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): | October 26, 2012 |
HARRIS CORPORATION
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 1-3863 | 34-0276860 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
1025 West NASA Blvd., Melbourne, Florida | 32919 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | (321) 727-9100 |
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))
Item 5.02 |
Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
(e) On October 26, 2012, Harris Corporation (Harris or the Company) entered into a new indemnification agreement in substantially the same form as the Companys new form of director and executive officer indemnification agreement (the New Indemnification Agreement Form) attached as Exhibit 10.1 to this Current Report on Form 8-K, with each current member of the Companys board of directors (the Board), including William M. Brown, the Companys President and Chief Executive Officer. The Company intends to enter into a new indemnification agreement in substantially the same form as the New Indemnification Agreement Form with each of the other executive officers currently employed with the Company, including the other named executive officers currently employed with the Company, in the near future. Each new indemnification agreement with a current director or an executive officer currently employed with the Company replaces and supersedes the prior indemnification agreement between the Company and such director or executive officer, if such director and executive officer was a party to a prior indemnification agreement with the Company. The New Indemnification Agreement Form is intended for use by the Company for indemnification agreements entered into by the Company with directors and executive officers on or after October 26, 2012.
Under the New Indemnification Agreement Form, the Company agrees to indemnify each of its directors and executive officers (each, an Indemnitee) with respect to the Indemnitees activities as a director, officer or employee of the Company, including service at the request of the Company as a director, officer, trustee, member, stockholder, partner, incorporator or liquidator or in any other capacity for another corporation, joint venture, trust or other enterprise or as a fiduciary, trustee or administrator (or in any similar capacity) of any employee benefit plan or other plan or program sponsored by the Company or any subsidiary of the Company (an Agent), against any judgments, fines, penalties and amounts paid in settlement and Expenses (as defined therein) actually and reasonably incurred, in connection with any threatened, pending, or completed action, suit, arbitration, alternative dispute mechanism or any other proceeding, whether civil, criminal, administrative or investigative, and whether brought by a third party or by or in the right of the Company, individually or collectively (a Proceeding), to which the Indemnitee was, is, or is threatened to be made a party or may reasonably be expected to become a party by reason of facts which include the Indemnitee being or having been such a director, officer, employee or Agent, to the extent of the highest and most advantageous benefits to the Indemnitee under one or any combination of the following: (i) the Companys certificate of incorporation or By-Laws in effect on the date of the indemnification agreement or at the time indemnification is sought or Expenses are incurred by the Indemnitee; (ii) Delaware law in effect on the date of the indemnification agreement or the law of the jurisdiction under which the Company exists at the time indemnification is sought or Expenses are incurred by the Indemnitee; (iii) liability insurance obtained by the Company; and (iv) then existing practices of the Company. The Company also agrees to promptly pay, at the Indemnitees request, the Expenses as and when incurred by the Indemnitee in advance of any final disposition of any Proceeding, upon receipt of an undertaking by or on behalf of the Indemnitee to repay such amounts so paid on the Indemnitees behalf if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company.
The foregoing summary of the Companys New Indemnification Agreement Form is qualified in its entirety by reference to, and should be read in conjunction with, the complete text of the Companys New Indemnification Agreement Form, filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference into this Item 5.02.
Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Amendment to Restated Certificate of Incorporation
At the 2012 Annual Meeting of Shareholders of the Company held on October 26, 2012, the shareholders of the Company approved an amendment to the Companys Restated Certificate of Incorporation (the Amendment) to permit holders of 25% of the voting power of all the outstanding shares of common stock to require the Companys Secretary to call special meetings of shareholders, to the extent required by the Companys By-Laws (which also have been amended, as described below). The Amendment became effective upon filing of the Companys Certificate of Amendment to the Restated Certificate of Incorporation with the Secretary of State of the State of Delaware on October 26, 2012. A copy of the Certificate of Amendment is filed as Exhibit 3.1 to this Current Report on Form 8-K and incorporated by reference into this Item 5.03.
Amendment and Restatement of By-Laws
On October 26, 2012, effective concurrently with the effectiveness of the Amendment, the Companys By-Laws were amended and restated, pursuant to action by the Board of Directors (the Board) of the Company, upon the recommendation of the Companys Corporate Governance Committee. The following is a summary of the changes effected by the amendments to the By-Laws:
The By-Law amendments provide that the 25% voting power standard set forth in the Amendment will be determined by reference to record ownership. In particular, only net long shares (as defined in the By-Law amendments which have been held for one year or longer will be counted, to ensure that the shareholders seeking to call a special meeting have a true economic and long-term interest in the Company. In addition, the By-Law amendments establish the procedures by which shareholders may require the Companys Secretary to call a special meeting. The By-Law amendments impose certain procedural requirements on shareholders requesting such a meeting (including the provision of the same information required for shareholder proposals at annual meetings under the Companys advance notice By-Law provisions). The By-Law amendments also impose qualifications designed to prevent duplicative and unnecessary meetings by eliminating proposals that:
| are not proper subjects for shareholder action under applicable law; |
| are received during the period beginning 90 days prior to the first anniversary of the prior annual meeting of shareholders and ending on the date of the next annual meeting of shareholders; |
| are substantially similar to another item, other than the nomination, election or removal of directors, that was presented at a meeting of shareholders held within the prior 12 months; |
| are for the nomination, election or removal of directors and a similar item was presented at a meeting of shareholders held within the prior 120 days; or |
| are substantially similar to another item that is included in the Companys notice as an item of business to be brought before a shareholder meeting that has been called but not yet held or that is called for a date within 90 days of the receipt of the request. |
The By-Law amendments provide that a special meeting must be called within 90 calendar days after the receipt by the Company of valid requests by holders of the requisite number of shares.
The foregoing summary of the By-Law amendments is qualified in its entirety by reference to, and should be read in conjunction with, the complete text of the Companys By-Laws, as amended and restated effective October 26, 2012, filed as Exhibit 3.2 to this Current Report on Form 8-K and incorporated by reference into this Item 5.03.
Item 5.07
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Submission of Matters to a Vote of Security Holders. |
Voting Results For 2012 Annual Meeting of Shareholders
The 2012 Annual Meeting of Shareholders of the Company was held on October 26, 2012. For more information about the proposals set forth below, please see the Companys definitive proxy statement filed with the Securities and Exchange Commission on September 18, 2012. Of the 112,643,172 shares of the Companys common stock issued, outstanding and entitled to be voted at the 2012 Annual Meeting of Shareholders as of the record date of August 31, 2012, a total of 98,317,897 (for a quorum of approximately 87.3%) was represented in person or by proxy at the meeting. Set forth below are the final voting results for the proposals voted upon at the 2012 Annual Meeting of Shareholders.
(1) Proposal 1 Election of Directors: Election of twelve nominees to the Companys Board for a
one-year term expiring at the 2013 Annual Meeting of Shareholders, or until their successors are
elected and qualified:
Number of Shares
Nominee
For
Against
Abstain
Broker Non-Votes
85,571,586
1,754,394
272,758
10,719,159
86,298,673
1,051,433
248,632
10,719,159
82,870,204
4,470,446
258,088
10,719,159
85,907,041
1,437,675
254,022
10,719,159
86,251,121
1,094,385
253,232
10,719,159
86,123,084
1,247,378
228,276
10,719,159
86,256,748
1,094,153
247,837
10,719,159
85,503,525
1,874,212
221,001
10,719,159
84,759,448
2,589,420
249,870
10,719,159
85,168,219
2,166,119
264,400
10,719,159
83,102,794
4,207,408
288,536
10,719,159
85,356,943
1,990,437
251,358
10,719,159
Each nominee was elected by the Companys shareholders, consistent with the recommendation from the Board.
(2) Proposal 2 An Advisory Vote to Approve the Compensation of the Companys Named Executive Officers: Voting, on a non-binding, advisory basis, to approve the compensation of the Companys named executive officers as disclosed in the Companys 2012 proxy statement:
For: 83,576,056
Against: 3,662,023
Abstain: 360,659
Broker Non-Votes: 10,719,159
The compensation of the Companys named executive officers was approved, on a non-binding, advisory basis, by the Companys shareholders, consistent with the recommendation from the Board.
(3) Proposal 3 Approval of an Amendment to the Companys Restated Certificate of Incorporation to Permit Holders of 25% of the Companys Outstanding Shares of Common Stock to Call Special Meetings: Voting to approve an amendment to the Companys Restated Certificate of Incorporation to permit holders of 25% of the Companys outstanding shares of common stock to call special meetings of shareholders:
For: 86,704,870
Against: 662,408
Abstain: 231,460
Broker Non-Votes: 10,719,159
Proposal 3 was approved by the Companys shareholders, consistent with the recommendation from the Board.
(4) Proposal 4 Ratification of the Appointment of Independent Registered Public Accounting Firm: Ratification of the Audit Committees appointment of Ernst & Young LLP as the Companys independent registered public accounting firm for the fiscal year ending June 28, 2013:
For: 97,231,765
Against: 953,296
Abstain: 132,836
Proposal 4 was approved by the Companys shareholders, consistent with the recommendation from the Board.
Item 8.01. Other Events.
Changes to Annual Compensation of Outside Directors
On October 26, 2012, the Board approved, upon the recommendation of the Companys Corporate Governance Committee, a $9,000 increase, from $116,000 to $125,000, effective January 1, 2013, to the annual value of Harris stock equivalent units awarded to outside directors under the Harris Corporation 2005 Directors Deferred Compensation Plan, as amended and restated. A Summary of Annual Compensation of Outside Directors effective January 1, 2013 is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference.
Changes to Stock Ownership Guidelines for Non-Employee Directors
On October 26, 2012, the Board approved, upon the recommendation of the Companys Corporate Governance Committee, changes to the stock ownership guidelines for non-employee directors. Under the new stock ownership guidelines, the Companys non-employees directors are expected to own, within five years after election or appointment to the Board, Harris stock or stock equivalents having a minimum value of $500,000. As of October 26, 2012, all of the Companys non-employee directors met the stock ownership guidelines or were on track to achieve such ownership within the applicable compliance timeframe.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are filed herewith:
*Management contract or compensatory plan or arrangement
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.
Exhibit Index
Exhibit
Number
Description
3.1
Corporation, dated as of October 26, 2012.
3.2
10.1
10.2
HARRIS CORPORATION
October 31, 2012
By:
/s/ Scott T. Mikuen
Name: Scott T. Mikuen
Title: Vice President, General Counsel and Secretary
Exhibit No.
