UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): | April 28, 2011 |
Avery Dennison Corporation
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 1-7685 | 95-1492269 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
150 North Orange Grove Boulevard, Pasadena, California | 91103 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | 626-304-2000 |
Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] 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))
Section 5 Corporate Governance and Management
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
(a) At the annual meeting of stockholders of Avery Dennison Corporation (the Company) held on
April 28, 2011 (the Annual Meeting), stockholders approved the Companys Amended and Restated
Certificate of Incorporation (the Certificate) to declassify the Companys Board of Directors
(the Board). In addition to the changes necessary to implement declassification, the Certificate
(i) removes previously repealed amendments; (ii) provides that the number of directors be fixed in
accordance with the Companys bylaws; and (iii) eliminates the list of names, addresses and class
appointments of the Companys initial directors. The Certificate was filed with the Secretary of
State of the State of Delaware on April 28, 2011, becoming effective on such date. Additional
information concerning the Certificate was contained in the Companys 2011 proxy statement, which
was filed with the Securities and Exchange Commission on March 17, 2011 (the 2011 Proxy
Statement). A copy of the Certificate is attached hereto as Exhibit 3.1.
In connection with the approval of the Certificate, the Board adopted Amended and Restated Bylaws
as of April 28, 2011 (the Bylaws) to (i) eliminate declassification of the Board; (ii) set the
number of directors within the range of eight to 12, with the exact number to be fixed from time to
time by resolution of the Board; and (iii) expressly subject a directors term of office to his or
her earlier death, resignation, disqualification or removal. Additional information concerning the
Bylaws was contained in the 2011 Proxy Statement. A copy of the Bylaws is attached hereto as
Exhibit 3.2.
Item 5.07 Submission of Matters to a Vote of Security Holders.
(a) & (b) At the Annual Meeting, the Companys stockholders (i) elected Peter K. Barker, Ken C.
Hicks and Debra L. Reed to the Board for a term of three years and until their successors have been
duly elected and qualified; (ii) ratified the Audit Committees appointment of
PricewaterhouseCoopers LLP as the Companys independent auditors for the fiscal year ending
December 31, 2011; (iii) approved the Certificate to declassify the Board beginning with the 2012
annual meeting of stockholders; (iv) approved, on an advisory basis, the compensation of the
Companys named executive officers, as described in certain specified sections of the 2011 Proxy
Statement; and (v) approved, on an advisory basis, the frequency with which the Companys
stockholders will have an advisory vote on the compensation of the Companys named executive
officers.
The final results of the voting for the three director nominees described in the 2011 Proxy
Statement were as follows:
The final results of the voting for proposals 2 through 4 described in the 2011 Proxy Statement
were as follows:
1
The final results of the voting for proposal 5 described in the 2011 Proxy Statement were as
follows:
(d) At a meeting held immediately before the Annual Meeting, the Board reviewed the preliminary
voting results for the Annual Meeting. Based on that review and upon the recommendation of the
Governance and Social Responsibility Committee, the Board determined, until the next required vote
on the frequency of stockholder votes on executive compensation, to hold the advisory stockholder
vote on executive compensation every year.
Broker
Director Nominee
For
Against
Abstain
Non-Votes
88,648,471
740,091
63,896
6,032,341
88,767,148
624,286
61,023
6,032,341
70,185,486
19,205,917
59,269
6,032,341
Broker
Proposal
For
Against
Abstain
Non-Votes
Committees appointment of
PricewaterhouseCoopers LLP as
the Companys independent
auditors for fiscal year 2011.
94,016,783
1,433,904
34,112
Restated Certificate of
Incorporation to declassify the
Board of Directors.
94,492,029
622,326
370,444
of the compensation of the
Companys named executive
officers.
67,480,114
21,728,344
244,000
6,032,341
Proposal
1 Year
2 Year
3 Year
Abstain
Broker Non-Votes
advisory basis, of
the frequency with
which stockholders
will have an
advisory vote on
the compensation of
the Companys named
executive officers.
60,790,849
14,398,019
14,186,334
77,247
6,032,341
Section 9 Financial Statements and Exhibits
Item 9.01. Financial Statements and Exhibits.
(d)
Exhibits.
3.2 Amended and Restated Bylaws, dated as of April 28, 2011.
2
3.1
Amended and Restated Certificate of Incorporation, as filed on April 28, 2011
with the Office of Delaware Secretary of State.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Avery Dennison Corporation | ||||
April 28, 2011 | By: |
Susan C. Miller
|
||
|
||||
Name: Susan C. Miller | ||||
Title: Senior Vice President, General Counsel and Secretary |
Exhibit Index
Exhibit No.
Description
Amended and Restated Certificate of Incorporation, as filed on April 28, 2011 with the Office of Delaware Secretary of State.
Amended and Restated Bylaws, dated as of April 28, 2011.
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
The present name of the corporation is Avery Dennison Corporation (the Company). The
Company was incorporated under the name Avery International Corporation by the filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware on
February 23, 1977. This Amended and Restated Certificate of Incorporation of the Company, which
restates and integrates and also further amends the provisions of the Companys Restated
Certificate of Incorporation, was duly adopted in accordance with the provisions of Sections 242
and 245 of the General Corporation Law of the State of Delaware. The Restated Certificate of
Incorporation of the Company is hereby amended, integrated and restated to read in its entirety as
follows:
ARTICLE I
ARTICLE II
The address of the registered office of the Corporation in the State of Delaware is 2711
Centerville Road, Suite 400, City of Wilmington, County of New Castle, and the name of its
registered agent at that address is United States Corporation Company.
ARTICLE III
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.
ARTICLE IV
(a) The Corporation is authorized to issue two classes of shares to be designated,
respectively, Common Stock and Preferred Stock. The total number of shares which the
Corporation shall have authority to issue is Four Hundred Five Million (405,000,000) shares, and
the aggregate par value of all shares which are to have a par value is Four Hundred Five Million
Dollars ($405,000,000). The total number of shares of Preferred Stock which the Corporation shall
have authority to issue is Five Million (5,000,000) shares, and the par value of each share of
Preferred Stock is One Dollar ($1.00). The total number of shares of Common Stock which the
Corporation shall have authority to issue is Four Hundred Million (400,000,000) shares, and the par
value of each share of Common Stock is One Dollar ($1.00).
(b) The Preferred Stock may be issued in one or more series, each series to be
appropriately designated by a distinguishing letter or title, prior to the issue of any shares
thereof.
(c) The Board of Directors is hereby authorized to fix or alter the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking
fund provisions, if any), the redemption price or prices, the liquidation preferences, any other
designations, preferences and relative, participating, optional or other special rights, and any
qualifications, limitations or restrictions thereof, of any wholly unissued series of Preferred
Stock, and the number of shares constituting any such unissued series and the designation thereof,
or any of them; and to increase or decrease the number of shares of any series subsequent to the
issue of shares of that series, but not below the number of shares of such series then outstanding.
In case the number of shares of any series shall be so decreased, the shares constituting such
decrease shall resume the status which they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
(d) Pursuant to the authority conferred by this Article IV upon the Board of Directors
of the Corporation, the Board of Directors created a series of 1,300,000 shares of Preferred Stock
designated as Series A Junior Participating Preferred Stock by filing a Certificate of Designations
of the Corporation with the Secretary of State of the State of Delaware on December 10, 1997 and
the voting powers, designations, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of the Corporations Series A
Junior Participating Preferred Stock are set forth in Appendix A hereto and are incorporated herein
by reference.
ARTICLE V
In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to make, repeal, alter, amend and rescind the Bylaws of the
Corporation.
ARTICLE VI
The number of directors shall be fixed in accordance with the Bylaws of the Corporation.
