UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 26, 2011
FedEx Corporation
(Exact name of registrant as specified in its charter)
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Delaware
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1-15829
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62-1721435
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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942 South Shady Grove Road,
Memphis, Tennessee
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38120
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
(901) 818-7500
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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SECTION 5. CORPORATE GOVERNANCE AND MANAGEMENT.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
(a)
Amendments to Certificate of Incorporation and Bylaws
. On September 26, 2011, the
stockholders of FedEx Corporation approved an amendment to FedExs Second Amended and Restated
Certificate of Incorporation to delete the provision that special meetings of stockholders may be
called only by the Board of Directors (the Charter Amendment). The Board of Directors previously
adopted amendments to FedExs Amended and Restated Bylaws to provide holders of 20% or more of
FedExs common stock the right, subject to certain notice, information and other requirements, to
call a special meeting of stockholders, which became effective upon the stockholders approval of
the Charter Amendment (the Bylaw Amendments). The Charter Amendment and the Bylaw Amendments are
effective as of September 26, 2011.
A brief summary of the amendments to FedExs Second Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws was included as part of Proposal 2 in FedExs
definitive proxy statement filed with the Securities and Exchange Commission on August 15, 2011.
The summary contained in the proxy statement is qualified by and subject to the full text of
FedExs Third Amended and Restated Certificate of Incorporation (which reflects the Charter
Amendment) and Amended and Restated Bylaws, as adopted and effective as of September 26, 2011
(which reflect the Bylaw Amendments).
The Third Amended and Restated Certificate of Incorporation and a copy marked to show changes
from the Second Amended and Restated Certificate of Incorporation are attached hereto as Exhibits
3.1 and 3.2, respectively, and are incorporated herein by reference. The Amended and Restated
Bylaws, as adopted and effective as of September 26, 2011, and a copy marked to show changes from
the prior Bylaws are attached hereto as Exhibits 3.3 and 3.4, respectively, and are incorporated
herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
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(a)
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FedExs annual meeting of stockholders was held on September 26, 2011.
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(b)
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The stockholders took the following actions at the annual meeting:
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Proposal 1
: The stockholders elected twelve directors, each of whom will hold office
until the annual meeting of stockholders to be held in 2012 and until his or her successor is duly
elected and qualified. Each director received more votes cast
for than votes cast against his or her
election. The tabulation of votes with respect to each nominee for director was as
follows:
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Votes
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Votes
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Broker
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Nominee
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For
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Against
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Abstentions
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Non-Votes
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Frederick W. Smith
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246,552,633
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8,187,403
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217,081
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26,300,310
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James L. Barksdale
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231,818,703
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22,874,778
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263,636
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26,300,310
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John A. Edwardson
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244,776,830
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9,910,358
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269,929
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26,300,310
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Shirley Ann Jackson
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214,839,481
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39,863,048
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254,588
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26,300,310
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Steven R. Loranger
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231,268,634
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23,404,518
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283,965
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26,300,310
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Gary W. Loveman
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251,005,378
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3,688,535
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263,204
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26,300,310
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R. Brad Martin
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251,168,202
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3,433,013
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355,902
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26,300,310
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Joshua Cooper Ramo
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250,669,561
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4,016,395
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271,161
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26,300,310
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Susan C. Schwab
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248,648,245
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6,069,216
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239,656
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26,300,310
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Joshua I. Smith
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247,099,920
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7,524,881
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332,316
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26,300,310
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David P. Steiner
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248,526,965
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6,166,418
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263,734
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26,300,310
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Paul S. Walsh
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244,531,187
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10,099,341
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326,589
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26,300,310
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Proposal 2
: An amendment to FedExs Certificate of Incorporation in order to allow
holders of 20% or more of FedExs common stock to call a special meeting of stockholders, subject
to the provisions of FedExs Bylaws, was approved by stockholders. The tabulation of votes on this
matter was as follows:
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278,893,352 votes for (87.9% of the outstanding shares on August 1, 2011, the record date of the annual meeting)
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1,998,410 votes against (0.6% of the outstanding shares on August 1, 2011, the record date of the annual meeting)
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365,665 abstentions (0.1% of the outstanding shares on August 1, 2011, the record date of the annual meeting)
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There were no broker non-votes for this item
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Proposal 3
: The Audit Committees designation of Ernst & Young LLP as FedExs
independent registered public accounting firm for the fiscal year ending May 31, 2012 was ratified
by stockholders. The tabulation of votes on this matter was as follows:
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278,247,527 votes for (98.9% of the voted shares)
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2,742,052 votes against (1.0% of the voted shares)
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267,848 abstentions (0.1% of the voted shares)
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There were no broker non-votes for this item
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Proposal 4
: The compensation of FedExs named executive officers was approved, on an
advisory basis, by stockholders. The tabulation of votes on this matter was as follows:
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245,516,629 votes for (96.3% of the voted shares)
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9,016,132 votes against (3.5% of the voted shares)
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424,356 abstentions (0.2% of the voted shares)
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26,300,310 broker non-votes
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Proposal 5
: An annual advisory vote on executive compensation was approved, on an
advisory basis, by stockholders. The tabulation of votes on this matter was as follows:
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233,192,626 votes for every year (91.5% of the voted shares)
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631,057 votes for every two years (0.3% of the voted shares)
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20,552,671 votes for every three years (8.1% of the voted shares)
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580,763 abstentions (0.2% of the voted shares)
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26,300,310 broker non-votes
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Proposal 6
: A stockholder proposal requesting that the Board of Directors adopt a
policy that the Chairman of the Board be an independent director who has not previously served as
an executive officer of FedEx was not approved by stockholders. The tabulation of votes on this
matter was as follows:
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92,593,584 votes for (36.3% of the voted shares)
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159,471,790 votes against (62.6% of the voted shares)
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2,891,468 abstentions (1.1% of the voted shares)
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26,300,585 broker non-votes
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Proposal 7
: A stockholder proposal requesting that senior executives be required to
retain a significant percentage of stock acquired through equity pay programs until two years
following termination of employment was not approved by stockholders. The tabulation of votes on
this matter was as follows:
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56,194,706 votes for (22.0% of the voted shares)
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197,148,981 votes against (77.3% of the voted shares)
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1,613,155 abstentions (0.6% of the voted shares)
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26,300,585 broker non-votes
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Proposal 8
: A stockholder proposal requesting that FedEx publish a report, updated
semi-annually, disclosing information about FedExs political contributions was not approved by
stockholders. The tabulation of votes on this matter was as follows:
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59,708,596 votes for (23.4% of the voted shares)
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155,565,982 votes against (61.0% of the voted shares)
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39,682,264 abstentions (15.6% of the voted shares)
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26,300,585 broker non-votes
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(d) As set forth above, a majority of the votes cast for Proposal 5 specified that future
advisory votes on executive compensation should be held every year. In light of these results, the
Board of Directors has determined to hold an annual stockholder advisory vote on executive
compensation until the next advisory vote on the frequency of stockholder votes on executive
compensation, which will occur no later than FedExs annual meeting of stockholders in 2017.
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SECTION 9 FINANCIAL STATEMENTS AND EXHIBITS
Item 9.01. Financial Statements and Exhibits.
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Exhibit
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Number
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Description
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3.1
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Third Amended and Restated Certificate of Incorporation of FedEx
Corporation.
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3.2
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Third Amended and Restated Certificate of Incorporation of FedEx
Corporation, marked to show amendments effective as of September 26, 2011.
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3.3
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Amended and Restated Bylaws of FedEx Corporation.
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3.4
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Amended and Restated Bylaws of FedEx Corporation, marked to show
amendments effective as of September 26, 2011.
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5
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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FedEx Corporation
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Date: September 28, 2011
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By:
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/s/ Christine P. Richards
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Christine P. Richards
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Executive Vice President, General Counsel and
Secretary
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EXHIBIT INDEX
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Exhibit
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Number
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Description
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3.1
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Third Amended and Restated Certificate of Incorporation of FedEx
Corporation.
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3.2
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Third Amended and Restated Certificate of Incorporation of FedEx
Corporation, marked to show amendments effective as of September 26, 2011.
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3.3
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Amended and Restated Bylaws of FedEx Corporation.
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3.4
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Amended and Restated Bylaws of FedEx Corporation, marked to show
amendments effective as of September 26, 2011.
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E-1
Exhibit 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
FEDEX CORPORATION
FedEx Corporation, a corporation organized and existing under the laws of the State of
Delaware (the Corporation), hereby certifies that the Corporation was originally incorporated
under the name Fast Holding Inc. on October 2, 1997, and that its original Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on the same date. The
Corporation further certifies that this Third Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions previously filed with the Secretary of
State of the State of Delaware. This Third Amended and Restated Certificate of Incorporation (this
Amended and Restated Certificate of Incorporation) has been duly adopted pursuant to the
provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware.
ARTICLE FIRST: The name of the corporation is
FedEx Corporation.
ARTICLE SECOND: The address of its registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The
name of its registered agent at such address is The Corporation Trust Company.
ARTICLE THIRD: The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE FOURTH: The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 804,000,000 shares consisting of 4,000,000 shares of Series
Preferred Stock, no par value (herein called the Series Preferred Stock), and 800,000,000 shares
of Common Stock, par value $0.10 per share (herein called the Common Stock).
The following is a statement of the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, in respect of each class of stock of the Corporation:
I. SERIES PREFERRED STOCK
1.
Conditions of Issuance
. Series Preferred Stock may be issued from time to time
and in such amounts and for such consideration as may be determined by the Board of Directors of
the Corporation. The designation and relative rights and preferences of each series, except to the
extent such designations and relative rights and preferences may be required by Delaware law or
this Amended and Restated Certificate of Incorporation, shall be such as are fixed by the Board of
Directors and stated in a resolution or resolutions adopted by the Board of Directors authorizing
such series (herein called the Series Resolution). A Series Resolution authorizing any series
shall fix:
A. The designation of the series, which may be by distinguishing number, letter or
title;
B. The number of shares of such series;
C. The divided rate or rates of such shares, the date at which dividends, if declared,
shall be payable, and whether or not such dividends are to be cumulative, in which case such
Series Resolution shall state the date or dates from which dividends shall be cumulative;
D. The amounts payable on shares of such series in the event of voluntary or
involuntary liquidation, dissolution or winding up;
E. The redemption rights and price or prices, if any, for the shares of such series;
F. The terms and amount of any sinking fund or analogous fund providing for the
purchase or redemption of the shares of such series, if any;
G. The voting rights, if any, granted to the holders of the shares of such series in
addition to those required by Delaware law or this Amended and Restated Certificate of
Incorporation;
H. Whether the shares of such series shall be convertible into shares of the
Corporations Common Stock or any other class of the Corporations capital stock, and if
convertible, the conversion price or prices, any adjustment thereof and any other terms and
conditions upon which such conversion shall be made;
I. Any other rights, preferences, restrictions or conditions relative to the shares of
such series as may be permitted by Delaware law or this Amended and Restated Certificate of
Incorporation.
2.
Restrictions
. In no event, so long as any Series Preferred Stock shall remain
outstanding, shall any dividend whatsoever be declared or paid upon, nor shall any distribution be
made upon, Common Stock, other than a dividend or distribution payable in shares of such Common
Stock, nor (without the written consent of such number of the holders of the outstanding Series
Preferred Stock as shall have been specified in the Series Resolution authorizing the issuance of
such outstanding Series Preferred Stock) shall any shares of Common Stock be purchased or redeemed
by the Corporation, nor shall any moneys be paid to or made available for a sinking fund for the
purchase or redemption of any Common Stock, unless in each instance full dividends on all
outstanding shares of the Series Preferred Stock for all past dividend periods shall have been paid
and the full dividend on all outstanding shares of the Series Preferred Stock for the current
dividend period shall have been paid or declared and sufficient funds for the payment thereof set
apart and any arrears in the mandatory redemption of the Series Preferred Stock shall have been
made good.
3.
Priority
. Series Preferred Stock, with respect to both dividends and distribution
of assets on liquidation, dissolution or winding up, shall rank prior to the Common Stock.
4.
Voting Rights
. Holders of Series Preferred Stock shall have no right to vote for
the election of Directors of the Corporation or on any other matter unless a vote of such class is
required by Delaware law, this Amended and Restated Certificate of Incorporation or a Series
Resolution.
