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
December 1, 2008
Date
of Report (Date of earliest event reported)
SANMINA-SCI
CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
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000-21272
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77-0228183
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(State or other jurisdiction of
incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification
No.)
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2700 North First Street
San Jose,
California 95134
(Address
of principal executive offices)
(408) 964-3500
(Registrants
telephone number, including area code)
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 (see General Instruction A.2.
below):
o
Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departure of Directors
or Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers
On December 1, 2008, the Compensation
Committee of the Board of Directors of Sanmina-SCI Corporation (the Company)
approved the Sanmina-SCI Fiscal 2009 Short-Term Incentive Plan (the 2009
Incentive Plan). The 2009 Incentive Plan sets forth the methodology for
calculating annual bonuses for fiscal 2009 for specified employees of the
Company, including executive officers, based upon achievement of specified
corporate, divisional and individual performance objectives.
Under the 2009 Incentive Plan, the Companys
fiscal 2009 performance is measured against targets for revenue, non-GAAP
operating margin, free cash flow, inventory turns and return on invested
capital. Should the Company not achieve a minimum performance against these
targets, no bonuses shall be payable under the 2009 Incentive Plan. Each
participants bonus is determined by reference to an individual bonus target
established by management (or, in the case of the Companys executive officers,
by the Compensation Committee), the Companys performance against its targets,
as described above, and achievement of the participants individual/divisional
performance targets for fiscal 2009.
The 2009 Incentive Plan also sets forth the fiscal
2009 bonus targets, expressed as a percentage of base salary, for the following
executive officers of the Company, each of whom is considered a named
executive officer for fiscal 2008 under Securities and Exchange Commission
rules: Hari Pillai (President and Chief Operating Officer): 90%; David L. White
(Executive Vice President and Chief Financial Officer): 90%; and Michael R.
Tyler (Executive Vice President and General Counsel): 80%.
The Company and the Compensation Committee
retain the right to terminate or amend the 2009 Incentive Plan in any respect,
including increasing or decreasing the corporate performance and individual
bonus targets.
Item 5.03 Amendments to Articles
of Incorporation or Bylaws; Change in Fiscal Year.
On December 1, 2008, the Board of
Directors of the Company approved an amendment of the Companys bylaws in order
to revise Article II, Section 9 of the bylaws relating to the
required vote for approval of matters by stockholders to provide that a matter
shall be approved by stockholders upon the affirmative vote of a majority of
the shares present at a meeting and entitled to vote on such matter rather than
by a majority of the shares constituting the quorum at a meeting as previously
provided.
The Amended and Restated Bylaws of the
Company, including these changes, are filed as Exhibit 3.2 to this Form 8-K.
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ITEM 9.01 Financial Statements and
Exhibits
(d) Exhibits.
Exhibit No
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Description
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Exhibit 3.2
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Amended and Restated Bylaws of Sanmina-SCI
Corporation approved on December 1, 2008
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SIGNATURE
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.
Date:
December 4, 2008
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SANMINA-SCI
CORPORATION
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By:
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/s/ Michael
R. Tyler
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Michael R.
Tyler
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Executive
Vice President, General
Counsel and Corporate Secretary
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EXHIBIT
INDEX
Exhibit No.
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Description
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Exhibit 3.2
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Amended and Restated Bylaws of Sanmina-SCI
Corporation approved on December 1, 2008
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Exhibit
3.2
AMENDED AND RESTATED BYLAWS
OF
SANMINA-SCI CORPORATION
(Approved by the Board of Directors on December 1, 2008)
ARTICLE I
OFFICES
Section 1.
Registered Office
. The
address of the registered office of Sanmina-SCI Corporation (the
Corporation
)
in the State of Delaware is 2711 Centerville Road, Suite 400, in the City
of Wilmington, County of New Castle. The
name of the Corporations registered agent at such address is The Corporation
Service Company.
Section 2.
Other Offices
. The
Corporations Board of Directors may at any time establish other offices at any
other place or places within or without the State of Delaware.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.
Annual Meetings
. The
annual meeting of the stockholders for the election of directors, and for the
transaction of such other business as may properly come before the meeting in
accordance with these bylaws, shall be held at such place, either within or
without the State of Delaware, on such date and at such hour as shall be fixed
by resolution of the Board of Directors of the Corporation (the
Board
)
and designated in the notice or waiver of notice thereof.
Section 2.
Special Meetings
. A
special meeting of the stockholders for any purpose or purposes may be called
by the Board, the Chairman of the Board, the President or the Secretary of the
Corporation (or by a stockholder or other person pursuant to Article III, Section 3(f) of
these bylaws but only if there are no directors in office) to be held at such
place, within or without the State of Delaware, on such date and at such hour
as shall be designated in the notice or waiver or notice thereof.
If
a special meeting is called in accordance with the preceding paragraph of this Article II,
Section 2 by any person or persons other than the Board, the request shall
be in writing, specifying the time of such meeting and the general nature of
the business proposed to be transacted, and shall be delivered personally or
sent by registered mail or by telegraphic or other facsimile transmission to
the Chairman of the Board, the President or the Secretary of the
Corporation. No business may be
transacted at such special meeting otherwise than specified in such notice. The officer receiving the request shall cause
notice to be promptly given to the stockholders entitled to vote, in accordance
with the provisions of Sections 3 and 4 of this Article II, that a
meeting will be held at the time
requested
by the person or persons calling the meeting, not less than ten (10) nor
more than sixty (60) days after the receipt of the request. Nothing contained in this paragraph of this Section 2
shall be construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the Board may be held.
Section 3.
Notice of Meetings
. All
notices of meetings of stockholders shall be in writing and shall be sent or
otherwise given in accordance with this Section 3 or in accordance with Section 1
of Article XIII of these bylaws not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to vote
at such meeting. The notice shall
specify the place, date, and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called and, unless
the special meeting is called by the Board, the person calling the
meeting. Written notice of any meeting
of stockholders, if mailed, is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on
the records of the Corporation or, if electronically transmitted, as provided
in Section 1 of Article XIII of these bylaws. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent or other agent of the Corporation that the
notice has been given shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
Section 4.