ARTICLE VII
Commencing with the 2012 annual meeting of the stockholders, directors shall be elected
annually for terms of one year and shall hold office until the next succeeding annual meeting and
until his or her successor shall be elected and shall qualify, but subject to prior death,
resignation, retirement, disqualification or removal from office. Directors elected at the 2009
annual meeting of stockholders shall hold office until the 2012 annual meeting of stockholders,
directors elected at the 2010 annual meeting of stockholders shall hold office until the 2013
annual meeting of stockholders, and directors elected at the 2011 annual meeting of stockholders
shall hold office until the 2014 annual meeting of stockholders, and in each case until their
successor shall be elected and qualify but subject to prior death, resignation, retirement,
disqualification or removal from office. Should a vacancy occur or be created, including from an
increase in the number of directors, the remaining directors (even though less than a quorum) may
fill the vacancy for the full term of the class in which the vacancy occurs or is created. Any
director elected or appointed to fill a vacancy not resulting from an increase in the number of
directors shall have the same remaining term as that of his or her predecessor.
ARTICLE VIII
Elections of directors at an annual or special meeting of stockholders need not be by
written ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE IX
No action shall be taken by the stockholders except at an annual or special meeting of
stockholders.
ARTICLE X
Special meetings of the stockholders of the Corporation for any purpose or purposes may
be called at any time by the Board of Directors, or by a majority of the members of the Board of
Directors, or by a committee of the Board of Directors which has been duly designated by the Board
of Directors and whose powers and authority, as provided in a resolution of the Board of Directors
or in the Bylaws of the Corporation, include the power to call such meetings, but such special
meetings may not be called by any other person or persons; provided, however, that if and to the
extent that any special meeting of stockholders may be called by any other person or persons
specified in any provision of the Certificate of Incorporation or any amendment thereto or any
certificate filed under Section 151(g) of the Delaware General Corporation Law, then such special
meeting may also be called by the person or persons, in the manner, at the times and for the
purpose so specified.
ARTICLE XI
The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred on stockholders herein are granted subject to this reservation.
ARTICLE XII
Each reference in this Certificate of Incorporation to any provision of the Delaware
General Corporation Law refers to the specified provision of the General Corporation Law of the
State of Delaware, as the same now exists or as it may hereafter be amended or superseded.
ARTICLE XIII
A director shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that this Article XIII shall
not eliminate or limit the liability of a director (i) for any breach of his or her duty of loyalty
to the Corporation or its stockholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of the law; (iii) under Section 174 of the
General Corporation Law of the State of Delaware; or (iv) for any transaction from which the
director derives an improper personal benefit.
If the General Corporation Law of the State of Delaware is hereafter amended to
authorize corporate action further limiting or eliminating the personal liability of directors,
then the liability of the director to the Corporation shall be limited or eliminated to the fullest
extent permitted by the General Corporation Law of the State of Delaware, as so amended from time
to time. Any repeal or modification of this Article XIII by the stockholders of the Corporation
shall be prospective only, and shall not adversely affect any limitation on the personal liability
of a director of the Corporation existing at the time of such repeal or modification.
1
IN WITNESS WHEREOF, Avery Dennison Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed by its duly authorized officer on this 28
th
day of April, 2011.
AVERY DENNISON CORPORATION
APPENDIX A
Avery Dennison Corporation, a corporation organized and existing under the General Corporation
Law of the State of Delaware (hereinafter called the Corporation), hereby certifies that the
following resolution was adopted by the Board of Directors of the Corporation as required by
Section 151 of the General Corporation Law at a meeting duly called and held on October 23, 1997:
RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
this Corporation (hereinafter called the Board of Directors or the Board) in accordance with
the provisions of the Certificate of Incorporation, the Board of Directors hereby created a series
of Preferred Stock, par value $1.00 per share, of the Corporation (the Preferred Stock) and
hereby states the designation and number of shares, and fixes the relative rights, preferences, and
limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section I.
Designation and Amount
. The shares of such series shall be designated as
Series A Junior Participating Preferred Stock (the Series A Preferred Stock) and the number of
shares constituting the Series A Preferred Stock shall be 1,300,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors;
provided
, that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any outstanding securities issued
by the Corporation convertible into Series A Preferred Stock.
Section II.
Dividends and Distributions
.
A. Subject to the rights of the holders of any shares of any series of Preferred Stock
(or any similar stock) ranking prior and superior to the Series A Preferred Stock with respect
to dividends, the holders of shares of Series A Preferred Stock, in preference to the holders
of Common Stock, par value $1.00 per share (the Common Stock), of the Corporation, and of any
other junior stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends payable in cash
on the first day of March, June, September and December in each year (each such date being
referred to herein as a Quarterly Dividend Payment Date), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share of Series A
Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of
(a) $1 or (b) subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock
(by reclassification or otherwise), declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of Series A
Preferred Stock. In the event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which holders of shares of Series
A Preferred Stock were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
B. The Corporation shall declare a dividend or distribution on the Series A Preferred
Stock as provided in paragraph (A) of this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
C. Dividends shall begin to accrue and be cumulative on outstanding shares of Series A
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of
such shares, unless the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less
than the total amount of such dividends at the time accrued and payable on such shares shall
be allocated pro rata on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section III.
Voting Rights
. The holders of shares of Series A Preferred Stock shall
have the following voting rights:
A. Subject to the provision for adjustment hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a
vote of the stockholders of the Corporation. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the number of votes
per share to which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
B. Except as otherwise provided herein, in any other Certificate of Designations creating
a series of Preferred Stock or any similar stock, or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
C. Except as set forth herein, or as otherwise provided by law, holders of Series A
Preferred Stock shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section IV.
Certain Restrictions
.
A. Whenever quarterly dividends or other dividends or distributions payable on the Series
A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on shares of Series A
Preferred Stock outstanding shall have been paid in full, the Corporation shall not:
1. declare or pay dividends, or make any other distributions, on any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock;
2. declare or pay dividends, or make any other distributions, on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then entitled.
3. redeem or purchase or otherwise acquire for consideration shares of any stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in exchange for shares of
any stock of the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
4. redeem or purchase or otherwise acquire for consideration any shares of Series A
Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred
Stock, except in accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the respective series or
classes.
B. The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section V.
Reacquired Shares
. Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations creating a series of
Preferred Stock or any similar stock or as otherwise required by law.
Section VI.
Liquidation, Dissolution or Winding Up
. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1) to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of such payment, provided
that the holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate
amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to
the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except distribution made ratably on
the Series A Preferred Stock and all such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of which is the number of
share of Common Stock that were outstanding immediately prior to such event.
Section VII.
Consolidation, Merger, etc.
In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock (into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section VIII.
No Redemption
. The share of Series A Preferred Stock shall not be
redeemable.
Section IX.
Rank
. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any other class of the
Corporations Preferred Stock.
Section X.
Amendments
. The Certificate of Incorporation of the Corporation shall not
be amended in any manner which would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote
of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
2
OF
AVERY DENNISON CORPORATION
/s/ Susan C. Miller
Title:
Susan C. Miller
Senior Vice President, General Counsel and Secretary
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
AVERY DENNISON CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
AVERY DENNISON CORPORATION
(a Delaware Corporation)
Avery Dennison Corporation (hereinafter called the corporation), pursuant to the
provisions of Section 109 of the General Corporation Law of the State of Delaware (the General
Corporation Law) adopts these Amended and Restated Bylaws (hereinafter, the Bylaws), which
restate, amend and supersede the bylaws of the corporation, as previously amended, in their
entirety as described below:
ARTICLE I
OFFICES
Section 1.
Registered Office
.
The registered office of Avery Dennison Corporation in the State of Delaware shall be at
1209 Orange Street, in the City of Wilmington, County of New Castle, and the name of the registered
agent at that address shall be The Corporation Trust Company.
Section 2.
Principal Office
.
The principal executive office for the transaction of the business of the corporation is
hereby fixed and located in Los Angeles County, California. The board of directors is hereby
granted full power and authority to change said principal executive office from one location to
another within or without the State of California.
Section 3.
Other Offices
.
The corporation may also have offices at such other places within or without the State of
Delaware as the board of directors may from time to time determine, or the business of the
corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1.
Place of Meetings
.