Description
Certificate of Amendment to the Restated Certificate of Incorporation of Harris Corporation, dated as of October 26, 2012.
By-Laws of Harris Corporation, as amended and restated effective October 26, 2012.
*Form of Director and Executive Officer Indemnification Agreement.
*Summary of Annual Compensation of Outside Directors effective January 1, 2013.
Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
HARRIS CORPORATION
HARRIS CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation, resolutions were duly adopted setting forth a proposed amendment to the Restated Certificate of Incorporation of the Corporation, declaring said amendment to be advisable and directing that said amendment be submitted to the stockholders of the Corporation for approval and adoption. Said amendment approved by the Board of Directors was to add a new Article THIRTEENTH to the Restated Certificate of Incorporation of the Corporation, which new Article THIRTEENTH reads in its entirety as follows:
THIRTEENTH: Special meetings of stockholders of this corporation may be called at any time by, but only by, the board of directors of this corporation or, as and to the extent required by the by-laws of this corporation, by the Secretary of this corporation upon the written request of the holders of record of not less than 25% of the voting power of all outstanding shares of Common Stock of this corporation, such voting power to be calculated and determined in the manner specified, and with any limitations as may be set forth, in this corporations by-laws. Each special meeting shall be held at such date, time and place either within or without the State of Delaware as may be stated in the notice of the meeting.
SECOND: That thereafter, pursuant to the resolutions of the Board of Directors, the proposed amendment was submitted to the stockholders of the Corporation for consideration at the 2012 Annual Meeting of Shareholders, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, and at such meeting a majority of the outstanding stock entitled to vote thereon was voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
1
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to the Restated Certificate of Incorporation of Harris Corporation to be executed on its behalf by Scott T. Mikuen, an authorized officer of the Corporation as of this 26th day of October, 2012.
HARRIS CORPORATION
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By: /s/ Scott T. Mikuen
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Scott T. Mikuen
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Vice President, General
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Counsel and Secretary
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2
Exhibit 3.2
BY-LAWS OF
HARRIS CORPORATION
As Amended and Restated Effective October 26, 2012
BY-LAWS OF
ARTICLE I.
The registered office of Harris Corporation (the Company) shall be in the City of
Wilmington, County of New Castle, State of Delaware.
The Company may also have offices at such other places as the Board of Directors from time to
time may determine or the business of the Company may require.
ARTICLE II.
Section 1. Place of Meeting
. All meetings of shareholders for the election of directors or
for any other purposes whatsoever shall be held at the office of the Company in the City of
Wilmington, Delaware, or elsewhere within or without the State of Delaware, as may be decided upon
from time to time by the Board of Directors and indicated in the notice of the meeting.
Section 2. Annual Meeting
. The annual meeting of the shareholders shall be held on such date
as the Board of Directors may determine and at the time as shall be decided by the Board of
Directors and indicated in the notice of the meeting. Directors shall be elected thereat and such
other business transacted as may be specified in the notice of the meeting, or as may be properly
brought before the meeting.
Section 3. Special Meetings
. (a)Special meetings of the shareholders may be called by, and
only by, (i) the Board of Directors, or (ii) solely to the extent required by Section 3(b), the
Secretary of the Company. Each special meeting shall be held at such date, time and place either
within or without the State of Delaware as may be stated in the notice of the meeting.
(b) A special meeting of the shareholders shall be called by the Secretary upon the written
request of the holders Owning of record continuously for a period of at least one year prior to the
date set forth on the Special Meeting Request (as defined below) not less than twenty-five percent
of the voting power of all outstanding shares of common stock of the Company (the Requisite
Percent), subject to the following:
(1) In order for a special meeting upon shareholder request (a Shareholder Requested
Special Meeting) to be called by the Secretary, one or more written requests for a special
meeting (each, a Special Meeting Request, and collectively, the Special Meeting
Requests) stating the purpose of the special meeting and the matters proposed to be acted
upon thereat must be signed and dated by the Requisite Percent of record holders of common
stock of the Company (or their duly authorized agents), must be delivered to the Secretary
at the principal executive offices of the Company and must set forth:
(i) the information required by the second paragraph of Section 8(b) of this
Article II; and
(ii) an agreement by the requesting shareholder(s) to notify the Company
immediately in the case of any disposition prior to the record date for the
Shareholder Requested Special Meeting of shares of common stock of the Company owned
of record and an acknowledgement that any such disposition shall be deemed a
revocation of such Special Meeting Request to the extent of such disposition, such
that the number of shares disposed of shall not be included in determining whether
the Requisite Percent has been reached.
For purposes of Section 3 of this Article II and references to Shareholder Requested Special
Meetings in these By-Laws, Own, Owned or Owning shall mean shares (a) with respect to which a
person has title or to which a persons nominee, custodian or other agent has title and which such
nominee, custodian or other agent is holding on behalf of such person, or (b) with respect to which
a person (1) has purchased, or has entered into an unconditional contract, binding on both parties
thereto, to purchase such shares, but has not yet received such shares, (2) owns a security
convertible into or exchangeable for such shares and has tendered such security for conversion or
exchange, (3) has an option to purchase or acquire, or rights warrants to subscribe to, such
shares, and has exercised such option, rights or warrants or (4) holds a securities futures
contract to purchase such shares and has received notice that the position will be physically
settled and is irrevocably bound to receive the underlying shares; provided, that (I) a shareholder
or beneficial owner shall be deemed to Own shares only to the extent that such shareholder or
beneficial owner has a net long position in such shares, (II) the number of shares Owned, directly
or indirectly, by any shareholder or beneficial owner shall not include the number of shares as to
which such holder does not have the right to vote or direct the vote on the matter or matters to be
brought before the special shareholders meeting, (III) a shareholder or beneficial owner shall not
be deemed to Own shares as to which such holder has entered into any Derivative Transaction (as
defined in Section 8 of this Article II) and (IV) whether shares constitute shares Owned shall be
decided by the Board of Directors in its reasonable determination, which determination shall be
conclusive and binding on the Company and its shareholders.
The Company will provide the requesting shareholder(s) with notice of the record date for the
determination of shareholders entitled to vote at the Shareholder Requested Special Meeting. Each
requesting shareholder is required to update the notice delivered pursuant to this Section not
later than ten business days after such record date to provide any material changes in the
foregoing information as of such record date.
In determining whether a special meeting of shareholders has been requested by the record
holders of shares representing in the aggregate at least the Requisite Percent, multiple Special
Meeting Requests delivered to the Secretary will be considered together only if each such Special
Meeting Request (x) identifies substantially the same purpose or purposes of the special meeting
and substantially the same matters proposed to be acted on at the special meeting (in each case as
determined in good faith by the Board of Directors), and (y) has been dated and delivered to the
Secretary within sixty days of the earliest dated of such Special Meeting Requests. If the record
holder is not the signatory to the Special Meeting Request,
such Special Meeting Request
will not be valid unless documentary evidence is supplied to the Secretary at the time of delivery
of such Special Meeting Request (or within ten business days thereafter) of such signatorys
authority to execute the Special Meeting Request on behalf of the record holder. Any requesting
shareholder may revoke his, her or its Special Meeting Request at any time by written revocation
delivered to the Secretary at the principal executive offices of the Company; provided, however,
that if following such revocation (or any deemed revocation pursuant to clause (ii) above), the
unrevoked valid Special Meeting Requests represent in the aggregate less than the Requisite
Percent, there shall be no requirement to hold a special meeting. The first date on which unrevoked
valid Special Meeting Requests constituting not less than the Requisite Percent shall have been
delivered to the Corporation is referred to herein as the Request Receipt Date.
(2) A Special Meeting Request shall not be valid if:
(i) the Special Meeting Request relates to an item of business that is not a
proper subject for shareholder action under applicable law;
(ii) the Request Receipt Date is during the period commencing ninety days prior
to the first anniversary of the date of the immediately preceding annual meeting and
ending on the date of the next annual meeting;
(iii) the purpose specified in the Special Meeting Request is not the
nomination, election or removal of directors and an identical or substantially
similar item (as determined in good faith by the Board of Directors, a Similar
Item) was presented at any meeting of shareholders held within the twelve months
prior to the Request Receipt Date;
(iv) the purpose specified in the Special Meeting Request is the nomination,
election or removal of directors and a Similar Item was presented at any meeting of
shareholders held within one hundred and twenty days prior to the Request Receipt
Date; or
(v) a Similar Item is included in the Corporations notice as an item of
business to be brought before a shareholder meeting that has been called but not yet
held or that is called for a date within ninety days of the Request Receipt Date.
(3) A Shareholder Requested Special Meeting shall be held at such date and time as may
be fixed by the Board of Directors; provided, however, that the Shareholder Requested
Special Meeting shall be called for a date not more than ninety days after the Request
Receipt Date.
(4) Business transacted at any Shareholder Requested Special Meeting shall be limited
to (i) the purpose(s) stated in the valid Special Meeting Request(s) received from the
Requisite Percent of record holders and (ii) any additional matters that the Board of
Directors determines to include in the Companys notice of the meeting. If none of the
shareholders who submitted the Special Meeting Request appears or sends a qualified
representative to present the matters to be presented for consideration that were specified
in the Shareholder Meeting Request, the Company need not present such matters for a vote at
such meeting, notwithstanding that proxies in respect of such matter may have been received
by the Company.
(5) For the avoidance of doubt, nothing herein shall be deemed to entitle any
shareholder to the reimbursement of expenses for soliciting proxies or any other expenses
incurred by such shareholder in connection with any shareholder meeting, which expenses
shall be borne by such shareholder and not by the Company.
Section 4. Notice of Meetings
. A written or printed notice of every annual or special meeting
of the shareholders stating the time and place and the purposes thereof shall be given to each
shareholder entitled to vote thereat and to each shareholder entitled to notice as provided by law,
which notice shall be given not less than ten (10) nor more than sixty (60) days prior to the date
of the meeting. Such notice shall be deemed given: (i) if mailed, when deposited in the United
States mail, postage prepaid, directed to each shareholder at such shareholders address as it
appears on the records of the Company; (ii) if sent by electronic mail, when delivered to an
electronic mail address at which the shareholder has consented to receive such notice; and (iii) if
posted on an electronic network together with a separate notice to the shareholder of such specific
posting, upon the later to occur of (A) such posting and (B) the giving of such separate notice of
such posting. It shall be the duty of the Secretary to give written notice of the annual meeting,
and of each special meeting when requested so to do by the Board of Directors or as provided in
Section 3(b). Any shareholder may waive in writing any notice required to be given by law or under
these By-Laws and by attendance or voting at any meeting without protesting the lack of proper
notice shall be deemed to have waived notice thereof. Notice shall be deemed to have been given to
all shareholders of record who share an address if notice is given in accordance with the
householding rules set forth in Rule 14a-3(e) under the Securities Exchange Act of 1934 (the
Exchange Act) and Section 233 of the Delaware General Corporation Law.
