of Directors. During the absence or
disability of the President, the Chairman of the Board of Directors shall exercise all the powers
and discharge all the duties of the President. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as may from time to time be assigned
by these Bylaws or by the Board of Directors.
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Section 4.6 Chief Executive Officer. The Chief Executive Officer, if any, shall, subject
to the control of the Board of Directors and if there be one, the Chairman of the Board, have
general supervision of the affairs of the Corporation and general and active control of all its
business. The Chief Executive Officer shall preside, in the absence of the Chairman of the Board,
if any, at all meetings of stockholders. The Chief Executive Officer shall see that all orders and
resolutions of the Board of Directors and the stockholders are carried into effect. The Chief
Executive Officer shall have general authority to execute bonds, deeds and contracts in the name of
the Corporation and affix the corporate seal thereto; to sign stock certificates; to cause the
employment or appointment of such employees and agents of the Corporation as the proper conduct of
operations may require, and to fix their compensation, subject to the provisions of these Bylaws;
to remove or suspend any employee or agent who shall have been employed or appointed under the
Chief Executive Officer’s authority or under authority of an officer subordinate to the Chief
Executive Officer; to suspend for cause, pending final action by the authority which shall have
elected or appointed the Chief Executive Officer, any officer subordinate to the Chief Executive
Officer; and, in general, to exercise all the powers and authority usually appertaining to the
chief executive officer of a corporation, except as otherwise provided in these Bylaws.
Section 4.7 President. The President shall, subject to the control of the Board of
Directors and, if there be one, the Chairman of the Board of Directors, have general supervision of
the business of the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall execute all bonds, mortgages, contracts and
other instruments of the Corporation requiring a seal,
29
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors or the President. In the absence or
disability of the Chairman of the Board of Directors, or if there be none, the President shall
preside at all meetings of the stockholders and, provided the President is also a director, the
Board of Directors. If there be no Chairman of the Board of Directors, or if the Board of
Directors shall otherwise designate, the President shall be the Chief Executive Officer of the
Corporation. The President shall also perform such other duties and may exercise such other powers
as may from time to time be assigned to such officer by these Bylaws or by the Board of Directors.
Section 4.8 Vice Presidents. At the request of the President or in the President’s absence
or in the event of the President’s inability or refusal to act (and if there be no Chairman of the
Board of Directors), the Vice President, or the Vice Presidents if there are more than one (in the
order designated by the Board of Directors), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
30
Section 4.9 Secretary. Except as otherwise provided herein, the Secretary shall record all
the proceedings of meetings of the Board of Directors and all meetings of the stockholders in a
book or books to be kept for that purpose, and the Secretary shall also perform like duties for
committees of the Board of Directors when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of Directors, the Chairman of
the Board of Directors or the President, under whose supervision the Secretary shall be. If the
Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the
stockholders and special meetings of the Board of Directors, and if there be no Assistant
Secretary, then either the Board of Directors or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of the Corporation and the
Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be attested by the signature of the
Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and to attest to the
affixing by such officer’s signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
Section 4.10 Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may
31
delegate to any other officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 5.1 Form of Certificates. Except as otherwise provided in a resolution approved by
the Board of Directors, all shares of capital stock of the Corporation issued after ,
2009 shall be uncertificated shares.
Section 5.2 Signatures. Any or all of the signatures on a certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar
before 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.
Section 5.3 Lost Certificates. The Board of Directors may direct a new certificate or
uncertificated shares be issued in place of any certificate theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such
issuance of a new certificate or uncertificated shares, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or such owner’s legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity, or provide a written undertaking to indemnify, against any claim
that may be made
32
against the Corporation on account of the alleged loss, theft or destruction of
such certificate or the issuance of such new certificate or uncertificated shares.