Meetings of stockholders shall be held at any place, if any, within or outside the State
of Delaware designated by the board of directors. In the absence of any such designation,
stockholders meetings shall be held at the principal executive office of the corporation.
Section 2.
Annual Meetings of Stockholders
.
The annual meeting of stockholders shall be held on the last Thursday in April of each
year at 1:30 p.m. of said day, or on such other day, which shall not be a legal holiday, and at
such other time as shall be determined by the board of directors. Any previously scheduled annual
meeting of stockholders may be postponed by resolution of the board of directors upon public notice
given prior to the date previously scheduled for such annual meeting of stockholders.
Section 3.
Special Meetings
.
A special meeting of the stockholders may be called at any time by the board of
directors, or by a majority of the directors or by a committee authorized by the board to do so.
Any previously scheduled special meeting of the stockholders may be postponed by resolution of the
board of directors upon public notice given prior to the date previously scheduled for such special
meeting of the stockholders. Business transacted at any special meeting of the stockholders shall
be limited to the purpose stated in the notice of meeting.
Section 4.
Notice of Stockholders Meetings
.
All notices of meetings of stockholders shall be sent or otherwise given in accordance
with Section 5 of this Article II not less than ten (10) nor more than sixty (60) days before the
date of the meeting being noticed, unless otherwise required by law. The notice shall specify the
place, if any, date and hour of the meeting and (i) in case of a special meeting, the purpose or
purposes for which the meeting is called, or (ii) in the case of the annual meeting, those matters
which the board of directors, at the time of giving the notice, intends to present for action by
the stockholders. The notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees who, at the time of the notice, management intends to present for
election.
Section 5.
Manner of Giving Notice; Affidavit of Notice
.
Notice of any meeting of stockholders shall be given either personally or by mail or
telegraphic or other written communication or by electronic transmission, charges prepaid,
addressed to the stockholder at the address of such stockholder appearing on the books of the
corporation or given by the stockholder to the corporation for the purpose of notice. Whenever
notice is required to be given to any stockholder to whom (1) notice of 2 consecutive annual
meetings, and all notices of meetings or of the taking of action by written consent without a
meeting to such person during the period between such 2 consecutive annual meetings, or (2) all,
and at least 2, payments (if sent by first-class mail) of dividends or interests or securities
during a 12 month period, have been mailed addressed to such person at such persons address as
shown on the records of the corporation and have been returned undeliverable, the giving of such
notice shall not be required. If any such person shall deliver to the corporation a written notice
setting forth such persons then current address, the requirement that notice be given to such
person shall be reinstated. If mailed, notice shall be deemed to have been given at the time when
deposited in the United States mail, or if delivered personally or sent by means of electronic
transmission, notice shall be deemed to have been given at the time provided in accordance with
applicable law.
An affidavit of the mailing or other means of giving any notice of any stockholders
meeting shall be executed by the secretary, assistant secretary or any transfer agent of the
corporation giving such notice, and shall be filed and maintained in the minute book of the
corporation.
Section 6.
Quorum
.
The presence in person or by proxy of the holders of a majority of the voting power of
the outstanding shares entitled to vote at any meeting of stockholders shall constitute a quorum
for the transaction of business. The stockholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
Section 7.
Adjourned Meeting and Notice Thereof
.
Any stockholders meeting, annual or special, whether or not a quorum is present, may be
adjourned from time to time by the Chairman of the meeting
,
but in the absence of a quorum, no
other business may be transacted at such meeting, except as provided in Section 6 of this Article
II.
When any meeting of stockholders, either annual or special, is adjourned to another time
or place, notice need not be given of the adjourned meeting if the time and place, if any, thereof
(and, in the event that the adjourned meeting is to be conducted by means of remote communications,
the means of remote communication by which stockholders and proxy holders may be deemed to be
present in person and to vote at the meeting) are announced at the meeting at which the adjournment
is taken, unless a new record date for the adjourned meeting is fixed, or unless the adjournment is
for more than thirty (30) days. Notice of any such adjourned meeting, if required, shall be given
to each stockholder of record entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 4 and 5 of this Article II. At any adjourned meeting the corporation may
transact any business which might have been transacted at the original meeting.
Section 8.
Voting
.
The stockholders entitled to vote at any meeting of stockholders shall be determined in
accordance with the provisions of Section 11 of this Article II. Such vote may be by voice vote or
by ballot, at the discretion of the Chairman of the meeting. If a quorum is present, the
affirmative vote of a majority in voting power of the shares represented at the meeting and
entitled to vote on any matter shall be the act of the stockholders, unless otherwise provided by
the General Corporation Law, the certificate of incorporation (including the certificate of
designations of preferences as to any preferred stock), these Bylaws, or the rules and regulations
of any stock exchange applicable to the corporation, or applicable law or pursuant to any rule or
regulation applicable to the corporation or its securities.
At a stockholders meeting involving the election of directors, no stockholder shall be
entitled to cumulate (i.e., cast for any one or more candidates a number of votes greater than the
number of the stockholders shares). The required vote for the election of directors shall be as
set forth in Section 15 of this Article II.
Section 9.
Waiver of Notice or Consent by Absent Stockholders
.
The actions of stockholders taken at any meeting thereof, either annual or special,
however called and noticed, and wherever held, shall be as valid as though taken at a meeting duly
held after regular call and notice, if a quorum be present either in person or by proxy, and if,
either before or after the meeting, each person entitled to vote, not present in person or by
proxy, gives a waiver of notice or a consent to the holding of the meeting, or an approval of the
minutes thereof. The waiver of notice or consent need not specify either the business to be
transacted or the purpose of any annual or special meeting of stockholders. All such waivers,
consents or approvals shall be filed with the corporate records or made part of the minutes of the
meeting.
Attendance of a person at a meeting shall also constitute a waiver of notice of
such meeting, except when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened, and
except that attendance at a meeting is not a waiver of any right to object to the
consideration of matters not included in the notice of the meeting if such objection is
expressly made at the meeting.
Section 10.
No Stockholder Action by Written Consent Without a Meeting
.
Stockholders may take action only at a regular or special meeting of stockholders.
Section 11.
Record Date for Stockholder Notice and Voting
.
For purposes of determining the holders entitled to notice of any meeting or to
vote, the board of directors may fix, in advance, a record date, which shall not be more
than sixty (60) days nor less than ten (10) days prior to the date of any such meeting, and
in such case only stockholders of record on the date so fixed are entitled to notice and to
vote, notwithstanding any transfer of any shares on the books of the corporation after the
record date fixed as aforesaid, except as otherwise provided in the General Corporation Law.
If the board of directors does not so fix a record date, the record date for
determining stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day next preceding the day on which the
meeting is held.
Section 12.
Proxies
.
Every person entitled to vote for directors or on any other matter shall have the
right to do so either in person or by one or more agents authorized by proxy. Without
limiting the manner in which a proxy may be granted, a stockholder may grant a proxy in the
following manners: (i) by executing a writing authorizing another person or persons to act
for such stockholder as proxy or (ii) by transmitting or authorizing the transmission of a
telegram, cablegram, or other means of electronic transmission to a person who will be the
holder of the proxy or to a proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of the proxy to receive such
transmission, provided however that any such telegram, cablegram or other means of
electronic transmission must either set forth or be submitted with information from which it
can be determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder. A written proxy shall be deemed signed if the stockholders
name is placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or electronic transmission or otherwise) by the stockholder or the
stockholders attorney in fact. A proxy which does not state that it is irrevocable shall
continue in full force and effect unless (i) revoked by the person executing it, prior to
the vote pursuant thereto, by a writing or electronic transmission delivered to the
corporation stating that the proxy is revoked or by a subsequent proxy executed by, or
attendance at the meeting and voting in person by, the person executing the proxy, or
(ii) notice of the death or incapacity of the maker of such proxy is received by the
corporation before the vote pursuant thereto is counted; provided, however, that no such
proxy shall be valid after the expiration of three years from the date of such proxy, unless
otherwise provided in the proxy.
Section 13.
