Attached files
| file | filename |
|---|---|
| 8-K - NU HORIZONS ELECTRONICS CORP | v183158_8k.htm |
| EX-99.1 - NU HORIZONS ELECTRONICS CORP | v183158_ex99-1.htm |
| EX-10.4 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-4.htm |
| EX-10.3 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-3.htm |
| EX-10.2 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-2.htm |
| EX-10.1 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-1.htm |
| EX-10.7 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-7.htm |
| EX-10.6 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-6.htm |
| EX-10.5 - NU HORIZONS ELECTRONICS CORP | v183158_ex10-5.htm |
effective
as of May 3, 2010
AMENDED
AND RESTATED BY-LAWS
OF
NU
HORIZONS ELECTRONICS CORP.
(A
Delaware Corporation)
ARTICLE
I
STOCKHOLDERS
SECTION
1. Place of
Meetings. Meetings of stockholders shall be held at such
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors.
SECTION
2. Annual
Meetings. The annual meeting of stockholders shall be held on
the date and at the time fixed from time to time as the Board of Directors shall
determine, as established by a resolution adopted by the affirmative vote of a
majority of the total number of directors. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual
meeting, business must be: (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a stockholder in accordance with (i) Section 8
of this Article I of these By-Laws for any business other than the
nomination of a person for election as a director or (ii) Sections 10,
11 and 12 of Article II of these By-Laws for any nomination of a person for
election as a director.
SECTION
3. Special
Meetings. Except as otherwise required by law, special
meetings of the stockholders may be called only by the Board of
Directors.
SECTION
4. Notice of
Meetings. Written notice of each meeting of the stockholders
stating place, date and hour of the meeting shall be given by or at the
direction of the Board of Directors to each stockholder entitled to vote at the
meeting at least ten, but not more than 60, days prior to the
meeting. Notice of any special meeting shall state in general terms
the purpose or purposes for which the meeting is called and no other business
shall be transacted thereat except as stated in such notice.
SECTION
5. Quorum; Adjournments of
Meetings. The holders of the issued and outstanding shares of
the capital stock of the Corporation entitled to cast a majority of the votes
entitled to be cast by the holders of all classes of capital stock of the
Corporation entitled to vote generally in elections of directors, considered for
this purpose as one class, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at such meeting except as
otherwise provided by statute, the Certificate of Incorporation or these
By-Laws. Without regard to whether a quorum is constituted, either
the chairman presiding at the meeting of stockholders or the holders of a
majority of the votes entitled to be cast by the holders of all classes of the
Corporation’s capital stock so present or represented may adjourn the meeting to
another time or place, whereupon the meeting may be held, as adjourned, without
further notice, except as required by law, and any business may be transacted
thereat which might have been transacted at the meeting as originally
called.
1
SECTION
6. Voting &
Proxies. At any meeting of the stockholders, every registered
owner of shares entitled to vote may vote in person or by proxy and, except as
otherwise provided by statute, in the Certificate of Incorporation or these
By-Laws, shall have one vote for each such share standing in his name on the
books of the Corporation. At each meeting of the stockholders of the
Corporation, every stockholder having the right to vote may authorize another
person to act for him or her by proxy. Such authorization must be in
writing and executed by the stockholder or his or her authorized officer,
director, employee, or agent. To the extent permitted by law, a
stockholder may authorize another person or persons to act for him or her as
proxy by transmitting or authorizing the transmission of a telegram, cablegram
or other means of electronic transmission to the person who will be the holder
of the proxy or to a proxy solicitation firm, proxy support service organization
or like agent duly authorized by the person who will be the holder of the proxy
to receive such transmission provided that the telegram, cablegram or electronic
transmission either sets forth or is submitted with information from which it
can be determined that the telegram, cablegram or other electronic was
authorized by the stockholder. A copy, facsimile transmission or
other reliable reproduction of a writing or transmission authorized by this
Section 6 of Article I may be substituted for or used in lieu of the
original writing or electronic transmission for any and all purposes for which
the original writing or transmission could be used, provided that such copy,
facsimile transmission or other reproduction shall be a complete reproduction of
the entire original writing or transmission. No proxy authorized
hereby shall be voted or acted upon more than three years from its date, unless
the proxy provides for a longer period. No ballot, proxies or votes,
nor any revocations thereof or changes thereto shall be accepted after the time
set for the closing of the polls announced at the meeting of stockholders unless
the Court of Chancery upon application of a stockholder shall determine
otherwise. Each proxy shall be delivered to the inspectors of
election prior to or at the meeting. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or by filing a subsequent duly executed proxy with the
Secretary of the Corporation. The vote for directors shall be by
ballot. A nominee for director shall be elected to the Board of Directors if the
votes cast for such nominee’s election exceed the votes cast against such
nominee’s election; provided, however, that directors shall be elected by a
plurality of the votes cast at any meeting of stockholders for which (i) the
Secretary of the Corporation receives a notice that a stockholder has nominated
a person for election to the Board of Directors in compliance with the advance
notice requirements for stockholder nominees for director set forth in Section
11 of Article II of these By-Laws and (ii) such nomination has not been
withdrawn by such stockholder on or prior to the day next preceding the date the
Corporation first mails its notice of meeting for such meeting to stockholders.