Section 5. Shareholder List
. A complete list of the shareholders entitled to vote at each
meeting of shareholders, arranged in alphabetical order, with the address of each and the number of
voting shares held by each, shall be prepared by or at the instance of the Secretary and made
available at the location where the meeting is to be held, at least ten (10) days before every
meeting, and shall at all times during the usual hours for business in said ten (10) day period and
during the time of said meeting be open to examination by any shareholder.
Section 6. Voting and Proxies
. At all meetings of shareholders, only such shareholders shall
be entitled to vote, in person or by proxy, who appear upon the records of the Company as the
holders of shares at the time possessing voting power, or if a record date be fixed as hereinafter
provided, those appearing as such on such record date. Each shareholder entitled to vote at a
meeting of shareholders may authorize another person or persons to act for such shareholder by
proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless
the proxy provides for a longer period. A shareholder may authorize another person or persons to
act for such shareholder as proxy by executing a writing authorizing such person or persons to act
for such shareholder as proxy or by transmitting or authorizing the transmission of a telegram,
cablegram, or other means of electronic transmission to the person who will be the holder of the
proxy or to a proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such transmission, provided
that any such telegram, cablegram, or other means of electronic transmission must either set forth
or be submitted with information from which it can be determined that the telegram, cablegram or
other means of electronic transmission was authorized by the shareholder.
Section 7. Quorum and Adjournments
. Except as may otherwise be required by law or by the
Restated Certificate of Incorporation or by these By-Laws, the holders of a majority of the shares
entitled to vote at a shareholders meeting shall constitute a quorum to hold such meeting;
provided, however, that any meeting, whether or not a quorum is present or otherwise, may, by vote
of the holders of a majority of the voting shares represented thereat, adjourn from time to time
and from place to place in the county wherein said meeting was originally called without notice
other than by announcement at such meeting.
Section 8. Advance Notice of Shareholder Nominees for Director and Other Shareholder
Proposals
. (a) The matters to be considered and brought before any annual or special meeting of
shareholders of the Company shall be limited to only such matters, including the nomination and
election of directors, as shall be brought properly before such meeting in compliance with the
procedures set forth in this Section 8 or Section 3(b).
(b) For any matter to be brought properly before any annual meeting of shareholders, the
matter must be (i) specified in the notice of the annual meeting given by or at the direction of
the Board of Directors, (ii) otherwise brought before the annual meeting by or at the direction of
the Board of Directors or (iii) brought before the annual meeting by a shareholder
who is a shareholder of record of the Company on the date the notice provided for in this Section
8(b) is delivered to the Secretary of the Company, who is entitled to vote at the annual meeting of
shareholders on such matter and who complies with the procedures set forth in this Section 8(b). In
addition to any other requirements under applicable law and the Restated Certificate of
Incorporation and these By-Laws, written notice (the Shareholder Notice) of any nomination or
other proposal by a shareholder must be timely and any proposal, other than a nomination, must
constitute a proper matter for shareholder action. To be timely, the Shareholder Notice must be
delivered to the Secretary of the Company at the principal executive office of the Company not less
than ninety (90) nor more than one hundred and twenty (120) days prior to the first anniversary
date of the annual meeting for the preceding year; provided, however, that if (and only if) the
annual meeting is not scheduled to be held within a period that commences thirty (30) days before
such anniversary date and ends thirty (30) days after such anniversary date (an annual meeting date
outside such period being referred to herein as an Other Meeting Date), the Shareholder Notice
shall be given in the manner provided herein by the later of the close of business on (i) the date
ninety (90) days prior to such Other Meeting Date or (ii) the tenth day following the date such
Other Meeting Date is first publicly announced or disclosed.
A Shareholder Notice must contain the following information: (i) whether the shareholder is
providing the notice at the request of a beneficial holder of shares, whether the shareholder, any
such beneficial holder or any nominee has any agreement, arrangement or understanding with, or has
received any financial assistance, funding or other consideration from any other person with
respect to the investment by the shareholder or such beneficial holder in the Company or the matter
the Shareholder Notice relates to, and the details thereof, including the name of such other person
(the shareholder, any beneficial holder on whose behalf the notice is being delivered, any nominees
listed in the notice and any persons with whom such agreement, arrangement or understanding exists
or from whom such assistance has been obtained are hereinafter collectively referred to as
Interested Persons), (ii) the name and address of all Interested Persons, (iii) a complete
description of all equity securities and debt instruments, whether held in the form of loans or
capital market instruments, of the Company or any of its subsidiaries beneficially owned by all
Interested Persons, (iv) whether and the extent to which any hedging, derivative or other
transaction (a Derivative Transaction) is in place or has been entered into within the six months
preceding the date of delivery of the Shareholder Notice by or for the benefit of any Interested
Person with respect to the Company or its subsidiaries, or any of their respective securities, debt
instruments or credit ratings, the effect or intent of which transaction is to give rise to gain or
loss as a result of changes in the trading price of such securities or debt instruments or changes
in the credit ratings for the Company, its subsidiaries or any of their respective securities or
debt instruments (or, more generally, changes in the perceived creditworthiness of the Company or
its subsidiaries), or to increase or decrease the voting power of such Interested Person, and if
so, a summary of the material terms thereof, and (v) a representation that the shareholder is a
holder of record of stock of the Company that would be entitled to vote at the meeting and intends
to appear in person or by proxy at the meeting to propose the matter set forth in the Shareholder
Notice. As used herein, beneficially owned with respect to securities shall mean all securities
which such person is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the
Exchange Act. The Shareholder Notice shall be updated not later than 10 days after the record date
for the determination of shareholders entitled to vote at the meeting to provide any material
changes in the foregoing information as of the record date. Any Shareholder Notice relating to the
nomination of directors must also contain (i) the information regarding each nominee required by
paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by the Securities and Exchange
Commission (or the corresponding provisions of any successor regulation), (ii) each nominees
signed consent to serve as a director of the Company if elected, and (iii) information as to
whether each nominee is eligible for consideration as an independent director under the relevant
standards contemplated by Item 407(a) of Regulation S-K (or the corresponding provisions of any
successor regulation). The Company may also require any proposed nominee to furnish such other
information, including completion of the Companys directors questionnaire, as it may reasonably
require to determine whether the nominee would be considered independent as a director or as a
member of the audit committee of the Board of Directors under the various rules and standards
applicable to the Company. Any Shareholder Notice with respect to a matter other than the
nomination of directors must contain (i) the text of the proposal to be presented, including the
text of any resolutions to be proposed for consideration by shareholders and (ii) a brief written
statement of the reasons such shareholder favors the proposal.
Notwithstanding anything in this Section 8(b) to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Company at the next annual meeting is
increased and either all of the nominees for director at the next annual meeting or the size of the
increased Board of Directors is not publicly announced or disclosed by the Company at least one
hundred (100) days prior to the first anniversary of the preceding years annual meeting, a
Shareholder Notice shall also be considered timely hereunder, but only with respect to nominees for
any new positions created by such increase, if it shall be delivered to the Secretary of the
Company at the principal executive office of the Company not later than the close of business on
the tenth day following the first date all of such nominees or the size of the increased Board of
Directors shall have been publicly announced or disclosed.
(c) For any matter to be brought properly before any special meeting of shareholders, the
matter must be set forth in the Companys notice of the meeting. In the event that the Company
calls a special meeting of shareholders for the purpose of electing one or more persons to the
Board of Directors, any shareholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Companys notice of the meeting, if the
Shareholder Notice required by Section 8(b) hereof shall be delivered to the Secretary of the
Company at the principal executive office of the Company not later than the close of business on
the tenth day following the day on which the date of the special meeting and either the names of
the nominees proposed by the Board of Directors to be elected at such meeting or the number of
directors to be elected is publicly announced or disclosed.
(d) For purposes of this Section 8, a matter shall be deemed to have been publicly announced
or disclosed if such matter is disclosed in a press release reported by the Dow Jones News
Service, Associated Press or a comparable national news or wire service or in a document publicly
filed by the Company with the Securities and Exchange Commission.
(e) In no event shall the adjournment of an annual meeting or special meeting or the
postponement of any meeting that does not require a change in the record date for such meeting, or
any announcement thereof, commence a new period for the giving of notice as
provided in this Section 8. This Section 8 shall not (i) affect the rights of shareholders to
request inclusion of proposals made pursuant to Rule 14a-8 under the Exchange Act or (ii) apply to
the election of directors selected by or pursuant to the provisions of Article FOURTH, Section 3 of
the Restated Certificate of Incorporation relating to the rights of the holders of any class or
series of stock of the Company having a preference over the Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances.
(f) The person presiding at any meeting of shareholders, in addition to making any other
determinations that may be appropriate to the conduct of the meeting, shall have the power and duty
to determine whether notice of nominees and other matters proposed to be brought before a meeting
has been duly given in the manner provided in this Section 8 and, if not so given, shall direct and
declare at the meeting that such nominees and other matters are out of order and shall not be
considered. Notwithstanding the foregoing provisions of this Section 8, if the shareholder or a
qualified representative of the shareholder does not appear at the annual or special meeting of
shareholders of the Company to present any such nomination, or make any such proposal, such
nomination or proposal shall be disregarded, notwithstanding that proxies in respect of such vote
may have been received by the Company.
Section 9. Conduct of Meetings
. The Board of Directors of the Company may adopt by resolution
such rules, regulations and procedures for the conduct of meetings of shareholders as it shall deem
appropriate. Except to the extent inconsistent with applicable law and such rules and regulations
adopted by the Board of Directors, the Chairman of each meeting of shareholders shall have the
right and authority to prescribe such rules, regulations and procedures and to do all such acts,
including causing an adjournment of such meeting, as, in the judgment of such Chairman, are
appropriate. Such rules, regulations or procedures, whether adopted by the Board of Directors or
prescribed by the Chairman of the meeting, may include, without limitation, the following: (a) the
establishment of an agenda or order of business for the meeting, including fixing the time for
opening and closing the polls for voting on each matter; (b) rules and procedures for maintaining
order at the meeting and the safety of those present; (c) limitations on attendance at or
participation in the meeting to shareholders of record of the Company, their duly authorized and
constituted proxies or such other persons as the Chairman shall permit; (d) restrictions on entry
to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time
allotted to questions or comments by participants. Unless, and to the extent determined by the
Board of Directors or the Chairman of the meeting, meetings of shareholders shall not be required
to be held in accordance with rules of parliamentary procedure.