Inspectors of Election; Opening and Closing the Polls
.
The board of directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written report thereof.
One or more persons may be designated as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate has been appointed to act or is able to act at a
meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to
act at the meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the duties prescribed
by law.
The chairman of the meeting shall fix and announce at the meeting the date and
time of the opening and the closing of the polls for each matter upon which the stockholders
will vote at a meeting.
Section 14.
Nomination and Stockholder Business
.
(A) Annual Meetings of Stockholders. (1) Nominations of persons for election to
the board of directors of the corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders only (a) pursuant to the
corporations notice of meeting (or any supplement thereto), (b) by or at the direction of
the board of directors or any committee thereof or (c) by the proper request of any
stockholder of the corporation who was a stockholder of record of the corporation at the
time the notice provided for in this Bylaw is delivered to the secretary of the corporation
and at the time of the annual meeting, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Bylaw. The immediately preceding
sentence shall be the exclusive means for a stockholder to make nominations or other
business proposals (other than matters properly brought under Rule 14a-8 under the
Securities Exchange Act of 1934, as amended (the Exchange Act) and included in the
corporations notice of meeting) before an annual meeting of stockholders.
(2) Without qualification or limitation, for any nominations or other business to
be properly brought before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this Bylaw, the stockholder must have given timely notice thereof and
timely updates and supplements thereof in writing to the secretary of the corporation and
any such proposed business other than the nominations of persons for election to the board
of directors must constitute a proper matter for stockholder action. To be timely, a
stockholders notice shall be delivered to the secretary at the principal executive offices
of the corporation not later than the close of business on the 90th day, nor earlier than
the close of business on the 120th day, prior to the first anniversary of the preceding
years annual meeting (provided, however, that in the event that the date of the annual
meeting is more than 30 days before or more than 60 days after such anniversary date, notice
by the stockholder must be so delivered 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
the 90
th
day prior to such annual meeting or, if the first public
announcement of the date of such annual meeting is less than 100 days prior to such annual
meeting, the 10th day following the day on which public announcement of the date of such
meeting is first made by the corporation). In no event shall any adjournment or postponement
of an annual meeting, or the public announcement thereof, commence a new time period (or
extend any time period) for the giving of a stockholders notice as described above.
(3) Notwithstanding anything in the immediately preceding paragraph to the
contrary, in the event that the number of directors to be elected to the board of directors
of the corporation is increased, effective at the annual meeting, and there is no public
announcement by the corporation naming the nominees for the additional directorships or
specifying the size of the increased board of directors at least 100 days prior to the first
anniversary of the preceding years annual meeting, a stockholders notice required by this
Bylaw shall also be considered timely, but only with respect to nominees for the additional
directorships 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
10th day following the day on which such public announcement is first made by the
corporation.
In addition, to be timely, a stockholders notice shall further be updated and
supplemented, if necessary, so that the information provided or required to be provided in
such notice shall be true and correct as of the record date for the meeting and as of the
date that is ten (10) business days prior to the meeting or any adjournment or postponement
thereof, and such update and supplement shall be delivered to the secretary at the principal
executive offices of the corporation not later than five (5) business days after the record
date for the meeting in the case of the update and supplement required to be made as of the
record date, and not later than eight (8) business days prior to the date for the meeting,
any adjournment or postponement thereof in the case of the update and supplement required to
be made as often (10) business days prior to the meeting or any adjournment or postponement
thereof.
(B) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to
the corporations notice of meeting. Nominations of persons for election to the board of
directors may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the corporations notice of meeting (1) by or at the direction of the
board of directors or (2) provided that the board of directors has determined that directors
shall be elected at such meeting, by any stockholder of the corporation who is a stockholder
of record both at the time the notice provided for in this Bylaw is delivered to the
secretary of the corporation and at the time of the meeting, who is entitled to vote at the
meeting and upon such election and who complies with the notice procedures set forth in this
Bylaw. In the event the corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the board of directors, any such stockholder entitled
to vote in such election of directors may nominate a person or persons (as the case may be)
for election to such position(s) as specified in the corporations notice of meeting, if the
stockholders notice with respect to any nomination (including the completed and signed
questionnaire, representation and agreement required by Section 16 of this Article II of
these Bylaws) shall be delivered to the secretary at the principal executive offices of the
corporation not earlier than the close of business on the 120th day prior to such special
meeting and not later than the close of business on the later of the 90th day prior to such
special meeting or, if the first public announcement of the date of such annual meeting is
less than 100 days prior to such annual meeting, 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. In no event shall any
adjournment or postponement of a special meeting, or the public announcement thereof,
commence a new time period (or extend any time period) for the giving of a stockholders
notice as described above.
(C) Disclosure Requirements. (1) To be proper in form, a stockholders notice
(whether given pursuant to paragraph (A) or paragraph (B) of this Bylaw) to the secretary
must include the following, as applicable.
(a) As to each person, if any, whom the stockholder proposes to nominate for
election or reelection as a director, in addition to the matters set forth in paragraph
(c) below: (i) all information relating to such person that would be required to be
disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to and in accordance with Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder, (ii) such persons written consent to
being named in the proxy statement as a nominee and to serving as a director if elected and
(iii) a description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings during the past three years, and any other
material relationships, between or among such stockholder and beneficial owner on whose
behalf the nomination is being made, if any, and their respective affiliates and associates,
or others acting in concert therewith, on the one hand, and each proposed nominee, and his
or her respective affiliates and associates, or others acting in concert therewith, on the
other hand, including, without limitation all information that would be required to be
disclosed pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making
the nomination and any beneficial owner on whose behalf the nomination is made, if any, or
any affiliate or associate thereof or person acting in concert therewith, were the
registrant for purposes of such rule and the nominee were a director or executive officer
of such registrant;
(b) As to any other business that the stockholder proposes to bring before the
meeting other than a nomination of a director or directors, in addition to the matters set
forth in paragraph (c) below: (i) a brief description of the business desired to be brought
before the meeting, (ii) the text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that such business includes a
proposal to amend the Bylaws of the corporation, the language of the proposed amendment),
(iii) the reasons for conducting such business at the meeting, and (iv) any material
interest in such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made and a description of all agreements, arrangements and
understandings between such stockholder and beneficial owner, if any, and any other person
or persons (including their names) in connection with the proposal of such business by such
stockholder;
(c) As to the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made: (i) the name and address of such
stockholder, as they appear on the corporations books, and the name and address of such
beneficial owner, if any, and of their respective affiliates or associates or others acting
in concert therewith, (ii) (A) the class or series and number of shares of the corporation
which are, directly or indirectly, owned beneficially and of record by such stockholder,
such beneficial owner and their respective affiliates or associates or others acting in
concert therewith, (B) any option, warrant, convertible security, stock appreciation right,
or similar right with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of the corporation or with a
value derived in whole or in part from the value of any class or series of shares of the
corporation, any derivative or synthetic arrangement having the characteristics of a long
position in any class or series of shares of the corporation, or any contract, derivative,
swap or other transaction or series of transactions designed to produce economic benefits
and risks that correspond substantially to the ownership of any class or series of shares of
the corporation, including due to the fact that the value of such contract, derivative, swap
or other transaction or series of transactions is determined by reference to the price,
value or volatility of any class or series of shares of the corporation, whether or not such
instrument, contract or right shall be subject to settlement in the underlying class or
series of shares of the corporation, through the delivery of cash or other property, or
otherwise, and without regard of whether the stockholder of record, the beneficial owner, if
any, or any affiliates or associates or others acting in concert therewith, may have entered
into transactions that hedge or mitigate the economic effect of such instrument, contract or
right (a Derivative Instrument) directly or indirectly owned beneficially by such
stockholder, the beneficial owner, if any, or any affiliates or associates or others acting
in concert therewith and any other direct or indirect opportunity to profit or share in any
profit derived from any increase or decrease in the value of shares of the corporation,
(C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such
stockholder has a right to vote any class or series of shares of the corporation, (D) any
agreement, arrangement, understanding, relationship or otherwise, including any repurchase