Unless a greater number of affirmative votes is required by the Certificate of
Incorporation, these By-Laws, the rules or regulations of any stock exchange
applicable to the Corporation, or as otherwise required by law or pursuant to
any regulation applicable to the Corporation, if a quorum exists at any meeting
of stockholders, stockholders shall have approved any matter, other than the
election of directors if by plurality vote, if the votes cast by stockholders
present in person or represented by proxy at the meeting and entitled to vote on
the matter in favor of such matter exceed the votes cast by such stockholders
against such matter.
2
SECTION
7. Inspectors of
Election. The Board of Directors, or, if the Board shall not
have made the appointment, the chairman presiding at any meeting of
stockholders, shall have power to appoint one or more persons to act as
inspectors of election at the meeting or any adjournment thereof, but no
candidate for the office of director shall be appointed as an inspector at any
meeting for the election of directors. Each inspector, before
entering upon 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. The inspector or
inspectors so appointed or designated shall (i) ascertain the number of
shares of capital stock of the Corporation outstanding and the voting power of
each such share, (ii) determine the shares of capital stock of the
Corporation represented at the meeting and the validity of votes, proxies and
ballots, (iii) count all votes, proxies and ballots, (iv) determine
and retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors, and (v) certify their
determination of the number of shares of capital stock of the Corporation
represented at the meeting and such inspectors’ count of all votes, proxies and
ballots. Such certification shall specify such other information as
may be required by law. In determining the validity and counting of
votes, proxies and ballots cast at any meeting of stockholders of the
Corporation, the inspectors may consider such information as is permitted by
applicable law.
SECTION
8. Notice of Stockholder
Proposal for Business other than Nominations.
8.1. Notice
Requirements. For business to be properly brought before an
annual meeting by a stockholder (other than the nomination of a person for
election as a director, which is governed by Sections 10, 11 and 12 of
Article II of these By-Laws), the stockholder intending to propose the
business at the annual meeting (a “Proponent”) must have given timely notice in
writing to the Secretary of the Corporation of the intention to propose such
business and such business must otherwise be a proper matter for stockholder
action. To be timely, such notice shall be delivered to the Secretary
at the principal executive offices of the Corporation not later than the close
of business on the 120th day nor
earlier than the close of business on the 150th day
prior to the first anniversary of the preceding year’s annual meeting; provided,
however, that in the event that the date of the annual meeting is more than
30 days before or more than 60 days after such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than the
close of business on the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th day prior to such annual
meeting or the 10th day following the day on
which public disclosure of the date of such meeting is first made by the
Corporation. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder’s notice as described above. (For purposes of these
By-Laws, public disclosure shall be deemed to include a disclosure made in a
press release reported by the Dow Jones News Services, Associated Press or a
comparable national news service or in a document filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)). A Proponent’s notice to the Secretary shall set forth as to
each matter the Proponent proposes to bring before the annual
meeting: (A) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (B) the name and address of the Proponent, and of
any holder of record of the Proponent’s shares as they appear on the
Corporation’s books, (C) the class and number of shares of the Corporation
which are owned by the Proponent (beneficially and of record) and owned by any
holder of record of the Proponent’s shares, as of the date of the Proponent’s
notice, and a representation that the Proponent will notify the Corporation in
writing of the class and number of such shares owned of record and beneficially
as of the record date for the meeting promptly following the later of the record
date or the date notice of the record date is first publicly disclosed,
(D) any material interest of the Proponent in such business, (E) a
description of any agreement, arrangement or understanding with respect to such
business between or among the Proponent and any of its affiliates or associates,
and any others (including their names) acting in concert with any of the
foregoing, and a representation that the Proponent will notify the Corporation
in writing of any such agreement, arrangement or understanding in effect as of
the record date for the meeting promptly following the later of the record date
or the date notice of the record date is first publicly disclosed, (F) a
description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, options, hedging transactions,
and borrowed or loaned shares) that has been entered into as of the date of the
Proponent’s notice by, or on behalf of, the Proponent or any of its affiliates
or associates, the effect or intent of which is to mitigate loss to, manage risk
or benefit of share price changes for, or increase or decrease the voting power
of the Proponent or any of its affiliates or associates with respect to shares
of stock of the Corporation, and a representation that the Proponent will notify
the Corporation in writing of any such agreement, arrangement or understanding
in effect as of the record date for the meeting promptly following the later of
the record date or the date notice of the record date is first publicly
disclosed, (G) a representation that the Proponent is a holder of record of
shares of the Corporation entitled to vote at the annual meeting and intends to
appear in person or by proxy at the meeting to propose such business, and (H) a
representation as to whether the Proponent intends to deliver a proxy statement
and form of proxy to stockholders of the Corporation and/or otherwise solicit
proxies from stockholders in support of the proposal.