Section 10. Organization of Meetings
. Meetings of shareholders shall be presided over by the
Chairman of the Board of Directors, or in his or her absence by the Chief Executive Officer, or in
the absence of the foregoing persons by a Chairman designated by the Board of Directors, or, in the
absence of any such designation, by a Chairman chosen at the meeting. The Secretary, or in the
absence of the Secretary, an Assistant Secretary, shall act as the secretary of the meeting, but in
the absence of the Secretary or Assistant Secretary, the Chairman of the meeting may appoint any
person to act as secretary of the meeting.
ARTICLE III.
Section 1. Number
. The Board of Directors shall consist of not less than eight nor more than
thirteen members as may be determined by the Board of Directors. After any such determination, the
number so determined shall continue as the authorized number of members of the Board until the same
shall be changed as aforesaid. Directors need not be shareholders.
Section 2. Manner of Election
. Except as may be otherwise required by the Restated
Certificate of Incorporation, each director shall be elected by the vote of the majority of the
votes cast (meaning the number of shares voted for a nominee must exceed the number of shares
voted against such nominee) at any meeting for the election of directors at which a quorum is
present, provided that the directors shall be elected by a plurality of the votes cast (instead of
by votes cast for or against a nominee) at any meeting at which a quorum is present for which (i)
the Secretary of the Company receives a notice in compliance with the applicable requirements for
shareholder nominations for director set forth in these By-Laws and (ii) such proposed nomination
has not been withdrawn by such shareholder on or prior to the tenth day preceding the date the
Company first mails its notice of meeting for such meeting to the shareholders.
Section 3. Tenure; Vacancies
. Each director shall hold office for the term set forth in
Article ELEVENTH of the Restated Certificate of Incorporation and until his or her successor shall
be elected and qualified; subject, however, to prior resignation, death or removal as provided by
law. Any director may resign at any time by oral statement to that effect made at a meeting of the
Board of Directors, to be effective upon its acceptance by the Board, or in writing to that effect
delivered to the Secretary, to be effective upon its acceptance or at the time specified in such
writing. Any vacancy on the Board of Directors that results from an increase in the number of
directors shall be filled by a majority of the Board of Directors then in office, and any other
vacancy occurring in the Board of Directors shall be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director. Any director elected to fill
a vacancy not resulting from an increase in the number of directors shall have the same remaining
term as that of his predecessor.
Section 4. Organization Meeting
. Immediately after each annual meeting of the shareholders or
special meeting held in lieu thereof, the newly elected Board of Directors, if a quorum is present,
shall hold an organization meeting for the purpose of electing officers and transacting any other
business. Notice of such meeting need not be given. If, for any reason, said organization meeting
is not held at such time, a special meeting for such purpose shall be held as soon thereafter as
practicable.
Section 5. Regular Meetings
. Regular meetings of the Board of Directors for the transaction of
any business may be held at such times and places as may be determined by the Board of Directors.
The Secretary shall give to each director at least five (5) days written notice of each such
meeting.
Section 6. Special Meetings
. Special meetings of the Board of Directors may be held at any
time and place upon call by the Chairman of the Board, the Chief Executive Officer, or a majority
of the Directors. Notice of each such meeting shall be given to each director by letter, telegram
or telephone or in person not less than two (2) days prior to such meeting; provided, however, that
such notice shall be deemed to have been waived by the directors attending or voting at any such
meeting, without protesting the lack of proper notice, and may be waived in writing or by telegram
by any director either before or after such meeting. Unless otherwise indicated in the notice
thereof, any business may be transacted at such meeting.
Section 7. Quorum
. At all meetings of the Board of Directors a majority of the directors in
office at the time shall constitute a quorum for the transaction of business, but in no case shall
such quorum be less than one-third of the total authorized number of directors.
Section 8. Compensation
. If so determined by the Board of Directors, all or any members of
the Board of Directors or of any committee of the Board who are not Company employees shall be
compensated for their services in such capacities either a fixed sum for attendance at each meeting
of the Board or of such committee or such other amount as may be determined from time to time by
the Board of Directors. Compensation may be paid in cash and in the Companys stock and stock
equivalents. Directors may be reimbursed for expenses reasonably incurred by them in attending such
meetings.
1
ARTICLE IV.
The Board of Directors may, by resolution or resolutions passed by a majority of the whole
Board, designate or eliminate one or more committees, each committee to consist of one or more of
the directors of the Company. The Board of Directors may designate one or more members as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in said resolution or
resolutions of the Board of Directors and to the extent permitted by Delaware law shall have and
may exercise the powers of the Board of Directors in the management of the business and affairs of
the Company, and may have power to authorize the seal of the Company to be affixed to all papers
which may require it. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors. Unless otherwise
provided in the resolution of the Board of Directors designating the committees, a Board committee
may create one or more subcommittees, each subcommittee to consist of one or more members of the
Board committee, and delegate to a subcommittee any or all of the powers and authority of the Board
committee.
ARTICLE V.
Section 1. Officers Designated
. The officers of the Company shall be elected by the Board of
Directors at their organization meeting or any other meeting. The Board of Directors shall elect
the executive officers of the Company which may include a Chairman of the Board, President, and one
or more Vice Presidents (any one or more of whom may be designated as Executive Vice Presidents, or
as Senior Vice Presidents or by any other designations). In addition thereto, the officers shall
include a Controller or Principal Accounting Officer, a General Counsel, a Secretary and a
Treasurer. In their discretion the Board of Directors may elect one or more Assistant Secretaries
and Assistant Treasurers and any other additional officers. The Chairman of the Board shall be
elected from among the directors. The other officers may but need not be elected from among the
directors. Any two offices may be held by the same person, but in any case where the action of more
than one officer is required no one person shall act in more than one capacity.
Section 2. Tenure of Office
. The officers of the Company shall hold office until the next
organization meeting of the Board of Directors and until their respective successors are chosen and
qualified, except in case of resignation, death or removal. The Board of Directors may remove any
officer at any time with or without cause by the vote of the majority of the directors in office at
the time. A vacancy in any office may be filled by election by the Board of Directors.
Section 3. Powers and Duties of Officers in General
. The powers and duties of the officers
shall be exercised in all cases subject to such directions as the Board of Directors may see fit to
give. The respective powers and duties hereinafter set forth are subject to alteration by the Board
of Directors. The Board of Directors is also authorized to delegate the duties of any officer to
any other officer, employee or committee and to require the performance of duties in addition to
those provided for herein. Subject to such directions, if any, as the Board of Directors may give
from time to time, the chief executive officers of the Company are authorized to establish and to
modify from time to time an organization plan defining the respective duties and functions of the
officers of the Company.
Section 4. Chairman of the Board
. The Chairman of the Board shall preside at meetings of the
shareholders and of the Board of Directors.
Section 5. Chief Executive Officer
. The Chief Executive Officer shall be either the Chairman
of the Board and/or the President, as the Board of Directors so designates, and he or she shall
have general responsibility for the major functions of the business of the Company and shall
initiate and develop broad Company policies.
Section 6. President; Vice Presidents
. In the absence or disability of the Chief Executive
Officer, the President shall perform the Chief Executive Officers duties. In the absence or
disability of the Chief Executive Officer and the President, the Vice Presidents, in the order
designated by the Board of Directors, shall perform the Chief Executive Officers duties. If so
determined by the Board of Directors, one Vice President may be designated as manager of specific
sectors, divisions, districts or such other unit or as being in charge of specific functions,
another as Vice President in Charge of Sales, and other Vice Presidents as managers of specified
divisions or sales districts of the Company or as being in charge of specified functions.
Section 7. Controller or Principal Accounting Officer, General Counsel, Secretary, and
Treasurer
. The Controller or Principal Accounting Officer, General Counsel, the Secretary, and the
Treasurer shall perform such duties as are indicated by their respective titles, subject to the
provisions of Section 3 of this Article. The Secretary shall have the custody of the corporate
seal.
Section 8. Other Officers
. All other officers shall have such powers and duties as may be
prescribed by the Board of Directors, or, in the absence of their action, by the chief executive
officers of the Company or by the respective officers having supervision over them.
Section 9. Compensation
. The Board of Directors is authorized to determine, or to provide the
method of determining, or to empower a committee of its members to determine, the compensation of
all officers.
Section 10. Bond
. If so requested and authorized by the Board of Directors, the Company shall
furnish a fidelity bond in such sum and with such security as the Board of Directors may require.
Section 11. Signing Checks and Other Instruments
. The Board of Directors is authorized to
determine or provide the method of determining the manner in which deeds, contracts and other
obligations and instruments of the Company shall be signed. However, persons doing business with
the Company shall be entitled to rely upon the action of the Chairman of the Board, the President,
any Vice President, the Secretary, the Treasurer, the Controller or Principal Accounting Officer or
General Counsel in executing contracts and other obligations and instruments, of the Company as
having been duly authorized. The Board of Directors of the Company is authorized to designate or
provide the method of designating depositaries of the funds of the Company and to determine or
provide the method of determining the manner in which checks, notes, bills of exchange and similar
instruments shall be signed, countersigned or endorsed.
ARTICLE VI.
The Company shall indemnify to the full extent permitted by law any person made or threatened
to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or officer of the
Company, is or was a director, officer, trustee, member, stockholder, partner, incorporator or
liquidator of a Subsidiary of the Company, or serves or served at the request of the Company as a
director, officer, trustee, member, stockholder, partner, incorporator or liquidator of or in any
other capacity for any other enterprise. Expenses, including attorneys fees, incurred by any such
person in defending any such action, suit or proceeding shall be paid or reimbursed by the Company
promptly upon demand by such person and, if any such demand is made in advance of the final
disposition of any such action, suit or proceeding, promptly upon receipt by the Company of an
undertaking of such person to repay such expenses if it shall ultimately be determined that such
person is not entitled to be indemnified by the Company. The rights provided to any person by this
by-law shall be enforceable against the Company by such person, who shall be presumed to have
relied upon it in serving or continuing to serve as a director or officer or in such other capacity
as provided above. In addition, the rights provided to any person by this by-law shall survive the
termination of such person as any such director, officer, trustee, member, stockholder, partner,
incorporator or liquidator and, insofar as such person served at the request of the Company as a
director, officer, trustee, member, stockholder, partner, incorporator or liquidator of or in any
other capacity for any other enterprise, shall survive the termination of such request as to
service prior to termination of such request. No amendment of this by-law shall impair the rights
of any person arising at any time with respect to events occurring prior to such amendment.