or similar so-called stock borrowing agreement or arrangement, engaged in, directly or
indirectly, by such stockholder, the purpose or effect of which is to mitigate loss to,
reduce the economic risk (of ownership or otherwise) of any class or series of the shares of
the corporation by, manage the risk of share price changes for, or increase or decrease the
voting power of, such stockholder with respect to any class or series of the shares of the
corporation, or which provides, directly or indirectly, the opportunity to profit or share
in any profit derived from any decrease in the price or value of any class or series of the
shares of the corporation (Short Interests), (E) any rights to dividends on the shares of
the corporation owned beneficially by such stockholder that are separated or separable from
the underlying shares of the corporation, (F) any proportionate interest in shares of the
corporation or Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which such stockholder is a general partner or, directly or indirectly,
beneficially owns an interest in a general partner of such general or limited partnership,
(G) any performance-related fees (other than an asset-based fee) that such stockholder is
entitled to based on any increase or decrease in the value of shares of the corporation or
Derivative Instruments, if any, as of the date of such notice and any updates and
supplements thereof, including without limitation any such interests held by members of such
stockholders immediate family sharing the same household, (H) any significant equity
interests or any Derivative Instruments or Short Interests in any principal competitor of
the corporation held by such stockholder, and (I) any direct or indirect interest of such
stockholder in any contract with the corporation, any affiliate of the corporation or any
principal competitor of the corporation (including, in any such case, any employment
agreement, collective bargaining agreement or consulting agreement), and (iii) a
representation that the stockholder is a holder of record of stock of the corporation
entitled to vote at such meeting and intends to appear in person or by proxy at the meeting
to propose such business or nomination, (iv) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends (x) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the corporations
outstanding capital stock required to approve or adopt the proposal or elect the nominee
and/or (y) otherwise to solicit proxies from stockholders in support of such proposal or
nomination and (v) any other information relating to such stockholder and beneficial owner,
if any, that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for, as applicable, the
proposal and/or for the election of directors in a contested election pursuant to Section 14
of the Exchange Act and the rules and regulations promulgated thereunder; and
(d) With respect to each person, if any, whom the stockholder proposes to nominate
for election or reelection to the board of directors, a stockholders notice must, in
addition to the matters set forth in paragraphs (a) and (c) above, also include the
completed and signed questionnaire, representation and agreement required by Section 16 of
this Article II of these Bylaws. The corporation may require any proposed nominee to furnish
such other information as it may reasonably require to determine the eligibility of such
proposed nominee to serve as an independent director of the corporation or that could be
material to a reasonable stockholders understanding of the independence, or lack thereof,
of such nominee.
(2) For purposes of this Bylaw, public announcement shall mean disclosure in a
press release reported by a national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the Exchange Act and the rules and regulations promulgated thereunder.
(3) Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Bylaw; provided,
however, that any references in this Bylaw to the Exchange Act or the rules promulgated
thereunder are not intended to and shall not limit the requirements applicable to
nominations or proposals as to any other business to be considered pursuant to paragraph
(A) or paragraph (B) of this Bylaw (other than, as provided in the last sentence of (A)(1),
matters brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may
be amended from time to time). Nothing in this Bylaw shall be deemed to affect any rights
(a) of stockholders to request inclusion of proposals or nominations in the corporations
proxy statement pursuant to applicable rules and regulations promulgated under the Exchange
Act or (b) of the holders of any series of Preferred Stock to elect directors, if and to the
extent provided for under law, pursuant to any applicable provisions of the certificate of
incorporation or these Bylaws.
(D) General. (1) Only such persons who have been properly nominated in accordance
with the procedures set forth in this Bylaw shall be eligible to be elected at an annual or
special meeting of stockholders of the corporation to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in this Bylaw. Except as otherwise
provided by law, the certificate of incorporation or these Bylaws, the chairman of the
meeting shall have the power and duty (a) to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Bylaw (including whether the stockholder or
beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or
is part of a group which solicited) or did not so solicit, as the case may be, proxies in
support of such stockholders nominee or proposal in compliance with such stockholders
representation as required by clause (C)(1)(c)(iv) of this Bylaw) and (b) if any proposed
nomination or business was not made or proposed in compliance with this Bylaw, to declare
that such proposed nomination or business shall be disregarded and no action shall be taken
on such proposed nomination or business. Notwithstanding the foregoing provisions of this
Bylaw, unless otherwise required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the annual or special meeting of stockholders of the
corporation to present a nomination or proposed business, such nomination shall be
disregarded and such proposed business shall not be transacted, notwithstanding that proxies
in respect of such vote may have been received by the corporation. For purposes of this
Bylaw, to be considered a qualified representative of the stockholder, a person must be a
duly authorized officer, manager or partner of such stockholder or must be authorized by a
writing executed by such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting of stockholders and such
person must produce such writing or electronic transmission, or a reliable reproduction of
the writing or electronic transmission, at the meeting of stockholders.
Section 15.
Required Vote for Directors
.
(A) Majority Vote. Except as otherwise required by law or by the certificate of
incorporation, each director shall be elected by the vote of the majority of the votes cast
with respect to the director at any meeting for the election of directors at which a quorum
is present; provided, however, that if the number of nominees exceeds the number of
directors to be elected, the directors shall be elected by the vote of a plurality of the
votes of shares represented in person or by proxy at any such meeting and entitled to vote
on the election of directors. For purposes of this Bylaw, a majority of the votes cast
shall mean that the number of shares voted for a directors election exceeds the number of
votes cast against that directors election (with abstentions and broker nonvotes not
counted as votes cast either for or against that directors election).
(B) If a nominee who is an incumbent director is not elected and no successor has
been elected at such meeting, the director shall promptly tender his or her resignation to
the board of directors in accordance with the agreement contemplated by Section 16 of this
Article II of these Bylaws. The Governance and Social Responsibility Committee shall make a
recommendation to the board of directors on whether to accept or reject the tendered
resignation, or whether other action should be taken. The board of directors shall act on
the tendered resignation, taking into account the Committees recommendation and publicly
disclose (in a press release, a filing with the Securities and Exchange Commission or other
broadly disseminated means of communication) its decision regarding the tendered resignation
and the rationale behind the decision within 90 days from the date of the certification of
the election results.
The Governance and Social Responsibility Committee in making its recommendation, and
the board of directors in making its decision, may each consider any factors or other
information that it considers appropriate and relevant. The director who tenders his or her
resignation shall not participate in the recommendation of the Governance and Social
Responsibility Committee or the decision of the board of directors with respect to his or
her resignation. If such incumbent directors resignation is not accepted by the board of
directors, such director shall continue to serve until the end of his or her term and until
his or her successor is duly elected, or his or her earlier resignation or removal. If a
directors resignation is accepted by the board of directors 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, in its sole discretion, may fill any resulting vacancy pursuant to the
provisions of Section 4 of Article III of these Bylaws or may decrease the size of the board
of directors pursuant to the provisions of Section 2 of Article III of these Bylaws.
Section 16.
Submission of Questionnaire, Representation and Agreement
.
To be eligible to be a nominee for election or reelection as a director of the
corporation, a person must deliver (in accordance with the time periods prescribed for
delivery of notice under Section 14 of this Article II) to the secretary at the principal
executive offices of the corporation a written questionnaire with respect to the background
and qualification of such person and the background of any other person or entity on whose
behalf the nomination is being made (which questionnaire shall be provided by the secretary
upon written request) and a written representation and agreement (in the form provided by
the secretary upon written request) that such person (A) will abide by the requirements of
Section 15 of this Article II, (B) is not and will not become a party to (1) any agreement,
arrangement or understanding with, and has not given any commitment or assurance to, any
person or entity as to how such person, if elected as a director of the corporation, will
act or vote on any issue or question (a Voting Commitment) that has not been disclosed to
the corporation or (2) any Voting Commitment that could limit or interfere with such
persons ability to comply, if elected as a director of the corporation, with such persons
fiduciary duties under applicable law, (C) is not and will not become a party to any
agreement, arrangement or understanding with any person or entity other than the corporation
with respect to any direct or indirect compensation, reimbursement or indemnification in
connection with service or action as a director that has not been disclosed therein,
(D) agrees to comply with the corporations outside directors stock ownership policies, if
any, and (E) in such persons individual capacity and on behalf of any person or entity on
whose behalf the nomination is being made, would be in compliance, if elected as a director
of the corporation, and will comply with all applicable publicly disclosed corporate
governance, conflict of interest, confidentiality and stock ownership and trading policies
and guidelines of the corporation.