Section 5.4 Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of
the Corporation, and in the case of certificated shares of stock, only by the person named in the
certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of
the certificate therefor, properly endorsed for transfer and payment of all necessary transfer
taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer
instructions from the registered holder of the shares or by such person’s attorney lawfully
constituted in writing, and upon payment of all necessary transfer taxes and compliance with
appropriate procedures for transferring shares in uncertificated form; provided, however, that such
surrender and endorsement, compliance or payment of taxes shall not be required in any case in
which any of the officers of the Corporation shall determine to waive such requirement. With
respect to certificated shares of stock, every certificate exchanged, returned or surrendered to
the Corporation shall be marked “Cancelled,” with the date of cancellation, by the Secretary or
Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall
be valid as against the Corporation for any purpose until it shall have been entered in the stock
records of the Corporation by an entry showing from and to whom transferred.
Section 5.5 Dividend Record Date. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in
33
respect of any change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
Section 5.6 Record Owners. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise required by law.
Section 5.7 Transfer and Registry Agents. The Corporation may from time to time maintain
one or more transfer offices or agencies and registry offices or agencies at such place or places
as may be determined from time to time by the Board of Directors.
ARTICLE VI
NOTICES
Section 6.1 Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder,
such notice may be given by mail, addressed to such director,
34
member of a committee or stockholder, at such person’s address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited
in the United States mail. Without limiting the manner by which notice otherwise may be given
effectively to stockholders, any notice to stockholders given by the Corporation under applicable
law, the Certificate of Incorporation or these Bylaws shall be effective if given by a form of
electronic transmission if consented to by the stockholder to whom the notice is given. Any such
consent shall be revocable by the stockholder by written notice to the Corporation. Any such
consent shall be deemed to be revoked if (i) the Corporation
is unable to deliver by electronic transmission two (2) consecutive notices by the Corporation in
accordance with such consent and (ii) such inability becomes known to the Secretary or Assistant
Secretary of the Corporation or to the transfer agent, or other person responsible for the giving
of notice; provided, however, that the inadvertent failure to treat such inability as a revocation
shall not invalidate any meeting or other action. Notice given by electronic transmission, as
described above, shall be deemed given: (i) if by facsimile telecommunication, when directed to a
number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to receive notice;
(iii) if by a posting on an electronic network, together with separate notice to the stockholder of
such specific posting, upon the later of (A) such posting and (B) the giving of such separate
notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder.
Notice to directors or committee members may be given personally or by telegram, telex, cable or
other means of electronic transmission.
35
Section 6.2 Waivers of Notice. Whenever any notice is required by applicable law, the
Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or
stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, or a
waiver by electronic transmission by the person or persons entitled to notice, or a waiver by
electronic transmission by the person or persons entitled to notice whether before or after the
time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting,
present in person or represented by proxy, shall constitute a waiver of notice of such meeting,
except where the person attends the meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any Annual or Special
Meeting of Stockholders or any regular or special meeting of the directors or members of a
committee of directors need be specified in any written waiver of notice unless so required by law,
the Certificate of Incorporation or these Bylaws.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Dividends. Dividends upon the capital stock of the Corporation, subject to the
requirements of the General Corporation Law of the State of Delaware (the “DGCL”) and the
provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting of the Board of Directors (or any action by written consent in
lieu thereof in accordance with Section 3.8 of Article III hereof), and may be paid in cash, in
property, or in shares of the Corporation’s capital stock. Before payment of any dividend, there
may be set aside out
36
of any funds of the Corporation available for dividends such sum or sums as
the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants,
rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness
of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 7.2 Disbursements. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
Section 7.3 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution
of the Board of Directors.
Section 7.4 Corporate Seal. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Power to Indemnify in Actions, Suits or Proceedings other than Those by or
in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
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right of the Corporation), by reason of the fact that such person is or was a director or officer
of the Corporation, or is or was a director or officer of the Corporation 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 expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe such person’s
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 good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that such person’s
conduct was unlawful.
Section 8.2 Power to Indemnify in Actions, Suits or Proceedings by or in the Right of
the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director or officer of the Corporation, or is or
was a director or officer of the Corporation 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
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expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or
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 expenses which the Court of Chancery or such
other court shall deem proper.