Advance Notice Procedures
.
(a)
Advance Notice of Stockholder
Business
.
At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be brought: (A) by or
at the direction of the Board, (B) pursuant to the Corporations proxy
materials with respect to such meeting, or (C) by a stockholder of the
Corporation who (1) is a stockholder of record at the time of the giving
of the notice provided for in these bylaws and on the record date for the
determination of stockholders entitled to vote at the annual meeting and (2) has
timely complied in proper written form with the notice procedures set forth in
this Section 4(a). In addition, for business to be properly brought before
an annual meeting by a stockholder, such business must be a proper matter for
stockholder action pursuant to these bylaws and applicable law. For the avoidance of doubt, clause (C) above
shall be the exclusive means for a stockholder to bring business (other than
business included in the Corporations proxy materials pursuant to Rule 14a-8
under the Securities Exchange Act of 1934, as amended (the 1934 Act)) before
an annual meeting of stockholders.
(i)
To comply with clause (C) of Section 4(a),
a stockholders notice must set forth all information required under Section 4(a) and
must be timely received by the secretary of the Corporation. To be timely, a stockholders notice must be
received by the secretary at the principal executive offices of the Corporation
not later than the 45th day nor earlier than the 75th day before the one-year
anniversary of the date on which the Corporation first mailed its proxy
materials or a notice of availability of proxy materials (whichever is earlier)
for the preceding years annual meeting (the Mailing Anniversary);
provided
,
however
, that
in the event that no annual meeting was held in the previous year or if the
date of the annual meeting is advanced more than 30 days prior to or delayed by
more than 60 days after the one-year anniversary of the date of the previous
years annual meeting, then notice by the stockholder to be timely must be so
received by
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the secretary not earlier
than the close of business on the 120th day prior to such annual meeting and
not later than the close of business on the later of (i) the 90th day
prior to such annual meeting, or (ii) the tenth day following the day on
which Public Announcement (as defined below) of the date of such annual meeting
is first made. In no event shall any adjournment or postponement of an annual
meeting or the announcement thereof commence a new time period for the giving
of a stockholders notice as described in this Section 4(a)(i). For
purposes of this Section 4, Public Announcement shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission (the Commission)
pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the 1934 Act).
Notwithstanding anything in
the second sentence of the preceding paragraph of this Section 4 to the
contrary, in the event that the number of directors to be elected to the Board
is increased and no Public Announcement naming all of the nominees for director
or specifying the size of the increased Board is made by the Corporation at
least 55 days prior to the Mailing Anniversary, the Stockholder Notice shall be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10
th
day following the day on which such Public
Announcement is first made by the Corporation.
(ii)
To be in proper written form, a stockholders
notice to the secretary shall set forth as to each matter of business the
stockholder intends to bring before the annual meeting: (1) a brief
description of the business intended to be brought before the annual meeting
and the reasons for conducting such business at the annual meeting, (2) the
name and address, as they appear on the Corporations books, of the stockholder
proposing such business and any Stockholder Associated Person (as defined
below), (3) the class and number of shares of the Corporation that are
held of record or are beneficially owned by the stockholder or any Stockholder
Associated Person and any derivative positions held or beneficially held by the
stockholder or any Stockholder Associated Person, (4) whether and the
extent to which any hedging or other transaction or series of transactions has
been entered into by or on behalf of such stockholder or any Stockholder
Associated Person with respect to any securities of the Corporation, or whether
any other agreement, arrangement or understanding (including any short position
or 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 from share price changes
for, or to increase or decrease the voting power of, such stockholder or any
Stockholder Associated Person with respect to any securities of the
Corporation, (5) any material interest of the stockholder or any Stockholder
Associated Person in such business and (6) a statement whether either such
stockholder or any Stockholder Associated Person will deliver a proxy statement
and form of proxy to holders of at least the percentage of the Corporations
voting shares required under applicable law to carry the proposal (such
statement, a Business Solicitation Statement). In addition, to be in proper written form, a
stockholders notice to the secretary shall be supplemented not later than 10
days following the record date to disclose the information contained in clauses
(3) and (4) above as of the record date. For purposes of this Section 4, a Stockholder
Associated Person of any stockholder shall mean (i) any beneficial owner
on whose behalf the stockholder is proposing such business or, for purposes of
Sections 4(b) and 4(d), proposing a director nomination and (ii) any
person controlling, directly or indirectly, or acting in concert with, such
stockholder or beneficial owner.
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(iii)
Without exception, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this Section 4(a) and, if applicable, Section 4(b). In addition, business may not be brought
before the meeting if a stockholder or Stockholder Associated Person, as
applicable, takes action contrary to the representations made in the Business
Solicitation Statement applicable to such business. The chairperson of the annual meeting shall,
if the facts warrant, determine and declare at the annual meeting that business
was not properly brought before the annual meeting and in accordance with the
provisions of this Section 4(a), and, if the chairperson should so
determine, he or she shall so declare at the annual meeting that any such
business not properly brought before the annual meeting shall not be
transacted.
(b)
Advance Notice of Director
Nominations
.
Notwithstanding anything in
these bylaws to the contrary, only persons who are nominated in accordance with
the procedures set forth in this Section 4(b) shall be eligible for
election or re-election as directors at an annual meeting of stockholders.
Nominations of persons for election to the board of directors of the
Corporation may be made at an annual meeting of stockholders only (A) by
or at the direction of the Board or (B) by a stockholder of the
Corporation who (1) was a stockholder of record at the time of the giving
of the notice provided for in these bylaws and on the record date for the
determination of stockholders entitled to vote at the annual meeting and (2) has
complied with the notice procedures set forth in this Section 4(b). In addition to any other applicable
requirements, for a nomination to be made by a stockholder, the stockholder
must have given timely notice thereof in proper written form to the secretary
of the Corporation.