ARTICLE III
DIRECTORS
Section 1.
Powers
.
Subject to the provisions of the General Corporation Law and any limitations in
the certificate of incorporation and these Bylaws relating to action required to be approved
by the stockholders or by the outstanding shares, the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised by or under the
direction of the board of directors.
Without prejudice to such general powers, but subject to the same limitations, it
is hereby expressly declared that the directors shall have the power and authority to:
(a) Select and remove all officers, agents and employees of the corporation,
prescribe such powers and duties for them as may not be inconsistent with law, the
certificate of incorporation or these Bylaws, fix their compensation, and require from them
security for faithful service.
(b) Change the principal executive office or the principal business office in the
State of California from one location to another; cause the corporation to be qualified to
do business in any other state, territory, dependency, or foreign country and conduct
business within or outside the State of California; designate any place within or without
the State of California for the holding of any stockholders meeting or meetings, including
annual meetings; adopt, make and use a corporate seal, and prescribe the forms of
certificates of stock, and alter the form of such seal and of such certificates from time to
time as in their judgment they may deem best, provided that such forms shall at all times
comply with the provisions of law.
(c) Authorize the issuance of shares of stock of the corporation from time to
time, upon such terms as may be lawful, in consideration of money paid, labor done or
services actually rendered, debts or securities canceled or tangible or intangible property
actually received.
(d) Borrow money and incur indebtedness for the purpose of the corporation, and
cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds,
debentures, deeds of trust, mortgages, pledges, hypothecations, or other evidences of debt
and securities therefor.
Section 2.
Number and Qualification of Directors
.
The number of directors of the corporation shall be no less than eight (8) and no
more than twelve (12), with the exact number to be fixed from time to time by resolution
duly approved by the board of directors.
Section 3.
Election and Term of Office of Directors
.
Subject to the certificate of incorporation, directors shall be elected at each
annual meeting of the stockholders, but if any such annual meeting is not held or the
directors are not elected thereat, the directors may be elected at any special meeting of
stockholders held for that purpose. All directors shall hold office for a term of one year
or until their respective successors are duly elected and qualified, subject to such
directors earlier death, resignation, disqualification or removal. Irrespective of the
preceding sentence, a director shall automatically be retired on the date of the expiration
of the first annual meeting following his or her 72nd birthday.
Section 4.
Vacancies and Newly Created Directorships
.
Vacancies and newly created directorships on the board of directors may be filled
by a majority of the remaining directors, though less than a quorum, or by a sole remaining
director. Each director elected to fill a vacancy shall hold office for the remainder of the
term of the person whom he or she succeeds until a successor has been elected and qualified.
A vacancy or vacancies in the board of directors shall be deemed to exist in the
case of the death, retirement, resignation, disqualification or removal of any director, or
if the authorized number of directors be increased.
Any director may resign or voluntarily retire upon giving written notice to the
chairman of the board, the president, the secretary or the board of directors. Such
retirement or resignation shall be effective upon the giving of the notice, unless the
notice specifies a later time for its effectiveness. If such retirement or resignation is
effective at a future time, the board of directors may elect a successor to take office when
the retirement or resignation becomes effective.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of his term of office. No director may be
removed during his term except for cause.
Section 5.
Place of Meetings and Telephonic Meetings
.
Regular meetings of the board of directors may be held at any place within or
without the State of Delaware that has been designated from time to time by resolution of
the board. In the absence of such designation, regular meetings shall be held at the
principal executive office of the corporation. Special meetings of the board shall be held
at any place within or without the State of Delaware that has been designated in the notice
of the meeting or, if not stated in the notice or there is no notice, at the principal
executive office of the corporation. Any meeting, regular or special, may be held by
conference telephone or other communication equipment, so long as all directors
participating in such meeting can hear one another, and all such directors shall be deemed
to be present in person at such meeting.
Section 6.
Annual Meetings
.
Immediately following each annual meeting of stockholders, the board of directors
shall hold a regular meeting for the purpose of organization, any desired election of
officers and transaction of other business. Notice of this meeting shall not be required.
Section 7.
Other Regular Meetings
.
Other regular meetings of the board of directors shall be held at such time as
shall from time to time be determined by the board of directors. Such regular meetings may
be held without notice provided that notice of any change in the determination of time of
such meeting shall be sent to all of the directors. Notice of a change in the determination
of the time shall be given to each director in the same manner as for special meetings of
the board of directors.
Section 8.
Special Meetings
.
Special meetings of the board of directors for any purpose or purposes may be
called at any time by the chairman of the board or the president or any vice president or
the secretary or any two directors.
Notice of the time and place of special meetings shall be delivered personally or
by telephone or by electronic transmission to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at his or her address as it is shown
upon the records of the corporation. In case such notice is mailed, it shall be deposited in
the United States mail at least four (4) days prior to the time of the holding of the
meeting. In case such notice is delivered personally, or by telephone, telegram or other
form of electronic transmission, it shall be delivered personally, or by telephone, or
transmitted by other electronic transmission at least forty-eight (48) hours prior to the
time of the holding of the meeting. Any oral notice given personally or by telephone may be
communicated to either the director or to a person at the office of the director who the
person giving the notice has reason to believe will promptly communicate it to the director.
The notice need not specify the purpose of the meeting nor the place if the meeting is to be
held at the principal executive office of the corporation.
Section 9.
Quorum
.
A majority of the authorized number of directors shall constitute a quorum for the
transaction of business, except to adjourn as hereinafter provided. Every act or decision
done or made by a majority of the directors present at a meeting duly held at which a quorum
is present shall be regarded as the act of the board of directors. A meeting at which a
quorum is initially present may continue to transact business notwithstanding the withdrawal
of directors, if any action taken is approved by at least a majority of the required quorum
for such meeting.
Section 10.
Waiver of Notice
.
The actions of the board of directors at any meeting thereof, however called and
noticed or wherever held, shall be as valid as though taken at a meeting duly held after
regular call and notice if a quorum be present and if, either before or after the meeting,
each of the directors not present gives a waiver of notice, a consent to holding the meeting
or an approval of the minutes thereof. The waiver of notice or consent need not specify the
purpose of the meeting. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting. Notice of a meeting shall
also be deemed given to any director who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to such director.
Section 11.
Adjournment
.
A majority of the directors present, whether or not constituting a quorum, may
adjourn any meeting to another time and place.
Section 12.
Notice of Adjournment
.
Notice of the time and place of an adjourned meeting need not be given if the time
and place thereof are announced at the adjourned meeting, unless the meeting is adjourned
for more than twenty-four (24) hours, in which case notice of such time and place shall be
given prior to the time of the adjourned meeting, in the manner specified in Section 8 of
this Article III, to the directors who were not present at the time of the adjournment.
Section 13.
Action Without Meeting
.
Any action required or permitted to be taken by the board of directors may be
taken without a meeting, if all members of the board shall consent to such action in
compliance with applicable law.
Section 14.
Fees and Compensation of Directors
.
Directors and members of committees may receive such compensation, if any, for
their services and such reimbursement of expenses, as may be fixed or determined by
resolution of the board of directors. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation for such services.
Section 15.
Chairman of the Board
.
The board of directors may, by resolution, select a member of the board of
directors to act as chairman of the board. The chairman of the board shall preside over the
meetings of the board of directors and shall have such other duties as may be delegated to
the chairman by the board of directors. The chairman of the board shall not be an officer of
the corporation, unless otherwise provided by resolution of the board of directors.