Notwithstanding anything contained in this Article VI, except for proceedings to enforce
rights provided in this Article VI, the Company shall not be obligated under this Article VI to
provide any indemnification or any payment or reimbursement of expenses to any director, officer or
other person in connection with a proceeding (or part thereof) initiated by such person (which
shall not include counterclaims or crossclaims initiated by others) unless the Board of Directors
has authorized or consented to such proceeding (or part thereof) in a resolution adopted by the
Board.
For purposes of this by-law, the term Subsidiary shall mean any corporation, partnership,
limited liability company or other entity in which the Company owns, directly or indirectly, a
majority of the economic or voting ownership interest; the term other enterprise shall include
any corporation, partnership, limited liability company, joint venture, trust, association or other
unincorporated organization or other entity and any employee benefit plan; the term officer, when
used with respect to the Company, shall refer to any officer elected by or appointed pursuant to
authority granted by the Board of Directors of the Company pursuant to Article V of these By-Laws,
when used with respect to a Subsidiary or other enterprise that is a corporation, shall refer to
any person elected or appointed pursuant to the by-laws of such Subsidiary or other enterprise or
chosen in such manner as is prescribed by the by-laws of such Subsidiary or other enterprise or
determined by the Board of Directors of such Subsidiary or other enterprise, and when used with
respect to a Subsidiary or other enterprise that is not a corporation or is organized in a foreign
jurisdiction, the term officer shall include in addition to any officer of such entity, any
person serving in a similar capacity or as the manager of such entity; service at the request of
the Company shall include service as a director or officer of the Company which imposes duties on,
or involves services by, such director or officer with respect to an employee benefit plan, its
participants or beneficiaries; any excise taxes assessed on a person with respect to an employee
benefit plan, its participants or beneficiaries shall be deemed to be indemnifiable expenses; and
action by a person with respect to an employee benefit plan which such person reasonably believes
to be in the interest of the participants and beneficiaries of such plan shall be deemed to be
action not opposed to the best interests of the Company.
To the extent authorized from time to time by the Board of Directors, the Company may provide
to (i) any one or more employees and other agents of the Company, (ii) any one or more officers,
employees and other agents of any Subsidiary and (iii) any one or more directors, officers,
employees and other agents of any other enterprise, rights of indemnification and to receive
payment or reimbursement of expenses, including attorneys fees, that are similar to the rights
conferred in this Article VI on directors and officers of the Company or any Subsidiary or other
enterprise. Any such rights shall have the same force and effect as they would have if they were
conferred in this Article VI.
Nothing in this Article VI shall limit the power of the Company or the Board of Directors to
provide rights of indemnification and to make payment and reimbursement of expenses, including
attorneys fees, to directors, officers, employees, agents and other persons otherwise than
pursuant to this Article VI.
ARTICLE VII.
The corporate seal, circular in form, shall have inscribed thereon the name of the Company and
the words Corporate SealDelaware.
ARTICLE VIII.
The Board of Directors may close the stock transfer books of the Company for a period not
exceeding sixty (60) days preceding the date of any meeting of the shareholders, or the date for
the payment of any dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of shares shall go into effect; provided, however, that in lieu of
closing the stock transfer books as aforesaid, the Board of Directors may fix in advance a date,
not exceeding sixty (60) days preceding the date of any meeting of shareholders, or the date for
the payment of any dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of shares shall go into effect, as a record date for the determination of
the shareholders entitled to notice of, and to vote at, any such meeting and any adjournment
thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights,
or to exercise the rights in respect of any such change, conversion or exchange of shares, and in
such case such shareholders, and only such shareholders as shall be shareholders of record on the
date so fixed, shall be entitled to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend or to receive such allotment of rights
or to exercise such rights as the case may be, notwithstanding any transfer of any shares on the
books of the Company after any such record date fixed as aforesaid.
ARTICLE IX.
Section 1. Certificates; Uncertificated Shares
. The shares of stock of the Company shall be
represented by certificates in such form as the appropriate officers of the Company may from time
to time prescribe; 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 of the Company shall be uncertificated
shares. Notwithstanding the foregoing or the adoption of such a resolution or resolutions by the
Board of Directors, each holder of uncertificated shares shall be entitled, upon request, to a
certificate representing such shares. Any such resolution shall not apply to any share represented
by a certificate theretofore issued until such certificate is surrendered to the Company. Share
certificates shall be numbered and registered in a share register as they are issued. Share
certificates shall exhibit the name of the registered holder and the number and class of shares and
the series, if any, represented thereby and the par value of each such share or a statement that
each such share is without par value, as the case may be. Except as otherwise provided by law, the
rights and obligations of the holders of uncertificated shares and the rights and obligations of
the holders of shares represented by certificates of the same class and series shall be identical.
Section 2. Signatures on Certificates
. Every share certificate shall be signed, in the name
of the Company, by the Chairman of the Board, the Chief Executive Officer, the President or a Vice
President and countersigned, in the name of the Company, by the Corporate Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer and shall be sealed with the Companys corporate
seal. Such signatures and seal may be facsimile, engraved or printed. The Board of Directors may
appoint one or more transfer agents or transfer clerks and one or more registrars and may require
any or all certificates representing shares of stock to bear the signature or signatures of any of
them. Where a certificate is signed (a) by a transfer agent or an assistant or co-transfer agent,
(b) by a transfer clerk or (c) by a registrar or co-registrar, the signature thereon of any
authorized signatory may be facsimile. Where a certificate is signed by a registrar or
co-registrar, the signature of any transfer agent or assistant or co-transfer agent thereon may be
by facsimile signature of the authorized signatory of such transfer agent or assistant or
co-transfer agent. In case any officer or officers of the Company who have signed, or whose
facsimile, engraved or printed signature or signatures have been used on, any such certificate or
certificates shall cease to be such officer or officers, whether because of death, resignation or
otherwise, before such certificate or certificates have been delivered by the Company, such
certificate or certificates may, nevertheless, be issued and delivered as though the person or
persons who signed such certificate or certificates or whose facsimile, engraved or printed
signature or signatures have been used thereon had not ceased to be such officer or officers of the
Company.
Section 3. Lost, Stolen or Destroyed Certificates; Issuance of New Certificates
. In case of
loss, theft or destruction of any certificate representing shares of stock or other securities of
the Company, another may be issued, or uncertificated shares may be issued, in its place upon
satisfactory proof of such loss, theft or destruction and upon the giving of a satisfactory bond of
indemnity to the Company and to the transfer agents, transfer clerks and registrars, if any, of
such stock or other securities, as the case may be.
Section 4. Transfer of Shares
. Subject to valid transfer restrictions and stop-transfer
orders, upon surrender to the Company, or a transfer agent, transfer clerk or registrar of the
Company, of a certificate representing shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, the Company may issue a new certificate or new
equivalent uncertificated shares, as the case may be, or in the case of uncertificated shares, upon
request, a certificate representing, or other evidence of, such new equivalent uncertificated
shares, to the person entitled thereto, cancel the old certificate and record the transaction upon
its books. Upon receipt of proper transfer instructions from the holder of uncertificated shares,
the Company shall cancel such uncertificated shares and issue new equivalent uncertificated shares,
or, upon such holders request, a certificate representing, or other evidence of, such new
equivalent uncertificated shares, to the person entitled thereto, and record the transaction upon
its books. In no event shall a transfer of shares affect the right of the Company to pay any
dividend upon the stock to the holder of record thereof for all purposes, and no transfer shall be
valid, except between the parties thereto, until such transfer shall have been made upon the books
of the Company.
Section 5. Registered Shareholders
. The Company and its transfer agents, transfer clerks and
registrars, if any, shall be entitled to treat the holder of record of any share or shares as the
holder in fact thereof and shall not be bound to recognize any equitable or other claims to, or
interest in, such shares on the part of any other person and shall not be liable for any
registration or transfer of shares which are registered, or to be registered, in the name of a
fiduciary or the nominee of a fiduciary unless made with actual knowledge that a fiduciary, or
nominee of a fiduciary, is committing a breach of trust in requesting such registration or
transfer, or with knowledge of such facts that its participation therein amounts to bad faith.
ARTICLE X.
The fiscal year of the Company shall end on the Friday nearest June 30 unless and until the
Board of Directors shall otherwise determine.
ARTICLE XI.
These By-Laws may be made or altered in any respect in whole or in part by the affirmative
vote of the holders of a majority of the shares entitled to vote thereon at any annual or special
meeting of the shareholders, if notice of the proposed alteration or change to be made is properly
brought before the meeting under these By-Laws. The By-Laws may also be made or altered in any
respect in whole or in part, by the affirmative vote of the majority of the directors then
comprising the Board of Directors.
2
HARRIS CORPORATION
Offices.
Meetings of Shareholders.
Board of Directors.
Committees
.
Officers.
Indemnification of Directors and Officers
.
Corporate Seal.
Record Dates.
Stock.
Fiscal Year.
Amendments.
Exhibit 10.1
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (Agreement) is made as of [ DATE ] , between Harris Corporation, a Delaware corporation (the Company) and [ NAME ], a director, officer, or employee of the Company (the Indemnitee).
RECITALS :
WHEREAS, the Company and the Indemnitee are aware of the exposure to litigation and claims of officers, directors and employees of corporations as such persons exercise their duties to the Company;
WHEREAS, the Company desires to continue to benefit from the services of highly qualified and experienced persons such as the Indemnitee;
WHEREAS, the Indemnitee desires to serve or to continue to serve the Company as a director, officer or employee, including service at the request of the Company as a director, officer, trustee, member, stockholder, partner, incorporator or liquidator or in any other capacity for another corporation, joint venture, trust or other enterprise or as a fiduciary, trustee or administrator (or in any similar capacity) of any employee benefit plan or other plan or program sponsored by the Company or any Subsidiary of the Company (Agent), for so long as the Company continues to provide on an acceptable basis indemnification against certain liabilities and expenses which may be incurred by the Indemnitee;
[WHEREAS, the Indemnitee is currently a party to an Indemnification Agreement, dated , with the Company and the Company and the Indemnitee have agreed that this Agreement shall replace and supersede the prior Indemnification Agreement in all respects.]