5.
Filing of Amendments
. The Board of Directors shall adopt amendments to this
Amended and Restated Certificate of Incorporation fixing, with respect to each series of Series
Preferred Stock, the matters described in paragraph 1 of this Subdivision I.
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II. COMMON STOCK
All shares of Common Stock shall be identical and shall entitle the holders thereof to the
same rights and privileges.
1.
Dividends
. When and as dividends are declared upon the Common Stock, whether
payable in cash, in property or in shares of stock of the Corporation, the holders of Common Stock
shall be entitled to share equally, share for share, in such dividends.
2.
Voting Rights
. The holders of Common Stock shall have the sole right to vote for
the election of Directors of the Corporation or on any other matter unless required by Delaware
law, this Amended and Restated Certificate of Incorporation or a Series Resolution. The holders of
Common Stock shall be entitled to one vote for each share held.
III. OTHER PROVISIONS
1. No holder of any of the shares of any class or series of stock or of options, warrants or
other rights to purchase shares of any class or series of stock or of other securities of the
Corporation shall have any pre-emptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities convertible into or exchangeable for
stock of the Corporation of any class or series, or carrying any right to purchase stock of any
class or series, but any such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or carrying any right to
purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such holders or others, and upon such
terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion.
2. Shares of Common Stock may be issued from time to time as the Board of Directors of the
Corporation shall determine and on such terms and for such consideration as shall be fixed by the
Board of Directors.
ARTICLE FIFTH: [Repealed]
ARTICLE SIXTH: [Repealed]
ARTICLE SEVENTH: The corporation is to have perpetual existence.
ARTICLE EIGHTH: In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors is expressly authorized:
The Board of Directors shall have power to make, alter, amend and repeal the By-laws (except
so far as the By-laws adopted by the stockholders shall otherwise provide). Any By-laws made by
the Directors under the powers conferred hereby may be altered, amended or repealed by the
Directors or by the stockholders.
To authorize and cause to be executed mortgages and liens upon the real and personal property
of the Corporation.
To set apart out of any of the funds of the Corporation available for dividends a reserve or
reserves for any proper purpose and to abolish any such reserve in the manner in which it was
created.
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By a majority of the whole Board, to designate one or more committees, each committee to
consist of one or more of the Directors of the Corporation. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. The By-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the resolution of the Board of
Directors, or in the By-laws of the Corporation, 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; but no such committee shall have the power or authority in reference to amending the
Amended and Restated Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially
all of the Corporations property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution or By-laws expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute, to sell, lease or
exchange all or substantially all of the property and assets of the Corporation, including its good
will and its corporate franchises, upon such terms and conditions and for such consideration, which
may consist in whole or in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its Board of Directors shall deem
expedient and for the best interests of the Corporation.
ARTICLE NINTH: Whenever a compromise or arrangement is proposed between this Corporation and
its creditors or any class of them and/or between this Corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or stockholder thereof, or on
the application of any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of
any receiver or receivers appointed for this Corporation under the provisions of Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or class of creditors and/or of the
stockholders/or class stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of this Corporation as consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors and/or on all the
stockholders or class of stockholders of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE TENTH: Meetings of stockholders may be held within or without the State of Delaware,
as the By-laws may provide. The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the By-laws of the Corporation.
Elections of Directors need not be by written ballot unless the By-laws of the Corporation shall so
provide.
ARTICLE ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted
subject to this reservation.
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ARTICLE TWELFTH: Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of such holders and may not
be effected by any consent in writing by such holders.
ARTICLE THIRTEENTH: No Director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director, provided that this
ARTICLE THIRTEENTH shall not eliminate or limit the liability of a Director (i) for any breach of
the Directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of Title 8 of the Delaware Code or any amendment or successor provision thereto,
or (iv) for any transaction from which the Director derived an improper personal benefit. This
ARTICLE THIRTEENTH shall not eliminate or limit the liability of a Director for any act or omission
occurring prior to the date when this ARTICLE THIRTEENTH becomes effective. Neither the amendment
nor repeal of this ARTICLE THIRTEENTH, nor the adoption of any provision of the Amended and
Restated Certificate of Incorporation inconsistent with this ARTICLE THIRTEENTH shall eliminate or
reduce the effect of this ARTICLE THIRTEENTH with respect to any matter occurring, or any cause of
action, suit or claim that, but for this ARTICLE THIRTEENTH, would accrue or arise prior to such
amendment, repeal or adoption of an inconsistent provision.
* * * * * *
IN WITNESS WHEREOF, FedEx Corporation has caused this Third Amended and Restated Certificate
of Incorporation to be signed by Christine P. Richards, its Executive Vice President, General
Counsel and Secretary, this 26th day of September, 2011.
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FedEx Corporation
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By:
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/s/ Christine P. Richards
Christine P. Richards
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Executive Vice President, General Counsel
and Secretary
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5
Exhibit 3.2
SECOND
THIRD
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
FEDEX CORPORATION
FedEx Corporation, a corporation organized and existing under the laws of the State of
Delaware (the Corporation), hereby certifies that the Corporation was originally incorporated
under the name Fast Holding Inc. on October 2, 1997, and that its original Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on the same date. The
Corporation further certifies that this
Second
Third
Amended and Restated Certificate of
Incorporation restates and integrates and further amends the provisions previously filed with the
Secretary of State of the State of Delaware. This
Second
Third
Amended and Restated
Certificate of Incorporation (this Amended and Restated Certificate of Incorporation) has been
duly adopted pursuant to the provisions of Sections 242 and 245 of the General Corporation Law of
the State of Delaware.
ARTICLE FIRST: The name of the corporation is
FedEx Corporation.
ARTICLE SECOND: The address of its registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The
name of its registered agent at such address is The Corporation Trust Company.
ARTICLE THIRD: The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE FOURTH: The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 804,000,000 shares consisting of 4,000,000 shares of Series
Preferred Stock, no par value (herein called the Series Preferred Stock), and 800,000,000 shares
of Common Stock, par value $0.10 per share (herein called the Common Stock).
The following is a statement of the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, in respect of each class of stock of the Corporation:
I. SERIES PREFERRED STOCK
1.
Conditions of Issuance
. Series Preferred Stock may be issued from time to time
and in such amounts and for such consideration as may be determined by the Board of Directors of
the Corporation. The designation and relative rights and preferences of each series, except to the
extent such designations and relative rights and preferences may be required by Delaware law or
this Amended and Restated Certificate of Incorporation, shall be such as are fixed by the Board of
Directors and stated in a resolution or resolutions adopted by the Board of Directors authorizing
such series (herein called the Series Resolution). A Series Resolution authorizing any series
shall fix:
A. The designation of the series, which may be by distinguishing number, letter or
title;
B. The number of shares of such series;
C. The divided rate or rates of such shares, the date at which dividends, if declared,
shall be payable, and whether or not such dividends are to be cumulative, in which case such
Series Resolution shall state the date or dates from which dividends shall be cumulative;
D. The amounts payable on shares of such series in the event of voluntary or
involuntary liquidation, dissolution or winding up;
E. The redemption rights and price or prices, if any, for the shares of such series;
F. The terms and amount of any sinking fund or analogous fund providing for the
purchase or redemption of the shares of such series, if any;
G. The voting rights, if any, granted to the holders of the shares of such series in
addition to those required by Delaware law or this Amended and Restated Certificate of
Incorporation;
H. Whether the shares of such series shall be convertible into shares of the
Corporations Common Stock or any other class of the Corporations capital stock, and if
convertible, the conversion price or prices, any adjustment thereof and any other terms and
conditions upon which such conversion shall be made;
I. Any other rights, preferences, restrictions or conditions relative to the shares of
such series as may be permitted by Delaware law or this Amended and Restated Certificate of
Incorporation.
2.
Restrictions
. In no event, so long as any Series Preferred Stock shall remain
outstanding, shall any dividend whatsoever be declared or paid upon, nor shall any distribution be
made upon, Common Stock, other than a dividend or distribution payable in shares of such Common
Stock, nor (without the written consent of such number of the holders of the outstanding Series
Preferred Stock as shall have been specified in the Series Resolution authorizing the issuance of
such outstanding Series Preferred Stock) shall any shares of Common Stock be purchased or redeemed
by the Corporation, nor shall any moneys be paid to or made available for a sinking fund for the
purchase or redemption of any Common Stock, unless in each instance full dividends on all
outstanding shares of the Series Preferred Stock for all past dividend periods shall have been paid
and the full dividend on all outstanding shares of the Series Preferred Stock for the current
dividend period shall have been paid or declared and sufficient funds for the payment thereof set
apart and any arrears in the mandatory redemption of the Series Preferred Stock shall have been
made good.
3.
Priority
. Series Preferred Stock, with respect to both dividends and distribution
of assets on liquidation, dissolution or winding up, shall rank prior to the Common Stock.
4.
Voting Rights
. Holders of Series Preferred Stock shall have no right to vote for
the election of Directors of the Corporation or on any other matter unless a vote of such class is
required by Delaware law, this Amended and Restated Certificate of Incorporation or a Series
Resolution.
5.
Filing of Amendments
. The Board of Directors shall adopt amendments to this
Amended and Restated Certificate of Incorporation fixing, with respect to each series of Series
Preferred Stock, the matters described in paragraph 1 of this Subdivision I.
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II. COMMON STOCK
All shares of Common Stock shall be identical and shall entitle the holders thereof to the
same rights and privileges.
1.
Dividends
. When and as dividends are declared upon the Common Stock, whether
payable in cash, in property or in shares of stock of the Corporation, the holders of Common Stock
shall be entitled to share equally, share for share, in such dividends.
2.
Voting Rights
. The holders of Common Stock shall have the sole right to vote for
the election of Directors of the Corporation or on any other matter unless required by Delaware
law, this Amended and Restated Certificate of Incorporation or a Series Resolution. The holders of
Common Stock shall be entitled to one vote for each share held.
III. OTHER PROVISIONS
1. No holder of any of the shares of any class or series of stock or of options, warrants or
other rights to purchase shares of any class or series of stock or of other securities of the
Corporation shall have any pre-emptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities convertible into or exchangeable for
stock of the Corporation of any class or series, or carrying any right to purchase stock of any
class or series, but any such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or carrying any right to
purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such holders or others, and upon such
terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion.
2. Shares of Common Stock may be issued from time to time as the Board of Directors of the
Corporation shall determine and on such terms and for such consideration as shall be fixed by the
Board of Directors.
ARTICLE FIFTH: [Repealed]
ARTICLE SIXTH: [Repealed]
ARTICLE SEVENTH: The corporation is to have perpetual existence.
ARTICLE EIGHTH: In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors is expressly authorized:
The Board of Directors shall have power to make, alter, amend and repeal the By-laws (except
so far as the By-laws adopted by the stockholders shall otherwise provide). Any By-laws made by
the Directors under the powers conferred hereby may be altered, amended or repealed by the
Directors or by the stockholders.
To authorize and cause to be executed mortgages and liens upon the real and personal property
of the Corporation.
To set apart out of any of the funds of the Corporation available for dividends a reserve or
reserves for any proper purpose and to abolish any such reserve in the manner in which it was
created.
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By a majority of the whole Board, to designate one or more committees, each committee to
consist of one or more of the Directors of the Corporation. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. The By-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the resolution of the Board of
Directors, or in the By-laws of the Corporation, 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; but no such committee shall have the power or authority in reference to amending the
Amended and Restated Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially
all of the Corporations property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution or By-laws expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute, to sell, lease or
exchange all or substantially all of the property and assets of the Corporation, including its good
will and its corporate franchises, upon such terms and conditions and for such consideration, which
may consist in whole or in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its Board of Directors shall deem
expedient and for the best interests of the Corporation.
ARTICLE NINTH: Whenever a compromise or arrangement is proposed between this Corporation and
its creditors or any class of them and/or between this Corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or stockholder thereof, or on
the application of any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of
any receiver or receivers appointed for this Corporation under the provisions of Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or class of creditors and/or of the
stockholders/or class stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of this Corporation as consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors and/or on all the
stockholders or class of stockholders of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE TENTH: Meetings of stockholders may be held within or without the State of Delaware,
as the By-laws may provide. The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places as may be
designated from time to time
by the Board of Directors or in the By-laws of the Corporation. Elections of Directors need
not be by written ballot unless the By-laws of the Corporation shall so provide.
