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 20, 2016 |
FleetCor Technologies, Inc.
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(Exact name of registrant as specified in its charter)
Delaware | 001-35004 | 72-1074903 |
_____________________
(State or other jurisdiction |
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(Commission |
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(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
5445 Triangle Parkway, Suite 400, Norcross, Georgia | 30092 | |
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(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: | (770) 449-0479 |
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 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Effective October 20, 2016, the Board of Directors (the "Board") of FleetCor Technologies, Inc. (the "Company" or "FleetCor") approved the amended bylaws attached to this Form 8-K as Exhibit 3.1.
The amendments added Article I, Section 11, which provides for "proxy access" for a stockholder of group of up to 25 stockholders owning 3% or more of the Company’s outstanding common stock continuously for at least three years to nominate and include in the Company’s proxy materials director candidates constituting up to 25% of the Board or two directors whichever is greater, provided that the stockholder(s) and the nominee(s) satisfy the requirements specified in the amended bylaws. Proxy access will first be available to stockholders in connection with the Company’s 2017 annual meeting of stockholders.
The amendments also modified Article II, Section 1, clauses (b) and (c), to provide for majority voting in uncontested director elections. Other conforming changes were also made.
The foregoing description of the amendments to the amended bylaws is qualified in its entirety by reference to the full text of the amended and restated bylaws, a copy of which is included in this report as Exhibit 3.1 and incorporated by reference herein.
Item 8.01 Other Events.
At the annual meeting of Stockholders of FleetCor held on June 8, 2016, three stockholder proposals received more than a majority of votes cast for approval of such proposals. The three proposals were:
1. Proxy access for director nominations by stockholders
2. Majority voting in uncontested director elections
3. Board diversity and reporting
Following the meeting, FleetCor prepared changes to its bylaws, corporate governance guidelines and nominating committee charter to address the proposals and consulted with the proposers and other investors regarding the changes. The Board approved the amended bylaws, corporate governance guidelines and nominating committee charter effective October 20, 2016. The amended bylaws are attached to this Form 8-K as Exhibit 3.1. The amended corporate governance guidelines and nominating committee charter are available on FleetCor’s investor relations website at: investor.fleetcor.com.
In response to Proposal 3, FleetCor reports the following with respect to board diversity and reporting:
The nominating committee charter was modified to include consideration of desired experience and gender/racial diversity for board positions. The committee has and will continue to consider diversity when developing a pool of candidates and has hired a search firm to increase the size of the pool. The committee believes that the company derives the most value from candidates with relevant experience regarding the payments industry, global operations, executive management, acquisitions, technology and similar experience. The number of women and racial minority candidates in the candidate pool during the past three years has been approximately 16 of 23 candidates.
Item 9.01 Financial Statements and Exhibits.
Exhibit No. 3.01, FleetCor Technologies, Inc. Amended and Restated Bylaws, adopted October 20, 2016
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.
FleetCor Technologies, Inc. | ||||
October 28, 2016 | By: |
Eric R. Dey
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Name: Eric R. Dey | ||||
Title: Chief Financial Officer |
Exhibit Index
Exhibit No.
Description
FleetCor Technologies, Inc. Amended and Restated Bylaws
FLEETCOR TECHNOLOGIES, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I STOCKHOLDERS
Section 1.
Annual Meeting.
An annual meeting of the stockholders, for the election of directors to succeed those whose
terms expire and for the transaction of such other business as may properly come before the
meeting, shall be held at such place, on such date, and at such time as the Board of Directors
shall each year fix.
Section 2.
Special Meetings.
Special meetings of the stockholders, other than those required by statute, may be called at
any time by a majority of the Board of Directors. The Board of Directors may postpone or
reschedule any previously scheduled special meeting.
Section 3.
Notice of Meetings.
Notice of the place, date, and time of all meetings of the stockholders, and the record date
for determining the stockholders entitled to vote at the meeting, if such date is different from
the record date for determining stockholders entitled to notice of the meeting, shall be given, not
less than 10 nor more than 60 days before the date on which the meeting is to be held, to each
stockholder entitled to vote at such meeting as of the record date for determining the stockholders
entitled to notice of the meeting, except as otherwise provided herein or required by law (meaning,
here and hereinafter, as required from time to time by the Delaware General Corporation Law) or the
Corporations Amended and Restated Certificate of Incorporation, as amended and in effect from time
to time (the Certificate of Incorporation).
When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place thereof, are announced at the meeting at which the
adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30
days after the date for which the meeting was originally noticed, notice of the place, date, and
time of the adjourned meeting shall be given to each stockholder in conformity herewith. If after
the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned
meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting,
which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors and, except as otherwise required by law or the Certificate of
Incorporation, shall not be more than 60 nor less than 10 days before the date of such adjourned
meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to
vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
At any adjourned meeting, any business may be transacted which might have been transacted at the
original meeting.
Section 4.
Introduction of Business at Meetings
(a) Business at Annual Meetings of Stockholders.
(i) Only such business (other than nominations of persons for election to the Board of
Directors, which must be made in compliance with and is governed exclusively by Section 4(b)
and Section 11 of Article I of these Amended and Restated Bylaws (the Bylaws)) shall be
conducted at an annual meeting of the stockholders as shall have been brought before the
meeting (A) as specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (B) by or at the direction of the Board of
Directors, or (C) by any stockholder of the Corporation who (1) was a stockholder of record
at the time of giving of notice provided for in this Section 4(a) of Article I and at the
time of the meeting, (2) is entitled to vote at the meeting and (3) complies with the notice
procedures set forth in this Section 4(a) of Article I. For the avoidance of doubt, the
foregoing clause (C) of this Section 4(a)(i) of Article I shall be the exclusive means for a
stockholder to propose such business (other than business included in the Corporations
proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended
(the Exchange Act)) before an annual meeting of stockholders.
(ii) For business (other than nominations of persons for election to the Board of
Directors, which must be made in compliance with and is governed exclusively by Section 4(b)
and Section 11 of Article I of these Bylaws) to be properly brought before an annual meeting
by a stockholder, the stockholder must have given timely notice thereof in proper written
form as described in Section 4(a)(iii) of Article I to the Secretary and such business must
otherwise be appropriate for stockholder action under the provisions of the Delaware General
Corporation Law. To be timely, a stockholders notice for such business must be delivered
to the Secretary at the principal executive offices of the Corporation in proper written
form not less than ninety (90) days and not more than one hundred twenty (120) days prior to
the first anniversary of the preceding years annual meeting of stockholders; 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, such stockholders notice must be delivered by the later of (A) the
tenth day following the day of the Public Announcement (as defined in Section 4(f) of
Article I below) of the date of the annual meeting or (B) the date which is ninety (90) days
prior to the date of the annual meeting. In no event shall any adjournment, deferral or
postponement of an annual meeting or the announcement thereof commence a new time period for
the giving of a stockholders notice as described above.
(iii) To be in proper written form, a stockholders notice to the Secretary shall set
forth as to each matter of business the stockholder proposes to bring before the annual
meeting (A) a brief description of the business desired to be brought before the annual
meeting (including the specific text of any resolutions or actions proposed for
consideration and if such business includes a proposal to amend the Certificate of
Incorporation or these Bylaws, the specific language of the proposed amendment) and the
reasons for conducting such business at the annual meeting, (B) the name and address of the
stockholder proposing such business, as they appear on the Corporations books, the
residence name and address (if different from the Corporations books) of such proposing
stockholder, and the name and address of any Stockholder Associated Person (as defined in
Section 4(f) of Article I below) covered by clauses (C), (D), (F) and (G) below, (C) the
class and number of shares of stock of the Corporation which are directly or indirectly held
of record or beneficially owned by such stockholder or by any Stockholder Associated Person
with respect to the Corporations securities, a description of any Derivative Positions (as
defined in Section 4(f) of Article I below) directly or indirectly held or beneficially held
by the stockholder or any Stockholder Associated Person, and whether and the extent to which
a Hedging Transaction (as defined in Section 4(f) of Article I below) has been entered into
by or on behalf of such stockholder or any Stockholder Associated Person, (D) a description
of all arrangements or understandings between such stockholder or any Stockholder Associated
Person and any other person or entity (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such stockholder,
any Stockholder Associated Person or such other person or entity in such business, (E) a
representation that such stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting, (F) any other information related to such
stockholder or any Stockholder Associated Person that would be required to be disclosed in a
proxy statement or other filing required to be made in connection with the solicitation of
proxies or consents (even if a solicitation is not involved) by such stockholder or
Stockholder Associated Person in support of the business proposed to be brought before the
meeting pursuant to Section 14 of the Exchange Act, and the rules and regulations
promulgated thereunder and (G) a representation as to whether such stockholder or any
Stockholder Associated Person intends to solicit, directly or indirectly, a proxy from
holders of at least the percentage of the Corporations outstanding shares required to
approve the proposal or otherwise to solicit proxies from stockholders in support of the
proposal. In addition, any stockholder who submits a notice pursuant to this Section 4(a)
of Article I is required to update and supplement the information disclosed in such notice,
if necessary, in accordance with Section 4(d) of Article I.
