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) April 25, 2016
PACCAR Inc
(Exact name of registrant as specified in its charter)
| Delaware | 001-14817 | 91-0351110 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
777 106th Avenue NE, Bellevue, WA 98004
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code (425) 468-7400
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.):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02. Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Item 502(f). On April 25, 2016, the Compensation Committee of the Board of Directors approved the Long Term Performance Cash Awards (“LTIP Cash Awards”) for the 2013-2015 cycle under the Long Term Incentive Plan for the Named Executive Officers identified in the Company’s March 16, 2016 proxy statement (“Proxy Statement”). The total compensation for each Named Executive Officer reported in the Summary Compensation Table on page 24 of the Proxy Statement has been recalculated to include the LTIP Cash Awards as follows:
| Non-Equity Incentive Plan | ||||||||
| Compensation | ||||||||
|
Named Executive Officer |
LTIP Cash Award | Total Compensation | ||||||
|
R. E. Armstrong |
$ | 981,450 | $ | 9,583,839 | ||||
|
R. J. Christensen |
$ | 842,000 | $ | 5,366,931 | ||||
|
D. D. Sobic |
$ | 656,075 | $ | 4,182,508 | ||||
|
R. A. Bengston |
$ | 180,440 | $ | 1,926,100 | ||||
|
T. K. Quinn |
$ | 191,100 | $ | 1,656,069 | ||||
|
M. C. Pigott |
$ | 2,646,880 | $ | 5,435,471 | ||||
Item 5.03. Amendments to Articles of Incorporation or Bylaws
On July 7, 2015, upon the recommendation of the Board’s Nominating and Governance Committee, which is comprised entirely of independent directors, the Board of Directors approved, and recommended for approval by the stockholders, the amendment of the Restated Certificate of Incorporation. On April 26, 2016, the stockholders approved the amendment of the Restated Certificate of Incorporation effective upon filing with the Secretary of State of Delaware. The principal amendment was the following:
Article Ninth was amended to eliminate the classified structure of the Board and institute the annual election of directors upon the expiration of their current terms.
The foregoing summary is qualified by reference to the full text of the Amended and Restated Certificate of Incorporation attached hereto as Exhibit 3(i).
On April 26, 2016, the Board of Directors approved the Fourth Amended and Restated Bylaws effective April 26, 2016. The principal amendments are the following:
Article I was amended to provide for the annual election of Directors upon the expiration of their terms.
Article V was amended to reflect the Executive Chairman’s title.
The foregoing summary is qualified by reference to the full text of the Fourth Amended and Restated Bylaws attached hereto as Exhibit 3(ii).
Item 5.07. Submission of Matters to a Vote of Security Holders
(a) The annual meeting of stockholders was held on April 26, 2016.
(b) Following is a brief description and vote count of all items voted on at the annual meeting:
Item 1. Election of Directors.
The following persons were elected to serve as Class III directors with a term expiring in 2019:
| Shares Voted | Shares | Broker | ||||||||||||
| Nominee | “For” | Withheld | Abstentions | Nonvotes | ||||||||||
|
A. J. Carnwath |
296,496,927 | 4,661,597 | 764,406 | 0 | ||||||||||
|
L. Kaufmann |
296,517,147 | 4,783,999 | 621,784 | 0 | ||||||||||
|
J. M. Pigott |
299,680,752 | 1,709,935 | 532,243 | 0 | ||||||||||
|
G. M. E. Spierkel |
296,632,309 | 4,653,973 | 636,648 | 0 | ||||||||||
Item No. 2. Approval of Long-Term Incentive Plan.
Item No. 2 received the affirmative vote of a majority of the shares present and entitled to vote at the meeting.
| Shares Voted | Shares Voted | Broker | ||||
|
“For” |
“Against” |
Abstentions |
Nonvotes |
|||
| 294,557,665 | 6,426,428 | 938,301 | 536 |
Item No. 3. Approval of Senior Executive Yearly Incentive Compensation Plan.
Item No. 3 received the affirmative vote of a majority of the shares present and entitled to vote at the meeting.
| Shares Voted | Shares Voted | Broker | ||||
|
“For” |
“Against” |
Abstentions |
Nonvotes |
|||
| 296,531,744 | 4,373,745 | 1,016,905 | 536 |
Item No. 4. Approval of Amended and Restated Certificate of Incorporation.