(i)
To comply with clause (B) of Section 4(b),
a nomination to be made by a stockholder must set forth all information
required under this Section 4(b) and must be received by the
secretary of the Corporation at the principal executive offices of the
Corporation at the time and in accordance with the final three sentences of Section 4(a)(i) above.
(ii)
To be in proper written form, such
stockholders notice shall set forth:
(1)
as to each person (a nominee) whom the
stockholder proposes to nominate for election or re-election as a director: (A) the
name, age, business address and residence address of the nominee, (B) the
principal occupation or employment of the nominee, (C) the class and
number of shares of the Corporation that are beneficially owned by the nominee,
(D) whether and the extent to which any hedging or other transaction or
series of transactions has been entered into by or on behalf of the nominee
with respect to any securities of the Corporation, or whether any other
agreement, arrangement or understanding (including any short position or 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 nominee, (E) a description of
all arrangements or understandings between the stockholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nominations are to be made by the stockholder, (F) any other
information relating to the nominee that would be required to be disclosed
about such nominee if proxies were being solicited for the election of the
nominee as a director, or that is otherwise required, in each case pursuant to
Regulation 14A under the 1934 Act (including without limitation the nominees
written consent to being named in the proxy statement, if any, as a nominee and
to serving as a director if elected), and
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(G) a statement whether
such person, if elected, intends to tender, promptly following such persons
election or re-election, an irrevocable resignation effective upon such persons
failure to receive the required vote for re-election at the next meeting at
which such person would face re-election and upon acceptance of such
resignation by the board of directors, in accordance with the Corporations
Corporate Governance Guidelines; and
(2)
as to such stockholder giving notice, (A) the
information required to be provided pursuant to clauses 2 through 5 of Section 4(a)(ii) above
(except that the references to business in such clauses shall instead refer
to nominations of directors for purposes of this paragraph), and (B) a
statement whether either such stockholder or Stockholder Associated Person will
deliver a proxy statement and form of proxy to holders of a number of the
Corporations voting shares reasonably believed by such stockholder or Stockholder
Associated Person to be necessary to elect such nominee(s) (such
statement, a Nominee Solicitation Statement).
(iii)
At the request of the board of directors, any
person nominated by a stockholder for election as a director shall furnish to
the secretary of the Corporation such other information as may reasonably be
required by the Corporation to determine the eligibility of such proposed
nominee to serve as an independent director of the Corporation or that could be
material to a reasonable stockholders understanding of the independence, or
lack thereof, of such nominee; in the absence of the furnishing of such
information if requested, such stockholders nomination shall not be considered
in proper form pursuant to this Section 4(b).
(iv)
Without exception, no person shall be
eligible for election or re-election as a director of the Corporation at an
annual meeting of stockholders unless nominated in accordance with the
procedures set forth in this Section 4(b).
In addition, a nominee shall not be eligible for election or re-election
if a stockholder or Stockholder Associated Person, as applicable, takes action
contrary to the representations made in the Nominee Solicitation Statement
applicable to such nominee. The
chairperson of the annual meeting shall, if the facts warrant, determine and
declare at the annual meeting that a nomination was not made in accordance with
the procedures prescribed by these bylaws, and if the chairperson should so
determine, he or she shall so declare at the annual meeting, and the defective
nomination shall be disregarded.
(c)
Other Requirements and Rights
.
In addition to the foregoing
provisions of this Section 4, a stockholder shall also comply with all
applicable requirements of state law and of the 1934 Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 4. Nothing in this Section 4 shall be
deemed to affect any right of a stockholder to request inclusion of proposals
in, nor the right of the Corporation to omit a proposal from, the Corporations
proxy statement pursuant to Rule 14a-8 (or any successor provision) under
the 1934 Act.
(d)
Business and Director Nominations
for Special Meetings
.
(i)
Special meetings of the stockholders, other
than those required by statute, may be called at any time by the Board or the
persons authorized by Article II, Section 2 of these Bylaws.
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(ii)
Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
by or at the Board or the persons authorized by Article II, Section 2
of these Bylaws. The notice of such
special meeting shall include the purpose for which the meeting is called. Nominations of persons for election to the
Board may be made at a special meeting of stockholders at which directors are
to be elected (1) by or at the direction of the Board or (2) by any
stockholder of the Corporation who (A) is a stockholder of record at the
time of the giving of the notice provided for in these bylaws and on the record
date for the determination of stockholders entitled to vote at the special
meeting and (B) delivers a timely written notice of the nomination to the
secretary of the Corporation that includes the information set forth in
Sections 4(b)(ii) and (iii) above.
To be timely, such notice must be received by the secretary at the
principal executive offices of the Corporation not later than the close of
business on the later of the 90th day prior to such special meeting or the 10th
day following the day on which Public Announcement is first made of the date of
the special meeting and of the nominees proposed by the board of directors to
be elected at such meeting. A person
shall not be eligible for election or re-election as a director at a special
meeting unless the person is nominated (i) by or at the direction of the
Board or (ii) by a stockholder in accordance with the notice procedures
set forth in this Section 4(d). In
addition, a nominee shall not be eligible for election or re-election if a
stockholder or Stockholder Associated Person, as applicable, takes action
contrary to the representations made in the Nominee Solicitation Statement
applicable to such nominee.
(iii)
Notwithstanding the foregoing provisions of
this Section 4(d), a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder
with respect to matters set forth in this Section 4(d). Nothing in this Section 4(d) shall
be deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporations proxy statement pursuant to Rule 14a-8
under the Exchange Act.
(iv)
The chairperson of the special meeting shall,
if the facts warrant, determine and declare at the meeting that a nomination or
business was not made in accordance with the procedures prescribed by these
bylaws, and if the chairperson should so determine, he or she shall so declare
at the meeting, and the defective nomination or business shall be disregarded.
Section 5.
Waiver of Notice
.
Notice of any annual or special meeting of stockholders need not be
given to any stockholder entitled to vote at such meeting who waives notice,
either in writing or by electronic transmission, whether before or after the
meeting. Attendance of a stockholder at a meeting, in person or by proxy, shall
constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
convened or called. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting need be
specified in any written waiver of notice unless so required by the certificate
of incorporation or these bylaws.