AGREEMENT :
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained, the parties hereto agree as follows:
1. Indemnification . Pursuant to the terms hereof, the Company shall indemnify the Indemnitee with respect to the Indemnitees activities as a director, officer, employee or Agent of the Company against any judgments, fines, penalties and amounts paid in settlement and Expenses (as hereafter defined) actually and reasonably incurred, in connection with any threatened, pending, or completed action, suit, arbitration, alternative dispute mechanism or any other proceeding, whether civil, criminal, administrative or investigative, and whether brought by a third party or by or in the right of the Company, individually or collectively, (a Proceeding), to which the Indemnitee was, is, or is threatened to be made a party or may reasonably be expected to become a party by reason of facts which include the Indemnitee being or having been such a director, officer, employee or Agent (an Indemnifiable Event), to the extent of the highest and most advantageous to the Indemnitee, as determined by the Indemnitee, of one or any combination of the following:
(a) The benefits provided by the Companys Certificate of Incorporation or By-Laws in effect on the date hereof, a copy of the relevant portions of which are attached hereto as Exhibit I;
(b) The benefits provided by the Companys Certificate of Incorporation or By-Laws or their equivalent in effect at the time indemnification is sought by the Indemnitee under the Applicable Document or Expenses are incurred by the Indemnitee;
(c) The benefits to the fullest extent allowable under Delaware law in effect at the date hereof;
(d) The benefits to the fullest extent allowable under the law of the jurisdiction under which the Company exists at the time indemnification is sought by the Indemnitee under the Applicable Document or Expenses are incurred by the Indemnitee;
(e) | The benefits available under liability insurance obtained by the Company; and |
(f) Such other benefits as may be otherwise available to the Indemnitee under then existing practices of the Company.
Combination of two or more of the benefits provided by items (a) through (f) shall be available only to the extent that the Applicable Document, as hereafter defined, does not require that the benefits provided therein must be exclusive of other benefits. The document or law providing for the benefits listed in items (a) through (f) above is called the Applicable Document in this Agreement. The Company hereby undertakes to assist the Indemnitee, in all proper and legal ways, to obtain the benefits selected by Indemnitee under items (a) through (f) above.
For purposes of this Agreement, Expenses shall include all reasonable fees, costs and expenses actually and reasonably incurred, including without limitation, attorneys fees, excise taxes assessed with respect to an employee benefit plan, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with defending, preparing to defend, investigating, participating or preparing to be a witness in a Proceeding, whether or not a party to such Proceeding, or prosecuting or preparing to prosecute any compulsory counterclaim or any affirmative defense asserted by the Indemnitee or any counterclaim asserted by the Indemnitee that directly responds to a claim against the Indemnitee that, if successful, would negate one or more of the affirmative claims against the Indemnitee. Expenses shall also include expenses incurred responding to requests or complying with any obligations pursuant to this Agreement or in connection with any appeal resulting from any Proceedings including the premiums, security or bonds for such appeal; provided, however, and notwithstanding anything to the contrary herein, none of the foregoing costs and expenses, or any other costs and expenses, incurred following the entry of a plea of guilty to a felony charge arising out of offenses committed by Indemnitee relating to an Indemnified Event shall be deemed Expenses for purposes of Section 3 and the parties hereto agree that entry of such plea shall be considered a final disposition of such Proceeding.
For purposes of this Agreement, Subsidiary shall mean any corporation, partnership, limited liability company or other entity in which the Company owns, directly or indirectly, a majority of the economic or voting ownership interest.
2. Insurance . The Company shall maintain directors and officers liability insurance for so long as the Indemnitees services are covered hereunder, provided and to the extent that such insurance is available on a commercially reasonable basis. However, the Company agrees that the provisions hereof shall remain in effect regardless of whether liability or other insurance coverage is at any time obtained or retained by the Company; except that any payments made under an insurance policy shall reduce in whole or in part the obligations of the Company hereunder. In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee (under any insurance policy or otherwise), who shall execute all rights, including the execution of such documents necessary to enable the Company to effectively bring suit to enforce such rights.
3. Advancement and Payment Of Expenses . At the Indemnitees request, the Company shall promptly pay the Expenses as and when incurred by the Indemnitee in advance of any final disposition of any Proceeding, including any Proceeding initiated by the Indemnitee and as to which Section 4(b)(i), (ii) or (iii) is applicable, upon receipt of an undertaking in the form of Exhibit II attached hereto by or on behalf of the Indemnitee to repay such amounts so paid on the Indemnitees behalf if it shall ultimately be determined under this Agreement or the Applicable Document that the Indemnitee is not entitled to be indemnified by the Company. No other preconditions for the advancement of Expenses shall be required or otherwise impose and the Indemnitees right to such advancement is not subject to the review by the Company of any standard of conduct. Expenses incurred in connection with any Proceeding shall be paid by the Company within twenty (20) days of its receipt of such request, together with such reasonable non-privileged documentation evidencing the amount and nature of such Expenses as the Company shall require, subject to its also receiving such undertaking.
4. Limitations .
(a) The following matters shall not be Indemnifiable Events and the Company shall not indemnify the Indemnitee:
(i) in connection with any claim made against the Indemnitee for payments to the Company of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act; or
(ii) for violations of Federal or state insider trading laws; or
(iii) for the amount of any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, or payment to the Company of profits arising from the purchase and sale by Indemnitee of securities within the meaning of Section 306 of the Sarbanes-Oxley Act of 2002).
(b) The Company shall not advance or pay Expenses in connection with any Proceeding initiated by the Indemnitee, unless:
(i) the Company has joined in or the Board has consented to the initiation of such Proceeding;
(ii) the Proceeding is one to enforce indemnification or expense advancement and payment rights under Section 8 and/or recovery under any directors and officers liability insurance policies maintained by the Company; or
(iii) such Expenses arise in connection with any compulsory counterclaim or any affirmative defense asserted by the Indemnitee, or any counterclaim raised by the Indemnitee that directly responds to a claim against the Indemnitee that, if successful, would negate one or more of the affirmative claims against the Indemnitee.
5. Standard of Conduct; Presumption of Eligibility .
(a) Unless ordered by a court, no claim for indemnification shall be paid by the Company unless the Company has determined that the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitees conduct was unlawful. Such determinations shall be made (i) by a majority vote of the Companys directors who are not parties to the Proceeding for which indemnification is sought (Disinterested Directors), even though less than a quorum, (ii) by a committee of Disinterested Directors designated by a majority vote of Disinterested Directors, even though less than a quorum, (iii) if there are no Disinterested Directors, or if Disinterested Directors so direct, by the Independent Counsel (as hereafter defined) in a written opinion to the Board, (iv) by stockholders of the Company, or (v) upon a Change in Control (as hereafter defined), by the Independent Counsel in a written opinion to the Board. Indemnification payment shall be made within twenty (20) days of date of determination that Indemnitee is entitled to indemnification.
(b) In the event the determination of entitlement to indemnification is to be made by the Independent Counsel pursuant to Section 5(a), the Independent Counsel shall be selected as provided in this Section 5(b). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by a majority of the Disinterested Directors, even though less than a quorum, or if there are no Disinterested Directors, by a majority of the Board, and the Company shall give written notice advising the Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and the Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, the Indemnitee or the Company, as the case may be, may, within seven (7) days after such written notice of selection shall have been given, deliver to the Company or to the Indemnitee, as the case may be, a written objection to such selection. Such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of Independent Counsel as defined in this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, the Independent Counsel so selected may not serve as Independent Counsel unless and until a court has determined that such objection is without merit. If, within twenty (20) days, no Independent Counsel shall have been selected without objection, either the Company or the Indemnitee may petition the Court of Chancery of the State of Delaware (the Delaware Court) for resolution of any objection which shall have been made by the Company or the Indemnitee to the others selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Delaware Court, and the person with respect to whom an objection is so resolved or the person so appointed shall act as Independent Counsel under Section 5(a). The Company shall pay any and all reasonable fees and expenses of the Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 5(a) and to fully indemnify such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant to this Agreement. The Company shall pay all reasonable fees and expenses incident to the procedures of this Section 5(b), regardless of the manner in which such Independent Counsel was selected or appointed.
(c) In making any determinations of entitlement to indemnification or related standards of conduct determinations under this Agreement, the person or persons making such determination shall presume that the Indemnitee has satisfied the applicable standard of conduct, and the Company may overcome such presumption only by presenting clear and convincing evidence to the contrary. If the determination in respect of Indemnification is not made by the Company (i) within sixty (60) days, in the case of Section 5(a)(i) or 5(a)(ii) or ninety (90) days in the case of Section 5(a)(iv), of submission to the Company by the Indemnitee of a written request for indemnification pursuant to Section 1, or (ii) within sixty (60) days after the Independent Counsel is selected or appointed pursuant to Section 5(b) in the case of Section 5(a)(iii) or 5(a)(v), the Indemnitee shall be deemed to have met the relevant standard of conduct absent a prohibition of such indemnification under applicable law; provided , however , that such 60-day or 90-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination in good faith require(s) such additional time for the obtaining or evaluating of documentation and/or information relating to such determination or for other good cause shown.
(d) Notwithstanding the foregoing provisions of this Agreement, in the case of any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of an Indemnifiable Event, no indemnification shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudged to be liable to the Company unless, and only to the extent that, the Delaware Court or the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity and/or prepayment of such Expenses that the Delaware Court or such other court shall deem proper.
(e) For purposes of this Agreement, Independent Counsel shall mean a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or the Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term Independent Counsel shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitees rights under this Agreement.