ARTICLE ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted
subject to this reservation.
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ARTICLE TWELFTH: Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of such holders and may not
be effected by any consent in writing by such holders.
Except as otherwise required by law and
subject to the rights of the holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation, special meetings of stockholders of the
Corporation may be called only by the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors.
ARTICLE THIRTEENTH: No Director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director, provided that this
ARTICLE THIRTEENTH shall not eliminate or limit the liability of a Director (i) for any breach of
the Directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of Title 8 of the Delaware Code or any amendment or successor provision thereto,
or (iv) for any transaction from which the Director derived an improper personal benefit. This
ARTICLE THIRTEENTH shall not eliminate or limit the liability of a Director for any act or omission
occurring prior to the date when this ARTICLE THIRTEENTH becomes effective. Neither the amendment
nor repeal of this ARTICLE THIRTEENTH, nor the adoption of any provision of the Amended and
Restated Certificate of Incorporation inconsistent with this ARTICLE THIRTEENTH shall eliminate or
reduce the effect of this ARTICLE THIRTEENTH with respect to any matter occurring, or any cause of
action, suit or claim that, but for this ARTICLE THIRTEENTH, would accrue or arise prior to such
amendment, repeal or adoption of an inconsistent provision.
* * * * * *
IN WITNESS WHEREOF, FedEx Corporation has caused this
Second
Third
Amended and Restated
Certificate of Incorporation to be signed by Christine P. Richards, its Executive Vice President,
General Counsel and Secretary, this
25
26
th day of September,
2006
.
2011.
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FedEx Corporation
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By:
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/s/ Christine P. Richards
Christine P. Richards
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Executive Vice President, General Counsel
and Secretary
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5
Exhibit 3.3
FedEx Corporation
AMENDED AND RESTATED BYLAWS
Adopted and Effective as of September 26, 2011
TABLE OF CONTENTS
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ARTICLE I. OFFICES
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1
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1 Registered Office and Agent
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1
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2 Other Offices
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1
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ARTICLE II. MEETINGS OF STOCKHOLDERS
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1
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1 Place of Meetings
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1
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2 Annual Meeting
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1
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3 Notice of Annual Meeting
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1
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4 List of Stockholders Entitled to Vote
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1
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5 Special Meetings
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2
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6 Notice of Special Meeting
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5
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7 Quorum; Adjournment of Meetings
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5
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8 Required Vote
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5
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9 Voting; Proxies
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6
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10 Conduct of Meeting
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6
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11 Action Without a Meeting
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6
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12 Nomination of Directors and Stockholder Business at Annual Meeting
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6
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ARTICLE III. DIRECTORS
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1 Number, Election and Term of Directors
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8
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2 Newly Created Directorships and Vacancies
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9
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3 Powers
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9
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4 Place of Meetings; Minutes
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10
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5 Regular Meetings
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10
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6 Special Meetings
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10
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7 Quorum; Required Vote; Adjournment
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10
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8 Action Without a Meeting
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10
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9 Board Committees
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10
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10 Committee Authority
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10
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11 Committee Procedure and Meetings
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11
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12 Compensation
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11
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13 Stockholder Rights Plans
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11
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ARTICLE IV. NOTICES
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11
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1 Method
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11
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2 Waiver
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12
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ARTICLE V. OFFICERS
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12
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1 Titles; Election; Term of Office
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12
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2 Removal
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12
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3 Vacancies
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12
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4 Powers and Duties
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12
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5 Compensation
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12
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ARTICLE VI. INDEMNIFICATION
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13
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1 Rights to Indemnification and Advancement of Expenses
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13
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2 Non-Exclusivity of Rights
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3 Nature of Rights
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13
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ARTICLE VII. MISCELLANEOUS PROVISIONS
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13
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1 Shares of Stock
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13
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2 Stock Certificates
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14
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3 Lost, Stolen or Destroyed Certificates
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14
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4 Record Date
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14
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5 Registered Stockholders
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14
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6 Dividends
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14
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7 Fiscal Year
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14
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8 Seal
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14
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9 Resignations
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15
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10 Forum for Adjudication of Disputes
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15
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11 Invalid Provisions
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15
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12 Headings
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ARTICLE VIII. AMENDMENTS
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-ii-
FedEx Corporation
AMENDED AND RESTATED BYLAWS
ARTICLE I. OFFICES
Section 1.
Registered Office and Agent
. The registered office and registered agent of
the corporation in the State of Delaware shall be as designated from time to time by the
appropriate filing by the corporation in the office of the Secretary of State of the State of
Delaware.
Section 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 or as the business of the corporation may require.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1.
Place of Meetings
. All meetings of the stockholders shall be held at such
place, either within or without the State of Delaware, as shall be designated by the board of
directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
The board of directors may, in its sole discretion, determine that a meeting shall not be held at
any place, but may instead be held solely by means of remote communication in accordance with the
General Corporation Law of the State of Delaware.
Section 2.
Annual Meeting
. An annual meeting of stockholders shall be held on such
date and at such time as shall be designated by the board of directors and stated in the notice of
the meeting or in a duly executed waiver of notice thereof. At each annual meeting, the
stockholders shall elect directors and transact such other business as may properly be brought
before the meeting.
Section 3.
Notice of Annual Meeting
. Written notice of the annual meeting stating the
place (if any), date and time of the meeting and the means of remote communication (if any) by
which stockholders and proxy holders may be deemed to be present in person and vote at such meeting
shall be given not less than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 4.
List of Stockholders Entitled to Vote
. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before every meeting of
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, for a period of at least ten days prior to the meeting,
either (a) 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 (b) during ordinary
business hours, at the principal place of business of the corporation. If 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. If the meeting
is to be held at a place, 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. If the
meeting is to be held solely by means of remote communication, the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be provided with the
notice of the meeting.
Section 5.
Special Meetings
. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be
called by the chairman of the board and chief executive officer and shall be called by the chairman
of the board and chief executive officer or secretary at the request in writing of a majority of
the board of directors. Such request shall state the purpose or purposes of the proposed meeting.
In addition, special meetings of the stockholders shall be called by the chairman of the board
and chief executive officer or the secretary following receipt by the secretary of a written
request for a special meeting of stockholders (a Special Meeting Request) from the holders of
shares representing at least 20% of the outstanding shares of the corporation entitled to vote (the
Requisite Holders) if such Special Meeting Request complies with the requirements set forth in
this Section and all other requirements of this Section are met. However, notwithstanding the
foregoing or any other provision in this Section, outstanding shares of the corporation that are
subject to Hedging Transactions (as defined in Section 12 of this Article II) shall not under any
circumstance be included toward the required 20% threshold, and thus, stockholders owning stock of
the corporation that is subject to Hedging Transactions shall not be considered Requisite Holders
with respect to such stock. The board of directors shall determine, in its sole discretion,
whether all such requirements of this Section have been satisfied, and such determination shall be
binding on the corporation and its stockholders.
If a Special Meeting Request complies with this Section, the board of directors shall
determine the record date (in accordance with Section 4 of Article VII herein), place (if any),
date and time of the special meeting of stockholders requested in such Special Meeting Request;
provided, however, that the date of any such special meeting shall not be more than 90 days after
the secretarys receipt of the properly submitted Special Meeting Request. Notwithstanding the
foregoing, the board of directors may (in lieu of calling the special meeting of stockholders
requested in such Special Meeting Request) present an identical or substantially similar item (as
determined in good faith by the board of directors, a Similar Item) for stockholder approval at
any other meeting of stockholders that is held no more than 90 days after the secretary receives
such Special Meeting Request. The nomination, election, or removal of directors shall always be
deemed a Similar Item with respect to all items of business involving the nomination, election,
or removal of directors, changing the size of the board of directors and filling of vacancies or
newly created directorships resulting from any increase in the authorized number of directors.
A Special Meeting Request must be delivered by hand, by registered U.S. mail (return receipt
requested), or by courier service to the attention of the secretary at the principal executive
offices
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of the corporation. A Special Meeting Request shall only be valid if it is signed and dated by
each of the Requisite Holders (or their duly authorized agents) and if such request includes:
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(a)
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a statement of the specific purpose or purposes of the special meeting of stockholders,
the matter or matters proposed to be acted on at the special meeting of stockholders, and
the reasons for conducting such business at the special meeting of stockholders;
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(b)
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a statement of any material interest of each such Requisite Holder and the beneficial
owners, if any, on whose behalf the Special Meeting Request is being made in the business
proposed to be conducted at the special meeting of stockholders;
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(c)
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the text of any business, proposed resolution or amendment to the bylaws, certificate
of incorporation, or any other corporate document to be considered at the special meeting
of stockholders;
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(d)
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any other information which may be required pursuant to these bylaws, including but not
limited to such information, if applicable, which shall be set forth in a stockholders
notice required by Section 12 of this Article, or which may be required to be disclosed
under the General Corporation Law of the State of Delaware;
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(e)
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the name and address (as they appear on the corporations books, in the case of
stockholders of record) of each Requisite Holder and the date of each such Requisite
Holders signature (or authorized agents signature);
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(f)
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the class, if applicable, and the number of shares of the corporations stock that are
owned of record or beneficially by each such Requisite Holder and documentary evidence of
such record or beneficial ownership, and the number of any such owned shares of the
corporations stock subject to Hedging Transactions and a representation that all other
shares of the corporations stock owned by such Requisite Holder are not subject to Hedging
Transactions;
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(g)
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a representation that one or more of the Requisite Holders intend to appear in person
or by proxy at the special meeting of stockholders to propose the business to be conducted
at the special meeting of stockholders;
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(h)
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if any Requisite Holder intends to solicit proxies with respect to any business to be
conducted at the special meeting of stockholders, a representation to that effect;
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(i)
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if a purpose of the special meeting of stockholders is the election of one or more
directors, all information that would be required to be included in solicitations of
proxies for election of directors in an election contest, or is otherwise required, in each
case pursuant to and in accordance with Regulation 14A under the Securities Exchange Act of
1934, as amended (the Exchange Act);
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(j)
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an undertaking by the Requisite Holders to notify the corporation in writing of a
change in the information called for by clauses (b) and (f) as of the record date for such
special
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meeting of stockholders, by notice received by the secretary in the same manner as the
Special Meeting Request not later than the 10th day following such record date, and after
the record date by notice so given and received within two business days of any change in
such information and, in any event, as of the close of business on the day preceding the
special meeting date; and
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(k)
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an acknowledgement that any reduction in percentage stock ownership of the Requisite
Holders below the 20% threshold following delivery of the Special Meeting Request to the
secretary shall constitute a revocation of such Special Meeting Request.
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In addition, the Requisite Holders and the beneficial owners, if any, on whose behalf the Special
Meeting Request is being made shall promptly provide any other information reasonably requested by
the corporation.
A Special Meeting Request shall not be valid (and thus the special meeting of stockholders
requested pursuant to the Special Meeting Request will not be held) if (a) the Special Meeting
Request relates to an item of business that is not a proper subject for stockholder action under
applicable law; (b) a Similar Item was presented at any meeting of stockholders held within 90 days
prior to receipt by the corporation of such Special Meeting Request; (c) a Similar Item is included
in the corporations notice as an item of business to be brought before a stockholder meeting that
has been called but not yet held; (d) the Special Meeting Request is received by the corporation
during the period commencing 90 days prior to the first anniversary of the preceding years annual
meeting of stockholders and ending on the date of the current years annual meeting of
stockholders; or (e) the Special Meeting Request was made in a manner that involved a violation of
Regulation 14A under the Exchange Act. For purposes of this paragraph, the date of delivery of the
Special Meeting Request shall be the first date on which a valid Special Meeting Request in which
Requisite Holders representing at least 20% of the outstanding shares of the corporation entitled
to vote in accordance with this Section are participating has been delivered to the corporation.
Only matters that are stated in the Special Meeting Request shall be brought before and acted
upon during the special meeting of stockholders called according to the Special Meeting Request;
provided, however, that nothing herein shall prohibit the board of directors from submitting any
matters to the stockholders at any special meeting of stockholders called by the stockholders
pursuant to this Section. If a valid Special Meeting Request is received by the secretary
subsequent to the receipt of another valid Special Meeting Request and before the date of the
corresponding special meeting of stockholders, all items of business contained in such Special
Meeting Requests may be presented at one special meeting of stockholders. If two or more special
meetings of the stockholders called pursuant to the request of stockholders pursuant to this
Section have been held within the 12-month period before a Special Meeting Request is received by
the secretary, the board of directors may in its discretion, determine not to call or hold such
requested special meeting of stockholders.