Item No. 4 received the affirmative vote of a majority of the shares present and entitled to vote at the meeting.
| Shares Voted | Shares Voted | Broker | ||||
|
“For” |
“Against” |
Abstentions |
Nonvotes |
|||
| 299,745,063 | 1,402,360 | 775,507 | 0 |
Item No. 5. Stockholder Proposal Regarding Supermajority Vote Provisions.
Item No. 5 did not receive the affirmative vote of a majority of the shares present and entitled to vote at the meeting.
| Shares Voted | Shares Voted | Broker | ||||
|
“For” |
“Against” |
Abstentions |
Nonvotes |
|||
| 148,028,983 | 152,052,028 | 1,840,569 | 1,350 |
Item No. 6. Stockholder Proposal Regarding Proxy Access.
Item No. 6 did not receive the affirmative vote of a majority of the shares present and entitled to vote at the meeting.
| Shares Voted | Shares Voted | Broker | ||||
|
“For” |
“Against” |
Abstentions |
Nonvotes |
|||
| 135,543,175 | 164,193,960 | 2,184,445 | 1,350 |
(c) Not applicable.
I t e m 9. 01. Financial Statements and Exhibits
(d) Exhibits.
The following are furnished as Exhibits to this Report.
|
Exhibit Number |
Description |
|
| 3(i) | Amended and Restated Certificate of Incorporation | |
| 3(ii) | Fourth Amended and Restated Bylaws | |
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.
| PACCAR Inc | ||||||
| Date: April 29, 2016 | By: |
/s/ D. C. Anderson |
||||
| D. C. Anderson | ||||||
| Vice President and General Counsel | ||||||
Exhibit 3(i)
Effective Date: April 26, 2016
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PACCAR Inc
The Corporation’s original certificate of incorporation was filed with the Secretary of State of the State of Delaware on November 19, 1971. This restated certificate, which was duly adopted by a resolution of the Board of Directors in accordance with Section 245 of the General Corporation Law of the State of Delaware, only restates and integrates and does not further amend the provisions of the Corporation’s certificate of incorporation as theretofore amended or supplemented, and there is no discrepancy between those provisions and the provisions of this restated certificate. As a result of the foregoing, the certificate of incorporation of the Corporation is restated in its entirety as follows:
FIRST : The name of this Corporation shall be
“PACCAR Inc”.
SECOND : The Corporation’s Registered Office shall be at 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware 19808. The Corporation’s Registered Agent shall be The Prentice-Hall Corporation System, Inc., a Delaware corporation, the business office of which is identical with the Corporation’s Registered Office.
THIRD : The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH : The Corporation is authorized to issue 1,201,000,000 shares of stock of all classes, consisting of 1,200,000,000 shares of common stock having a par value of $1 per share and 1,000,000 shares of preferred stock having no par value. Each holder of record of shares of common stock shall be entitled to one vote for each share of stock outstanding in his name of record on the books of the Corporation. The holders of shares of preferred stock shall have no vote other than as may be provided by resolution of the Board of Directors. Other than as here expressly provided, the Board of Directors of the Corporation is expressly granted the authority to fix by resolution or resolutions, the voting power, designations, preferences and relative participating optional or other special rights and the qualifications, limitations or restrictions thereof in respect of any class or classes of stock or any shares of any class of stock of the Corporation to the full extent permitted by the General Corporation Law of the State of Delaware.
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Pursuant to the foregoing authority, the Board of Directors has previously authorized the issuance of Series A Junior Participating Preferred Stock by filing a Certificate of Designations of Series A Junior Participating Preferred Stock dated January 22, 1990 with the Secretary of State of the State of Delaware on January 31, 1990, and amended same by filing an Amended Certificate of Designations of Series A Junior Participating Preferred Stock dated February 25, 1999 with the Delaware Secretary of State on March 1, 1999. The number of shares included in the Series A Junior Participating Preferred Stock, and the rights, qualifications, limitations and restrictions thereof are set forth in Appendix A hereto.
FIFTH : The original Bylaws of the Corporation may be adopted by the incorporator. Thereafter the power to make, alter or repeal Bylaws is conferred upon the Directors of the Corporation.
SIXTH : The Corporation shall have and may exercise all powers and rights, including but not limited to the power to indemnify its directors, officers, employees and agents, or any of them, in all respects as and to the full extent authorized or permitted by the General Corporation Law of the State of Delaware as the same has been heretofore or may be hereafter amended and by the provisions of this Certificate.