(iv) Notwithstanding anything in these Bylaws to the contrary, no business (other than
nominations of persons for election to the Board of Directors, which must be made in
compliance with and is governed exclusively by Section 4(b) and Section 11 of Article I of
these Bylaws) shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 4(a) of Article I. At an annual meeting, the chairman
of the meeting shall determine, if the facts warrant, that business was not properly brought
before the meeting and in accordance with the provisions prescribed by these Bylaws, and if
the chairman should so determine, the chairman shall so declare to the meeting, and any such
business not properly brought before the meeting shall not be transacted.
(b) Nominations at Annual Meetings of Stockholders.
(i) Only persons who are nominated in accordance and compliance with the procedures set
forth in this Section 4(b) or Section 11 of Article I of these Bylaws shall be eligible for
election to the Board of Directors at an annual meeting of stockholders.
(ii) Nominations of persons for election to the Board of Directors of the Corporation
may be made at an annual meeting of stockholders only (A) by or at the direction of the
Board of Directors, (B) by any stockholder of the Corporation who (1) was a stockholder of
record at the time of giving of notice provided for in this Section 4(b)(ii) of Article I
and at the time of the meeting, (2) is entitled to vote at the meeting and (3) complies with
the notice procedures set forth in this Section 4(b)(ii) of Article I, or (C) by any
stockholder of the Corporation pursuant to Section 11 of Article I of these Bylaws. For
nominations to be properly brought by a stockholder at an annual meeting of stockholders
pursuant to this Section 4(b) of Article I, the stockholder must have given timely notice
thereof in proper written form as described in Section 4(b)(iii) of Article I to the
Secretary. To be timely, a stockholders notice for the nomination of persons for election
to the Board of Directors pursuant to this Section 4(b) must be delivered to the Secretary
at the principal executive offices of the Corporation in proper written form not less than
ninety (90) days and not more than one hundred twenty (120) days prior to the first
anniversary of the preceding years annual meeting of stockholders; 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, such stockholders notice must be delivered by the later of (Y) the tenth
day following the day of the Public Announcement of the date of the annual meeting or
(Z) the date which is ninety (90) days prior to the date of the annual meeting. In no event
shall any adjournment, deferral or postponement of an annual meeting or the announcement
thereof commence a new time period for the giving of a stockholders notice as described
above.
(iii) To be in proper written form, a stockholders notice for the nomination of
persons for election to the Board of Directors shall set forth (A) as to each person whom
the stockholder proposes to nominate for election or re-election as a director of the
Corporation, (1) the name, age, business address and residence address of the person, (2)
the principal occupation or employment of the person, (3) the class or series and number of
shares of capital stock of the Corporation which are directly or indirectly owned
beneficially or of record by the person, (4) the date such shares were acquired and the
investment intent of such acquisition and (5) any other information relating to the person
that would be required to be disclosed in a proxy statement or other filings required to be
made in connection with the solicitation of proxies or consents for a contested election of
directors (even if an election contest or proxy solicitation is not involved), or is
otherwise required, pursuant to Section 14 of the Exchange Act, and the rules and
regulations promulgated thereunder (including such persons written consent to being named
in the proxy statement as a nominee, if applicable, and to serving if elected); and (B) as
to the stockholder giving the notice (1) the name and address of such stockholder, as they
appear on the Corporations books, the residence name and address (if different from the
Corporations books) of such proposing stockholder, and the name and address of any
Stockholder Associated Person covered by clauses (2), (3), (5) and (6) below, (2) the class
and number of shares of stock of the Corporation which are directly or indirectly held of
record or beneficially owned by such stockholder or by any Stockholder Associated Person
with respect to the Corporations securities, a description of any Derivative Positions
directly or indirectly held or beneficially held by the stockholder or any Stockholder
Associated Person, and whether and the extent to which a Hedging Transaction has been
entered into by or on behalf of such stockholder or any Stockholder Associated Person, (3) a
description of all arrangements or understandings (including financial transactions and
direct or indirect compensation) between such stockholder or any Stockholder Associated
Person and each proposed nominee and any other person or entity (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (4) a representation
that such stockholder intends to appear in person or by proxy at the meeting to nominate the
persons named in its notice, (5) any other information relating to such stockholder or any
Stockholder Associated Person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with the solicitation of proxies or consents
for a contested election of directors (even if an election contest or proxy solicitation is
not involved), or otherwise required, pursuant to Section 14 of the Exchange Act, and the
rules and regulations promulgated thereunder, and (6) a representation as to whether such
stockholder or any Stockholder Associated Person intends to solicit, directly or indirectly,
a proxy from the holders of a sufficient number of the Corporations outstanding shares
reasonably believed by the stockholder or any Stockholder Associated Person, as the case may
be, to elect each proposed nominee or otherwise to solicit proxies from stockholders in
support of the nomination. In addition, any stockholder who submits a notice pursuant to
this Section 4(b) of Article I is required to update and supplement the information
disclosed in such notice, if necessary, in accordance with Section 4(d) of Article I. At an
annual meeting, the chairman of the meeting shall determine, if the facts warrant, that a
nomination was not made in accordance with the procedures prescribed by these Bylaws, and if
the chairman should so determine, the chairman shall so declare to the meeting, and the
defective nomination shall be disregarded.
(iv) Notwithstanding anything in the third sentence of Section 4(b)(ii) of Article I of
these Bylaws to the contrary, if the number of directors to be elected to the Board of
Directors is increased and there is no Public Announcement naming all of the nominees for
director or specifying the size of the increased Board of Directors made by the Corporation
at least 100 days prior to the first anniversary of the preceding years annual meeting, a
stockholders notice required by Section 4(b)(ii) of Article I of these Bylaws shall also be
considered timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the tenth day following the day on
which such Public Announcement is first made by the Corporation.
(c) Special Meetings of Stockholders
.
Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the notice of
meeting. Only persons who are nominated in accordance and compliance with the procedures set forth
in this Section 4(c) of Article I shall be eligible for election to the Board of Directors at a
special meeting of stockholders at which directors are to be elected. Nominations of persons for
election to the Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the notice of meeting only (i) by or at the direction of
the Board of Directors or (ii) provided that the Board of Directors has determined that directors
are to be elected at such special meeting, by any stockholder of the Corporation who (A) was a
stockholder of record at the time of giving of notice provided for in this Section 4(c) of Article
I and at the time of the special meeting, (B) is entitled to vote at the meeting and (C) complies
with the notice procedures provided for in this Section 4(c) of Article I. For the avoidance of
doubt, the foregoing clause (ii) of this Section 4(c) of Article I shall be the exclusive means for
a stockholder to propose nominations of persons for election to the Board of Directors at a special
meeting of stockholders at which directors are to be elected. For nominations to be properly
brought by a stockholder at a special meeting of stockholders, the stockholder must have given
timely notice thereof in proper written form as described in this Section 4(c) of Article I to the
Secretary. To be timely, a stockholders notice for the nomination of persons for election to the
Board of Directors must be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the 120
th
day prior to such special meeting and not later
than the close of business on the later of the 90
th
day prior to such special meeting or
the tenth day following the day on which a Public Announcement is made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall any adjournment, deferral or postponement of a special meeting or the announcement
thereof commence a new time period for the giving of a stockholders notice as described above. To
be in proper written form, such stockholders notice shall set forth all of the information
required by, and otherwise be in compliance with, Section 4(b)(iii) of Article I of these Bylaws.
In addition, any stockholder who submits a notice pursuant to this Section 4(c) of Article I is
required to update and supplement the information disclosed in such notice, if necessary, in
accordance with Section 4(d) of Article I. At a special meeting, the chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that a proposal or nomination was
not made in accordance with the procedures prescribed by these Bylaws, and if the chairman should
so determine, the chairman shall so declare to the meeting, and the defective proposal or
nomination shall be disregarded.
(d) Update and Supplement of Stockholders Notice. Any stockholder who submits a notice of
proposal for business or nomination for election pursuant to this Section 4 of Article I is
required to update and supplement the information disclosed in such notice, if necessary, so that
the information provided or required to be provided in such notice shall be true and correct in all
material respects as of the record date for determining the stockholders entitled to notice of the
meeting of stockholders and as of the date that is ten (10) business days prior to such meeting of
the stockholders or any adjournment or postponement thereof, and such update and supplement shall
be delivered to the Secretary at the principal executive offices of the Corporation not later than
five (5) business days after the record date for the meeting of stockholders (in the case of the
update and supplement required to be made as of the record date), and not later than eight (8)
business days prior to the date for the meeting of stockholders or any adjournment or postponement
thereof (in the case of the update and supplement required to be made as of ten (10) business days
prior to the meeting of stockholders or any adjournment or postponement thereof).