Requisite Holders may revoke a Special Meeting Request by written revocation delivered to the
corporation at any time prior to the special meeting of stockholders; provided, however, the board
of directors shall have the sole discretion to determine whether or not to proceed with the
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special meeting of stockholders following such written revocation. Additionally, a Requisite
Holder whose signature (or authorized agents signature) appears on a Special Meeting Request may
revoke such Requisite Holders participation in a Special Meeting Request at any time by written
revocation delivered to the secretary in the same manner as the Special Meeting Request and if,
following any such revocation, the remaining Requisite Holders participating in the Special Meeting
Request do not represent at least 20% of the outstanding shares of the corporation entitled to vote
in accordance with this Section, the Special Meeting Request shall be deemed revoked. Likewise,
any reduction in percentage stock ownership of the Requisite Holders below the 20% threshold
following delivery of the Special Meeting Request to the secretary shall be deemed to be revocation
of the Special Meeting Request.
If none of the Requisite Holders appears or sends a representative to present the business or
nomination submitted by the stockholders in the Special Meeting Request to be conducted at the
special meeting of stockholders, the corporation need not conduct any such business or nomination
for a vote at such special meeting of stockholders.
Section 6.
Notice of Special Meeting
. Written notice of a special meeting stating the
place (if any), date and time of the meeting, the means of remote communication (if any) by which
stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and
the purpose or purposes for which the meeting is called shall be given not less than ten nor more
than sixty days before the date of the meeting to each stockholder entitled to vote at such
meeting. Business transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice of such meeting or in a duly executed waiver of notice of such
meeting.
Section 7.
Quorum; Adjournment of Meetings
. Except as otherwise provided by law or
the certificate of incorporation, the holders of a majority of the outstanding shares entitled to
vote at the meeting, present in person or represented by proxy, shall constitute a quorum at any
meeting of stockholders. If a quorum shall not be present or represented at any meeting of
stockholders, the holders of a majority of the shares entitled to vote at the meeting who are
present in person or represented by proxy or the chairman of the meeting may adjourn the meeting
until a quorum shall be present or represented. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place (if any) thereof and
the means of remote communication (if any) by which stockholders and proxy holders may be deemed to
be present in person and vote at such adjourned meeting are announced at the meeting at which the
adjournment is taken. At any adjourned meeting, any business may be transacted which might have
been transacted at the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 8.
Required Vote
. When a quorum is present at any meeting of stockholders,
the vote of the holders of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote shall decide any question (other than the election of directors)
brought before such meeting, unless the question is one upon which, by express provision of law,
the certificate of incorporation or these bylaws, a different vote is required, in which case such
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express provision shall govern and control the decision of such question. The vote required for
the election of directors shall be as set forth in Section 1 of Article III herein.
Section 9.
Voting; Proxies
. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of capital stock having voting power held by such stockholder.
At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the
stockholder or as permitted by law. Such proxy must be filed with the secretary of the corporation
or his or her representative or otherwise delivered telephonically or electronically as set forth
in the applicable proxy statement, at or before the time of the meeting. No proxy shall be voted
on after three years from its date, unless the proxy provides for a longer period.
Section 10.
Conduct of Meeting
. Except to the extent inconsistent with any rules and
regulations adopted by the board of directors for the conduct of any meeting of stockholders, the
chairman of any meeting of 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.
Section 11.
Action Without a Meeting
. Any action required or permitted to be taken by
the stockholders of the corporation must be effected at a duly called annual or special meeting of
such holders and may not be effected by any consent in writing by such holders.
Section 12.
Nomination of Directors and Stockholder Business at Annual Meeting
.
Nominations of persons for election to the board of directors or proposals of any other business
for stockholder action may be made at an annual meeting of stockholders (a) pursuant to the
corporations notice of meeting (or any supplement thereto), (b) by or at the direction of the
board of directors, or (c) by any stockholder who is entitled to vote at the meeting, who has
complied with the notice procedures set forth in this Section and who was a stockholder of record
at the time of giving such notice and at the time of the annual meeting (this clause (c) shall be
the exclusive means for a stockholder to make nominations or submit other business other than
matters properly brought under Rule 14a-8 under the Exchange Act, and included in the corporations
notice of meeting). For business other than a nomination to be properly brought before an annual
meeting by a stockholder, such business must be a proper matter for stockholder action. A notice
of a stockholder to make a nomination or to bring any other matter for stockholder action before an
annual meeting of stockholders shall be made in writing and received by the secretary of the
corporation not more than 120 days and not less than ninety days in advance of the anniversary date
of the immediately preceding annual meeting; provided, however, that in the event that the annual
meeting is called on a date that is not within thirty days before or sixty days after such
anniversary date, notice by the stockholder in order to be timely must be so received not earlier
than the 120th day prior to such annual meeting and not later than the close of business on the
later of the ninetieth day prior to such annual meeting or the tenth day following the first to
occur of the day on which notice of the date of the annual meeting was mailed or public disclosure
of the date of the annual meeting was made. In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholders notice as described above.
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Every such notice by a stockholder shall set forth:
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(a)
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the name and address of the stockholder who intends to make a nomination or other
business proposal and of the beneficial owner, if any, on whose behalf the nomination or
proposal is made;
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(b)
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a representation that the stockholder is a holder of the corporations voting stock
(indicating the class and number of shares owned beneficially or of record by the
stockholder and by the beneficial owner) and intends to appear in person or by proxy at the
meeting to make the nomination or propose such business specified in the notice;
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(c)
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whether and the extent to which any hedging or other transaction or series of
transactions has been entered into by or on behalf of, or any other agreement, arrangement
or understanding (including any derivative or short positions, profit interests, options,
warrants, stock appreciation or similar rights and any borrowing or lending of shares) has
been made, the effect or intent of which is to mitigate loss to or manage risk or benefit
of share price changes for, or to increase or decrease the voting power of, the stockholder
or the beneficial owner with respect to any share of stock of the corporation (Hedging
Transactions), and a representation that the stockholder will notify the corporation in
writing of any such transaction, agreement, arrangement or understanding in effect as of
the record date for the meeting promptly following the later of the record date or the date
notice of the record date is first publicly disclosed;
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(d)
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a representation whether the stockholder intends to deliver a proxy statement or form
of proxy to holders of at least the percentage of the corporations outstanding shares
required to approve or adopt the proposal or elect the nominee or otherwise to solicit
proxies from stockholders in support of the nomination or proposal;
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(e)
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with respect to notice of an intent to make a nomination, a description of all
agreements, arrangements or understandings (whether written or oral) among the stockholder
or the beneficial owner and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be made by the
stockholder, and a representation that the stockholder will notify the corporation in
writing of any such agreement, arrangement or understanding in effect as of the record date
for the meeting promptly following the later of the record date or the date notice of the
record date is first publicly disclosed;
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(f)
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with respect to notice of an intent to make a nomination, the name and address of each
nominee and such other information regarding each nominee proposed by the stockholder as
would have been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated by the
board of directors of the corporation; and
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(g)
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with respect to notice of an intent to bring up any other business, a description of
the matter, including the complete text of any resolutions intended to be presented at the
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meeting and in the event that such business includes a proposal to amend the bylaws of the
corporation, the language of the proposed amendment, the reasons for bringing up such
matter at the meeting, any personal or other material interest of the stockholder or the
beneficial owner in the matter, and all agreements, arrangements or understandings
(whether written or oral) between the stockholder or the beneficial owner and any other
person or persons (including their names) in connection with the proposal of such matter
by the stockholder, and a representation that the stockholder will notify the corporation
in writing of any such agreement, arrangement or understanding in effect as of the record
date for the meeting promptly following the later of the record date or the date notice of
the record date is first publicly disclosed.
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A stockholder seeking to make a nomination or bring up any other proper matter for stockholder
action before an annual meeting shall promptly provide to the corporation any other information
reasonably requested by the corporation. Notice of intent to make a nomination shall be
accompanied by (a) the written consent of each nominee to serve as a director of the corporation if
so elected, and (b) a statement whether such nominee, if elected, intends to tender, promptly
following such election, an irrevocable resignation effective upon such persons failure to receive
the required vote for reelection at the next meeting at which such person would face reelection and
upon acceptance of such resignation by the board of directors in accordance with Section I of
Article III herein.
Only such persons who are nominated in accordance with the procedures set forth in this
Section shall be eligible to be elected at an annual meeting of stockholders of the corporation to
serve as directors and only such business shall be conducted at an annual meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures set forth in this
Section. Except as otherwise provided by law, the chairman of the meeting shall declare out of
order and disregard any nomination or other business proposed to be brought before the meeting by a
stockholder that has not been made in accordance with this Section. Notwithstanding the foregoing
provisions of this Section, unless otherwise required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual meeting of stockholders of the
corporation to present a nomination or proposed business, such nomination shall be disregarded and
such proposed business shall not be transacted, notwithstanding that proxies in respect of such
vote may have been received by the corporation.
ARTICLE III. DIRECTORS
Section 1.
Number, Election and Term of Directors
. The number of directors which
shall constitute the whole board shall be not more than fifteen, with the exact number to be
determined from time to time by the board of directors. At each annual meeting of stockholders,
all directors shall be elected for a term expiring at the next succeeding annual meeting of
stockholders. Each director shall hold office until his or her successor has been duly elected and
qualified or until his or her earlier disqualification, death, resignation or removal. No decrease
in the number of directors constituting the board of directors shall shorten the term of any
incumbent director.
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A nominee for director shall be elected to the board of directors if the votes cast for such
nominees election exceed the votes cast against such nominees election; provided, however, that
at a contested election meeting, directors shall be elected by a plurality of the votes cast by the
holders of the shares present in person or represented by proxy at the meeting and entitled to vote
on the election of directors. For purposes of this Section, a contested election meeting is any
annual meeting of stockholders for which (a) the secretary of the corporation receives a notice
that a stockholder has nominated a person for election to the board of directors in compliance with
the advance notice requirements for stockholder nominees for director set forth in Section 12 of
Article II herein, and (b) such nomination has not been withdrawn by such stockholder on or prior
to the tenth day preceding the date the corporation first gives notice of such meeting to the
stockholders, as required by Section 3 of Article II herein.
The board of directors shall not nominate for election as director any candidate who has not
agreed to tender, promptly following the annual meeting at which he or she is elected as director,
an irrevocable resignation that will be effective upon (a) the failure to receive the required
number of votes for reelection at the next annual meeting of stockholders at which he or she faces
reelection, and (b) acceptance of such resignation by the board of directors. In addition, the
board of directors shall not fill a director vacancy or newly created directorship with any
candidate who has not agreed to tender, promptly following his or her appointment to the board, the
same form of resignation.
If a director nominee fails to receive the required number of votes for reelection, the board
of directors (excluding the director in question) shall, within 90 days after certification of the
election results, decide whether to accept the directors resignation. Absent a compelling reason
for the director to remain on the board of directors, the board shall accept the resignation. The
board of directors shall promptly disclose its decision and, if applicable, the reasons for
rejecting the resignation in a filing with the Securities and Exchange Commission.
Section 2.
Newly Created Directorships and Vacancies
. Vacancies and newly created
directorships resulting from an increase in the authorized number of directors shall be filled by a
majority of the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual meeting of
stockholders and until their successors are duly elected and qualified, unless sooner displaced.
If there are no directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of shares at the time
outstanding having the right to vote for such directors, summarily order an election to be held to
fill any such vacancies or newly created directorships, or to replace the directors chosen by the
directors then in office.
Section 3.
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 the powers of the
corporation, subject to the restrictions imposed by law, the certificate of incorporation or these
bylaws.
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Section 4.
Place of Meetings; Minutes
. The board of directors may hold meetings, both
regular and special, either within or without the State of Delaware, and shall cause minutes of its
proceedings to be prepared and placed in the minute books of the corporation.
Section 5.
Regular Meetings
. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall be determined by the board.
Section 6.