(f) For purposes of this Agreement, a Change in Control of the Company shall be deemed to have occurred if:
(i) any person (as such term is defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the Exchange Act) and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Companys then outstanding securities eligible to vote for the election of the Board (the Company Voting Securities); provided, however , that the event described in this paragraph (i) shall not be deemed to be a Change in Control by virtue of any of the following acquisitions: (a) by the Company or any Subsidiary, (b) by any employee benefit plan sponsored or maintained by the Company or any Subsidiary, (c) by any underwriter temporarily holding securities pursuant to an offering of such securities, or (d) pursuant to a Non-Control Transaction (as defined in paragraph (iii));
(ii) individuals who, on July 1, 2012, constitute the Board (the Incumbent Directors) cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to July 1, 2012, whose appointment, election or nomination for election was approved by a vote of at least two-thirds of the Incumbent Directors who remain on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) shall also be deemed to be an Incumbent Director; provided, however , that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to directors or any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board shall be deemed to be an Incumbent Director;
(iii) there is consummated a merger, consolidation, share exchange or similar form of corporate reorganization of the Company or any such type of transaction involving the Company or any of its Subsidiaries that requires the approval of the Companys shareholders (whether for such transaction or the issuance of securities in the transaction or otherwise) (a Business Combination), unless immediately following such Business Combination: (a) more than 60% of the total voting power of the company resulting from such Business Combination (including, without limitation, any company which directly or indirectly has beneficial ownership of 100% of the Company Voting Securities) eligible to elect directors of such corporation is represented by shares that were Company Voting Securities immediately prior to such Business Combination (either by remaining outstanding or being converted), and such voting power is in substantially the same proportion as the voting power of such Company Voting Securities immediately prior to the Business Combination, (b) no person (other than any publicly traded holding company resulting from such Business Combination, or any employee benefit plan sponsored or maintained by the Company (or the corporation resulting from such Business Combination)) becomes the beneficial owner, directly or indirectly, of 20% or more of the total voting power of the outstanding voting securities eligible to elect directors of the corporation resulting from such Business Combination, and (c) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were Incumbent Directors at the time of the Boards approval of the execution of the initial agreement providing for such Business Combination (any Business Combination which satisfies the conditions specified in (a), (b) and (c) shall be deemed to be a Non-Control Transaction);
(iv) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company; or
(v) the Company consummates a direct or indirect sale or other disposition of all or substantially all of the assets of the Company and its Subsidiaries.
Notwithstanding the foregoing, a Change in Control of the Company shall not be deemed to occur solely because any person acquires beneficial ownership of more than 20% of the Company Voting Securities as a result of the acquisition of Company Voting Securities by the Company which reduces the number of Company Voting Securities outstanding; provided , that if after such acquisition by the Company such person becomes the beneficial owner of additional Company Voting Securities that increases the percentage of outstanding Company Voting Securities beneficially owned by such person, a Change in Control of the Company shall then occur.
For the purposes of this definition of Change in Control the term Board shall mean the Board of Directors of the Company and the term Subsidiary shall mean any entity of which the Company owns or controls, either directly or indirectly, 50% or more of the outstanding shares of stock normally entitled to vote for the election of directors or of comparable equity participation and voting power.
6. Partial Indemnification ; Witness Expenses . (a) If the Indemnitee is entitled under any provision of this Agreement to indemnification or payment by the Company for a portion of the Expenses, judgments, fines, penalties or amounts paid in settlement actually and reasonably incurred by the Indemnitee or on the Indemnitees behalf in connection with any Proceeding relating to an Indemnifiable Event, or in defense of any claim, issue or matter therein, and any appeal therefrom but not, however, for the total amount thereof, the Company shall nevertheless pay the Indemnitee that portion of such Expenses, judgments, fines, penalties or amounts paid in settlement to which the Indemnitee is entitled.
(b) If the Indemnitee is, by reason of the fact that the Indemnitee is or was a director, officer, employee or Agent of the Company, made a witness, or is made (or asked) to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Company shall advance all Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection therewith.
7. Period of Indemnity . All agreements and obligations of the Company contained herein shall continue so long as the Indemnitee shall be subject to any possible Proceeding by reason of an Indemnifiable Event.
8. Remedies of Indemnitee .
(a) In the event that (i) a determination is made pursuant to Section 5 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement and payment of Expenses is not timely made pursuant to Section 3 hereof, or (iii) payment of indemnification is not made pursuant to Section 1 hereof within thirty (30) days after the date of notice to the Company of the determination that the Indemnitee is entitled to indemnification, the Indemnitee shall be entitled to seek an award in arbitration pursuant to Section 24. In the case of a determination referred to in Section 5(a)(i), the Indemnitee shall commence such proceeding seeking an award in arbitration within one hundred and eighty (180) days following the date on which the Indemnitee first has the right to commence any proceeding pursuant to this Section 8(a).
(b) It shall be a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify the Indemnitee for the amount claimed. Neither the failure of the Company (including its Board, Independent Counsel, or its stockholders) to have made a determination prior to the commencement of such action by the Indemnitee that indemnification of the claimant is proper under the circumstances because the Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Company (including its Board, Independent Counsel, or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall be a defense to the action. For purposes of this Agreement, the termination of any Proceeding by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law in the absence of a specific finding so stating.
(c) In the event that a determination shall have been made pursuant to Section 5 of this Agreement that the Indemnitee is not entitled to indemnification, any arbitration commenced pursuant to this Section 8 shall be conducted in all respects on a de novo basis and such earlier determination shall not create any presumption that the Indemnitee has not met the applicable standard of conduct or that Indemnitee is not entitled to indemnification under this Agreement. If a determination shall have been made pursuant to Section 5 hereof that the Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 8, absent (i) a misstatement by the Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitees statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any proceeding commenced or held pursuant to this Section 8 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such proceeding that Company is bound by all the provisions of this Agreement.
9. Escrow . The Company shall dedicate up to an aggregate of $5 million as collateral security for the funding of its obligations hereunder and under similar agreements with other directors, officers and employees by depositing assets or bank letters of credit in escrow in the dedicated amount (the Escrow Reserve); provided, however, that the terms of any such Escrow Reserve may provide that the cash, securities or letter of credit available therefore shall only be utilized for the indemnification or advancement of Expenses provided for herein in the event that there shall have occurred within the preceding five years a Change in Control of the Company.
10. Additional Rights . The advancement of Expenses and indemnification provided in this Agreement shall not be deemed exclusive of any other indemnification or rights to which the Indemnitee may be entitled and shall continue after the Indemnitee has ceased to occupy a position as a director, officer, employee, or Agent with respect to Proceedings relating to or arising out of the Indemnitees acts or omissions during the Indemnitees service in any of such positions. This Agreement is entered into pursuant to Section 145 (f) of the Delaware General Corporation Law (DGCL) and shall not be constrained or limited to indemnification and advance payment of reimbursement of expenses provided by the DGCL.
11. Inconsistent Provisions . To the extent that any other agreement or undertaking of the Company is inconsistent with the terms of this Agreement, this Agreement shall govern.
12. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment to the Indemnitee under this Agreement to the extent that the Indemnitee has otherwise actually received payment of amounts otherwise payable hereunder.
13. Notice to the Company . The Indemnitee shall provide to the Company prompt written notice of any Proceeding brought, threatened, asserted or commenced against the Indemnitee with respect to which Indemnitee may assert a right to advancement of Expenses or indemnification hereunder; provided , however , that the failure to provide such prompt notice shall not constitute a waiver of Indemnitees rights under this Agreement, except to the extent it is demonstrated that such failure or delay (i) causes the amounts paid or to be paid by the Company to be greater than they otherwise would have been; or (ii) adversely affects the Companys ability to obtain for itself or Indemnitee coverage or proceeds under any insurance policy available to the Company or Indemnitee. The Indemnitee shall not make any admission or effect any settlement without the Companys written consent unless the Indemnitee shall have determined to undertake the Indemnitees own defense in such Proceeding and has waived the benefits of this Agreement. The Company shall not settle any Proceeding to which the Indemnitee is a party in any manner which would impose any penalty, limitation, or obligation on the Indemnitee without the Indemnitees written consent. Neither the Indemnitee nor the Company will unreasonably withhold or delay consent to any proposed settlement. The Indemnitee shall cooperate to the extent reasonably possible with the Company and/or its insurers, in attempts to defend and/or settle such Proceeding.
14. Assumption of Defense . Except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the Indemnitees defense in any Proceeding, with counsel mutually satisfactory to the Indemnitee and the Company. After notice from the Company to the Indemnitee of the Companys election so to assume such defense, the Company will not be liable to the Indemnitee under this Agreement for Expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and costs of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the Indemnitees expense unless:
(a) the employment of counsel by the Indemnitee has been authorized by the Company;
(b) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitee and the Company in the conduct of the defense of such Proceeding; or
(c) the Company shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Company; or
(d) a Change in Control has occurred.
The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which clauses (b), (c), or (d) are applicable without the prior written consent of the Indemnitee.
15. Extraordinary Transactions . The Company covenants and agrees that, in the event of any merger, consolidation or reorganization in which the Company is not the surviving entity, any sale of all or substantially all of the assets of the Company or any liquidation of the Company (each such event is hereinafter referred to as an Extraordinary Transaction), the Company shall use its best efforts to:
(a) obtain insurance in Indemnitees favor from a reputable insurance carrier in reasonable amounts (if such insurance is available at commercially reasonable rates) for a period of not less than six (6) years from the date of such Extraordinary Transaction against any liability to which the indemnification provided in this Agreement relates and;
(b) have the obligations of the Company under this Agreement expressly assumed by the survivor, purchaser or successor, as the case may be, in such Extraordinary Transaction; or
(c) otherwise adequately provide for the satisfaction of the Companys obligations under this Agreement, in a manner acceptable to the Indemnitee.
16. No Personal Liability . The Indemnitee agrees that neither the directors, nor any officer, employee, representative or Agent of the Company shall be personally liable for the satisfaction of the Companys obligations under this Agreement, and the Indemnitee shall look solely to the insurance, assets of the Company and the escrow referred to in Section 9 hereof for satisfaction of any claims hereunder.
17. Severability . If any provision, phrase, or other portion of this Agreement should be determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, and such determination should become final, such provision, phrase or other portion shall be deemed to be severed or limited, but only to the extent required to render the remaining provisions and portions of the Agreement enforceable, and the Agreement as thus amended shall be enforced to give effect to the intention of the parties insofar as that is possible.
18. Successors and Assigns . This Agreement shall be binding upon, and inure to the benefit of, the Indemnitee and Indemitees heirs, personal representatives, executors and administrators and upon the Company and its successors and assigns.
19. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement.
20. Headings . The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
21. Modifications and Waivers . No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
22. Notices . All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand or (ii) if mailed by a nationally recognized overnight delivery service, on the third day after the date on which it is so mailed:
(a) | If to the Company, to: |
Harris Corporation
1025 West NASA Boulevard Melbourne, Florida 32919 Attention: Secretary |
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(b) | If to the Indemnitee, to: |
[
NAME]
[ ADDRESS ] [ ADDRESS ] |
or to such other address as may have been furnished in writing to the Indemnitee by the Company or to the Company by the Indemnitee, as the case may be.