(e) Requirements of Exchange Act. In addition to the foregoing provisions of this Section 4
of Article I, a stockholder shall also comply with all applicable requirements of the Exchange Act,
and the rules and regulations thereunder with respect to the matters set forth in these Bylaws;
provided, however, that any references in these Bylaws to the Exchange Act, or the rules and
regulations promulgated thereunder, are not intended to and shall not limit the requirements of
these Bylaws applicable to proposals as to any other business to be considered pursuant to these
Bylaws regardless of the stockholders intent to utilize Rule 14a-8 promulgated under the Exchange
Act. Nothing in this Section 4 of Article I shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the Corporations proxy statement pursuant to
Rule 14a-8 promulgated under the Exchange Act or (ii) of the holders of any series of preferred
stock if and to the extent provided for herein or by law or the Certificate of Incorporation.
(f) Definitions. For purposes of this Section 4 of Article I of these Bylaws, the term:
(i) Derivative Positions means, with respect to a stockholder or any Stockholder
Associated Person, any derivative positions including, without limitation, any short
position, profits interest, option, warrant, convertible security, stock appreciation right,
or similar right with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of the Corporation or with a
value derived in whole or in part from the value of any class or series of shares of the
Corporation, whether or not such instrument or right shall be subject to settlement in the
underlying class or series of capital stock of the Corporation or otherwise and any
performance-related fees to which such stockholder or any Stockholder Associated Person is
entitled based, directly or indirectly, on any increase or decrease in the value of shares
of capital stock of the Corporation;
(ii) Hedging Transaction means, with respect to a stockholder or any Stockholder
Associated Person, any hedging or other transaction (such as borrowed or loaned shares) or
series of transactions, or any other agreement, arrangement or understanding, the effect or
intent of which is to increase or decrease the voting power or economic or pecuniary
interest of such stockholder or any Stockholder Associated Person with respect to the
Corporations securities;
(iii) Public Announcement means disclosure in a press release reported by the Dow
Jones News Service, Associated Press, Business Wire, PR Newswire or comparable news service
or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act; and
(iv) Stockholder Associated Person of any stockholder means (A) any person
controlling, directly or indirectly, or acting in concert with, such stockholder, (B) any
beneficial owner of shares of stock of the Corporation owned of record or beneficially by
such stockholder or (C) any person directly or indirectly controlling, controlled by or
under common control with such Stockholder Associated Person.
Section 5.
Quorum.
At any meeting of the stockholders, the holders of a majority of the voting power of all of
the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall
constitute a quorum for all purposes, unless or except to the extent that the presence of a larger
number may be required by law, the Certificate of Incorporation or by the rules of any stock
exchange upon which the Corporations securities are listed. Where a separate vote by a class or
classes or series is required, a majority of the voting power of the shares of such class or
classes or series present in person or represented by proxy shall constitute a quorum entitled to
take action with respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a
majority of the voting power present in person or by proxy may adjourn the meeting to another
place, date, or time.
Section 6.
Organization.
Such person as the Board of Directors may have designated or, in the absence of such a person,
the Chairman of the Board of Directors or, in his or her absence, the Chief Executive Officer of
the Corporation or, in his or her absence, such person as may be chosen by the holders of a
majority of the voting power of the shares entitled to vote who are present, in person or by proxy,
shall call to order any meeting of the stockholders and act as chairman of the meeting. The
Secretary of the Corporation shall act as the secretary of the meeting; provided that in the
absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as
the chairman of the meeting appoints.
Section 7.
Conduct of Business.
The Board of Directors may adopt by resolution such rules, regulations and procedures for the
conduct of any meeting of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules, regulations and procedures as adopted by the Board of Directors, the
chairman of any meeting of stockholders shall have the power to adjourn the meeting to another
place, date and time, and shall have the right and authority to prescribe such rules, regulations
and procedures, which need not be in writing, and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting and to maintain order and safety.
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: (i) the establishment
of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order
at the meeting and the safety of those present; (iii) limitations on attendance at or participation
in the meeting to stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as shall be determined; (iv) restrictions on entry to the meeting
after the time fixed for the commencement thereof; (v) rules and procedures governing speeches and
debate, including, without limitation, procedures for access to microphones and limitations on time
allotted to questions or comments by participants; and (vi) restrictions on dissemination of
solicitation materials and use of audio or visual recording devices at the meeting. Unless and to
the extent determined by the Board of Directors or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of parliamentary
procedure.
Section 8.
Proxies and Voting.
At any meeting of the stockholders, every stockholder entitled to vote may vote in person or
by proxy authorized by an instrument in writing or by a transmission permitted by law filed in
accordance with the procedure established for the meeting. Any copy, facsimile telecommunication
or other reliable reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
The chairman of the meeting of stockholders shall announce at the meeting when the polls for
each matter to be voted upon at the meeting will be opened and closed. After the polls close, no
ballots, proxies or votes or any revocations or changes thereto may be accepted.
The Board of Directors or Chairman of the Board of Directors may, and to the extent required
by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at
the meeting and make a written report thereof. The Corporation may designate one or more alternate
inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act
at a meeting of stockholders, the person presiding at the meeting may, and to the extent required
by law, shall, appoint one or more inspectors to act at the meeting. Unless otherwise required by
law or the Certificate of Incorporation, inspectors may be officers, employees or agents of the
Corporation. Each inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. Every vote taken by ballots shall be counted by a
duly appointed inspector or inspectors. The inspector shall have the duties prescribed by law and
shall take charge of the polls and, when the vote is completed, shall make a certificate of the
result of the vote taken and of such other facts as may be required by law.
Except as otherwise required by law, the Certificate of Incorporation or the rules of any
stock exchange upon which the Corporations securities are listed, all matters (other than the
election of directors, which is governed by Section 1 of Article II) shall be determined by a
majority of the votes cast affirmatively or negatively.
Section 9.
Action without a Meeting
. Stockholders of the Corporation may not
take any action by written consent in lieu of a meeting.
Section 10.
Stock List.
The Secretary shall, at least 10 days before every meeting of stockholders, prepare and make a
complete list of stockholders entitled to vote at any meeting of stockholders, provided, however,
if the record date for determining the stockholders entitled to vote is less than 10 days before
the meeting date, the list shall reflect the stockholders entitled to vote as of the 10th day
before the meeting date, arranged in alphabetical order for each class of stock and showing the
address of each such stockholder and the number of shares registered in his or her name. Such list
shall be open to the examination of any stockholder for any purpose germane to the meeting for a
period of at least 10 days prior to the meeting in the manner provided by law.
A stock list shall also be open to the examination of any stockholder during the whole time of
the meeting as provided by law. This list shall presumptively determine (a) the identity of the
stockholders entitled to examine such stock list and to vote at the meeting and (b) the number of
shares held by each of them.
Section 11.
Proxy Access.
(a) Inclusion of Stockholder Nominee in Corporations Proxy Materials. Whenever the Board of
Directors solicits proxies with respect to the election of directors at an annual meeting of
stockholders, subject to the provisions of this Section 11 of Article I, the Corporation shall
include in its proxy statement for such annual meeting, in addition to any persons nominated for
election by or at the direction of the Board of Directors (or any duly authorized committee
thereof), the name, together with the Required Information (as defined below), of any person
nominated for election (the Stockholder Nominee) to the Board of Directors by a stockholder or
group of no more than twenty five (25) stockholders (counting as one stockholder, for this purpose,
any two (2) or more funds under common management and sharing a common investment adviser) that
satisfies the requirements of this Section 11 of Article I (the Eligible Stockholder) and that
expressly elects at the time of providing the notice required by this Section 11 of Article I to
have such nominee included in the Corporations proxy materials pursuant to this Section 11 of
Article I. For purposes of this Section 11 of Article I, the Required Information that the
Corporation will include in its proxy statement is (i) the information provided to the Secretary of
the Corporation concerning the Stockholder Nominee and the Eligible Stockholder that the
Corporation determines is required to be disclosed in the Corporations proxy statement pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (ii) if
the Eligible Stockholder so elects, a Supporting Statement (as defined in Section 11(g) hereof).
Subject to the provisions of this Section 11 of Article I, the name of any Stockholder Nominee
included in the Corporations proxy statement for an annual meeting of stockholders shall also be
set forth on the form of proxy distributed by the Corporation in connection with such annual
meeting. For the avoidance of doubt, and any other provision of these Bylaws notwithstanding, the
Corporation may in its sole discretion solicit against, and include in the proxy statement its own
statements or other information relating to, any Eligible Stockholder or Stockholder Nominee. This
Section 11 of Article I provides the exclusive method for a stockholder to include nominees for
election to the Board of Directors in the Corporations proxy materials.