Special Meetings
. Special meetings of the board may be called by the
chairman of the board or the chief executive officer upon notice to each director and shall be
called by the chairman of the board, chief executive officer or secretary in like manner and on
like notice on the written request of two or more directors. Neither the business to be transacted
at, nor the purpose of, any special meeting of the board need be specified in the notice of such
meeting.
Section 7.
Quorum; Required Vote; Adjournment
. At all meetings of the board a
majority of the total number of directors shall constitute a quorum for the transaction of
business. The act of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise specifically provided by law
or the certificate of incorporation. If a quorum shall not be present at any meeting of the board
of directors, the directors present may adjourn the meeting, without notice other than announcement
at the meeting, until a quorum shall be present.
Section 8.
Action Without a Meeting
. Unless otherwise restricted by 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 members
of the board or committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or transmissions are filed
with the minutes of proceedings of the board or committee.
Section 9.
Board Committees
. The board of directors may designate one or more
committees, each committee to consist of one or more directors appointed by the board of directors.
The number of committee members may be increased or decreased by the board of directors. Each
committee member shall serve as such until the earliest of the expiration of his or her term as a
director or his or her death or resignation or removal as a committee member or as a director. The
board of directors shall have the power at any time to fill vacancies in, to change the membership
of and to discharge any committee. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the board of directors to act at the meeting in
the place of any such absent or disqualified member.
Section 10.
Committee Authority
. Any 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 as may be delegated to it by the board of directors, except to the extent
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expressly restricted by law, the certificate of incorporation or these bylaws. Each committee
shall have such name as may be determined by the board of directors. Unless otherwise provided in
the certificate of incorporation, these bylaws or a resolution of the board of directors, each
committee may form and delegate authority to any subcommittee as it deems appropriate or advisable.
Section 11.
Committee Procedure and Meetings
. Each committee shall cause minutes of
its proceedings to be prepared and shall report the same to the board of directors when requested.
Unless the board of directors otherwise provides, each committee may determine its own rules and
procedures for the conduct of its business. At every meeting of a board committee, fifty percent
or more of the total number of members shall constitute a quorum and the act of a majority of the
members present at such meeting shall be the act of the committee.
Section 12.
Compensation
. Directors and members of committees may receive such
compensation for their services and such reimbursement for their expenses as the board of directors
shall determine.
Section 13.
Stockholder Rights Plans
. Notwithstanding anything in these bylaws to the
contrary, the board of directors may adopt a stockholder rights plan only if, prior to the adoption
of the plan by the board of directors, at a meeting of stockholders at which a quorum is present,
the holders of a majority of the shares present in person or represented by proxy at the meeting
and entitled to vote have approved the adoption of the stockholder rights plan; provided, however,
that the board of directors may adopt a stockholder rights plan without prior stockholder approval
if the board determines, in the exercise of its fiduciary duties, that it would be in the best
interests of the corporation and its stockholders to adopt the plan without such stockholder
approval. Any stockholder rights plan so adopted by the board of directors without prior
stockholder approval shall expire no later than one year following the date of its adoption unless
the stockholder rights plan is ratified, at a meeting of stockholders at which a quorum is present,
by the holders of a majority of the shares present in person or represented by proxy and entitled
to vote. Stockholder rights plan refers in this Section to any stockholder rights plan or
stockholder rights agreement generally referred to as a poison pill and designed to make
acquisitions of large holdings of the corporations shares of stock more expensive.
ARTICLE IV. NOTICES
Section 1.
Method
. Whenever notice is required by law, the certificate of
incorporation or these bylaws to be given to any director, committee member or stockholder,
personal notice shall not be required and any such notice may be given in writing (a) by mail,
postage prepaid, addressed to such director, committee member or stockholder at his or her address
as it appears on the records of the corporation, or (b) by any other method permitted by law
(including, but not limited to, overnight courier service, facsimile, electronic mail or other
means of electronic transmission). Any notice given by mail shall be deemed to have been given
when deposited in the United States mail as set forth above. Any notice given by overnight courier
service shall be deemed to have been given when delivered to such service with all charges prepaid
and addressed as set forth above.
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Section 2.
Waiver
. Whenever notice is required by law, the certificate of
incorporation or these bylaws to be given to any director, committee member or stockholder, a
waiver thereof in writing signed by the person entitled to such notice, or a waiver by electronic
transmission by the person entitled to such notice, whether before or after the time stated
therein, shall be equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when such person attends for the express purpose of
objecting at the beginning of the meeting to the transaction of any business on the ground that the
meeting is not lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any meeting of stockholders, the board of directors or a committee of directors need be
specified in any written waiver of notice or any waiver by electronic transmission unless so
required by law, the certificate of incorporation or these bylaws.
ARTICLE V. OFFICERS
Section 1.
Titles; Election; Term of Office
. The officers of the corporation shall be
a president, secretary and such other officers as the board of directors may elect or appoint,
including, without limitation, a chairman of the board, a chief executive officer, one or more vice
presidents (with each vice president to have such descriptive title, if any, as the board of
directors shall determine), a treasurer, one or more assistant secretaries and one or more
assistant treasurers. Each officer shall hold office until his or her successor has been duly
elected and qualified or, if earlier, until his or her death, resignation or removal. Any two or
more offices may be held by the same person. Except for the chairman of the board, none of the
officers need be a director of the corporation. The chairman of the board shall be the chief
executive officer of the corporation, unless the board of directors designates a different officer
as chief executive officer.
Section 2.
Removal
. The board of directors may remove any officer of the corporation
with or without cause at any time. Election or appointment of an officer shall not of itself
create contract rights.
Section 3.
Vacancies
. Any vacancy occurring in any office of the corporation shall be
filled by the board of directors.
Section 4.
Powers and Duties
. Officers shall have such powers and duties in the
management of the corporation as (a) are provided in these bylaws, (b) may be prescribed by the
board of directors or by an officer authorized to do so by the board, and (c) generally pertain to
their respective offices, subject to the control of the board of directors and any officer to whom
they report. One officer shall have responsibility for keeping the minutes of all proceedings of
the board of directors, board committees and stockholders in books provided for that purpose, and
shall attend to the giving and service of all notices.
Section 5.
Compensation
. The compensation of officers shall be determined by the
board of directors; provided, however, that, unless otherwise provided by law, the board of
directors may delegate the power to determine the compensation of any officer (other than the
officer to whom such power is delegated) to the independent members of the board, a committee of
the board, the chairman of the board, the president or such other officers as may be designated by
the board or a committee of the board.
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ARTICLE VI. INDEMNIFICATION
Section 1.
Rights to Indemnification and Advancement of Expenses
. The corporation
shall, to the fullest extent permitted by applicable law as it presently exists or may hereafter be
amended, (a) indemnify and hold harmless any person who was or is made or is threatened to be made
a party to, or is otherwise involved in, any action, suit or proceeding by reason of the fact that
he or she is or was a director, officer or managing director (or its equivalent) of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against all liability and loss suffered and expenses (including attorneys fees) reasonably
incurred by such person in connection therewith, and (b) pay the expenses (including attorneys
fees) incurred by any such person in defending any such action, suit or proceeding in advance of
its final disposition; provided, however, that the payment of expenses incurred by a person in
advance of the final disposition of the action, suit or proceeding shall be made only upon receipt
of an undertaking by the person to repay all amounts advanced if it should ultimately be determined
that the person is not entitled to be indemnified under this Article or otherwise. The corporation
shall be required to indemnify and advance expenses to any such person in connection with an
action, suit or proceeding (or part thereof) initiated by such person only if such action, suit or
proceeding (or part thereof) was authorized by the board of directors of the corporation.
Section 2.
Non-Exclusivity of Rights
. The rights to indemnification and the
advancement of expenses, as conferred on any person by the provisions of this Article, shall not be
deemed exclusive of any other rights to which such person may have or hereafter acquire under any
law, provision of the certificate of incorporation, these bylaws, any agreement, vote of
stockholders or disinterested directors, or otherwise.
Section 3.
Nature of Rights
. The rights to indemnification and the advancement of
expenses provided by or granted pursuant to this Article shall continue as to a person who has
ceased to be a director, officer or managing director (or its equivalent) and shall inure to the
benefit of the heirs, executors and administrators of such person. The provisions of this Article
shall be deemed to be a contract between the corporation and each director who serves in such
capacity at any time while this Article is in effect, and any repeal or modification hereof shall
not affect any rights or obligations then existing with respect to any state of facts or any
action, suit or proceeding then or theretofore existing, or any action, suit or proceeding
thereafter brought or threatened based in whole or in part on any such state of facts.
ARTICLE VII. MISCELLANEOUS PROVISIONS
Section 1.
Shares of Stock
. The shares of stock of the corporation shall be
represented by certificates or shall be uncertificated. The board of directors shall have the
power and authority to make all such rules and regulations as it may deem expedient concerning the
issue, transfer and registration of uncertificated shares or certificates for shares of stock of
the corporation.
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Section 2.
Stock Certificates
. Certificates for shares of stock of the corporation
shall be in such form as shall be approved by the board of directors. The certificates shall be
signed by the chairman of the board or the president or a vice president and by the secretary or an
assistant secretary or the treasurer or an assistant treasurer. Any or all of the signatures on
the 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 he or she were such officer, transfer agent or registrar at
the date of issue.
Section 3.
Lost, Stolen or Destroyed Certificates
. No certificate for shares or
uncertificated shares of stock of the corporation shall be issued in place of any certificate
alleged to have been lost, stolen or destroyed, except on production of such evidence of such loss,
theft or destruction and on delivery to the corporation of a bond of indemnity in such amount, upon
such terms and secured by such surety as the board of directors or its designee may require.
Section 4.
Record Date
. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock or for
the purpose of any other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other such action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of 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.
Section 5.
Registered Stockholders
. The corporation shall be entitled to treat the
holder of record of any share or shares of stock as the holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
Section 6.
Dividends
. The board of directors may declare, and the corporation may
pay, dividends on the corporations outstanding shares of stock in the manner and upon the terms
and conditions provided by law and the certificate of incorporation.
Section 7.
Fiscal Year
. The fiscal year of the corporation shall be fixed by the
board of directors.
Section 8.
Seal
. The seal of the corporation shall be in such form as may from time
to time be approved by the board of directors or by an officer authorized to do so by the board.
The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced,
or may be used in any other lawful manner.
14
Section 9.
Resignations
. Any director, committee member or officer may resign at any
time upon notice given in writing or by electronic transmission to the corporation. Such
resignation shall take effect when such notice is given unless the notice specifies (a) a later
effective date, or (b) an effective date determined upon the happening of an event or events, such
as the failure to receive the required vote for reelection as a director and the acceptance of such
resignation by the board of directors. Unless otherwise specified in the notice of resignation,
the acceptance of such resignation shall not be necessary to make it effective.
Section 10.
Forum for Adjudication of Disputes
. Unless the corporation consents in
writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware
shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf
of the corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any
director, officer or other employee of the corporation to the corporation or the corporations
stockholders, (c) any action asserting a claim arising pursuant to any provision of the Delaware
General Corporation Law, or (d) any action asserting a claim governed by the internal affairs
doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital
stock of the corporation shall be deemed to have notice of and consented to the provisions of this
Section.
Section 11.
Invalid Provisions
. If any provision of these bylaws is held to be
illegal, invalid or unenforceable under any present or future law, and if the rights or obligations
of the stockholders would not be materially and adversely affected thereby, such provision shall be
fully separable, and these bylaws shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, the remaining provisions of these bylaws
shall remain in full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom, and in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of these bylaws, a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
Section 12.
Headings
. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in interpretation.
ARTICLE VIII. AMENDMENTS
Subject to the provisions of the certificate of incorporation of the corporation, these bylaws
may be altered, amended or repealed, or new bylaws may be adopted, by the stockholders or by the
board of directors. Notwithstanding the foregoing and anything contained in these bylaws to the
contrary, Sections 1 and 2 of Article III herein shall not be altered, amended or repealed for the
purpose of dividing the board of directors into classes with staggered terms and no provision
inconsistent therewith shall be adopted for such purpose without the affirmative vote of the
holders of at least a majority of the voting power of all the shares of the corporation entitled to
vote generally in the election of directors, voting together as a single class. Notwithstanding
the first sentence of this Article VIII and anything contained in these bylaws to the contrary,
Section 1 of Article III herein shall not be altered, amended or repealed for the purpose of
changing to a plurality-voting standard for the election of directors and no provision inconsistent
therewith
15
shall be adopted for such purpose without the affirmative vote of the holders of at least a
majority of the voting power of all the shares of the corporation entitled to vote generally in the
election of directors, voting together as a single class. Notwithstanding anything contained in
these bylaws to the contrary, the affirmative vote of the holders of at least a majority of the
voting power of all shares of the corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend, adopt any
provision inconsistent with or repeal either of the two preceding sentences of this Article VIII.