Section 8.3 Authorization of Indemnification. Any indemnification under this Article VIII
(unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the present or former director or officer is
proper in the circumstances because such person has met the applicable standard of conduct set
forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination
shall be made, with respect to a person who is a director or officer at the time of such
determination, (i) by a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by
a majority vote of such directors, even though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a written opinion or
(iv) by the stockholders. Such determination shall be made, with respect to former directors and
officers, by any person or persons having the authority to act on the matter on behalf of
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the Corporation. To the extent, however, that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of authorization in the specific case.
Section 8.4 Good Faith Defined. For purposes of any determination under Section 8.3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe such
person’s conduct was unlawful, if such person’s action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to such person by the officers
of the Corporation or another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the Corporation or another
enterprise. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the applicable standard of
conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be.
Section 8.5 Indemnification by a Court. Notwithstanding any contrary determination in the
specific case under Section 8.3 of this Article VIII, and
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notwithstanding the absence of any determination thereunder, any director or officer may apply to the Court of Chancery of the State
of Delaware or any other court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Section 8.1 or Section 8.2 of this
Article VIII. The basis of such indemnification by a court shall be a determination by such court
that indemnification of the director or officer is proper in the circumstances because such person
has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article
VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3
of this Article VIII nor the absence of any determination thereunder shall be a defense to such
application or create a presumption that the director or officer seeking indemnification has not
met any applicable standard of conduct. Notice of any application for indemnification pursuant to
this Section 8.5 shall be given to the Corporation promptly upon the filing of such application.
If successful, in whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
Section 8.6 Expenses Payable in Advance. Expenses (including attorneys’ fees) incurred by
a director or officer in defending any civil, criminal, administrative or investigative action,
suit or proceeding shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the Corporation as authorized in this Article VIII. Such expenses (including
attorneys’ fees)
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incurred by former directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the Corporation deems appropriate.
Section 8.7 Non-exclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation, these Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such
person’s official capacity and as to action in another capacity while holding such office, it being
the policy of the Corporation that indemnification of the persons specified in Section 8.1 and
Section 8.2 of this Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the indemnification of any person
who is not specified in Section 8.1 or Section 8.2 of this Article VIII but whom the Corporation
has the power or obligation to indemnify under the provisions of the DGCL, or otherwise.
Section 8.8 Insurance. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director or officer of the Corporation, or is or was a director or
officer of the Corporation 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 such person and incurred by such person in any such
capacity, or arising out of such person’s status as such, whether or not the Corporation would have
the power or the obligation to indemnify such person against such liability under the provisions of
this Article VIII.
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Section 8.9 Certain Definitions. For purposes of this Article VIII, references to the
“Corporation” shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors or
officers, so that any person who is or was a director or officer of such constituent corporation,
or is or was a director or officer of such constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same position under the
provisions of this Article VIII with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate existence had
continued. The term “another enterprise” as used in this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. For purposes of this Article VIII, references to “fines” shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and references to
“serving at the request of the Corporation” shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interests of the Corporation” as referred to in this
Article VIII.
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Section 8.10 Survival of Indemnification and Advancement of Expenses. The indemnification
and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 8.11 Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 8.5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer (or his or her heirs, executors or personal or legal
representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 8.12 Indemnification of Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar to those conferred
in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 9.1 Amendments. These Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting (if there is
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one) of the stockholders or Board of Directors, as the
case may be. All such alterations, amendments, repeals or adoptions must be approved by either the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the
voting power of the then issued and outstanding shares of capital stock of the Corporation entitled
to vote thereon or by a majority of the entire Board of Directors, provided,
however, that for so long as the Fortress Stockholders, collectively, beneficially own at
least twenty-five percent (25%) of the then issued and outstanding Voting Shares, any such
alterations, amendments, repeals or adoptions may be approved by either the affirmative vote of the
holders of at least a majority of the voting power of the then issued and outstanding shares of
capital stock of the Corporation entitled to vote thereon or by a majority of the entire Board of
Directors. Notwithstanding the foregoing or any other provision of these Bylaws (and in addition
to any other vote that may be required by law), the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of the then issued and outstanding shares of capital stock
of the Corporation entitled to vote thereon shall be required to amend, alter, change or repeal, or
to adopt any provision as part of these Bylaws inconsistent with the purpose and intent of Sections
2.3, 2.9, 3.1, 3.2, 3.3, 3.6, this Article IX and Article X.