(b) Notice of Proxy Access Nomination. In addition to any other applicable requirements, for a
Stockholder Nominee to be eligible for inclusion in the Corporations proxy materials pursuant to
this Section 11 of Article I, the Eligible Stockholder must give timely notice of such nomination
(the Notice of Proxy Access Nomination) in proper written form to the Secretary of the
Corporation. To be timely, the Notice of Proxy Access Nomination must be delivered to the
Secretary at the principal executive offices of the Corporation in proper written form not less
than 120 or more than 150 days prior to the first anniversary of the date on which the Corporation
first mailed its proxy materials with respect to the preceding years annual meeting; 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, or if no annual meeting was held in the preceding year, notice by the Eligible
Stockholder must be so received not later than the close of business on the later of (i) the 135th
day before such annual meeting or (ii) the 10th day following the day on which Public Announcement
(as defined in Section 4(f) of Article I) of the date of such meeting is first made by the
Corporation. In no event shall any adjournment, deferral or postponement of an annual meeting or
the Public Announcement thereof commence a new time period for the giving of an Eligible
Stockholders Notice of Proxy Access Nomination pursuant to this Section 11 of Article I.
(c) Permitted Number of Stockholder Nominees. The maximum number of Stockholder Nominees
nominated by all Eligible Stockholders that will be included in the Corporations proxy materials
with respect to an annual meeting of stockholders (the Permitted Number) shall be the greater of
(i) two (2) or (ii) twenty-five percent (25%) of the number of directors in office as of the last
day on which a Notice of Proxy Access Nomination may be delivered pursuant to and in accordance
with this Section 11 of Article I (the Final Proxy Access Nomination Date) or, if such amount is
not a whole number, the closest whole number below twenty-five percent (25%); provided, however,
that the Permitted Number for any particular annual meeting shall be reduced by:
(i) the number of individuals nominated by an Eligible Stockholder for inclusion in the
Corporations proxy materials pursuant to this Section 11 of Article I whose nominations are
subsequently withdrawn,
(ii) the number of individuals nominated by an Eligible Stockholder for inclusion in
the Corporations proxy materials pursuant to this Section 11 of Article I whom the Board of
Directors decides to nominate for election to the Board of Directors,
(iii) the number of nominees recommended by the Board of Directors who will be included
in the Corporations proxy materials pursuant to an agreement, arrangement or other
understanding with a stockholder or group of stockholders (other than any such agreement,
arrangement or understanding entered into in connection with an acquisition of stock from
the Corporation by such stockholder or group of stockholders),
(iv) the number of directors serving on the Board of Directors as of the Final Proxy
Access Nomination Date who were previously included in the Corporations proxy materials as
a Stockholder Nominee (including any individual counted as a Stockholder Nominee pursuant to
the preceding clause (ii)) during the prior two stockholder meetings at which directors were
elected, and
(v) the number of individuals for whom the Secretary of the Corporation shall have
received one or more valid stockholders notices (whether or not subsequently withdrawn)
relating to the nomination of such individuals for election to the Board of Directors
pursuant to Section 4(b) of Article I.
In the event that one or more vacancies occurs on the Board of Directors for any reason after
the Final Proxy Access Nomination Date but on or before the date of the annual meeting and the
Board of Directors resolves to reduce the number of directors on the Board of Directors in
connection therewith, the Permitted Number shall be calculated based on the number of directors on
the Board of Directors as so reduced. Any Eligible Stockholder submitting more than one
Stockholder Nominee for inclusion in the Corporations proxy materials pursuant to this Section 11
of Article I shall rank such Stockholder Nominees based on the order in which the Eligible
Stockholder desires such Stockholder Nominees to be selected for inclusion in the Corporations
proxy materials in the event that the total number of Stockholder Nominees submitted by Eligible
Stockholders pursuant to this Section 11 of Article I exceeds the Permitted Number. In the event
that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section
11 of Article I exceeds the Permitted Number, the highest ranking Stockholder Nominee who meets the
requirements of this Section 11 of Article I from each Eligible Stockholder will be selected for
inclusion in the Corporations proxy materials until the Permitted Number is reached, going in
order of the amount (largest to smallest) of shares of common stock of the Corporation each
Eligible Stockholder disclosed as owned in its Notice of Proxy Access Nomination. If the Permitted
Number is not reached after the highest ranking Stockholder Nominee who meets the requirements of
this Section 11 of Article I from each Eligible Stockholder has been selected, then the next
highest ranking Stockholder Nominee who meets the requirements of this Section 11 of Article I from
each Eligible Stockholder will be selected for inclusion in the Corporations proxy materials, and
this process will continue as many times as necessary, following the same order each time, until
the Permitted Number is reached.
(d) Eligible Stockholder Requirements. In order to make a nomination pursuant to this Section
11 of Article I, an Eligible Stockholder must have owned (as defined below) at least three percent
(3%) of the Corporations outstanding common stock (the Required Shares) continuously for at
least three (3) years (the Minimum Holding Period) as of both the date the Notice of Proxy Access
Nomination is received by the Secretary of the Corporation in accordance with this Section 11 of
Article I and the record date for the determination of stockholders entitled to vote at the annual
meeting, and must continue to own the Required Shares through the date of the annual meeting. For
purposes of this Section 11 of Article I, an Eligible Stockholder shall be deemed to own only
those outstanding shares of common stock of the Corporation as to which the stockholder possesses
both (i) the full voting and investment rights pertaining to the shares and (ii) the full economic
interest in (including the opportunity for profit from and risk of loss on) such shares;
provided
that the number of shares calculated in accordance with clauses (i) and (ii) shall
not include any shares (x) sold by such stockholder or any of its affiliates in any transaction
that has not been settled or closed, (y) borrowed by such stockholder or any of its affiliates for
any purposes or purchased by such stockholder or any of its affiliates pursuant to an agreement to
resell or (z) subject to any option, warrant, forward contract, swap, contract of sale, other
derivative or similar instrument or agreement entered into by such stockholder or any of its
affiliates, whether any such instrument or agreement is to be settled with shares or with cash
based on the notional amount or value of shares of outstanding common stock of the Corporation, in
any such case which instrument or agreement has, or is intended to have, the purpose or effect of
(1) reducing in any manner, to any extent or at any time in the future, such stockholders or its
affiliates full right to vote or direct the voting of any such shares or (2) hedging, offsetting
or altering to any degree any gain or loss realized or realizable from maintaining the full
economic ownership of such shares by such stockholder or affiliate, but not including any hedging
across a broad multi-industry investment portfolio solely with respect to currency risk,
interest-rate risk or, using a broad index-based hedge, equity risk. A stockholder shall own
shares held in the name of a nominee or other intermediary so long as the stockholder retains the
right to instruct how the shares are voted with respect to the election of directors and possesses
the full economic interest in the shares. A stockholders ownership of shares shall be deemed to
continue during any period in which (i) the stockholder has loaned such shares, provided that the
stockholder has the power to recall such loaned shares before the record date for the meeting and
includes in its Notice of Proxy Access Nomination an agreement that it (A) will promptly recall
such loaned shares promptly upon being notified that any of its Shareholder Nominees will be
included in the Corporations proxy materials and prior to the record date for the meeting, and (B)
will continue to hold such shares through the date of the annual meeting or (ii) the stockholder
has delegated any voting power by means of a proxy, power of attorney or other instrument or
arrangement that is revocable at any time by the stockholder. The terms owned, owning and
other variations of the word own shall have correlative meanings. For purposes of this Section
11 of Article I, the term affiliate or affiliates shall have the meaning ascribed thereto under
the General Rules and Regulations under the Exchange Act.