ARTICLE IV
COMMITTEES
Section 1.
Committees of Directors
.
The board of directors may, by resolution adopted by the board of directors,
designate one or more committees, including an executive committee, each consisting of two
or more directors, to serve at the pleasure of the board. The board may designate one or
more directors as alternate members of any committee, who may replace any absent member at
any meeting of the committee. Any such committee, to the extent provided in the resolution
of the board, shall have all the authority of the board, except with respect to:
(a) approving or adopting, or recommending to the stockholders, any action or
matter expressly required by the General Corporation Law to be submitted to the stockholders
for approval; or
(b) adopting, amending or repealing any Bylaw of the corporation.
Section 2.
Meetings and Action of Committees
.
Meetings and action of committees shall be governed by, and held and taken in
accordance with, the provisions of Article III of these Bylaws, Sections 5 (place of
meetings), 7 (regular meetings), 8 (special meetings and notice), 9 (quorum), 10 (waiver of
notice), 11 (adjournment), 12 (notice of adjournment) and 13 (action without meetings), with
such changes in the context of those Bylaws as are necessary to substitute the committee and
its members for the board of directors and its members, except that the time of regular
meetings of committees may be determined by resolution of the board of directors as well as
the committee, special meetings of committees may also be called by resolution of the board
of directors, and 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 of directors may adopt rules for the government of any committee not inconsistent with
the provisions of these Bylaws.
ARTICLE V
OFFICERS
Section 1.
Officers
.
The officers of the corporation shall be the chief executive officer, the
president, a vice president, a secretary and a treasurer. The corporation may also have, at
the discretion of the chief executive officer or the board of directors, one or more
additional vice presidents, one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article V. Any number of offices may be held by the same person.
Section 2.
Election of Officers
.
The officers of the corporation, except such officers as may be appointed in
accordance with the provisions of Section 3 or Section 5 of this Article V, shall be chosen
annually by the board of directors, and each shall hold his office until he shall resign or
be removed or otherwise disqualified to serve or his successor shall be elected and
qualified.
Section 3.
Subordinate Officers, etc
.
The chief executive officer or the board of directors may appoint such other
officers as the business of the corporation may require, each of whom shall hold office for
such period, have such authority and perform such duties as are provided in the Bylaws or as
the chief executive officer or the board of directors may from time to time determine.
Section 4.
Removal and Resignation of Officers
.
Any officer may be removed, either with or without cause, by the board of
directors, at any regular or special meeting thereof, or, except in case of an officer
chosen by the board of directors, by any officer upon whom such power of removal may be
conferred by the board of directors.
Any officer may resign at any time by giving written notice to the corporation.
Any such resignation shall take effect at the date of the receipt of such notice or at any
later time specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 5.
Vacancies in Office
.
A vacancy in any office because of death, resignation, removal, disqualification,
or any other cause shall be filled in the manner prescribed in these Bylaws for regular
appointments to such office.
Section 6.
Chief Executive Officer
.
The chief executive officer shall, subject to the control of the board of
directors, have general supervision, direction and control of the business and affairs of
the corporation. If so determined by resolution of the board of directors, the chairman of
the board shall also be the chief executive officer.
Section 7.
President
.
The president shall exercise and perform such powers and duties with respect to
the administration of the business and affairs of the corporation as may from time to time
be assigned to him by the chief executive officer or by the board of directors, or as may be
prescribed by the Bylaws. If so determined by resolution of the board of directors, the
president shall also be the chief executive officer and/or the chief operating officer.
Section 8.
Vice Presidents
.
In the absence or disability of the president, a vice president designated by the
board of directors shall perform all the duties of the president, and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the president. The vice
presidents shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the board of directors or the Bylaws.
Section 9.
Secretary
.
The secretary shall keep or cause to be kept, at the principal executive office or
such other place as the board of directors may order, a book of minutes of all meetings and
actions of directors, committees of directors and stockholders, with the time and place of
holding, whether regular or special, and, if special, how authorized, the notice thereof
given, the names of those present at directors and committee meetings, the number of shares
present or represented at stockholders meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office
or at the office of the corporations transfer agent or registrar, as determined by
resolution of the board of directors, a stock register, or a duplicate register, showing the
names of all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the
stockholders and of the board of directors required by the Bylaws or by law to be given, and
he shall keep the seal of the corporation in safe custody, and shall have such other powers
and perform such other duties as may be prescribed by the board of directors or by the
Bylaws.
Section 10.
Treasurer
.
The treasurer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares. The books of account
shall be open at all reasonable times to inspection by any director.
The treasurer shall deposit all monies and other valuables in the name and to the
credit of the corporation with such depositories as may be designated by the chief executive
officer or the board of directors. He shall disburse the funds of the corporation as may be
ordered by the chief executive officer or the board of directors, shall render to the chief
executive officer or the board of directors, whenever they request it, an account of all of
his transactions as treasurer and of the financial condition of the corporation, and shall
have other powers and perform such other duties as may be prescribed by the chief executive
officer, the board of directors or the Bylaws.
Section 11.
Assistant Secretaries and Assistant Treasurers
.
Any assistant secretary may perform any act within the power of the secretary, and
any assistant treasurer may perform any act within the power of the treasurer, subject to
any limitations which may be imposed in these Bylaws or in board resolutions.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
Section 1.
Indemnification and Insurance
.
(A) Each person who was or is made a party or is threatened to be made a party to
or is 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 maintained or sponsored by the
corporation, whether the basis of such 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 harmless by the
corporation to the fullest extent authorized by the General Corporation Law as the same
exists or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the corporation to provide broader indemnification rights
than said law permitted the corporation to provide prior to such amendment), against all
expenses, 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 such person in connection therewith and such 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 (C) of this Bylaw, the corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof) initiated
by such person only if such proceeding (or part thereof) was authorized by the board of
directors. The right to indemnification conferred in this Bylaw shall be a contract right
that vests at the time that such persons service to or at the request of the corporation
commences and includes the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances to be paid
by the corporation within 20 days after the receipt by the corporation of a statement or
statements from the claimant requesting such advance or advances from time to time;
provided, however, that if the General Corporation Law requires, the payment of such
expenses 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 such 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 such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Bylaw or otherwise.
(B) To obtain indemnification under this Bylaw, a claimant shall submit to the
corporation a written request, including therein or therewith such documentation and
information as is reasonably available to the claimant and is reasonably necessary to
determine whether and to what extent the claimant is entitled to indemnification. Upon
written request by a claimant for indemnification pursuant to the first sentence of this
paragraph (B), a determination, if required by applicable law, with respect to the
claimants entitlement thereto shall be made as follows: (1) if requested by the claimant,
by independent counsel (as hereinafter defined), or (2) if no request is made by the
claimant for a determination by independent counsel, (i) by the board of directors by a
majority vote of a quorum consisting of disinterested directors (as hereinafter defined), or
(ii) by a committee of disinterested directors designated by disinterested directors, even
though less than a quorum, or (iii) if a quorum of the board of directors consisting of
disinterested directors is not obtainable or, even if obtainable, such quorum of
disinterested directors so directs, by independent counsel in a written opinion to the board
of directors, a copy of which shall be delivered to the claimant, or (iv) if a quorum of
disinterested directors so directs, by the stockholders of the corporation. In the event the
determination of entitlement to indemnification is to be made by independent counsel at the
request of the claimant, the independent counsel shall be selected by the board of directors
unless there shall have occurred within two years prior to the date of the commencement of
the action, suit or proceeding for which indemnification is claimed a Change of Control as
defined in the 1996 Stock Incentive Plan, in which case the independent counsel shall be
selected by the claimant unless the claimant shall request that such selection be made by
the board of directors. If it is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within 10 days after such
determination.