Section 6.
Conduct of Business
. The
chairman of any meeting of stockholders shall determine the order of business
and the procedure at the meeting, including such regulation of the manner of
voting and the conduct of discussion as seem to him or her in order. The chairman shall have the power to adjourn
the meeting to another place, if any, date and time. The date and time of
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the opening and closing of
the polls for each matter upon which the stockholders will vote at the meeting
shall be announced at the meeting.
Section 7.
Adjournments
. When
a meeting is adjourned to another date, hour or place, notice need not be given
of the adjourned meeting if the date, hour and place thereof are announced at
the meeting at which the adjournment is taken.
If the adjournment is for more than 30 calendar 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 adjourned meeting. At the
adjourned meeting any business may be transacted which might have been
transacted at the original meeting.
Section 8.
Quorum
. Except as otherwise provided by
law or the certificate of incorporation, whenever a class of stock of the
Corporation is entitled to vote as a separate class, or whenever classes of
stock of the Corporation are entitled to vote together as a single class, on
any matter brought before any meeting of the stockholders, whether annual or
special, holders of a majority of the shares of stock of such class voting as a
separate class, or classes voting together as a single class, as the case may
be, outstanding and entitled to vote thereat, present in person or by proxy,
shall constitute a quorum at any such meeting of the stockholders. If, however,
such quorum shall not be present or represented at any such meeting of the
stockholders, the stockholders entitled to vote thereat may adjourn the meeting
from time to time in accordance with Section 7 of this Article II
until a quorum shall be present or represented.
Section 9.
Voting
. Except as otherwise provided
by law or the certificate of incorporation, when a quorum is present with
respect to any matter brought before any meeting of the stockholders, the
affirmative vote of a majority of the shares present in person or represented
by proxy at the meeting and entitled to vote on the subject matter shall decide
any such matter.
Section 10.
Proxies
. Each stockholder entitled to
vote at a meeting of stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or persons to
act for such stockholder by proxy. Such
proxy shall be filed with the Secretary before such meeting of stockholders, at
such time as the Board may require. No
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
Section 11.
Stockholders Consent in Lieu of Meeting
.
(a)
Any action required by the General
Corporation Law of the State of Delaware to be taken at any annual or special
meeting of the stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of the stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
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(b)
If any stockholder (a
Proposing
Stockholder
) seeks to act by written consent, the Proposing Stockholder
shall, before soliciting written consent of other stockholders, request that
the Board fix a record date to determine those persons eligible to act as
stockholders by written consent on the matter proposed. The request shall contain (i) the name
and address of the Proposing Stockholder, (ii) a representation that the
Proposing Stockholder is a stockholder of record and (iii) a description
of the matter proposed for adoption by written consent. The request shall be in writing and delivered
to or mailed to and received at the principal executive offices of the
Corporation. In the event the Board does
not fix a record date within ten days of receipt of said request, the record
date shall be set in accordance with Article VII, Section 7
hereof. Except as otherwise required by
statute, the certificate of incorporation or these bylaws, the Board shall have
the exclusive authority to set a record date with regard to actions sought or
taken under this Section 11.
ARTICLE III
BOARD OF DIRECTORS
Section 1.
General Powers
. The
business and affairs of the Corporation shall be managed by the Board, which
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the certificate of incorporation directed or
required to be exercised or done by the stockholders.
Section 2.
Number and Term of Office
. The
number of directors of the Corporation shall be ten (10), until changed by a
resolution duly adopted by the Board.
None of the directors need be stockholders of the Corporation. Directors shall be elected at the annual
meeting of stockholders by the holders of the outstanding shares of Common
Stock, par value $0.01 per share (
Common Stock
), of the Corporation
entitled to vote thereat, and each director shall hold office until his
successor is elected by the holders of the outstanding shares of Common Stock
and qualified, or until his earlier death or resignation or removal in the
manner hereinafter provided. A nominee
for director shall be elected to the Board if the votes cast for such nominees
election exceed the votes cast against such nominees election; provided,
however, that directors shall be elected by a plurality of the votes cast at
any meeting of stockholders for which (i) the Secretary of the Corporation
receives a notice that a stockholder has nominated a person for election to the
Board that the Secretary determines has complied with the advance notice
requirements for stockholder nominees for director set forth in Article II,
Section 4 of these bylaws and (ii) such nomination has not been withdrawn
by such stockholder on or prior to the day next preceding the date the
Corporation first mails its notice of meeting for such meeting to the
stockholders. If directors are to be elected by a plurality of the votes cast,
stockholders shall not be permitted to vote against a nominee.
Section 3.
Resignation, Removal and Vacancies
.
(a)
Any director may resign at any time upon
written notice or notice by electronic transmission to the attention of the
Secretary of the Corporation. Such
resignation shall take effect at the time specified therein or, if the time be
not specified, upon receipt by the Corporation thereof; and, unless otherwise
specified therein, acceptance of such resignation shall not be necessary to
make it effective.
8
(b)
Unless otherwise restricted by statute or the
certificate or incorporation, when one or more directors shall resign from the
Board, effective at a future date, a majority of the directors then in office,
including those who have so resigned, may fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in this
section in the filling of other vacancies.
(c)
Unless otherwise provided in the certificate
of incorporation or these bylaws:
(i)
Vacancies and newly created directorships
resulting from any increase in the authorized number of directors elected by
all of the stockholders having the right to vote as a single class shall be
filled only by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director, and each director chosen to fill such
vacancies and newly created directorships shall hold office as provided in this
section in the filling of other vacancies.
(ii)
Whenever the holders of any class or classes
of stock or series thereof are entitled to elect one or more directors by the
certificate of incorporation, vacancies and newly created directorships of such
class or classes or series shall be filled only by a majority of the directors
elected by such class or classes or series thereof then in office, or by a sole
remaining director so elected, and each director chosen to fill such vacancies
and newly created directorships shall hold office as provided in this section
in the filling of other vacancies.