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SEVENTH : The affirmative vote of holders of two-thirds (2/3) of the outstanding shares of stock entitled to vote shall be necessary for the following corporate actions:
| 1. | The removal, with or without cause, of any Director or the entire Board of Directors; |
| 2. | Amendment of this Certificate of Incorporation; |
| 3. | Adoption of an agreement of merger or consolidation; |
| 4. | The sale, lease or exchange of all or substantially all of the Corporation’s property and assets; |
| 5. | Dissolution of the Corporation; and |
| 6. | Approval of a stockholder action to make, alter or repeal the Bylaws. |
EIGHTH : If any “Unfriendly Suitor” (as described below, hereafter “Suitor”) becomes the beneficial owner after the record date for the 1986 stockholders’ meeting, directly or indirectly, of twenty percent (20%) or more of the outstanding shares of stock of the Corporation, then in addition to the two-thirds (2/3) voting requirement for any transactions described in paragraphs 3, 4 or 5 of Article SEVENTH (each called “a Business Combination”), the following shall also be necessary:
| 1. | The cash, or fair market value of other consideration, to be received per share by stockholders of the Corporation in any Business Combination in which the Suitor has a direct or indirect material interest, other than solely as a Stockholder of the Corporation, shall not be less than the highest per share price (including brokerage commissions and/or soliciting dealers’ fees) paid by the Suitor in acquiring any of its holdings of the Corporation’s common stock. |
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| 2. | The Suitor shall not have received the benefit, directly or indirectly of any loans, advances, guarantees, pledges or other financial assistance or tax benefits provided by the Corporation. |
The term Suitor includes any person, corporation, or affiliate and any party with which the Suitor has a direct or indirect agreement, understanding or arrangement for the purpose of acquiring, holding or voting stock of the Corporation.
The affirmative vote of two-thirds (2/3) of the outstanding shares of stock entitled to vote, other than stock held by the Suitor, shall be necessary to amend this Article EIGHTH.
NINTH :
| 1. | The number of the directors of the Corporation shall be fixed from time to time by or pursuant to the Bylaws of the Corporation. At each annual meeting of the stockholders of the Corporation, the successors of each director whose term expires at that meeting shall be elected to hold office for a term expiring at the next annual meeting of stockholders and until such director’s successor shall have been elected and qualified. |
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| 2. | Newly created directorships resulting from any increase in the number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for a term expiring at the next annual meeting of stockholders and until such director’s successor shall have been elected and qualified. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. |
TENTH : 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 stockholders and may not be effected by any consent in writing by the stockholders. 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.
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ELEVENTH : The liability of the Corporation’s directors to the Corporation or its stockholders shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law as amended from time to time. Any amendment or repeal of this Article ELEVENTH shall not adversely affect any right or protection of a director for acts or omissions prior to such amendment or repeal.
TWELFTH :
| 1. |
Right to Indemnification. Each person made or threatened to be made a party to or involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she (or a person of whom he or she is the legal representative) is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of the proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held |
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| harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as it now exists or may be amended, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by a person in connection with a proceeding. The indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in paragraph 2 of this Article TWELFTH, the Corporation shall indemnify any person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if the proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this Article TWELFTH shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of expenses |
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| incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by a person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it shall ultimately be determined that the director or officer is not entitled to be indemnified under this Article TWELFTH or otherwise. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. |
| 2. |
If a claim under paragraph 1 of this Article TWELFTH is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the cost and expense (including attorneys’ fees) |
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| of prosecuting the claim. It shall be a defense to an action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of the action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met the applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. |
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| 3. | The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article TWELFTH 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, bylaw, agreement, vote of stockholders or disinterested directors or otherwise. |
| 4. | The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against the expense, liability or loss under the Delaware General Corporation Law. |
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Exhibit 3(ii)
Effective Date: April 26, 2016
FOURTH AMENDED AND RESTATED
BYLAWS OF
PACCAR Inc
ARTICLE I
Directors
Sec. 1. The affairs of the Company shall be managed by a Board of Directors. The number of Directors shall be determined by the Board of Directors. The Board of Directors shall be divided into three classes as nearly equal in number as possible.
At each annual meeting of stockholders, Directors chosen to succeed those whose terms expire at such annual meeting shall be elected for a term of office expiring at the next annual meeting of stockholders after their election. Newly created directorships resulting from an increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors. Any Director elected in accordance with the preceding sentence shall hold office until the next annual meeting of stockholders and until the Director’s successor shall have been elected and qualified. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
No person who is seventy two (72) years of age or older shall be eligible for election as a Director. The term of any person serving as a Director shall expire automatically on the day preceding the first annual meeting of stockholders following the Director’s seventy second (72nd) birth date.