ARTICLE X
DEFINITIONS
Section 10.1 Certain defined terms. For purposes of these Bylaws, the following terms
shall have the following meanings:
(a) “Affiliate” means, with respect to a given person, any other person that, directly
or indirectly, controls, is controlled by or is under common control
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with, such person; provided, however, that for purposes of this definition,
none of (i) the RailAmerica Entities and any entities (including corporations, partnerships,
limited liability companies or other persons) in which such RailAmerica Entities hold, direct or
indirectly, an ownership interest, on the one hand, or (ii) the Fortress Stockholders and their
Affiliates (excluding any RailAmerica Entities or other entities described in clause (i)) , on the
other hand, shall be deemed to be “Affiliates” of one another. For purposes of this definition,
“control” (including, with correlative meanings, the terms “controlled by” and “under common
control with”) as applied to any person, means the possession, directly or indirectly, of
beneficial ownership of, or the power to vote, ten percent (10%) or more of the securities having
voting power for the election of directors (or other persons acting in similar capacities) of such
person or the power otherwise to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities, by contract or otherwise.
(b) “beneficially own” and “beneficial ownership” and similar terms used
herein shall be determined in accordance with Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934.
(c) “entire Board of Directors” means the total number of directors which the
Corporation would have if there were no vacancies.
(d) “Fortress Affiliate Stockholders” shall mean (A) any director of the Corporation
who may be deemed an Affiliate of Fortress Investment Group LLC (“FIG”), (B) any director
or officer of FIG and (C) any investment funds (including any managed accounts) managed directly or
indirectly by FIG or its Affiliates.
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(e) “Fortress Stockholders” shall mean (i) the Initial Stockholder, (ii) each Fortress
Affiliate Stockholder and (iii) each Permitted Transferee who becomes a party to or bound by the
provisions of the Stockholders Agreement, in accordance with the terms thereof, or Permitted
Transferee thereof who is entitled to enforce the provisions of the Stockholders Agreement in
accordance with the terms thereof, in each case of clauses (i), (ii) and (iii) to the extent that
the Initial Stockholder, Fortress Affiliate Stockholders and Permitted Transferees, together, hold
at least an amount of the Corporation’s common stock equal to 1% of the Corporation’s common stock
issued and outstanding immediately after the consummation of the initial public offering of the
Corporation’s common stock pursuant to an effective registration statement under the Securities Act
of 1933, as amended.
(f) “Governmental Entity” shall mean any national, state, provincial, municipal, local
or foreign government, any court, arbitral tribunal, administrative agency or commission or other
governmental or regulatory authority, commission or agency or any non-governmental, self-regulatory
authority, commission or agency.
(g) “Initial Stockholder” shall mean RR Acquisition Holding LLC and its Subsidiaries
(other than Subsidiaries that constitute RailAmerica Entities).
(h) “Judgment” shall mean any order, writ, injunction, award, judgment, ruling or
decree of any Governmental Entity.
(i) “Law” shall mean any statute, law, code, ordinance, rule or regulation of any
Governmental Entity.
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(j) “Lien” shall mean any pledge, claim, equity, option, lien, charge, mortgage,
easement, right-of-way, call right, right of first refusal, “tag”- or
“drag”- along right, encumbrance, security interest or other similar restriction of any kind
or nature whatsoever.