(d)
Unless otherwise restricted by statute, the
certificate of incorporation or these bylaws, any director or the entire Board
may be removed, with or without cause, at any time by vote of the holders of a
majority of the outstanding shares of Common Stock entitled to vote at an
election of directors or by written consent of such stockholders pursuant to Section 11
of Article II hereof.
(e)
If at any time, by reason of death or
resignation or other cause, the Corporation should have no directors in office,
then any officer or any stockholder or an executor, administrator, trustee or
guardian of a stockholder, or other fiduciary entrusted with like responsibility
for the person or estate of a stockholder, may call a special meeting of
stockholders in accordance with the provisions of the certificate of
incorporation or these bylaws, or may apply to the Court of Chancery for a
decree summarily ordering an election as provided in Section 211 of the
Delaware General Corporation Law.
(f)
If, at the time of filling any vacancy or any
newly created directorship, the directors then in office constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), then the Court of Chancery may, upon application of any stockholder
or stockholders holding at least ten (10) percent of the total number of
the 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 as aforesaid, which election shall be governed by the provisions of Section 211
of the Delaware General Corporation Law as far as applicable.
9
(g)
Except as otherwise required by statute, the
certificate of incorporation or these bylaws, the shareholders shall have no
power to fill vacancies or newly created directorships on the Board.
Section 4.
Meetings
.
(a)
Regular Meetings
.
Regular meetings of the Board may be held without notice at such time
and at such place as shall from time to time be determined by the Board.
(b)
Other Meetings
. Other
meetings of the Board shall be held at such times as the Board or the Chairman
of the Board of, subject to the provisions of Article V hereof, the Lead
Independent Director, shall from time to time determine.
(c)
Notice of Meetings
. The
Secretary shall give written notice to each director of each meeting, except
for regular meetings, which notice shall state the time and place of such
meeting. Notice of the time and place of
such meetings shall be (i) delivered personally by hand, by courier or by telephone,
(ii) sent by United States first-class mail, postage prepaid, (iii) sent
by facsimile, or (iv) sent by electronic mail directed to each director at
that directors address, telephone number, facsimile number or electronic mail
address, as the case may be, as shown on the Corporations records.
If
the notice is (i) delivered personally by hand, by courier or by
telephone, (ii) sent by facsimile or (iii) sent by electronic mail,
it shall be delivered or sent at least 24 hours before the time of the holding
of the meeting. If the notice is sent by
United States mail, it shall be deposited in the United States mail at least
four days before the time of the holding of the meeting. The notice need not specify the place of the
meeting (if the meeting is to be held at the Corporations principal executive
office) nor the purpose of the meeting.
A written waiver of notice, signed by the person entitled thereto,
whether before or after the time or the meeting stated therein, shall be deemed
equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
as provided by law.
(d)
Place of Meetings
. The
Board may hold its meetings at such place or places, within or without the
State of Delaware, as the Board or the Chairman of the Board may from time to
time determine, or as shall be designated in the respective notices or waivers
or notice thereof.
(e)
Quorum, and Manner of Acting
.
One-half of the total number of directors then in office (but in no case
less than one-half of the total number of directors, and not less than two if
the total number of directors is greater than one) shall be present in person
at any meeting of the Board in order to constitute a quorum for the transaction
of business at such meeting, and the vote of a majority of those directors
present at any such meeting at which a quorum is present shall be necessary for
the passage of any resolution or act of the Board, except as otherwise
expressly required by law or these Bylaws. In the absence of a quorum for any
such meeting, a majority of the directors present thereat may adjourn such
meeting from time to time until a quorum shall be present.
10
(f)
Organization
. At
each meeting of the Board, one of the following shall act as chairman of the
meeting and preside, in the following order or precedence:
(i)
the Chairman of the Board;
(ii)
the President; or
(iii)
any director chosen by a majority of the
directors present.
The Secretary or, in the
case of his absence, any person (who shall be an Assistant Secretary, if an
Assistant Secretary is present) whom the chairman shall appoint shall act as
secretary of such meeting and keep the minutes thereof.
Section 5.
Directors Consent in Lieu of Meeting
. Any
action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken, shall
be signed by all the members of the Board or committee and such consent is
filed with the minutes of the proceedings of the Board. Written consent of members of the Board or
any committee may be evidenced in the records of the Corporation by original or
facsimile signatures, and either original or facsimile signatures shall
constitute prima facie evidence of the written consent of said member.
Section 6.
Action by Means of Telephone or Similar
Communications Equipment
. Any one or more members of the Board, or of
any committee designated by the Board, may participate in a meeting of the
Board or any such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
ARTICLE IV
COMMITTEES
Section 1.
Committees of Directors
. The
Board may, by resolution passed by a majority of the whole Board, designate one
or more committees, with each committee to consist of one or more of the
directors of the Corporation. The Board
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the
committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members 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, or in the
bylaws of the Corporation, shall have and may exercise all the powers and
authority of the Board 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 that may require it; but no such committee shall have the power or
authority (i) approving or adopting or recommending to the stockholders,
any action or
11
matter expressly required by
the Delaware General Corporation Law to be submitted to stockholders for
approval or (ii) adopting, amending, or repealing any bylaws of the
Corporation.
Section 2.
Committee Minutes
. Each
committee shall keep regular minutes of its meetings and report the same to the
board of directors when required.
Section 3.
Meetings and Action of Committees
.
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these bylaws, Section 4
(Meetings), Section 5 (Directors Consent in Lieu of Meeting), and Section 6
(Action by Means of Telephone or Similar Communications Equipment), with such
changes in the context of those bylaws as are necessary to substitute the committee
and its members for the Board and its members; provided, however, that the time
of regular meetings of committees may be determined either by resolution of the
Board or by resolution of the committee, that special meetings of committees
may also be called by resolution of the Board and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The Board may adopt rules for
the government of any committee not inconsistent with the provisions of these
bylaws.