(e) Proper Form of Proxy Access Nomination. To be in proper written form for purposes of this
Section 11 of Article I, the Notice of Proxy Access Nomination must include or be accompanied by
the following:
(i) a written statement by the Eligible Stockholder certifying as to the number of
shares it owns and has owned (as defined in Section 11(d) hereof) continuously during the
Minimum Holding Period;
(ii) one or more written statements from the record holder of the Required Shares (and
from each intermediary through which the Required Shares are or have been held during the
Minimum Holding Period) verifying that, as of a date within seven (7) days prior to the date
the Notice of Proxy Access Nomination is received by the Secretary of the Corporation, the
Eligible Stockholder owns, and has owned continuously for the Minimum Holding Period, the
Required Shares, and the Eligible Stockholders agreement to provide to the Secretary of the
Corporation (A) within ten (10) days after the record date for the determination of
stockholders entitled to vote at the annual meeting, one or more written statements from the
record holder and such intermediaries verifying the Eligible Stockholders continuous
ownership of the Required Shares through the record date and (B) immediate notice if the
Eligible Stockholder ceases to own any of the Required Shares prior to the date of the
annual meeting;
(iii) a copy of the Schedule 14N that has been or is concurrently being filed with the
United States Securities and Exchange Commission as required by Rule 14a-18 under the
Exchange Act;
(iv) the information and consent that would be required to be set forth in a
stockholders notice of a nomination pursuant to Section 4(b) of Article I of these Bylaws,
together with the written consent of each Stockholder Nominee to being named in the proxy
statement as a nominee and to serving as a director, if elected;
(v) a representation that the Eligible Stockholder (A) will continue to hold the
Required Shares through the date of the annual meeting, (B) acquired the Required Shares in
the ordinary course of business and not with the intent to change or influence control of
the Corporation, and does not presently have such intent, (C) has not nominated and will not
nominate for election to the Board of Directors at the annual meeting any person other than
the Stockholder Nominee(s) it is nominating pursuant to this Section 11 of Article I, (D)
has not engaged and will not engage in, and has not and will not be a participant in
another persons, solicitation within the meaning of Rule 14a-1(l) under the Exchange Act
in support of the election of any person as a director at the annual meeting other than its
Stockholder Nominee(s) or a nominee of the Board of Directors, (E) has not distributed and
will not distribute to any stockholder of the Corporation any form of proxy for the annual
meeting other than the form distributed by the Corporation, (F) has complied and will comply
with all laws and regulations applicable to solicitations and the use, if any, of soliciting
material in connection with the annual meeting, and (G) has provided and will provide facts,
statements and other information in all communications with the Corporation and its
stockholders that are or will be true and correct in all material respects and do not and
will not omit to state a material fact necessary in order to make the statements made, in
light of the circumstances under which they were made, not misleading;
(vi) an undertaking that the Eligible Stockholder agrees to (A) assume all liability
resulting from any legal or regulatory violation arising out of the Eligible Stockholders
communications with the stockholders of the Corporation or relating to the information that
the Eligible Stockholder provided to the Corporation and indemnify and hold harmless the
Corporation and each of its directors, officers and employees individually from and against
any liability, loss or damages in connection with any threatened or pending action, suit or
proceeding, whether legal, administrative or investigative, against the Corporation or any
of its directors, officers or employees relating to any legal or regulatory violation
arising out of the Eligible Stockholders communications with the stockholders of the
Corporation or relating to the information that the Eligible Stockholder provided to the
Corporation, or arising out of any activity by the Eligible Stockholder in connection with
any such nomination and (B) file with the Securities and Exchange Commission any
solicitation or other communication with the stockholders of the Corporation relating to the
meeting at which its Stockholder Nominee(s) will be nominated, regardless of whether any
such filing is required under Regulation 14A of the Exchange Act or whether any exemption
from filing is available for such solicitation or other communication under Regulation 14A
of the Exchange Act;
(vii) in the case of a nomination by a group of stockholders together constituting an
Eligible Stockholder, the designation by all group members of one member of the group that
is authorized to receive communications, notices and inquiries from the Corporation and to
act on behalf of all members of the group with respect to all matters relating to the
nomination under this Section 11 of Article I (including withdrawal of the nomination);
(viii) in the case of a nomination by a group of stockholders together constituting an
Eligible Stockholder in which two or more funds under common management and sharing a common
investment adviser are counted as one stockholder for purposes of qualifying as an Eligible
Stockholder, documentation reasonably satisfactory to the Corporation that demonstrates that
the funds are under common management and share a common investment adviser;
(ix) information as necessary to permit the Board of Directors to determine that the
Stockholder Nominee is independent under the applicable listing standards, any applicable
rules of the Securities and Exchange Commission, the Corporate Governance Guidelines of the
Corporation and any publicly disclosed standards used by the Board of Directors
(Independence Standards) to determine and disclose the independence of the Corporations
directors;
(x) a written representation and agreement, in the form provided by the Secretary of
the Corporation, that the Stockholder Nominee will comply, in his or her individual capacity
and on behalf of any person or entity on whose behalf the nomination is being made, if
elected as a director, with the Corporations Corporate Governance Guidelines, corporate
policies, corporate directives, and policies and guidelines regarding conflicts of interest,
confidentiality, stock ownership and trading, any other codes of conduct, codes of ethics,
policies and guidelines of the Corporation or any rules, regulations and listing standards,
in each case as applicable to the Corporations directors;
(xi) a written representation and agreement that the Stockholder Nominee is not and
will not become a party to (1) any agreement, arrangement or understanding with, and has not
given any commitment or assurance to, any person or entity as to how such person, if elected
as a director of the Corporation, will act or vote on any issue or question, (2) any
agreement, arrangement or understanding with any person or entity other than the Corporation
with respect to any direct or indirect compensation, reimbursement or indemnification in
connection with service or action as a director, in each case, unless the terms of such
agreement, arrangement or understanding has been disclosed to the Corporation or (3) any
voting commitment that could limit or interfere with such persons ability to comply, if
elected as a director of the Corporation, with such persons fiduciary duties under
applicable law;
(xii) a description of all agreements, arrangements or understandings between the
Eligible Stockholder and each Stockholder Nominee and any other person or persons, including
the Stockholder Nominee, such beneficial owners and control persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by the Eligible
Stockholder or that would be required to be disclosed pursuant to Rule 404 promulgated under
Regulation S-K of the Exchange Act if the Eligible Stockholder making the nomination and any
beneficial owner or control person on whose behalf the nomination is made, if any, or any
affiliate or associate thereof or person acting in concert therewith, were the registrant
for purposes of such rule and the Stockholder Nominee were a director or executive officer
of such registrant;
(xiii) any information as may be requested in a written questionnaire provided by the
Secretary of the Corporation upon written request, with such completed questionnaire signed
by the Stockholder Nominee; and
(xiv) an irrevocable letter of resignation signed by the Stockholder Nominee providing
that such resignation shall become effective upon a determination by the Board of Directors
or any committee thereof that (1) the information provided to the Corporation with respect
to such Stockholder Nominee pursuant to this Section 11(e) of Article I was untrue in any
material respect or omitted to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not misleading,
or (2) such Stockholder Nominee, or the Eligible Stockholder who nominated such Stockholder
Nominee, failed to comply with any obligation owed to the Corporation or breached any
representation made under or pursuant to these Bylaws.
(f) Additional Information. In addition to the information required pursuant to Section 11(e)
of Article I or any other provision of these Bylaws, the Corporation may require (i) any proposed
Stockholder Nominee to furnish any other information (x) that may reasonably be required by the
Corporation to determine that the Stockholder Nominee would be independent under the Independence
Standards, (y) that could be material to a reasonable stockholders understanding of the
independence, or lack thereof, of such Stockholder Nominee or (z) that may reasonably be required
by the Corporation to determine the eligibility of such Stockholder Nominee to serve as a director
of the Corporation and (ii) the Eligible Stockholder to furnish any other information that may
reasonably be required by the Corporation to verify the Eligible Stockholders continuous ownership
of the Required Shares for the Minimum Holding Period.
(g) Supporting Statement. The Eligible Stockholder may, at its option, provide to the
Secretary of the Corporation, at the time the Notice of Proxy Access Nomination is provided, a
written statement, not to exceed five hundred (500) words, in support of the Stockholder
Nominee(s) candidacy (a Supporting Statement) for inclusion in the Corporations proxy materials
for the annual meeting. Only one Supporting Statement may be submitted by an Eligible Stockholder
(including any group of stockholders together constituting an Eligible Stockholder) in support of
its Stockholder Nominee(s). Notwithstanding anything to the contrary contained in this Section 11
of Article I, the Corporation may omit from its proxy materials any information or Supporting
Statement (or portion thereof) that it, in good faith, believes is materially false or misleading,
omits to state any material fact, or would violate any applicable law or regulation.
(h) Update and Supplement of Proxy Access Nomination. In the event any information or
communications provided by an Eligible Stockholder or a Stockholder Nominee to the Corporation or
its stockholders ceases to be true and correct in all material respects or omits to state a
material fact necessary to make the statements made, in light of the circumstances under which they
were made, not misleading, such Eligible Stockholder or Stockholder Nominee, as the case may be,
shall promptly notify the Secretary of the Corporation of any defect in such previously provided
information and of the information that is required to correct any such defect. In addition, any
person providing any information to the Corporation pursuant to this Section 11 of Article I shall
further update and supplement such information, if necessary, so that all such information shall be
true and correct as of the record date for the determination of stockholders entitled to vote at
the annual meeting, and such update and supplement shall be delivered to or be mailed and received
by the Secretary at the principal executive offices of the Corporation not later than ten (10) days
after the record date for the determination of stockholders entitled to vote at the annual meeting.