16
Exhibit 3.4
FedEx Corporation
AMENDED AND RESTATED BYLAWS
Adopted and Effective as of
March 14,
September 26,
2011
TABLE OF CONTENTS
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ARTICLE I. OFFICES
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1
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1 Registered Office and Agent
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1
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2 Other Offices
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1
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ARTICLE II. MEETINGS OF STOCKHOLDERS
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1
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1 Place of Meetings
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1
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2 Annual Meeting
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1
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3 Notice of Annual Meeting
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1
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4 List of Stockholders Entitled to Vote
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1
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5 Special Meetings
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2
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6 Notice of Special Meeting
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2
5
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7 Quorum; Adjournment of Meetings
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2
5
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8 Required Vote
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2
5
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9 Voting; Proxies
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3
6
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10 Conduct of Meeting
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3
6
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11 Action Without a Meeting
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3
6
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12 Nomination of Directors and Stockholder Business at Annual Meeting
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3
6
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ARTICLE III. DIRECTORS
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5
8
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1 Number, Election and Term of Directors
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5
8
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2 Newly Created Directorships and Vacancies
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6
9
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3 Powers
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7
9
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4 Place of Meetings; Minutes
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7
10
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5 Regular Meetings
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7
10
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6 Special Meetings
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7
10
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7 Quorum; Required Vote; Adjournment
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7
10
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8 Action Without a Meeting
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7
10
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9 Board Committees
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7
10
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10 Committee Authority
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8
10
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11 Committee Procedure and Meetings
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8
11
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12 Compensation
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8
11
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13 Stockholder Rights Plans
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8
11
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ARTICLE IV. NOTICES
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8
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1 Method
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2 Waiver
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9
12
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ARTICLE V. OFFICERS
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9
12
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1 Titles; Election; Term of Office
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9
12
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2 Removal
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9
12
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3 Vacancies
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9
12
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4 Powers and Duties
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9
12
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5 Compensation
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9
12
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-i-
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ARTICLE VI. INDEMNIFICATION
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10
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1 Rights to Indemnification and Advancement of Expenses
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10
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2 Non-Exclusivity of Rights
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10
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3 Nature of Rights
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10
13
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ARTICLE VII. MISCELLANEOUS PROVISIONS
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10
13
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1 Shares of Stock
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10
13
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2 Stock Certificates
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11
14
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3 Lost, Stolen or Destroyed Certificates
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11
14
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4 Record Date
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11
14
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5 Registered Stockholders
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11
14
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6 Dividends
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11
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7 Fiscal Year
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11
14
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8 Seal
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11
14
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9 Resignations
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12
15
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10 Forum for Adjudication of Disputes
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12
15
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11 Invalid Provisions
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12
15
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12 Headings
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12
15
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ARTICLE VIII. AMENDMENTS
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12
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-ii-
FedEx Corporation
AMENDED AND RESTATED BYLAWS
ARTICLE I. OFFICES
Section 1.
Registered Office and Agent
. The registered office and registered agent of
the corporation in the State of Delaware shall be as designated from time to time by the
appropriate filing by the corporation in the office of the Secretary of State of the State of
Delaware.
Section 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 or as the business of the corporation may require.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1.
Place of Meetings
. All meetings of the stockholders shall be held at such
place, either within or without the State of Delaware, as shall be designated by the board of
directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
The board of directors may, in its sole discretion, determine that a meeting shall not be held at
any place, but may instead be held solely by means of remote communication in accordance with the
General Corporation Law of the State of Delaware.
Section 2.
Annual Meeting
. An annual meeting of stockholders shall be held on such
date and at such time as shall be designated by the board of directors and stated in the notice of
the meeting or in a duly executed waiver of notice thereof. At each annual meeting, the
stockholders shall elect directors and transact such other business as may properly be brought
before the meeting.
Section 3.
Notice of Annual Meeting
. Written notice of the annual meeting stating the
place (if any), date and time of the meeting and the means of remote communication (if any) by
which stockholders and proxy holders may be deemed to be present in person and vote at such meeting
shall be given not less than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 4.
List of Stockholders Entitled to Vote
. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before every meeting of
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, for a period of at least ten days prior to the meeting,
either (a) 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 (b) during ordinary
business hours, at the principal place of business of the corporation. If 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. If the meeting
is to be held at a place, 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. If the
meeting is to be held solely by means of remote communication, the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be provided with the
notice of the meeting.
Section 5.
Special Meetings
. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be
called by the chairman of the board and chief executive officer and shall be called by the chairman
of the board and chief executive officer or secretary at the request in writing of a majority of
the board of directors. Such request shall state the purpose or purposes of the proposed meeting.
In addition, special meetings of the stockholders shall be called by the chairman of
the board and chief executive officer or the secretary following receipt by the secretary of a
written request for a special meeting of stockholders (a Special Meeting Request) from the
holders of shares representing at least 20% of the outstanding shares of the corporation entitled
to vote (the Requisite Holders) if such Special Meeting Request complies with the requirements
set forth in this Section and all other requirements of this Section are met. However,
notwithstanding the foregoing or any other provision in this Section, outstanding shares of the
corporation that are subject to Hedging Transactions (as defined in Section 12 of this Article II)
shall not under any circumstance be included toward the required 20% threshold, and thus,
stockholders owning stock of the corporation that is subject to Hedging Transactions shall not be
considered Requisite Holders with respect to such stock. The board of directors shall determine,
in its sole discretion, whether all such requirements of this Section have been satisfied, and such
determination shall be binding on the corporation and its stockholders.
If a Special Meeting Request complies with this Section, the board of directors shall
determine the record date (in accordance with Section 4 of Article VII herein), place (if any),
date and time of the special meeting of stockholders requested in such Special Meeting Request;
provided, however, that the date of any such special meeting shall not be more than 90 days after
the secretarys receipt of the properly submitted Special Meeting Request. Notwithstanding the
foregoing, the board of directors may (in lieu of calling the special meeting of stockholders
requested in such Special Meeting Request) present an identical or substantially similar item (as
determined in good faith by the board of directors, a Similar Item) for stockholder approval at
any other meeting of stockholders that is held no more than 90 days after the secretary receives
such Special Meeting Request. The nomination, election, or removal of directors shall always be
deemed a Similar Item with respect to all items of business involving the nomination, election,
or removal of directors, changing the size of the board of directors and filling of vacancies or
newly created directorships resulting from any increase in the authorized number of
directors.
A Special Meeting Request must be delivered by hand, by registered U.S. mail (return
receipt requested), or by courier service to the attention of the secretary at the
principal executive offices
2
of the corporation. A Special Meeting Request shall only be valid if
it is signed and dated by each of the Requisite Holders (or their duly authorized agents) and if
such request includes:
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(a)
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a statement of the specific purpose or purposes of the special meeting of
stockholders, the matter or matters proposed to be acted on at the special meeting of
stockholders, and the reasons for conducting such business at the special meeting of
stockholders;
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(b)
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a statement of any material interest of each such Requisite Holder and the
beneficial owners, if any, on whose behalf the Special Meeting Request is being made in the
business proposed to be conducted at the special meeting of stockholders;
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(c)
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the text of any business, proposed resolution or amendment to the bylaws,
certificate of incorporation, or any other corporate document to be considered at the
special meeting of stockholders;
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(d)
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any other information which may be required pursuant to these bylaws, including
but not limited to such information, if applicable, which shall be set forth in a
stockholders notice required by Section 12 of this Article, or which may be required to be
disclosed under the General Corporation Law of the State of Delaware;
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(e)
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the name and address (as they appear on the corporations books, in the case of
stockholders of record) of each Requisite Holder and the date of each such Requisite
Holders signature (or authorized agents signature);
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(f)
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the class, if applicable, and the number of shares of the corporations stock that
are owned of record or beneficially by each such Requisite Holder and documentary evidence
of such record or beneficial ownership, and the number of any such owned shares of the
corporations stock subject to Hedging Transactions and a representation that all other
shares of the corporations stock owned by such Requisite Holder are not subject to Hedging
Transactions;
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(g)
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a representation that one or more of the Requisite Holders intend to appear in
person or by proxy at the special meeting of stockholders to propose the business to be
conducted at the special meeting of stockholders;
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(h)
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if any Requisite Holder intends to solicit proxies with respect to any business to
be conducted at the special meeting of stockholders, a representation to that
effect;
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(i)
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if a purpose of the special meeting of stockholders is the election of one or more
directors, all information that would be required to be included in solicitations of
proxies for election of directors in an election contest, or is otherwise required, in each
case pursuant to and in accordance with Regulation 14A under the Securities Exchange Act of
1934, as amended (the Exchange Act);
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(j)
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an undertaking by the Requisite Holders to notify the corporation in writing of a
change in the information called for by clauses (b) and (f) as of the record date for such
special
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3
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meeting of stockholders, by notice received by the secretary in the same manner as
the Special Meeting Request not later than the 10th day following such record date, and
after the record date by notice so given and received within two business days of any
change in such information and, in any event, as of the close of business on the day
preceding the special meeting date; and
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(k)
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an acknowledgement that any reduction in percentage stock ownership of the
Requisite Holders below the 20% threshold following delivery of the Special Meeting Request
to the secretary shall constitute a revocation of such Special Meeting Request.
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In addition, the Requisite Holders and the beneficial owners, if any, on whose behalf the
Special Meeting Request is being made shall promptly provide any other information reasonably
requested by the corporation.
A Special Meeting Request shall not be valid (and thus the special meeting of
stockholders requested pursuant to the Special Meeting Request will not be held) if (a) the Special
Meeting Request relates to an item of business that is not a proper subject for stockholder action
under applicable law; (b) a Similar Item was presented at any meeting of stockholders held within
90 days prior to receipt by the corporation of such Special Meeting Request; (c) a Similar Item is
included in the corporations notice as an item of business to be brought before a stockholder
meeting that has been called but not yet held; (d) the Special Meeting Request is received by the
corporation during the period commencing 90 days prior to the first anniversary of the preceding
years annual meeting of stockholders and ending on the date of the current years annual meeting
of stockholders; or (e) the Special Meeting Request was made in a manner that involved a violation
of Regulation 14A under the Exchange Act. For purposes of this paragraph, the date of delivery of
the Special Meeting Request shall be the first date on which a valid Special Meeting Request in
which Requisite Holders representing at least 20% of the outstanding shares of the corporation
entitled to vote in accordance with this Section are participating has been delivered to the
corporation.
Only matters that are stated in the Special Meeting Request shall be brought before and
acted upon during the special meeting of stockholders called according to the Special Meeting
Request; provided, however, that nothing herein shall prohibit the board of directors from
submitting any matters to the stockholders at any special meeting of stockholders called by the
stockholders pursuant to this Section. If a valid Special Meeting Request is received by the
secretary subsequent to the receipt of another valid Special Meeting Request and before the date of
the corresponding special meeting of stockholders, all items of business contained in such Special
Meeting Requests may be presented at one special meeting of stockholders. If two or more special
meetings of the stockholders called pursuant to the request of stockholders pursuant to this
Section have been held within the 12-month period before a Special Meeting Request is received by
the secretary, the board of directors may in its discretion, determine not to call or hold such
requested special meeting of stockholders.
Requisite Holders may revoke a Special Meeting Request by written revocation delivered
to the corporation at any time prior to the special meeting of stockholders; provided, however, the
board of directors shall have the sole discretion to determine whether or not to proceed with the
4
special meeting of stockholders following such written revocation. Additionally, a Requisite
Holder whose signature (or authorized agents signature) appears on a Special Meeting Request may
revoke such Requisite Holders participation in a Special Meeting Request at any time by written
revocation delivered to the secretary in the same manner as the Special Meeting Request and if,
following any such revocation, the remaining Requisite Holders participating in the Special Meeting
Request do not represent at least 20% of the outstanding shares of the corporation entitled to vote
in accordance with this Section, the Special Meeting Request shall be deemed revoked. Likewise,
any reduction in percentage stock ownership of the Requisite Holders below the 20% threshold
following delivery of the Special Meeting Request to the secretary shall be deemed to be revocation
of the Special Meeting Request.