ARTICLE V
LEAD
INDEPENDENT DIRECTOR
The Chairman of the Board, or if the Chairman is not an independent
Director, one of the independent Directors, shall be designated by the Board of
Directors as lead independent Director to serve until replaced by the Board (Lead
Independent Director). The Lead Independent Director shall: (i) serve
as the principal contact between the independent Directors and the Chairman of
the Board; (ii) assist the Chairman of the Board in establishing the
agenda for Board meetings; (iii) provide assistance to Board Committee
chairs in exercising their duties and functions (provided that the Lead
Independent Director shall not be considered to have assumed any duties of a member
of a Board Committee unless he or she is appointed by the Board to serve on
such Committee); (iv) have the power to call and preside at all meetings
of the Board at which the Chairman is not present, including meetings of the
independent Directors; (v) recommend the retention of outside advisors and
consultants; (vi) monitor the quality, quantity and timeliness of
information sent to the Board; and (vii) perform such other duties as may
be established or delegated by the Board.
ARTICLE VI
OFFICERS
Section 1.
Officers.
The officers
of the Corporation shall be a Chief Executive Officer, a President, a Chief Financial Officer, a Treasurer and a Secretary and may include one or
more Presidents of business units, Vice Presidents and Assistant
Secretaries, all of whom shall be appointed by the Board. The Board
of Directors may elect from among its members a Chairman of
12
the Board and a Vice
Chairman of the Board (provided that notwithstanding anything to the contrary
contained in these Bylaws, neither the Chairman of the Board, the Vice Chairman
of the Board nor the Lead Independent Director shall be deemed an officer of
the corporation unless so designated by the Board of Directors). In addition, the Corporation may designate
without Board approval such additional officers as it determines who shall
report directly to an officer appointed by the Board. Any two or more
offices may be held by the same person.
Section 2.
Term of Office,
Resignation and Removal.
Except as provided in Section 3
below, all officers appointed by the Board shall hold office for such
term as may be determined by the Board and otherwise until their
successors have been elected or appointed and qualified, or their earlier death
or resignation or removal in the manner hereinafter provided.
Any
officer appointed by the Board may resign at any time by giving written
notice to the Chairman of the Board, the Chief Executive Officer or the
Secretary of the Corporation, and such resignation shall take effect at the
time specified therein or, if the time when it shall become effective is not
specified therein, at the time it is accepted by action of the Board.
Except as aforesaid, acceptance of such resignation shall not be necessary to
make it effective.
All officers
may be removed by the Board at any time, with or without cause.
Section 3.
Vacancies.
Any vacancy
occurring in any office of the Corporation appointed by the Board pursuant to Section 1
for any reason shall be filled by action of the Board. Any officer
appointed or elected by the Board to fill any vacancy shall serve only until
such time as the unexpired term of his predecessor expires unless reelected or
reappointed by the Board.
Section 4.
Chairman of the
Board.
The Chairman of the Board shall have the power to call special
meetings of the stockholders, to call special meetings of the Board and to
preside at all meetings of the stockholders and all meetings of the Board. He shall perform other duties commonly incident
to the office and shall also perform such other duties and have such other
powers as the Board shall designate from time to time. In the absence of
the Chairman of the Board or the Vice Chairman of the Board, if any, the Lead
Independent Director shall preside at all meetings of the Board and of the
stockholders at which he or she shall be present.
Section 5.
Chief Executive Officer
. If the Chairman of the Board or Lead
Independent Director has not been appointed or is not present, the Chief
Executive Officer shall preside at all meetings of the Board and
stockholders. The Chief Executive Officer shall perform other duties
commonly incident to the office and shall also perform such other duties and
have such other powers, as the Board shall designate from time to time.
Section 6.
Presidents
. The
President of the Corporation shall be the Chief Executive Officer of the
Corporation in the event that there is not another person designated as
the Chief Executive Officer and shall
have general supervision, direction and control of the business and affairs of the Corporation, subject to
the supervision and control of the Board. The President of the
Corporation shall perform other duties commonly incident to the office and
shall also perform such other duties and have such other powers as the Board
shall designate from time to time.
13
Persons
appointed as Presidents of business units of the Corporation, in order of their seniority or in any other
order determined by the Board, shall generally assist the Chief Executive and President of the Corporation
and perform such other duties as the Board or the President shall prescribe.
Section 7.
Vice Presidents.
Vice
Presidents who are appointed by the Board shall generally assist the Chief
Executive Officer and President of the Corporation and perform such other
duties as the Board, the Chief Executive Officer or the President shall
prescribe and, in the absence, inability or refusal to act of the Chairman of
the Board, Chief Executive Officer and President of the Corporation, perform
the duties and exercise the powers of the President of the Corporation.
Section 8.
Chief Financial Officer
. The Chief Financial Officer shall keep or
cause to be kept the books of account of the Corporation in a thorough and
proper manner and shall render statements of the financial affairs of the
Corporation in such form and as often as required by the Board, Chief Executive
Officer and President of the Corporation. The Chief Financial Officer shall
perform other duties commonly incident to the office and shall also perform
such other duties and have such other powers as the Board or the Chief
Executive Officer shall designate from time to time. The Chief Executive
Officer may direct the Vice President and Controller, Treasurer or any
Assistant Treasurer or Assistant Controller, to assume and perform the duties
of the Chief Financial Officer in the absence or disability of the Chief
Financial Officer.
Section 9.
Treasurer.
The Treasurer
shall perform all the duties usually appertaining to the office of treasurer of
a corporation, shall have the care and custody of all the funds of the
Corporation and shall deposit the same in such banks or other depositories as
the Board and the Chairman of the Board shall, from time to time, direct,
authorize or approve. He shall disburse the funds of the Corporation
under the direction of the Board and the Chairman of the Board. He shall
keep a full and accurate account of all moneys received and paid on account of
the Corporation and shall render a statement of his accounts whenever the Board
shall require.
Section 10.
Assistant
Treasurers.
Assistant Treasurers, if any, in order of their seniority or in
any other order determined by the Board, shall generally assist the Treasurer
and perform such other duties as the Board or the Treasurer shall prescribe,
and, in the absence or disability of the Treasurer, shall perform the duties
and exercise the powers of the Treasurer.