(i) Exclusion. Notwithstanding anything to the contrary contained in this Section 11 of
Article I, the Corporation shall not be required to include, pursuant to this Section 11 of Article
I, a Stockholder Nominee in its proxy materials, or, if the proxy statement has already been filed,
to allow the nomination of a Stockholder Nominee, notwithstanding that proxies in respect of such
vote have been received by the Corporation: (i) if the Eligible Stockholder who has nominated such
Stockholder Nominee has engaged in or is currently engaged in, or has been or is a participant in
another persons, solicitation within the meaning of Rule 14a-1(l) under the Exchange Act in
support of the election of any person as a director at the annual meeting other than its
Stockholder Nominee(s) or a nominee of the Board of Directors, (ii) who would not be an independent
director under the Independence Standards, (iii) whose election as a member of the Board of
Directors would cause the Corporation to be in violation of these Bylaws, the Certificate of
Incorporation, the rules and listing standards of the principal United States securities exchanges
upon which the common stock of the Corporation is listed or traded, or any applicable state or
federal law, rule or regulation, (iv) who is or has been, within the three (3) years preceding the
date on which the Notice of Proxy Access Nomination is delivered, an officer or director of a
competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, (v) who is a named
subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or
has been convicted in such a criminal proceeding within the ten (10) years preceding the date on
which the Notice of Proxy Access Nomination is delivered, (vi) who is subject to any order of the
type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as
amended, (vii) if such Stockholder Nominee or the applicable Eligible Stockholder shall have
provided any information to the Corporation or its stockholders in respect of the nomination that
was untrue in any material respect or that omitted to state a material fact necessary to make the
statements made, in light of the circumstances in which they were made, not misleading, (viii) if
such Stockholder Nominee or the applicable Eligible Stockholder otherwise breaches or fails to
comply with any of the agreements or representations made by such Stockholder Nominee or Eligible
Stockholder or fails to comply with its obligations under this Section 11 of Article I, or (ix) if
the Eligible Stockholder ceases to be an Eligible Shareholder for any reason, including but not
limited to not owning the Required Shares through the date of the annual meeting.
(j) Breach. Notwithstanding anything to the contrary set forth herein, if (i) a Stockholder
Nominee or the applicable Eligible Stockholder breaches or fails to comply with any of its or their
obligations, agreements or representations under this Section 11 of Article I or (ii) a Stockholder
Nominee otherwise becomes ineligible for inclusion in the Corporations proxy materials pursuant to
this Section 11 of Article I or dies or otherwise becomes ineligible or unavailable for election at
the annual meeting, (x) the Corporation may omit or, to the extent feasible, remove the information
concerning such Stockholder Nominee and the related Supporting Statement from its proxy materials
and/or otherwise communicate to its stockholders that such Stockholder Nominee will not be eligible
for election at the annual meeting, (y) the Corporation shall not be required to include in its
proxy materials any successor or replacement nominee proposed by the applicable Eligible
Stockholder or any other Eligible Stockholder, and (z) the Board of Directors or the chairperson of
the annual meeting shall declare such nomination to be invalid and such nomination shall be
disregarded notwithstanding that proxies in respect of such vote may have been received by the
Corporation. In addition, if the Eligible Stockholder (or a representative thereof) does not
appear at the annual meeting to present any nomination pursuant to this Section 11 of Article I,
such nomination shall be declared invalid and disregarded as provided in clause (z) above.
(k) Nominating Stockholder Undertakings. Whenever the Eligible Stockholder consists of a group
of stockholders (including two or more funds under common management and sharing a common
investment adviser), (i) each provision in this Section 11 of Article I that requires the Eligible
Stockholder to provide any written statements, representations, undertakings, agreements or other
instruments or to meet any other conditions shall be deemed to require each stockholder (including
each individual fund) that is a member of such group to provide such statements, representations,
undertakings, agreements or other instruments and to meet such other conditions (except that the
members of such group may aggregate their shareholdings in order to meet the three percent (3%)
ownership requirement of the Required Shares definition) and (ii) a breach of, or failure to
comply with, any obligation, agreement or representation under this Section 11 of Article I by any
member of such group shall be deemed a breach by the Eligible Stockholder. No person may be a
member of more than one group of stockholders constituting an Eligible Stockholder with respect to
any annual meeting.
(l) Loss of Eligibility by a Stockholder Nominee. Any Stockholder Nominee who is included in
the Corporations proxy materials for a particular annual meeting of stockholders but withdraws
from or becomes ineligible or unavailable for election at the annual meeting will be ineligible to
be a Stockholder Nominee pursuant to this Section 11 of Article I for the next two (2) annual
meetings of stockholders. For the avoidance of doubt, the immediately preceding sentence shall not
prevent any stockholder from nominating any person to the Board of Directors pursuant to and in
accordance with Section 4(b).
(m) Interpretation. The Board of Directors (and any other person or body authorized by the
Board of Directors) shall have the power and authority to interpret this Section 11 of Article I
and Section 4(b) and to make any and all determinations necessary or advisable to apply such
sections to any persons, facts or circumstances, including, without limitation, the power to
determine (i) whether a person or group of persons qualifies as an Eligible Stockholder; (ii)
whether outstanding shares of the Corporations common stock are owned for the purposes of
meeting the ownership requirements of this Section 11 of Article I; (iii) whether a Notice of Proxy
Access Nomination complies with the requirements of this Section 11 of Article I; (iv) whether a
person satisfies the qualifications and requirements imposed by this Section 11 of Article I to be
a Stockholder Nominee; (v) whether the inclusion of the Required Information in the Corporations
proxy statement is consistent with all applicable laws, rules, regulations and listing standards;
and (vi) whether any and all requirements of Section 4(b) and this Section 11 of Article I have
been satisfied. Any such interpretation or determination adopted in good faith by the Board of
Directors (or any other person or body authorized by the Board of Directors) shall be binding on
all persons, including the Corporation and all record or beneficial owners of stock of the
Corporation.
ARTICLE II BOARD OF DIRECTORS
Section 1.
Number, Election and Term of Directors.
(a)
Number, Term of Directors
. Subject to the rights of the holders of any series of
preferred stock to elect directors under specified circumstances, the number of directors shall be
fixed from time to time exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the Board of Directors. No decrease in the number of authorized directors shall
shorten the term of any incumbent director. Directors shall be elected to succeed those directors
whose terms then expire at the annual meeting of stockholders by such stockholders as have the
right to vote on such election.
(b)
Non-contested Elections
. Except as otherwise required by law, the Certificate of
Incorporation or the rules of any stock exchange upon which the Corporations securities are
listed, and subject to Section 1(c) of this Article II, at any meeting of stockholders held to
elect directors where the number of nominees for director is equal to the number of directors to be
elected at such meeting (a Non-contested Election), a nominee for director shall be elected to
the Board of Directors if the number of votes cast for his or her election is greater than the
number of votes cast against his or her election. In any Non-contested Election of directors, any
incumbent director nominee who receives a greater number of votes cast against his or her election
than in favor of his or her election shall immediately tender his or her resignation, and the Board
of Directors shall decide, through a process managed by the Board committee responsible for
director nominations and excluding the nominee in question, whether to accept the resignation at
such committees next regularly scheduled meeting.
(c)
Contested Elections
. At any meeting of stockholders held to elect directors, if
the number of nominees for director, including nominations made by one or more stockholders
pursuant to Section 4(b) or Section 11 of Article I, exceeds the number of directors to be elected
at such meeting (a Contested Election), a nominee for director shall be elected to the Board of
Directors if a plurality of the votes cast are in favor of such nominees election.
Section 2.
Chairman of the Board of Directors and Vice-Chairman of the Board of
Directors.
The Board of Directors may appoint from its members a Chairman of the Board of Directors and a
Vice-Chairman of the Board of Directors. If the Board of Directors appoints a Chairman of the
Board of Directors, he or she shall preside at all meetings of the Board of Directors and shall
perform such duties and possess such powers as are designated by the Board of Directors. If the
Board of Directors appoints a Vice-Chairman of the Board of Directors, he or she shall, in the
absence or disability of the Chairman of the Board of Directors, perform the duties and exercise
the powers of the Chairman of the Board of Directors and shall perform such other duties and
possess such other powers as may from time to time be designated by the Board of Directors.
Section 3.
Newly Created Directorships and Vacancies.
Subject to the rights of the holders of any series of preferred stock then outstanding, newly
created directorships resulting from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall, unless otherwise required by law, the
Certificate of Incorporation or by resolution of the Board of Directors, be filled only by a
majority vote of the directors then in office, even if less than a quorum (and not by stockholders)
or by a sole remaining director. A director elected to fill a vacancy shall be elected for the
unexpired term of his or her predecessor in office, if applicable. A director chosen to fill a
position resulting from an increase in the number of directors shall hold office until the next
election of the class for which such director shall have been chosen and until his or her successor
is elected and qualified, or until his or her earlier death, resignation or removal.