(C) If a claim under paragraph (A) of this Bylaw is not paid in full by the
corporation within 30 days after a written claim pursuant to paragraph (B) of this Bylaw 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 expense of prosecuting such claim,
including attorneys fees to the fullest extent permitted by law. It shall be a defense to
any such 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
standard of conduct which makes it permissible under the 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 counsel or stockholders) to have made a determination prior
to the commencement of such 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
General Corporation Law, nor an actual determination by the corporation (including its board
of directors, independent counsel or stockholders) that the claimant has not met such
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.
(D) If a determination shall have been made pursuant to paragraph (B) of this
Bylaw that the claimant is entitled to indemnification, the corporation shall be bound by
such determination in any judicial proceeding commenced pursuant to paragraph (C) of this
Bylaw.
(E) The corporation shall be precluded from asserting in any judicial proceeding
commenced pursuant to paragraph (C) of this Bylaw that the procedures and presumptions of
this Bylaw are not valid, binding and enforceable and shall stipulate in such proceeding
that the corporation is bound by all the provisions of this Bylaw.
(F) The right to indemnification and the payment of expenses incurred in defending
a proceeding in advance of its final disposition conferred in this Bylaw (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 and (ii) cannot be terminated by the
corporation, the board of directors or the stockholders of the corporation with respect to a
persons service prior to the date of such termination. No repeal or modification of this
Bylaw shall in any way diminish or adversely affect the rights of any current or former
director, officer, employee or agent of the corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
(G) The corporation may maintain insurance, at its expense, to protect itself and
any current or former 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 such expense, liability or loss under the General Corporation Law. To the
extent that the corporation maintains any policy or policies providing such insurance, each
such current or former director or officer, and each such agent or employee to which rights
to indemnification have been granted as provided in paragraph (H) of this Bylaw, shall be
covered by such policy or policies in accordance with its or their terms to the maximum
extent of the coverage thereunder for any such current or former director, officer, employee
or agent.
(H) The corporation may, to the extent authorized from time to time by the board
of directors or the chief executive officer, grant rights to indemnification, and rights to
be paid by the corporation the expenses incurred in defending any proceeding in advance of
its final disposition, to any current or former employee or agent of the corporation to the
fullest extent of the provisions of this Bylaw with respect to the indemnification and
advancement of expenses of current or former directors and officers of the corporation.
(I) If any provision or provisions of this Bylaw shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (1) the validity, legality and
enforceability of the remaining provisions of this Bylaw (including, without limitation,
each portion of any paragraph of this Bylaw containing any such provision held to be
invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest
extent possible, the provisions of this Bylaw (including, without limitation, each such
portion of any paragraph of this Bylaw containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
(J) For purposes of this Bylaw:
(1) disinterested director means a director of the corporation who is not and
was not a party to the matter in respect of which indemnification is sought by the claimant.
(2) independent counsel means a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of corporation law and shall
include any person who, under the applicable standards of professional conduct then
prevailing, would not have a conflict of interest in representing either the corporation or
the claimant in an action to determine the claimants rights under this Bylaw.
(K) Any notice, request or other communication required or permitted to be given
to the corporation under this Bylaw shall be in writing and either delivered in person or
sent by telecopy, telex, telegram, overnight mail or courier service, or certified or
registered mail, postage prepaid, return receipt requested, to the Secretary of the
corporation and shall be effective only upon receipt by the Secretary.
Section 2.
Fiduciaries of Corporate Employee Benefit Plan
.
This Article VI does not apply to any proceeding against any trustee, investment
manager or other fiduciary of an employee benefit plan in such persons capacity as such,
even though such person may also be an agent of the corporation as defined in Section 1 of
this Article VI. Nothing contained in this Article VI shall limit any right to
indemnification to which such a trustee, investment manager or other fiduciary may be
entitled by contract or otherwise, which shall be enforceable to the extent permitted by
Section 410 of the Employee Retirement Income Security Act of 1974, as amended, other than
this Article VI.
ARTICLE VII
GENERAL CORPORATE MATTERS
Section 1.
Record Date for Purposes Other Than Notice and Voting
.
For purposes of determining the stockholders 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 other lawful action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty (60) days prior to any such action, and in such
case only stockholders of record on the date so fixed are entitled to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after the record
date fixed as aforesaid, except as otherwise provided in the General Corporation Law.
If the board of directors does not so fix a record date, the record date for
determining stockholders for any such purpose shall be at the close of business on the day
on which the board adopts the resolution relating thereto, or the sixtieth (60th) day prior
to the date of such action, whichever is later.
Section 2.
Checks, Drafts, Evidences of Indebtedness
.
All checks, drafts or other orders for payment of money, notes or other evidences
of indebtedness, issued in the name of or payable to the corporation shall be signed or
endorsed by such person or persons and in such manner as, from time to time, shall be
determined by resolution of the board of directors.
Section 3.
Corporate Contracts and Instruments; How Executed
.
The board of directors, except as otherwise provided in these Bylaws, may
authorize any officer or officers, agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation, and such authority may be
general or confined to specific instances; and, unless so authorized or ratified by the
board of directors or within the agency power of an officer, no officer, 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 for any purpose or to any amount.
Section 4.
Stock Certificates
.
The shares of the corporation shall be represented by certificates, provided that
the board of directors may provide by resolution or resolutions that some or all of any or
all classes or series of stock shall be uncertificated shares. Any such resolution shall not
apply to shares represented by a certificate until such certificate is surrendered to the
corporation. Every holder of stock represented by certificates shall be entitled to have a
certificate signed by or in the name of the corporation by the Chairman or Vice Chairman of
the board of directors, if any, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation
certifying the number of shares owned by such holder in the corporation. Any of or all the
signatures on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent, or registrar before such certificate
is issued, it may be issued by the corporation with the same effect as if such person were
such officer, transfer agent, or registrar at the date of issue.
Section 5.
Lost Certificates
.
Except as hereinafter in this Section 5 provided, no new stock certificate shall
be issued in lieu of an old certificate unless the latter is surrendered to the corporation
and canceled at the same time. The board of directors may in case any stock certificate or
certificate for any other security is lost, stolen or destroyed, authorize the issuance of a
new certificate in lieu thereof, upon such terms and conditions as the board of directors
may require, including provision for indemnification of the corporation secured by a bond or
other adequate security sufficient to protect the corporation against any claim that may be
made against it, including any expense or liability, on account of the alleged loss, theft
or destruction of such certificate or the issuance of such new certificate.
Section 6.
Representation of Stock of Other Corporations
.
The chairman of the board, the president, or any vice president, or any other
person authorized by resolution of the board of directors by any of the foregoing designated
officers, is authorized to vote on behalf of the corporation any and all stock or other
equity interest of any other corporation or corporations, foreign or domestic, standing in
the name of the corporation. The authority herein granted to said officers to vote or
represent on behalf of the corporation any and all stock by the corporation in any other
corporation or corporations, or other entity or entities, may be exercised by any such
officer in person or by any person authorized to do so by proxy duly executed by said
officer.
Section 7.
Construction and Definitions
.
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the General Corporation Law shall govern the construction
of the Bylaws. Without limiting the generality of the foregoing, the singular number
includes the plural, the plural number includes the singular, and the term person includes
both a corporation and a natural person.
Section 8.
Fiscal Year
.
The fiscal year of the corporation shall commence the first day of the calendar
year.
Section 9.
Seal
.
The seal of the corporation shall be round and shall bear the name of the
corporation and words and figures denoting its organization under the laws of the State of
Delaware and year thereof, and otherwise shall be in such form as shall be approved from
time to time by the board of directors.
ARTICLE VIII
AMENDMENTS
Section 1.
Amendment by Stockholders
.
New Bylaws may be adopted or these Bylaws may be amended or repealed by the
majority of votes cast by the stockholders, considered for purposes of this Section 1 as one
class, provided that a quorum exists as defined by Article II, Section 6 of these Bylaws.
Section 2.
Amendment by Directors
.
Subject to the rights of the stockholders as provided in Section 1 of this
Article VIII, to adopt, amend or repeal Bylaws, Bylaws may be adopted, amended or repealed
by the board of directors.
Amended and restated as of April 28, 2011.
EMPLOYEES AND OTHER AGENTS