Section 11.
Secretary.
The
Secretary shall attend all meetings of the Board and all meetings of the
stockholders and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose, and shall perform like duties for any
standing committees when required. He shall give or cause to be given
notice of all meetings of the stockholders and of the Board and Board
committees, and shall perform such other duties as may be prescribed by the
Board or the Chairman of the Board, under whose supervision he shall act.
He shall keep in safe custody the seal of the Corporation and affix the same to
any duly authorized instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of the Treasurer or an Assistant
Secretary or an Assistant Treasurer. He shall keep in safe custody the
certificate books and stockholder records and such other books and records as
the Board may direct and shall perform all other duties incident to the office
of Secretary and such other duties as from time to time may be assigned to him
by the Board or the Chairman of the Board.
14
Section 12.
Assistant
Secretaries.
Assistant Secretaries if any, in order of their seniority or in
any other order determined by the Board, shall generally assist the Secretary
and perform such other duties as the Board or the Secretary shall prescribe,
and, in the absence or disability of the Secretary, shall perform the duties
and exercise the powers of the Secretary.
Section 13.
Compensation.
The Board,
or any committee thereof designated by the Board, shall have the power to fix
the compensation of all officers of the Corporation.
ARTICLE VII
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 1.
Execution of Documents
. The
Board shall designate the officers, employees and agents of the Corporation who
shall have power to execute and deliver deeds, contracts, mortgages, bonds,
debentures, checks, drafts and other orders for the payment of money and other
documents for and in the name of the Corporation, and may authorize such
officers, employees and agents to delegate such power (including authority to
redelegate) by written instrument to other officers, employees or agents of the
Corporation; and, unless so designated or expressly authorized by these Bylaws,
no officer or agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable pecuniarily for any purpose or to any amount.
Section 2.
Deposits
. All funds of the Corporation
not otherwise employed shall be deposited from time to time to the credit of
the Corporation or otherwise as the Board, or any officer of the Corporation to
whom power in this respect shall have been given by the Board, shall direct.
Section 3.
Proxies in Respect of Stock or Other
Securities of Other Corporations
. The Board shall designate the
officers of the Corporation who shall have authority from time to time to
appoint an agent or agents of the Corporation to exercise in the name and on
behalf of the Corporation the powers and rights which the Corporation may have
as the holder of stock or other securities in any other corporation, and to
vote or consent in respect of such stock or securities. Such designated officers may instruct the
person or persons so appointed as to the manner of exercising such powers and
rights, and such designated officers may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, powers of attorney or other instruments as
they may deem necessary or proper in order that the Corporation may exercise
its said powers and rights.
ARTICLE VIII
SHARES AND TRANSFER OF SHARES
Section 1.
Certificates for Shares
.
Shares of the corporations stock may be certificated or uncertificated,
as provided under Delaware law. All
certificates of stock of the Corporation shall be numbered and shall be entered
in the books of the Corporation as they are issued. They shall exhibit the holders name and
number of shares and shall be signed by the Chairman or a Vice
15
Chairman, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary. Any or all of
the signatures on the certificate may be a facsimile.
Section 2.
Stock Ledger
. A
stock ledger in one or more counterparts shall be kept, in which shall be
recorded the name of each person, firm or corporation owning the shares
evidenced by each certificate for stock of the Corporation issued, the number
of shares of stock evidenced by each such certificate, the data thereof and, in
the case of cancellation, the date of cancellation. Except as otherwise expressly required by
law, the person in whose name shares of stock stand on the stock ledger of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation.
Section 3.
Transfer of Stock
.
(a)
The transfer of shares of stock and the
certificates evidencing such shares of stock of the Corporation shall be
governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the
Uniform Commercial Code), as amended from time to time.
(b)
Transfers of stock shall be made on the books
of the Corporation only by the record holder of such stock, or by attorney
lawfully constituted in writing, and, in the case of stock represented by a
certificate, upon surrender of the certificate.
Section 4.
Addresses of Stockholders
. Each
stockholder shall designate to the Secretary of the Corporation an address at
which notices of meetings and all other corporate notices may be served or
mailed to him, and, if any stockholder shall fail to so designate such an
address, corporate notices may be served upon him by mail directed to him at
his post office address, if any, as the same appears on the share record books
of the Corporation or at his last known post office address.
Section 5.
Lost, Destroyed and Mutilated Certificates
. A
holder of any shares of stock of the Corporation shall promptly notify the
Corporation of any loss, destruction or mutilation of any certificate or
certificates evidencing all or any such shares of stock. The Board may, in its discretion, cause the
Corporation to issue a new certificate in place of any certificate theretofore
issued by it and alleged to have been mutilated, lost, stolen or destroyed,
upon the surrender of the mutilated certificates or, in the case of loss or
destruction of the certificate, upon satisfactory proof of such loss or
destruction, and the Board may, in its discretion, require the owner of the
lost or destroyed certificate or his legal representative to give the
Corporation a bond sufficient to indemnify the Corporation against any claim
made against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
Section 6.
Regulations
. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for stock of
the Corporation.
Section 7.
Fixing Date for Determination of Stockholders
of Record
. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without
16
a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
may fix, in advance, a record date, which shall not be more than 60 nor less
than 10 calendar days before the date of such meeting, nor more than 60
calendar days prior to any other action. A determination of stockholders
entitled to notice of or to vote at a meeting of the stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a
new record date for the adjourned meeting.
Except as otherwise provided by statute, the certificate of
incorporation or these bylaws, the Board shall have the exclusive right to set
a record date.
In
order that the Corporation may determine the stockholders entitled to consent
to corporate action without a meeting (including by telegram, cablegram or
other electronic transmission as permitted by law) the Board may fix a record
date, which shall not precede the date upon which the resolution fixing the
record date is adopted by the Board, and which record date shall not be more
than 10 days after the date upon which the resolution fixing the record date is
adopted. If no record date has been
fixed by the Board within the 10-day period prescribed by Article II, Section 11
hereof, and no prior action by the Board is required by the Delaware General
Corporation Law, the record date shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in the manner prescribed by Article II, Section 11
hereof. If no record date has been fixed
by the Board and prior action by the Board is required by the Delaware General
Corporation Law with respect to the proposed action by written consent of the
stockholders, the record date for determining stockholders entitled to consent
to corporate action in writing shall be at the close of the business day on
which the Board adopts a resolution taking such prior action.