Section 4.
Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place or places, on such date
or dates, and at such time or times as shall have been established by the Board of Directors and
publicized among all directors. A notice of each regular meeting shall not be required.
Section 5.
Special Meetings.
Special meetings of the Board of Directors may be called by the Chairman of the Board of
Directors, the Chief Executive Officer or by a majority of the Board of Directors and shall be held
at such place, on such date, and at such time as they or he or she shall fix. Notice of the place,
date, and time of each such special meeting shall be given to each director by whom it is not
waived by mailing written notice not less than five days before the meeting or by telephone or by
telegraphing or telexing or by facsimile or electronic transmission of the same not less than 24
hours before the meeting. A notice or waiver of notice of a meeting of the Board of Directors need
not specify the purpose of the meeting. Unless otherwise indicated in the notice thereof, any and
all business may be transacted at a special meeting.
Section 6.
Quorum.
At any meeting of the Board of Directors, a majority of the total number of directors shall
constitute a quorum for all purposes. If a quorum shall fail to attend any meeting, a majority of
those present may adjourn the meeting to another place, date, or time, without further notice or
waiver thereof.
Section 7.
Participation in Meetings By Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting
of such Board of Directors or committee by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear each other and such
participation shall constitute presence in person at such meeting.
Section 8.
Conduct of Business.
At any meeting of the Board of Directors at which a quorum is present, business shall be
transacted in such order and manner as the Board of Directors may from time to time determine, and
all matters shall be determined by the vote of a majority of the directors present, except as
otherwise provided herein or by law or the Certificate of Incorporation. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken by the Board of
Directors without a meeting if all members thereof consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or transmissions are filed
with the minutes of proceedings of the Board of Directors. Such filing shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
Section 9.
Compensation of Directors.
Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall
have the authority to fix the compensation of the directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or paid a stated salary or paid other
compensation as director. No such payment shall preclude any director from serving the Corporation
in any other capacity and receiving compensation therefor. Members of special or standing
committees may be allowed compensation for attending committee meetings.
Section 10.
Resignation
Any director may resign at any time by giving notice in writing or by electronic transmission
of his or her resignation to the Corporation at its principal office or to the Chief Executive
Officer or Secretary. Such resignation shall be effective upon receipt unless it is specified to
be effective at some later time or upon the happening of some later event.
ARTICLE III COMMITTEES
Section 1.
Committees of the Board of Directors.
The Board of Directors may from time to time designate one or more committees of the Board of
Directors, with such lawfully delegable powers and duties as it thereby confers (to the extent
authorized by Section 141(c)(2) of the Delaware General Corporation Law), to serve at the pleasure
of the Board of Directors and shall, for those committees and any others provided for herein, elect
a director or directors to serve as the member or members, designating, if it desires, other
directors as alternate members who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of any member of any committee and any alternate
member in his or her place, the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous
vote appoint another member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member.
Section 2.
Conduct of Business.
Any such committee, to the extent provided in the resolution of the Board of Directors and
subject to the provisions of Section 141(c)(2) of the Delaware General Corporation Law, shall have
and may exercise all the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation. Each such committee shall keep minutes and make such
reports as the Board of Directors may from time to time request. Except as the Board of Directors
may otherwise determine or as provided herein, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such rules, its business shall be
conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board of
Directors. If the time and place of a committee meeting is announced at a prior committee meeting
at which all members are present, no further notice of the time and place of the committee meeting
shall be required; otherwise, notice of such committee meeting shall be provided in the same manner
as with respect to meetings of the Board of Directors. A majority of the members of any committee
shall constitute a quorum and all matters shall be determined by a majority vote of the members
present. Unless otherwise provided in the Certificate of Incorporation or the resolutions of the
Board of Directors designating the committee, each committee may create one or more subcommittees,
each subcommittee to consist of one or more members of the committee, and delegate to a
subcommittee any or all the powers and authority of the committee. Action may be taken by any
committee without a meeting if all members thereof consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or transmissions are filed
with the minutes of the proceedings of such committee. Such filing shall be in paper form if the
minutes are maintained in paper form and shall be in electronic form if the minutes are maintained
in electronic form.
ARTICLE IV- OFFICERS
Section 1.
Generally.
The officers of the Corporation shall consist of a President, Chief Executive Officer, Chief
Financial Officer, Secretary, Treasurer and such other officers with such other titles as the Board
of Directors may determine, including, but not limited to, one or more Vice Presidents, Assistant
Treasurers and Assistant Secretaries. The Board of Directors, in its discretion, may also elect a
Chairman of the Board of Directors (who must be a director) who may, if so determined by the Board
of Directors, serve as an officer of the Corporation.
The President, Chief Executive Officer and Chief Financial Officer shall be elected from time
to time by the Board of Directors. The Board of Directors may from time to time elect, or the
Chief Executive Officer may appoint, such other officers (including the Secretary and Treasurer)
and such agents as may be necessary or desirable for the conduct of the business of the
Corporation. Such other officers and agents shall have such duties and shall hold their offices
for such terms as shall be provided in these Bylaws or as may be prescribed by the Board of
Directors or by the Chief Executive Officer, as the case may be. A newly created office and a
vacancy in any office because of death, resignation or removal may be filled by the Board of
Directors for the unexpired portion of the term at any meeting of the Board of Directors. Any
vacancy in an office appointed by the Chief Executive Officer because of death, resignation or
removal may be filled by the Chief Executive Officer.
Any officer may be removed at any time, with or without cause, by the Board of Directors, and
those officers that the Chief Executive Officer has the authority to appoint may be removed at any
time, with or without cause, by the Chief Executive Officer. Except as otherwise provided herein
or by law or the Certificate of Incorporation, each officer shall hold office until his or her
successor is elected and qualified, unless a different term is specified in the vote choosing or
appointing such officer, or until his or her earlier death, resignation or removal. No officer
need be a stockholder. Any number of offices may be held by the same person. The salaries of
officers elected by the Board of Directors shall be fixed from time to time by the Board of
Directors or by such officers as may be designated by resolution of the Board of Directors.
Section 2.
President; Chief Executive Officer
Unless the Board of Directors has designated another person as the Chief Executive Officer,
the President shall be the Chief Executive Officer. The Chief Executive Officer shall, subject to
the direction of the Board of Directors, have general charge and supervision of the business of the
Corporation. The Chief Executive Officer shall exercise the powers and authority and perform all
of the duties commonly incident to such office and shall perform such other duties as the Board of
Directors shall specify from time to time. The Chief Executive Officer may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases
in which the signing and execution thereof shall be expressly delegated by resolution of the Board
of Directors or by these Bylaws to some other officer or agent of the Corporation, or shall be
required to be signed or executed otherwise by law or the Certificate of Incorporation. The
President shall perform such other duties and shall have such other powers as the Board of
Directors or the Chief Executive Officer (if the President is not the Chief Executive Officer) may
from time to time prescribe.
Section 3.
Chief Financial Officer.
The Chief Financial Officer shall assist the Chief Executive Officer in the general
supervision of the Corporations financial policies and affairs. The Chief Financial Officer will
have any other authority and will perform any other duties that the Board of Directors may delegate
to him or her from time to time.
Section 4.
Vice Presidents.
Any Vice President shall perform such duties and possess such powers as the Board of Directors
or the Chief Executive Officer may from time to time prescribe.
Section 5.
Treasurer and Assistant Treasurer.
The Treasurer shall perform such duties and shall have such powers as the Board of Directors,
the Chief Executive Officer or the Chief Financial Officer may from time to time prescribe. In
addition, the Treasurer shall perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and power to maintain the financial
records of the Corporation, make such distribution of the funds of the Corporation as are
authorized and render from time to time an account of all such transactions and of the financial
condition of the Corporation.
The Assistant Treasurers shall perform such duties and possess such powers as the Board of
Directors, the Chief Executive Officer or the Treasurer may from time to time prescribe. In the
event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if
there shall be more than one, the Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the Treasurer.
Section 6.
Secretary and Assistance Secretaries.
The Secretary shall perform such duties and shall have such powers as the Board of Directors
or the Chief Executive Officer may from time to time prescribe. In addition, the Secretary shall
perform such duties and have such powers as are incident to the office of the secretary, including
without limitation the duty and power to attend all meetings of stockholders and keep a record of
the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses
as required, to be custodian of corporate records and the corporate seal and to affix and attest to
the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers as the Board of
Directors, the Chief Executive Officer or the Secretary may from time to time prescribe. In the
event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if
there shall be more than one, the Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the Secretary.
Section 7.
Delegation of Authority.