ARTICLE II
Meetings of Directors
Sec. 1. The Board of Directors shall hold a meeting for organization and all other business in connection with the annual meeting of the stockholders.
Sec. 2. Meetings of the Board of Directors may be called by the Chairman at any time on five days’ notice if such notice thereof is given electronically or personally or on seven days’ notice if such notice is given by mail to each member of the Board. Meetings of the Board of Directors shall also be called upon like notice by the Secretary of the Company at any time upon written request therefor signed by a majority of the Directors filed therewith. Calls for meetings shall be deemed given when deposited in the United States mail postage prepaid or delivered electronically as the case may be, and addressed to a member of the Board at his last known delivery address.
Fourth Amended and Restated Bylaws - Page 2
Sec. 3. Meetings of the Board of Directors shall be held at the place, either within the State of Delaware or elsewhere, and on the date and at the hour designated in the call therefor.
Sec. 4. Any irregularity in calling or holding meetings may be cured by ratification of the proceedings signed by all the Directors and entered upon the minute book. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if a written consent thereto is signed by all the Directors and filed with the minutes of the Board.
Sec. 5. At Directors’ meetings, half or more of the Board shall constitute a quorum for the transaction of business, and the concurring vote of a majority of the Directors present shall be sufficient to pass any measure. If less than a quorum be present at any meeting, the chairman of the meeting may adjourn it from time to time until a quorum be present.
ARTICLE III
Stockholders’ Meetings
Sec. 1 . The annual meeting of the stockholders shall be held at such place on such day during the first half of each calendar year and at such hour as may be designated by the Board of Directors.
Fourth Amended and Restated Bylaws - Page 3
Sec. 2. The Secretary shall give written notice of the annual meeting to all stockholders of record by any means authorized by the Board of Directors and Delaware law not less than ten (10) days nor more than sixty (60) days before the date of the meeting.
Sec. 3. At all stockholders’ meetings a majority of all the stock issued and outstanding and having voting power shall constitute a quorum for the transaction of business. If a lesser amount of stock be present or represented, the chairman of the meeting shall adjourn it from time to time until a quorum be present - but no such adjournment shall be longer than for one week at a time. This quorum requirement shall have no effect upon the affirmative vote required for approval of the actions stated in Article SEVENTH of the Company’s Certificate of Incorporation or as provided in Article EIGHTH for amendment of that Article.
Sec. 4. Special meetings of stockholders may be called from time to time by a majority of the Board of Directors. Special meetings shall be held solely for the purpose or purposes specified in the notice of meeting.
Sec. 5 . At an annual meeting of the stockholders only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the Board of Directors, or (b) by any stockholder of the Company who complies
Fourth Amended and Restated Bylaws - Page 4
with Rule 14a-8 of the Securities Exchange Act of 1934, or any successor thereof, or (c) by any stockholder of the Company entitled to vote at the meeting who complies with the notice procedures set forth in this Section 5. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Company, the business must otherwise be a proper matter for stockholder action and the stockholder must be a stockholder of record at the time notice is given. To be timely, a stockholder’s notice must be received at the principal executive offices of the Company, not less than 90 days nor more than 120 days prior to the first anniversary of the prior year’s annual meeting. A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting, a brief description of the business desired to be brought before the annual meeting, and the reasons for conducting such business at the annual meeting; (b) the name and address, as they appear on the Company’s books, of the stockholder proposing such business; (c) the class and number of shares of the Company which are beneficially owned by the stockholder, and (d) any material interest of the stockholder in such business. Notwithstanding anything in the Bylaws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this
Fourth Amended and Restated Bylaws - Page 5
Section 5. The chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not a proper matter for stockholder action or not properly brought before the meeting in accordance with the provisions of this Section 5. If he should so determine and declare, any such business shall not be transacted.
Sec. 6. Only persons who are nominated in accordance with the procedures set forth in this Section 6 shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors of the Company may be made at a meeting of stockholders (a) by or at the direction of the Board of Directors or (b) by any stockholder of the Company who is a stockholder of record at the time the nomination is made, who is entitled to vote for the election of Directors at the meeting and who complies with the notice procedures set forth in this Section 6. Nominations by stockholders shall be made pursuant to timely notice in writing to the Secretary of the Company. To be timely, a stockholder’s notice must be received at the principal executive offices of the Company not less than 90 days nor more than 120 days prior to the first anniversary of the prior year’s annual meeting. Such stockholder’s notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a Director, all information relating to such person that is required to be
Fourth Amended and Restated Bylaws - Page 6
disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; and (b) as to the stockholder giving the notice (i) the name and address, as they appear on the Company’s books, of such stockholder and (ii) the class and number of shares of the Company which are beneficially owned by such stockholder. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a Director shall furnish to the Secretary of the Company that information required to be set forth in the stockholder’s notice of nomination which pertains to the nominee. No person shall be eligible for election as a Director of the Company unless nominated in accordance with the procedures set forth in this Bylaw. The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by the Bylaws. If he should so determine and declare, the defective nomination shall be disregarded.