ARTICLE IX
SEAL
The
Board may provide a corporate seal, which shall be in the form of a circle and
shall bear the full name of the Corporation and the words and figures CORPORATE
SEAL 1989 DELAWARE.
ARTICLE X
FISCAL YEAR
The
fiscal year of the Corporation shall end on the last Saturday of September in
each year, unless changed by resolution of the Board.
17
ARTICLE XI
AMENDMENTS
Any
bylaw (including these Bylaws) may be adopted, amended or repealed by the vote
of the holders of a majority of the outstanding shares of Common Stock of the
Corporation entitled to vote at an election of directors or by written consent
of such holders of Common Stock of the Corporation pursuant to Section 11
of Article II hereof or by vote of the Board or by written consent of the
directors pursuant to Section 5 of Article III hereof.
ARTICLE XII
INDEMNITY
Section 1.
Indemnification of Directors and Officers
. The
Corporation shall, to the maximum extent and in the manner permitted by the
General Corporation Law of Delaware, indemnify each of its directors and
officers against expenses (including attorneys fees), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was
an agent of the Corporation. For
purposes of this Section 1 of Article XI, a director or officer
of the Corporation includes any person (i) who is or was a director or
officer of the Corporation, (ii) who is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, or (iii) who was a director or
officer of a corporation which was a predecessor corporation of the Corporation
or of another enterprise at the request of such predecessor corporation.
Section 2.
Indemnification of Others
. The
Corporation shall, to the extent and in the manner permitted by the General Corporation
Law of Delaware, to indemnify each of its employees and agents (other than
directors and officers) against expenses (including attorneys fees),
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding, arising by reason of the fact that
such person is or was an agent of the Corporation. For purposes of this Section 2 of Article XI,
an employee or agent of the Corporation (other than a director or officer)
includes any person (i) who is or was an employee or agent of the
Corporation, (ii) who is or was serving at the request of the Corporation
as an employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or (iii) who was an employee or agent of a
corporation which was a predecessor corporation of the Corporation or of
another enterprise at the request of such predecessor corporation.
Section 3.
Insurance
. The Corporation may purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such liability under the provisions of the
General Corporation Law of Delaware.
18
Section 4.
Nature of Rights
. The right to indemnification conferred in
this Article XII: (i) shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, bylaws, agreement, vote of stockholders or
disinterested directors or otherwise; (ii) shall be contract rights that
vest at the time of such persons service to or at the request of the
Corporation and such rights shall continue as to an indemnitee who has ceased
to be a director, officer or trustee and shall inure to the benefit of the
indemnitees heirs, executors and administrators; and (iii) cannot be
terminated by the Corporation, the Board or the stockholders of the Corporation
with respect to a persons service prior to the date of such termination. Any amendment, modification, alteration or
repeal of this Article that in any way diminishes, limits, restricts,
adversely affects or eliminates any right of an indemnitee or his successors to
indemnification shall be prospective only and shall not in any way diminish,
limit, restrict, adversely affect or eliminate any such right with respect to
any actual or alleged state of facts, occurrence, action or omission then or
previously existing, or any action, suit or proceeding previously or thereafter
brought or threatened based in whole or in part upon any such actual or alleged
state of facts, occurrence, action or omission.
ARTICLE XIII
NOTICE BY ELECTRONIC TRANSMISSION
Section 1.
Notice by Electronic Transmission
.
Without limiting the manner by which notice otherwise may be given
effectively to stockholders pursuant to the General Corporation Law of
Delaware, the certificate of incorporation or these bylaws, any notice to
stockholders given by the Corporation under any provision of the General
Corporation Law of Delaware, the certificate of incorporation or these bylaws
shall be effective if given by a form of electronic transmission consented to
by the stockholder to whom the notice is given.
Any such consent shall be revocable by the stockholder by written notice
to the Corporation. Any such consent
shall be deemed revoked if:
(a)
the Corporation is unable to deliver by
electronic transmission two consecutive notices given by the Corporation in
accordance with such consent; and
(b)
such inability becomes known to the secretary
or an assistant secretary of the Corporation or to the transfer agent, or other
person responsible for the giving of notice.
However, the inadvertent failure to treat such inability as a revocation
shall not invalidate any meeting or other action.
Any
notice given pursuant to the preceding paragraph shall be deemed given:
(i)
if by facsimile telecommunication, when
directed to a number at which the stockholder has consented to receive notice;
(ii)
if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive
notice;
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(iii)
if by a posting on an electronic network
together with separate notice to the stockholder of such specific posting, upon
the later of (A) such posting and (B) the giving of such separate
notice; and
(iv)
if by any other form of electronic
transmission, when directed to the stockholder.
An
affidavit of the secretary or an assistant secretary or of the transfer agent
or other agent of the Corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
Section 2.
Definition of Electronic Transmission
. An electronic
transmission means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved, and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process.
Section 3.
Inapplicability
.
Notice by a form of electronic transmission shall not apply to Sections 164,
296, 311, 312 or 324 of the General Corporation Law of Delaware.
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SANMINA-SCI CORPORATION
CERTIFICATE OF AMENDMENT OF BYLAWS
The
undersigned hereby certifies that he is the duly elected, qualified, and acting
Corporate Secretary of Sanmina-SCI Corporation, a Delaware corporation and that
the foregoing bylaws were amended and restated on December 1, 2008 by the
Corporations board of directors.
IN
WITNESS WHEREOF, the undersigned has hereunto set his hand this 4
th
day of December, 2008.
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/s/ Michael R. Tyler
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Michael R. Tyler
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Executive Vice President,
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General Counsel and Corporate Secretary
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