The Board of Directors may from time to time delegate the powers or duties of any officer to
any other officers or agents, notwithstanding any provision hereof.
Section 8.
Action with Respect to Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors, the Chief Executive
Officer or any Vice President, or any attorney or attorneys or agent or agents of the Corporation
appointed by any of them, shall have the power, in the name and on behalf of the Corporation, to
cast the votes which the Corporation may be entitled to cast as the holder of stock or other
securities or interests in any other corporation or entity, any of whose stock or other securities
or interests may be held by the Corporation, at meetings of the holders of the stock or other
securities or interests, of such other corporation or entity, or to consent in writing, in the name
of the Corporation as such holder, to any action by such other corporation or entity, and may
instruct the person or persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed in the name and on behalf of the Corporation and
under its corporate seal or otherwise, all such written proxies or other instruments as he or she
may deem necessary or proper in the premises.
ARTICLE V STOCK
Section 1.
Certificates of Stock.
The shares of stock of the Corporation shall be represented by certificates, or shall be
uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of
such stock, or a combination of both, as determined by the Board of Directors. To the extent that
shares are represented by certificates, such certificates shall be in such form as shall be
approved by the Board of Directors. The certificates representing shares of stock of each class
shall be signed by, or in the name of the Corporation by (a) the Chairman of the Board of Directors
or Vice-Chairman of the Board of Directors, or a President (if one shall exist) or any Vice
President of the Corporation, and (b) the Secretary or any Assistant Secretary or the Treasurer or
any Assistant Treasurer of the Corporation. Any or all such signatures may be facsimiles. Although
any officer, transfer agent or registrar whose manual or facsimile signature is affixed to such a
certificate ceases to be such officer, transfer agent or registrar before such certificate has been
issued, it may nevertheless be issued by the Corporation with the same effect as if such officer,
transfer agent or registrar were still such at the date of its issue.
Section 2.
Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the Corporation kept at an
office of the Corporation or by transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with Section 4 of Article V of
these Bylaws, an outstanding certificate for the number of shares involved, if one has been issued,
shall be surrendered for cancellation before a new certificate, if any, is issued therefor. Except
as may be otherwise required herein or by law or the Certificate of Incorporation, the Corporation
shall be entitled to treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to vote with respect to
such stock, regardless of any transfer, pledge or other disposition of such stock, until the shares
have been transferred on the books of the Corporation in accordance with the requirements of these
Bylaws.
Section 3.
Record Date.
In order that the Corporation may determine the stockholders entitled to notice of any meeting
of stockholders or any adjournment thereof, the Board of Directors may, except as otherwise
required by law or the Certificate of Incorporation, fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less than 10 days before the date of
such meeting. If the Board of Directors so fixes a date, such date shall also be the record date
for determining the stockholders entitled to vote at such meeting unless the Board of Directors
determines, at the time it fixes such record date, that a later date on or before the date of the
meeting shall be the date for making such determination. If no record date is fixed by the Board
of Directors, the record date for determining stockholders entitled to notice of and to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for determination of stockholders
entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for
stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed
for determination of stockholders entitled to vote in accordance with the foregoing provisions of
this Section 3 of Article V at the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record
date shall be not more than 60 days prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 4.
Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft or destruction of any certificate of stock, a new certificate
or uncertificated (book-entry) shares may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and
concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5.
Regulations.
The issue, transfer, conversion and registration of certificates of stock shall be governed by
such other regulations as the Board of Directors may establish.
ARTICLE VI NOTICES
Section 1.
Notices.
If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage
prepaid, directed to the stockholder at such stockholders address as it appears on the records of
the Corporation. Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders may be given by electronic transmission in the manner
provided in Section 232 of the Delaware General Corporation Law.
Section 2.
Waivers.
A written waiver of any notice, signed by a stockholder or director, or waiver by electronic
transmission by such person, whether given before or after the time of the event for which notice
is to be given, shall be deemed equivalent to the notice required to be given to such person.
Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance
at any meeting shall constitute waiver of notice except attendance for the express purpose of
objecting at the beginning of the meeting to the transaction of business because the meeting is not
lawfully called or convened.
ARTICLE VII MISCELLANEOUS
Section 1.
Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere specifically
authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may
be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2.
Reliance upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of Directors, and each
officer of the Corporation shall, in the performance of his or her duties, be fully protected in
relying in good faith upon the books of account or other records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any other person as to
matters which such director or committee member reasonably believes are within such other persons
professional or expert competence and who has been selected with reasonable care by or on behalf of
the Corporation.
Section 3.
Fiscal Year.
In applying any provision of these Bylaws which requires that an act be done or not be done a
specified number of days prior to an event or that an act be done during a period of a specified
number of days prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
Section 5.
Severability
Any determination that any provision of these Bylaws is for any reason inapplicable, illegal
or ineffective shall not affect or invalidate any other provision of these Bylaws.
Section 6.
Pronouns
All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the persons or persons so designated may require.
ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1.
Right to Indemnification.
Each person who was or is made a party or is threatened to be made a party to or is otherwise
involved (as a witness or otherwise) in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (hereinafter a proceeding),
by reason of the fact that he or she is or was a director or an officer of the Corporation or,
while serving as a director or an officer of the Corporation, is or was serving at the request of
the Corporation as a director, officer, employee, agent or trustee of another corporation or of a
partnership, limited liability company, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an indemnitee), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer or trustee or in any
other capacity while serving as a director, officer, employee, agent or trustee, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware law,
as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader indemnification rights than
such law permitted the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in Section 3 of Article VIII with respect to
proceedings to enforce rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if
such proceeding (or part thereof) was authorized by the Board of Directors.
Section 2.
Right to Advancement of Expenses.
In addition to the right to indemnification conferred in Section 1 of Article VIII, an
indemnitee shall also have the right to be paid by the Corporation on an as-incurred basis the
expenses (including attorneys fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an advancement of expenses); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in
his or her capacity as a director or officer (and not in any other capacity in which service was or
is rendered by such indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an unsecured undertaking (hereinafter an
undertaking), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no further right to appeal
(hereinafter a final adjudication) that such indemnitee is not entitled to be indemnified for
such expenses under this Section 2 or otherwise. All advances hereunder shall be interest free and
shall be made without regard to indemnitees financial ability to repay any amounts advanced.
Section 3.
Right of Indemnitee to Bring Suit.
If a claim under Section 1 or 2 of Article VIII is not paid in full by the Corporation within
60 days after a written claim has been received by the Corporation, except in the case of a claim
for an advancement of expenses, in which case the applicable period shall be 20 days, the
indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. To the fullest extent permitted by law, if successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right
to an advancement of expenses), it shall be a defense that the indemnitee has not met any
applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither
the failure of the Corporation (including its directors who are not parties to such action, a
committee of such directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual determination by the Corporation
(including its directors who are not parties to such action, a committee of such directors,
independent legal counsel, or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met the applicable
standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such
suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this Article VIII or
otherwise shall be on the Corporation.
Section 4.
Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses conferred in this
Article VIII shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Corporations Certificate of Incorporation, Bylaws, agreement, vote
of stockholders or directors or otherwise.
Section 5.
Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
Section 6.
Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the Board of Directors,
grant rights to indemnification and to the advancement of expenses to any employee or agent of the
Corporation to the fullest extent of the provisions of this Article VIII with respect to the
indemnification and advancement of expenses of directors and officers of the Corporation.
Section 7.
Nature of Rights.
The rights conferred upon indemnitees in this Article VIII shall be contract rights and such
rights shall continue as to an indemnitee who has ceased to be a director, officer or trustee and
shall inure to the benefit of the indemnitees heirs, executors and administrators. Any amendment,
alteration or repeal of this Article VIII that adversely affects any right of an indemnitee or its
successors shall be prospective only and shall not limit, eliminate, or impair any such right with
respect to any proceeding involving any occurrence or alleged occurrence of any action or omission
to act that took place prior to such amendment or repeal.
ARTICLE IX AMENDMENTS
In furtherance and not in limitation of the powers conferred by law, the Board of Directors is
expressly authorized to adopt, amend and repeal these Bylaws subject to the power of the holders of
capital stock of the Corporation to adopt, amend or repeal the Bylaws; provided, however, that,
with respect to the power of holders of capital stock to adopt, amend and repeal Bylaws of the
Corporation, notwithstanding any other provision of these Bylaws or any provision of law which
might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of the capital stock of the Corporation required by law
or the Certificate of Incorporation, these Bylaws or any preferred stock, the affirmative vote of
the holders of at least 66 2/3% of the voting power of all of the then-outstanding shares entitled
to vote generally in the election of directors, voting together as a single class, shall be
required to adopt, amend or repeal any provision of these Bylaws.
The fiscal year of the Corporation shall be as fixed by the Board of Directors.
Time Periods.