Sec. 7. (A) Except as provided in this Bylaw, and subject to the rights of holders of any series of Preferred Stock to elect Directors under specified circumstances, each Director nominee in an uncontested director election shall be
Fourth Amended and Restated Bylaws - Page 7
elected by the affirmative vote of the majority of the votes cast with respect to that Director’s election at any meeting for the election of directors at which a quorum is present. For purposes of this Bylaw, a majority of votes cast shall mean that the number of shares voted “for” a director’s election exceeds 50 percent of the number of votes cast with respect to that Director’s election. Votes cast shall include direction to withhold authority in each case, but exclude “abstentions” and “broker nonvotes” with respect to that director’s election. If the number of nominees for election as Directors exceeds the number of Directors to be elected (a “Contested Election”), the Directors shall be elected by the affirmative vote of a plurality of the votes cast at any meeting at which a quorum is present. The determination of whether an election is a “Contested Election” shall be made by the Secretary as of the close of the applicable notice of nomination period set forth in Article III Section 6 of the Bylaws or under applicable law based on whether notice of nomination was timely filed. If one or more director notices of nomination are withdrawn at least ten days prior to the date the Company first mails its notice of meeting and proxy statement in connection with such election of Directors, such that the number of candidates for election as Director no longer exceeds the number of Directors to be elected, the election shall not be considered a Contested
Fourth Amended and Restated Bylaws - Page 8
Election. In all other cases, once an election is determined to be a Contested Election, Directors shall be elected by a vote of a plurality of the votes cast.
(B) If one or more incumbent nominees for Director fails to receive a majority of the votes cast in an uncontested director election, each such Director shall promptly tender his or her resignation to the Board of Directors, subject to acceptance by the Board of Directors. The Nominating and Governance Committee will make a recommendation to the Board of Directors as to whether to accept or reject the tendered resignation. The Board of Directors will review the tendered resignation, taking into account the Nominating and Governance Committee’s recommendation, and publicly disclose its decision regarding the tendered resignation within ninety (90) days from the date of the certification of the election results. If the Board of Directors accepts a director’s resignation pursuant to this Bylaw, or if a nominee for Director is not elected and the nominee is not an incumbent Director, then the Board of Directors may fill any resulting vacancy or may adjust the size of the Board of Directors pursuant to the provisions of Article I, Section 1 of the Bylaws.
Sec. 8 . At all stockholders’ meetings, stockholders may vote in person or by proxy.
Fourth Amended and Restated Bylaws - Page 9
Sec. 9. The deposit in any general or branch post office of a notice of any general or special meeting of stockholders enclosed in a sealed and fully postpaid envelope and addressed to a stockholder at his post office address shown on the books of the Company shall be, as to the stockholder so addressed, sufficient notice of such meeting. Notice by electronic transmission as authorized by Delaware law is also sufficient notice of such meeting.
ARTICLE IV
Inspectors of Election
Sec. 1. Prior to each meeting of stockholders, the Chairman shall appoint two or more Inspectors of Election who shall verify all proxies, report the number of shares represented by proxy and by actual attendance at the meeting, count all votes cast, and report in writing the result of all voting.
All questions raised by the stockholders regarding the qualification of votes, the validation of proxies and the acceptance or rejection of votes shall be decided by the Chairman of the meeting.
Fourth Amended and Restated Bylaws - Page 10
ARTICLE V
Officers
Sec. 1 . The officers of the Company shall be the Executive Chairman of the Board of Directors, the Chief Executive Officer, the President, one or more Vice Presidents (any of whom may be designated Executive or Senior Vice President by the Board of Directors or the Chairman by a writing filed with the Secretary), a Treasurer, a Secretary, and such other officers as may be provided for from time to time by resolution of the Board of Directors. Such officers shall have the powers and perform the duties prescribed by these Bylaws or as may from time to time be prescribed by the Board of Directors or by the Executive Chairman. Each officer shall hold office until his successor is elected and qualified or until his earlier resignation, retirement or removal.