23. Governing Law . The parties hereto agree that this Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware without giving effect to the principles of conflicts of laws of such state.
24. Arbitration and Enforcement . In the event that any dispute or controversy shall arise between the Indemnitee and the Company with respect to whether the Indemnitee is entitled to indemnification in connection with any Proceeding or with respect to the amount of Expenses incurred or to be paid by the Company pursuant to Section 3, such dispute or controversy shall be submitted by the parties to binding arbitration before a single arbitrator at Melbourne, Florida. If the parties cannot agree on a designated arbitrator within 15 days after arbitration is requested in writing by either of them, the arbitration shall proceed before an arbitrator appointed by the American Arbitration Association and under the rules then in effect of that Association. The award shall be rendered in such form that judgment may be entered thereon in any court having jurisdiction thereof.
25. Confidentiality . Except as required by law or as otherwise becomes public, the parties agree to keep confidential any information that arises in connection with this Agreement, including but not limited to, claims for indemnification or the advance payment or reimbursement of Expenses, amounts paid or payable under this Agreement and any communications between the parties hereto.
26. Termination . This Agreement may be terminated by either party upon not less than sixty (60) days prior written notice delivered to the other party, but such termination shall not in any way diminish the obligations of the Company hereunder (including the obligation to maintain the escrow referred to in Section 9 hereof) with respect to the Indemnitees activities prior to the effective date of termination.
IN WITNESS WHEREOF, the undersigned have executed this Indemnification Agreement as of the date first above written.
INDEMNITEE |
HARRIS CORPORATION
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[ NAME ] |
Name:
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Title:
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Attest:
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Name:
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Secretary
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EXHIBIT I
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company shall indemnify to the full extent permitted by law any person made or threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Company, is or was a director, officer, trustee, member, stockholder, partner, incorporator or liquidator of a Subsidiary of the Company, or serves or served at the request of the Company as a director, officer, trustee, member, stockholder, partner, incorporator or liquidator of or in any other capacity for any other enterprise. Expenses, including attorneys fees, incurred by any such person in defending any such action, suit or proceeding shall be paid or reimbursed by the Company promptly upon demand by such person and, if any such demand is made in advance of the final disposition of any such action, suit or proceeding, promptly upon receipt by the Company of an undertaking of such person to repay such expenses if it shall ultimately be determined that such person is not entitled to be indemnified by the Company. The rights provided to any person by this by-law shall be enforceable against the Company by such person, who shall be presumed to have relied upon it in serving or continuing to serve as a director or officer or in such other capacity as provided above. In addition, the rights provided to any person by this by-law shall survive the termination of such person as any such director, officer, trustee, member, stockholder, partner, incorporator or liquidator and, insofar as such person served at the request of the Company as a director, officer, trustee, member, stockholder, partner, incorporator or liquidator of or in any other capacity for any other enterprise, shall survive the termination of such request as to service prior to termination of such request. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment.
Notwithstanding anything contained in this Article VI, except for proceedings to enforce rights provided in this Article VI, the Company shall not be obligated under this Article VI to provide any indemnification or any payment or reimbursement of expenses to any director, officer or other person in connection with a proceeding (or part thereof) initiated by such person (which shall not include counterclaims or crossclaims initiated by others) unless the Board of Directors has authorized or consented to such proceeding (or part thereof) in a resolution adopted by the Board.
For purposes of this by-law, the term Subsidiary shall mean any corporation, partnership, limited liability company or other entity in which the Company owns, directly or indirectly, a majority of the economic or voting ownership interest; the term other enterprise shall include any corporation, partnership, limited liability company, joint venture, trust, association or other unincorporated organization or other entity and any employee benefit plan; the term officer, when used with respect to the Company, shall refer to any officer elected by or appointed pursuant to authority granted by the Board of Directors of the Company pursuant to Article V of these By-Laws, when used with respect to a Subsidiary or other enterprise that is a corporation, shall refer to any person elected or appointed pursuant to the by-laws of such Subsidiary or other enterprise or chosen in such manner as is prescribed by the by-laws of such Subsidiary or other enterprise or determined by the Board of Directors of such Subsidiary or other enterprise, and when used with respect to a Subsidiary or other enterprise that is not a corporation or is organized in a foreign jurisdiction, the term officer shall include in addition to any officer of such entity, any person serving in a similar capacity or as the manager of such entity; service at the request of the Company shall include service as a director or officer of the Company which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to an employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Company.
To the extent authorized from time to time by the Board of Directors, the Company may provide to (i) any one or more employees and other agents of the Company, (ii) any one or more officers, employees and other agents of any Subsidiary and (iii) any one or more directors, officers, employees and other agents of any other enterprise, rights of indemnification and to receive payment or reimbursement of expenses, including attorneys fees, that are similar to the rights conferred in this Article VI on directors and officers of the Company or any Subsidiary or other enterprise. Any such rights shall have the same force and effect as they would have if they were conferred in this Article VI.
Nothing in this Article VI shall limit the power of the Company or the Board of Directors to provide rights of indemnification and to make payment and reimbursement of expenses, including attorneys fees, to directors, officers, employees, agents and other persons otherwise than pursuant to this Article VI.
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EXHIBIT II
FORM OF UNDERTAKING
THIS UNDERTAKING has been entered into by (hereinafter Indemnitee) pursuant to an Indemnification Agreement dated (the Indemnification Agreement) between Harris Corporation (hereinafter the Company), a Delaware corporation and Indemnitee.
W I T N E S S E T H :
WHEREAS, pursuant to the Indemnification Agreement, the Company agreed to advance and pay Expenses (within the meaning of the Indemnification Agreement) as and when incurred by Indemnitee in connection with any threatened, pending, or completed action, suit, arbitration, alternative dispute mechanism or any other proceeding, whether civil, criminal, administrative or investigative, to which Indemnitee was, is, or is threatened to be made a party or witness by reason of facts which include Indemnitees being or having been a director, officer or employee of the Company or Agent of the Company;
WHEREAS, the Indemnitee has notified the Company of a proceeding in accordance with the terms of Section 13 of the Indemnification Agreement (hereinafter the Proceeding);
NOW THEREFORE, Indemnitee hereby agrees that in consideration of the Companys advance payment of Indemnitees Expenses incurred prior to a final disposition of the Proceeding, Indemnitee hereby undertakes to reimburse the Company for any and all Expenses paid by the Company to, or on behalf of, the Indemnitee prior to a final disposition of the Proceeding in the event that Indemnitee is determined under the Applicable Document (within the meaning of the Indemnification Agreement) not to be entitled to indemnification. Such payments or arrangements for payments shall be consummated within ninety (90) days after a final determination that Indemnitee is not entitled to indemnification and reimbursement pursuant to the Indemnification Agreement and applicable law. The Indemnitee hereby agrees that Indemnitees obligations hereunder shall survive any termination of the Indemnification Agreement.
IN WITNESS WHEREOF, the undersigned has set his/her hand this day of , .
Name:
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Exhibit 10.2
SUMMARY OF ANNUAL COMPENSATION OF OUTSIDE DIRECTORS
The following table summarizes the annual compensation of our outside directors effective as of January 1, 2013. Employee directors are not separately compensated for service as a director.
Cash Retainer
| $55,000 |
Non-Executive Chairman of the Board Retainer
| $150,000 |
Audit Committee Chairperson Retainer
| $20,000 |
Committee Chairperson Retainer (other than Audit Committee)
| $15,000 |
Board Meeting Attendance Fee
| $2,000 |
Committee Meeting Attendance Fee
| $2,000 |
Deferred Compensation Plan
| Under the terms of the Harris Corporation 2005 Directors Deferred Compensation Plan (As Amended and Restated Effective January 1, 2009), as amended (the 2005 Directors Plan), on January 1, April 1, July 1, and October 1 (each such day an Award Date) of each year, Harris credits each non-employee directors account with a number of Harris stock equivalent units having a fair market value equal to $31,250 (for an annual rate of $125,000), which amount may be changed from time to time by the Board. In addition, under the 2005 Directors Plan, prior to the commencement of a calendar year each non-employee director may make an irrevocable election to defer all or a portion of his or her director compensation for the subsequent year or years. Amounts deferred at the election of the non-employee director may be invested in investment alternatives similar to those available under the Harris Corporation 401(k) Retirement Plan or in Harris stock equivalent units, pursuant to which a non-employee directors account is credited with a number of units of Harris stock equivalents based upon the fair market value of Harris common stock on the date of deferral. Such Harris stock equivalent units are equivalent in value to our shares of common stock. A non-employee director may not transfer or reallocate amounts invested in other investments into Harris stock equivalents. Amounts credited in Harris stock equivalents may be reallocated into any other investment alternatives, provided director minimum stock ownership guidelines are satisfied. Deferred amounts and investment earnings on such amounts are payable in cash following the non-employee directors resignation, retirement, or death. Each Harris stock equivalent unit is credited with dividend equivalents, which are deemed reinvested in additional Harris stock equivalent units on the dividend payment date. |
| Amounts invested in Harris stock equivalents shall be appropriately adjusted in the event of any stock dividend or split, recapitalization, merger, spin-off, extraordinary dividends, or other similar events. |
| A non-employee director may elect to receive amounts deferred under the 2005 Directors Plan, including amounts deferred in the form of Harris stock equivalent units, either in a cash lump sum on a date certain within five years of his or her resignation or retirement or in annual substantially equal cash installments over a designated number of years beginning on a date certain within five years of a directors resignation or retirement, provided that all amounts are fully paid within ten years of resignation or retirement. |
| Within ninety (90) days of a Change of Control (as defined in the 2005 Directors Plan), and to the extent permitted by Section 409A of the Internal Revenue Code, each non-employee director (or former non-employee director) will receive a lump sum cash payment equal to the then remaining balance in his or her account. |
| The foregoing summary description of the 2005 Directors Plan is not complete and is qualified in its entirety by, and should be read in conjunction with, the complete text of the 2005 Directors Deferred Compensation Plan. |
Travel and Other Expenses
| Actual expenses incurred in the performance of their services as directors are reimbursed. |
Director Education Institutes/Activities
| Reimbursed for costs and expenses. |
Accidental Death and Dismemberment Insurance and Business Travel Insurance
| Up to $200,000 accidental death and dismemberment insurance and an additional $200,000 in the event a director is involved in an accident while traveling on business relating to our affairs. |
Charitable Gift Matching Program
| Annual maximum of $10,000 per director is matched to eligible educational institutions and charitable organizations. |