If none of the Requisite Holders appears or sends a representative to present the
business or nomination submitted by the stockholders in the Special Meeting Request to be conducted
at the special meeting of stockholders, the corporation need not conduct any such business or
nomination for a vote at such special meeting of stockholders.
Section 6.
Notice of Special Meeting
. Written notice of a special meeting stating the
place (if any), date and time of the meeting, the means of remote communication (if any) by which
stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and
the purpose or purposes for which the meeting is called shall be given not less than ten nor more
than sixty days before the date of the meeting to each stockholder entitled to vote at such
meeting. Business transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice of such meeting or in a duly executed waiver of notice of such
meeting.
Section 7.
Quorum; Adjournment of Meetings
. Except as otherwise provided by law or
the certificate of incorporation, the holders of a majority of the outstanding shares entitled to
vote at the meeting, present in person or represented by proxy, shall constitute a quorum at any
meeting of stockholders. If a quorum shall not be present or represented at any meeting of
stockholders, the holders of a majority of the shares entitled to vote at the meeting who are
present in person or represented by proxy or the chairman of the meeting may adjourn the meeting
until a quorum shall be present or represented. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place (if any) thereof and
the means of remote communication (if any) by which stockholders and proxy holders may be deemed to
be present in person and vote at such adjourned meeting are announced at the meeting at which the
adjournment is taken. At any adjourned meeting, any business may be transacted which might have
been transacted at the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 8.
Required Vote
. When a quorum is present at any meeting of stockholders,
the vote of the holders of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote shall decide any question (other than the election of directors)
brought before such meeting, unless the question is one upon which, by express provision of law,
the certificate of incorporation or these bylaws, a different vote is required, in which case such
5
express provision shall govern and control the decision of such question. The vote required for
the election of directors shall be as set forth in Section 1 of Article III herein.
Section 9.
Voting; Proxies
. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of capital stock having voting power held by such stockholder.
At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the
stockholder or as permitted by law. Such proxy must be filed with the secretary of the corporation
or his or her representative or otherwise delivered telephonically or electronically as set forth
in the applicable proxy statement, at or before the time of the meeting. No proxy shall be voted
on after three years from its date, unless the proxy provides for a longer period.
Section 10.
Conduct of Meeting
. Except to the extent inconsistent with any rules and
regulations adopted by the board of directors for the conduct of any meeting of stockholders, the
chairman of any meeting of 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.
Section 11.
Action Without a Meeting
. Any action required or permitted to be taken by
the stockholders of the corporation must be effected at a duly called annual or special meeting of
such holders and may not be effected by any consent in writing by such holders
.
Except as otherwise required by law and subject to the rights of the holders of any class or series
of stock having a preference over the common stock of the corporation as to dividends or upon
liquidation, special meetings of stockholders of the corporation may be called only by the board of
directors pursuant to a resolution approved by a majority of the entire board of
directors
.
Section 12.
Nomination of Directors and Stockholder Business at Annual Meeting
.
Nominations of persons for election to the board of directors or proposals of any other business
for stockholder action may be made at an annual meeting of stockholders (a) pursuant to the
corporations notice of meeting (or any supplement thereto), (b) by or at the direction of the
board of directors, or (c) by any stockholder who is entitled to vote at the meeting, who has
complied with the notice procedures set forth in this Section and who was a stockholder of record
at the time of giving such notice and at the time of the annual meeting (this clause (c) shall be
the exclusive means for a stockholder to make nominations or submit other business other than
matters properly brought under Rule 14a-8 under the
Securities
Exchange Act
of 1934, as amended
, and included in the
corporations notice of meeting). For business other than a nomination to be properly brought
before an annual meeting by a stockholder, such business must be a proper matter for stockholder
action. A notice of a stockholder to make a nomination or to bring any other matter for
stockholder action before an annual meeting of stockholders shall be made in writing and received
by the secretary of the corporation not more than 120 days and not less than ninety days in advance of the
anniversary date of the immediately preceding annual meeting; provided, however, that in the event
that the annual meeting is called on a date that is not within thirty days before or sixty days
after such anniversary date, notice by the stockholder in order to be timely must be so received
not earlier than the 120th day prior to such annual meeting and not later than the close of
business on the later of the ninetieth day prior to such annual meeting or the tenth day following
the first to occur of the day on which notice of the date
of the annual meeting was mailed or
public disclosure of the date of the annual meeting was made. In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a new time period (or
extend any time period) for the giving of a stockholders notice as described above.
6
Every such notice by a stockholder shall set forth:
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(a)
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the name and address of the stockholder who intends to make a nomination or other
business proposal and of the beneficial owner, if any, on whose behalf the nomination or
proposal is made;
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(b)
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a representation that the stockholder is a holder of the corporations voting stock
(indicating the class and number of shares owned beneficially or of record by the
stockholder and by the beneficial owner) and intends to appear in person or by proxy at the
meeting to make the nomination or propose such business specified in the notice;
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(c)
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whether and the extent to which any hedging or other transaction or series of
transactions has been entered into by or on behalf of, or any other agreement, arrangement
or understanding (including any derivative or short positions, profit interests, options,
warrants, stock appreciation or similar rights and any borrowing or lending of shares) has
been made, the effect or intent of which is to mitigate loss to or manage risk or benefit
of share price changes for, or to increase or decrease the voting power of, the stockholder
or the beneficial owner with respect to any share of stock of the corporation
(Hedging Transactions)
, and a representation that the stockholder will notify
the corporation in writing of any such transaction, agreement, arrangement or understanding
in effect as of the record date for the meeting promptly following the later of the record
date or the date notice of the record date is first publicly disclosed;
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(d)
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a representation whether the stockholder intends to deliver a proxy statement or form
of proxy to holders of at least the percentage of the corporations outstanding shares
required to approve or adopt the proposal or elect the nominee or otherwise to solicit
proxies from stockholders in support of the nomination or proposal;
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(e)
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with respect to notice of an intent to make a nomination, a description of all
agreements, arrangements or understandings (whether written or oral) among the stockholder
or the beneficial owner and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be made by the
stockholder, and a representation that the stockholder will notify the corporation in
writing of any such agreement, arrangement or understanding in effect as
of the record date for the meeting promptly following the later of the record date or the
date notice of the record date is first publicly disclosed;
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(f)
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with respect to notice of an intent to make a nomination, the name and address of each
nominee and such other information regarding each nominee proposed by the stockholder as
would have been required to be included in a proxy statement filed
pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated by the
board of directors of the corporation; and
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(g)
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with respect to notice of an intent to bring up any other business, a description of
the matter, including the complete text of any resolutions intended to be presented at the
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meeting and in the event that such business includes a proposal to amend the bylaws of the
corporation, the language of the proposed amendment, the reasons for bringing up such
matter at the meeting, any personal or other material interest of the stockholder or the
beneficial owner in the matter, and all agreements, arrangements or understandings (whether
written or oral) between the stockholder or the beneficial owner and any other person or
persons (including their names) in connection with the proposal of such matter by the
stockholder, and a representation that the stockholder will notify the corporation in
writing of any such agreement, arrangement or understanding in effect as of the record date
for the meeting promptly following the later of the record date or the date notice of the
record date is first publicly disclosed.
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A stockholder seeking to make a nomination or bring up any other proper matter for stockholder
action before an annual meeting shall promptly provide to the corporation any other information
reasonably requested by the corporation. Notice of intent to make a nomination shall be
accompanied by (a) the written consent of each nominee to serve as a director of the corporation if
so elected, and (b) a statement whether such nominee, if elected, intends to tender, promptly
following such election, an irrevocable resignation effective upon such persons failure to receive
the required vote for reelection at the next meeting at which such person would face reelection and
upon acceptance of such resignation by the board of directors in accordance with Section I of
Article III herein.
Only such persons who are nominated in accordance with the procedures set forth in this
Section shall be eligible to be elected at an annual meeting of stockholders of the corporation to
serve as directors and only such business shall be conducted at an annual meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures set forth in this
Section. Except as otherwise provided by law, the chairman of the meeting shall declare out of
order and disregard any nomination or other business proposed to be brought before the meeting by a
stockholder that has not been made in accordance with this Section. Notwithstanding the foregoing
provisions of this Section, unless otherwise required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual meeting of stockholders of the
corporation to present a nomination or proposed business, such nomination shall be disregarded and
such proposed business shall not be transacted, notwithstanding that proxies in respect of such
vote may have been received by the corporation.
ARTICLE III. DIRECTORS
Section 1.
Number, Election and Term of Directors
. The number of directors which
shall constitute the whole board shall be not more than fifteen, with the exact number to be
determined from time to time by the board of directors. At each annual meeting of stockholders,
all directors shall be elected for a term expiring at the next succeeding annual meeting of
stockholders. Each director shall hold office until his or her successor has been duly elected and
qualified or until his or her earlier disqualification, death, resignation or removal. No decrease
in the number of directors constituting the board of directors shall shorten the term of any
incumbent director.
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A nominee for director shall be elected to the board of directors if the votes cast for such
nominees election exceed the votes cast against such nominees election; provided, however, that
at a contested election meeting, directors shall be elected by a plurality of the votes cast by the
holders of the shares present in person or represented by proxy at the meeting and entitled to vote
on the election of directors. For purposes of this Section, a contested election meeting is any
annual meeting of stockholders for which (a) the secretary of the corporation receives a notice
that a stockholder has nominated a person for election to the board of directors in compliance with
the advance notice requirements for stockholder nominees for director set forth in Section 12 of
Article II herein, and (b) such nomination has not been withdrawn by such stockholder on or prior
to the tenth day preceding the date the corporation first gives notice of such meeting to the
stockholders, as required by Section 3 of Article II herein.
The board of directors shall not nominate for election as director any candidate who has not
agreed to tender, promptly following the annual meeting at which he or she is elected as director,
an irrevocable resignation that will be effective upon (a) the failure to receive the required
number of votes for reelection at the next annual meeting of stockholders at which he or she faces
reelection, and (b) acceptance of such resignation by the board of directors. In addition, the
board of directors shall not fill a director vacancy or newly created directorship with any
candidate who has not agreed to tender, promptly following his or her appointment to the board, the
same form of resignation.
If a director nominee fails to receive the required number of votes for reelection, the board
of directors (excluding the director in question) shall, within 90 days after certification of the
election results, decide whether to accept the directors resignation. Absent a compelling reason
for the director to remain on the board of directors, the board shall accept the resignation. The
board of directors shall promptly disclose its decision and, if applicable, the reasons for
rejecting the resignation in a filing with the Securities and Exchange Commission.
Section 2.
Newly Created Directorships and Vacancies
. Vacancies and newly created
directorships resulting from an increase in the authorized number of directors shall be filled by a
majority of the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual meeting of
stockholders and until their successors are duly elected and qualified, unless sooner displaced.
If there are no directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of shares at the time outstanding
having the right to vote for such directors, summarily order an election to be held to fill any
such vacancies or newly created directorships, or to replace the directors chosen by the directors
then in office.
Section 3.
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 the powers of the
corporation, subject to the restrictions imposed by law, the certificate of incorporation or these
bylaws.
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Section 4.
Place of Meetings; Minutes
. The board of directors may hold meetings, both
regular and special, either within or without the State of Delaware, and shall cause minutes of its
proceedings to be prepared and placed in the minute books of the corporation.
Section 5.
Regular Meetings
. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall be determined by the board.
Section 6.
Special Meetings
. Special meetings of the board may be called by the
chairman of the board or the chief executive officer upon notice to each director and shall be
called by the chairman of the board, chief executive officer or secretary in like manner and on
like notice on the written request of two or more directors. Neither the business to be transacted
at, nor the purpose of, any special meeting of the board need be specified in the notice of such
meeting.
Section 7.
Quorum; Required Vote; Adjournment
. At all meetings of the board a
majority of the total number of directors shall constitute a quorum for the transaction of
business. The act of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise specifically provided by law
or the certificate of incorporation. If a quorum shall not be present at any meeting of the board
of directors, the directors present may adjourn the meeting, without notice other than announcement
at the meeting, until a quorum shall be present.