Sec. 2 . The Executive Chairman shall preside at all meetings of the stockholders and at all meetings of the Board of Directors. The Chief Executive Officer shall have the responsibility for the general management and control of the affairs and business of the Company and shall have all powers which are commonly incident to the office of chief executive or which are delegated to him by the Board of Directors. He shall have general supervision and direction of all of the officers and agents of the Company and by a writing filed with the
Fourth Amended and Restated Bylaws - Page 11
Secretary may from time to time designate titles for employees and agents as may be appropriate in the conduct of the affairs of the Company, and in the same manner, may terminate such titles. In the absence of the Executive Chairman or at his request, the Chief Executive Officer shall preside at meetings of the stockholders.
Sec. 3 . The President shall have such powers as may be conferred upon him from time to time by the Chief Executive Officer or by the Board of Directors.
Sec. 4 . A Vice President or Vice Presidents shall have such powers and perform such duties as the Board of Directors, Executive Committee or the Chief Executive Officer may from time to time direct or prescribe.
Sec. 5 . The Secretary shall coordinate the Company’s contacts and communications with its stockholders and with those Government agencies having cognizance over such matters, shall attend to the giving of the necessary notice of all meetings of stockholders and of Directors, shall keep a record of all transactions, proceedings and voting at all meetings, shall have charge of and general supervision over the stock and transfer books of the Company, shall prepare and keep open for inspection all lists of stockholders and other lists and records required by statute. He shall have charge of and safeguard those records of the Company which are caused to be entered in the Corporate
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Documents Ledger. He shall have custody of the Corporate Seal of the Company and he shall have the authority to affix the same to any instrument and when so affixed, it may be attested by his signature. He shall perform such other duties as may be required by the Board of Directors or Executive Committee.
Sec. 6 . The Chief Executive Officer and such other officers, employees, or agents of the Company as may be specifically authorized and to the extent authorized by the Executive Chairman in writing so to do, shall have the right to enter into such agreements and to execute such documents as are or become necessary in the ordinary course of the Company’s business.
ARTICLE VI
Corporate Stock
Sec. 1 . Shares of the Company’s stock may be certificated or uncertificated, as provided under Delaware law. Certificates of stock shall be signed by the Chairman and by the Secretary. Facsimiles of the signatures of any one or all of the officers designated to sign certificates of stock of this Company may be used in lieu of manual signatures, provided each certificate bearing facsimile signatures of the officers is countersigned by a transfer agent appointed by the Board of Directors or the Executive Committee.
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Sec. 2 . Transfers of stock shall be recorded on the books of the Company either in person or by legal representative and, in the case of stock represented by a certificate, upon surrender of the certificate. In case any certificate be lost, stolen or destroyed, the Board of Directors may order a new certificate or uncertificated shares be issued in its place upon receiving satisfactory proof of its loss and such security as it deems proper. On surrender of any outstanding certificate, it shall be at once cancelled.
Sec. 3 . For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or for the purpose of determining the stockholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the Board of Directors may fix, in advance, a date as the record date for any such determination of stockholders not more than sixty (60) nor less than ten (10) days before the date of such action and may cause the stock transfer books to be closed for a stated period but not to exceed, in any case, sixty (60) days.
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ARTICLE VII
Place of Keeping Corporate Books
Sec. 1. The Board of Directors shall designate at what place the books of the Company shall be kept.
ARTICLE VIII
Executive Committee
Sec. 1. The Board of Directors may appoint from among their number, but only by vote of a majority of their entire number, an Executive Committee of not less than three nor more than five members which shall have all the power of the Board of Directors when the Board of Directors shall not be in session; except the Executive Committee shall not have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation; recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or revocation of a dissolution, amending the Bylaws of the Corporation, or, unless authorized by resolution of the Board of Directors, declaring a dividend or authorizing the issuance of stock. The Board of Directors shall fill vacancies in the Executive Committee from the Directors. All action by the Executive Committee shall be reported to the Board of Directors at its
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meeting next succeeding such action. The Executive Committee shall determine its manner of proceeding. It may act without being formally convened and the affirmative vote of a majority of all members of the Executive Committee present when three or more are present or a unanimous vote of two when two are present shall be necessary to its adoption of any resolution or approval of any action.
ARTICLE IX
Fiscal Year
Sec. 1 . For purposes of accounting and for all other purposes, the fiscal and tax year of this Company shall run from January 1st to December 31st in each year.
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