(k) “Permitted Transferee” shall mean, with respect to each Fortress Stockholder, (i)
any other Fortress Stockholder, (ii) such Fortress Stockholder’s Affiliates and (iii) in the case
of any Fortress Stockholder, (A) any member or general or limited partner of such Fortress
Stockholder (including, without limitation, any member of the Initial Stockholder), (B) any
corporation, partnership, limited liability company or other entity that is an Affiliate of such
Fortress Stockholder or any general or limited partner of such Fortress Stockholder (collectively,
“Fortress Stockholder Affiliates”), (C) any investment funds managed directly or indirectly
by such Fortress Stockholder or any Fortress Stockholder Affiliate (a “Fortress Stockholder
Fund”), (D) any general or limited partner of any Fortress Stockholder Fund, (E) any managing
director, general partner, director, limited partner, officer or employee of any Fortress
Stockholder Affiliate, or any spouse, lineal descendant, sibling, parent, heir, executor,
administrator, testamentary trustee, legatee or beneficiary of any of the foregoing persons
described in this clause (E) (collectively, “Fortress Stockholder Associates”) or (F) any
trust, the beneficiaries of which, or any corporation, limited liability company or partnership,
the stockholders, members or general or limited partners of which, consist solely of any one or
more of such Fortress Stockholder, any general or limited partner of such Fortress Stockholder, any
Fortress Stockholder Affiliates, any Fortress Stockholder Fund, any Fortress Stockholder
Associates, their spouses or their lineal descendants.
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(l) “RailAmerica Entities” means the Corporation and its Subsidiaries, and
“RailAmerica Entity” shall mean any of the RailAmerica Entities.
(m) “Restriction” with respect to any capital stock, partnership interest, membership
interest in a limited liability company or other equity interest or security, shall mean any voting
or other trust or agreement, option, warrant, preemptive right, right of first offer, right of
first refusal, escrow arrangement, proxy, buy-sell agreement, power of attorney or other contract,
any Law, license, permit or Judgment that, conditionally or unconditionally, (i) grants to any
person the right to purchase or otherwise acquire, or obligates any person to sell or otherwise
dispose of or issue, or otherwise results or, whether upon the occurrence of any event or with
notice or lapse of time or both or otherwise, may result in any person acquiring, (A) any of such
capital stock, partnership interest, membership interest in a limited liability company or other
equity interest or security, (B) any of the proceeds of, or any distributions paid or that are or
may become payable with respect to, any of such capital stock, partnership interest, membership
interest in a limited liability company or other equity interest or security or (C) any interest in
such capital stock, partnership interest, membership interest in a limited liability company or
other equity interest or security or any such proceeds or distributions, (ii) restricts or, whether
upon the occurrence of any event or with notice or lapse of time or both or otherwise, is
reasonably likely to restrict the transfer or voting of, or the exercise of any rights or the
enjoyment of any benefits arising by reason of ownership of, any such capital stock, partnership
interest, membership interest in a limited liability company or other equity interest or security
or any such proceeds or distributions or (iii) creates or, whether upon the occurrence of any event
or with notice
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or lapse of time or both or otherwise, is reasonably likely to create a Lien or
purported Lien affecting such capital stock, partnership interest, membership interest in a limited
liability company or other equity interest or security, proceeds or distributions.
(n) “Stockholders Agreement” shall mean the stockholders agreement, dated as of
, 2009, between the Corporation and the Initial Stockholder, as may be amended from time
to time.
(o) “Subsidiary” with respect to any person means: (i) a corporation, a majority in
voting power of whose capital stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly owned by such person, by a Subsidiary of such
person, or by such person and one or more Subsidiaries of such person, without regard to whether
the voting of such capital stock is subject to a voting agreement or similar Restriction, (ii) a
partnership or limited liability company in which such person or a Subsidiary of such person is, at
the date of determination, (A) in the case of a partnership, a general partner of such partnership
with the power affirmatively to direct the policies and management of such partnership or (B) in
the case of a limited liability company, the managing member or, in the absence of a managing
member, a member with the power affirmatively to direct the policies and management of such limited
liability company or (iii) any other person (other than a corporation) in which such person, a
Subsidiary of such person or such person and one or more Subsidiaries of such person, directly or
indirectly, at the date of determination thereof, has (A) the power to elect or direct the election
of a majority of the members of the governing body of such person (whether or not such power is
subject to a voting
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agreement or similar restriction) or (B) in the absence of such a governing
body, a majority ownership interest.
* * *
Adopted as of:
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Dates Referenced Herein and Documents Incorporated by Reference