Section 8.
Action Without a Meeting
. Unless otherwise restricted by 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 members
of the board or committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or transmissions are filed
with the minutes of proceedings of the board or committee.
Section 9.
Board Committees
. The board of directors may designate one or more
committees, each committee to consist of one or more directors appointed by the board of directors.
The number of committee members may be increased or decreased by the board of directors. Each
committee member shall serve as such until the earliest of the expiration of his or her term as a
director or his or her death or resignation or removal as a committee member or as a
director. The board of directors shall have the power at any time to fill vacancies in, to change
the membership of and to discharge any committee. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the board of directors to act at
the meeting in the place of any such absent or disqualified member.
Section 10.
Committee Authority
. Any 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 as may be delegated to it by the board of directors, except to the extent
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expressly
restricted by law, the certificate of incorporation or these bylaws. Each committee shall have
such name as may be determined by the board of directors. Unless otherwise provided in the
certificate of incorporation, these bylaws or a resolution of the board of directors, each
committee may form and delegate authority to any subcommittee as it deems appropriate or advisable.
Section 11.
Committee Procedure and Meetings
. Each committee shall cause minutes of
its proceedings to be prepared and shall report the same to the board of directors when requested.
Unless the board of directors otherwise provides, each committee may determine its own rules and
procedures for the conduct of its business. At every meeting of a board committee, fifty percent
or more of the total number of members shall constitute a quorum and the act of a majority of the
members present at such meeting shall be the act of the committee.
Section 12.
Compensation
. Directors and members of committees may receive such
compensation for their services and such reimbursement for their expenses as the board of directors
shall determine.
Section 13.
Stockholder Rights Plans
. Notwithstanding anything in these bylaws to the
contrary, the board of directors may adopt a stockholder rights plan only if, prior to the adoption
of the plan by the board of directors, at a meeting of stockholders at which a quorum is present,
the holders of a majority of the shares present in person or represented by proxy at the meeting
and entitled to vote have approved the adoption of the stockholder rights plan; provided, however,
that the board of directors may adopt a stockholder rights plan without prior stockholder approval
if the board determines, in the exercise of its fiduciary duties, that it would be in the best
interests of the corporation and its stockholders to adopt the plan without such stockholder
approval. Any stockholder rights plan so adopted by the board of directors without prior
stockholder approval shall expire no later than one year following the date of its adoption unless
the stockholder rights plan is ratified, at a meeting of stockholders at which a quorum is present,
by the holders of a majority of the shares present in person or represented by proxy and entitled
to vote. Stockholder rights plan refers in this Section to any stockholder rights plan or
stockholder rights agreement generally referred to as a poison pill and designed to make
acquisitions of large holdings of the corporations shares of stock more expensive.
ARTICLE IV. NOTICES
Section 1.
Method
. Whenever notice is required by law, the certificate of
incorporation or these bylaws to be given to any director, committee member or stockholder,
personal notice shall not be required and any such notice may be given in writing (a) by mail,
postage prepaid, addressed to such director, committee member or stockholder at his or her address
as it appears on the records of the corporation, or (b) by any other method permitted by law
(including, but not limited to, overnight courier service, facsimile, electronic mail or other
means of electronic transmission). Any notice given by mail shall be deemed to have been given
when deposited in the
United States mail as set forth above. Any notice given by overnight courier
service shall be deemed to have been given when delivered to such service with all charges prepaid
and addressed as set forth above.
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Section 2.
Waiver
. Whenever notice is required by law, the certificate of
incorporation or these bylaws to be given to any director, committee member or stockholder, a
waiver thereof in writing signed by the person entitled to such notice, or a waiver by electronic
transmission by the person entitled to such notice, whether before or after the time stated
therein, shall be equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when such person attends for the express purpose of
objecting at the beginning of the meeting to the transaction of any business on the ground that the
meeting is not lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any meeting of stockholders, the board of directors or a committee of directors need be
specified in any written waiver of notice or any waiver by electronic transmission unless so
required by law, the certificate of incorporation or these bylaws.
ARTICLE V. OFFICERS
Section 1.
Titles; Election; Term of Office
. The officers of the corporation shall be
a president, secretary and such other officers as the board of directors may elect or appoint,
including, without limitation, a chairman of the board, a chief executive officer, one or more vice
presidents (with each vice president to have such descriptive title, if any, as the board of
directors shall determine), a treasurer, one or more assistant secretaries and one or more
assistant treasurers. Each officer shall hold office until his or her successor has been duly
elected and qualified or, if earlier, until his or her death, resignation or removal. Any two or
more offices may be held by the same person. Except for the chairman of the board, none of the
officers need be a director of the corporation. The chairman of the board shall be the chief
executive officer of the corporation, unless the board of directors designates a different officer
as chief executive officer.
Section 2.
Removal
. The board of directors may remove any officer of the corporation
with or without cause at any time. Election or appointment of an officer shall not of itself
create contract rights.
Section 3.
Vacancies
. Any vacancy occurring in any office of the corporation shall be
filled by the board of directors.
Section 4.
Powers and Duties
. Officers shall have such powers and duties in the
management of the corporation as (a) are provided in these bylaws, (b) may be prescribed by the
board of directors or by an officer authorized to do so by the board, and (c) generally pertain to
their respective offices, subject to the control of the board of directors and any officer to whom
they report. One officer shall have responsibility for keeping the minutes of all proceedings of
the board of directors, board committees and stockholders in books provided for that purpose, and
shall attend to the giving and service of all notices.
Section 5.
Compensation
. The compensation of officers shall be determined by the
board of directors; provided, however, that, unless otherwise provided by law, the board of
directors may delegate the power to determine the compensation of any officer (other than the
officer to whom such power is delegated) to the independent members of the board, a committee of
the board, the chairman of the board, the president or such other officers as may be designated by
the board or a committee of the board.
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ARTICLE VI. INDEMNIFICATION
Section 1.
Rights to Indemnification and Advancement of Expenses
. The corporation
shall, to the fullest extent permitted by applicable law as it presently exists or may hereafter be
amended, (a) indemnify and hold harmless any person who was or is made or is threatened to be made
a party to, or is otherwise involved in, any action, suit or proceeding by reason of the fact that
he or she is or was a director, officer or managing director (or its equivalent) of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against all liability and loss suffered and expenses (including attorneys fees) reasonably
incurred by such person in connection therewith, and (b) pay the expenses (including attorneys
fees) incurred by any such person in defending any such action, suit or proceeding in advance of
its final disposition; provided, however, that the payment of expenses incurred by a person in
advance of the final disposition of the action, suit or proceeding shall be made only upon receipt
of an undertaking by the person to repay all amounts advanced if it should ultimately be determined
that the person is not entitled to be indemnified under this Article or otherwise. The corporation
shall be required to indemnify and advance expenses to any such person in connection with an
action, suit or proceeding (or part thereof) initiated by such person only if such action, suit or
proceeding (or part thereof) was authorized by the board of directors of the corporation.
Section 2.
Non-Exclusivity of Rights
. The rights to indemnification and the
advancement of expenses, as conferred on any person by the provisions of this Article, shall not be
deemed exclusive of any other rights to which such person may have or hereafter acquire under any
law, provision of the certificate of incorporation, these bylaws, any agreement, vote of
stockholders or disinterested directors, or otherwise.
Section 3.
Nature of Rights
. The rights to indemnification and the advancement of
expenses provided by or granted pursuant to this Article shall continue as to a person who has
ceased to be a director, officer or managing director (or its equivalent) and shall inure to the
benefit of the heirs, executors and administrators of such person. The provisions of this Article
shall be deemed to be a contract between the corporation and each director who serves in such
capacity at any time while this Article is in effect, and any repeal or modification hereof shall
not affect any rights or obligations then existing with respect to any state of facts or any
action, suit or proceeding then or theretofore existing, or any action, suit or proceeding thereafter
brought or threatened based in whole or in part on any such state of facts.
ARTICLE VII. MISCELLANEOUS PROVISIONS
Section 1.
Shares of Stock
. The shares of stock of the corporation shall be
represented by certificates or shall be uncertificated. The board of directors shall have the
power and authority to make all such rules and regulations as it may deem expedient concerning the
issue, transfer and registration of uncertificated shares or certificates for shares of stock of
the corporation.
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Section 2.
Stock Certificates
. Certificates for shares of stock of the corporation
shall be in such form as shall be approved by the board of directors. The certificates shall be
signed by the chairman of the board or the president or a vice president and by the secretary or an
assistant secretary or the treasurer or an assistant treasurer. Any or all of the signatures on
the 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 he or she were such officer, transfer agent or registrar at
the date of issue.
Section 3.
Lost, Stolen or Destroyed Certificates
. No certificate for shares or
uncertificated shares of stock of the corporation shall be issued in place of any certificate
alleged to have been lost, stolen or destroyed, except on production of such evidence of such loss,
theft or destruction and on delivery to the corporation of a bond of indemnity in such amount, upon
such terms and secured by such surety as the board of directors or its designee may require.
Section 4.
Record Date
. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock or for
the purpose of any other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other such action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of 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.
Section 5.
Registered Stockholders
. The corporation shall be entitled to treat the
holder of record of any share or shares of stock as the holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
Section 6.
Dividends
. The board of directors may declare, and the corporation may
pay, dividends on the corporations outstanding shares of stock in the manner and upon the terms
and conditions provided by law and the certificate of incorporation.
Section 7.
Fiscal Year
. The fiscal year of the corporation shall be fixed by the
board of directors.
Section 8.
Seal
. The seal of the corporation shall be in such form as may from time
to time be approved by the board of directors or by an officer authorized to do so by the board.
The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced,
or may be used in any other lawful manner.
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Section 9.
Resignations
. Any director, committee member or officer may resign at any
time upon notice given in writing or by electronic transmission to the corporation. Such
resignation shall take effect when such notice is given unless the notice specifies (a) a later
effective date, or (b) an effective date determined upon the happening of an event or events, such
as the failure to receive the required vote for reelection as a director and the acceptance of such
resignation by the board of directors. Unless otherwise specified in the notice of resignation,
the acceptance of such resignation shall not be necessary to make it effective.
Section 10.
Forum for Adjudication of Disputes
. Unless the corporation consents in
writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware
shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf
of the corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any
director, officer or other employee of the corporation to the corporation or the corporations
stockholders, (c) any action asserting a claim arising pursuant to any provision of the Delaware
General Corporation Law, or (d) any action asserting a claim governed by the internal affairs
doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital
stock of the corporation shall be deemed to have notice of and consented to the provisions of this
Section.
Section 11.
Invalid Provisions
. If any provision of these bylaws is held to be
illegal, invalid or unenforceable under any present or future law, and if the rights or obligations
of the stockholders would not be materially and adversely affected thereby, such provision shall be
fully separable, and these bylaws shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, the remaining provisions of these bylaws
shall remain in full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom, and in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of these bylaws, a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
Section 12.
Headings
. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in interpretation.
ARTICLE VIII. AMENDMENTS
Subject to the provisions of the certificate of incorporation of the corporation, these bylaws
may be altered, amended or repealed, or new bylaws may be adopted, by the stockholders or by the
board of directors. Notwithstanding the foregoing and anything contained in these bylaws to the
contrary, Sections 1 and 2 of Article III herein shall not be altered, amended or repealed for the
purpose of dividing the board of directors into classes with staggered terms and no provision
inconsistent therewith shall be adopted for such purpose without the affirmative vote of the
holders of at least a majority of the voting power of all the shares of the corporation entitled to
vote generally in the election of directors, voting together as a single class. Notwithstanding
the
first sentence
of this Article VIII and anything contained in these bylaws to the contrary,
Section 1 of Article III herein shall not be altered, amended or repealed for the purpose of
changing to a plurality-voting standard for the election of directors and no provision inconsistent
therewith
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shall be adopted for such purpose without the affirmative vote of the holders of at least
a majority of the voting power of all the shares of the corporation entitled to vote generally in
the election of directors, voting together as a single class. Notwithstanding anything contained
in these bylaws to the contrary, the affirmative vote of the holders of at least a majority of the
voting power of all shares of the corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend, adopt any
provision inconsistent with or repeal either of the two preceding sentences of this Article VIII.
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