3
8.2. Ineffective
Notice. If the chairman presiding at the annual meeting
determines that any business (other than the nomination of a person for election
as a director, which is governed by Sections 10, 11 and 12 of
Article II of these By-Laws) was not made in accordance with the applicable
provisions of these By-Laws, such business shall not be
transacted. Notwithstanding anything in these By-Laws to the
contrary, unless otherwise required by law, if a Proponent intending to propose
business at an annual meeting pursuant to this Section 8 of Article I
does not provide the information required under subparagraphs (C), (E) and
(F) of this Section 8 to the Corporation promptly following the later of
the record date or the date notice of the record date is first publicly
disclosed, or the Proponent (or a qualified representative of the Proponent)
does not appear at the meeting to present the proposed business, such business
shall not be transacted, notwithstanding that proxies in respect of such
business may have been received by the Corporation. The requirements
of this Section 8 of Article I shall apply to any business to be
brought before an annual meeting by a stockholder (other than the nomination of
a person for election as a director, which is governed by Sections 10, 11
and 12 of Article II of these By-Laws) whether such business is to be
included in the Corporation’s proxy statement pursuant to Rule 14a-8 of the
Exchange Act or presented to stockholders by means of an independently financed
proxy solicitation. The requirements of this Section 8 of
Article I are included to provide the Corporation notice of a stockholder’s
intention to bring business before an annual meeting and shall in no event be
construed as imposing upon any stockholder the requirement to seek approval from
the Corporation as a condition precedent to bringing any such business before an
annual meeting.
4
SECTION
9. Action by Stockholders
Without a Meeting. Except as otherwise provided by statute,
any action which could be taken at any annual or special meeting of the
stockholders may be taken without a meeting, without prior notice, and without a
vote, if a consent or consents in writing, setting forth the action so taken,
are (a) signed by the holders of outstanding stock having not fewer than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and (b) delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of the records of
proceedings of meetings of stockholders. Delivery made to the
Corporation’s registered office shall be by hand or by certified mail or
registered mail, return receipt requested. Every written consent
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless written consents signed by a significant number of stockholders
to take such action are delivered to the Corporation, in the manner required by
this section, within sixty (or the maximum number permitted by applicable law)
days of the date of the earliest dated consent delivered to the Corporation in
the manner required by this section. The validity of any consent
executed by a proxy for a stockholder pursuant to a telegram, cablegram, or
other means of electronic transmission transmitted to such proxy holder by or
upon the authorization of the stockholder shall be determined by or at the
direction of the Secretary of the Corporation. A written record of
the information upon which the person making such determination relied shall be
made and kept in the records of the proceedings of the
stockholders. Any such consent shall be inserted in the minute book
as if it were the minutes of a meeting of the stockholders. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
SECTION
10. Fixing the Record
Date.
10.1. Meetings. For
the purpose of determining stockholders entitled to notice of and to vote at any
meeting of stockholders or any adjournment thereof, the Board of Directors may
fix a record date, which record date shall not precede the date on which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not fewer than thirty nor more than sixty (or the
maximum number permitted by applicable law) days before the date of such
meeting. 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 and 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 the
adjourned meeting.
10.2. Consent to Corporate Action
Without a Meeting. For the purpose of determining the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors shall fix a record date, which record date shall
not precede the date on which the resolution fixing the record date is adopted
by the Board of Directors, and which resolution shall be adopted within ten days
of the date on which the request for such written action is received; provided
that such record date shall not be more than ten (or the maximum number
permitted by applicable law) days after the date of adoption of the resolution
fixing the record date.
5
10.3. Dividends, Distributions,
and Other Rights. For the purpose of determining 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 on which the resolution fixing the record
date is adopted, and which record date shall be not more than sixty (or the
maximum number permitted by applicable law) 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.
ARTICLE
II
BOARD OF
DIRECTORS
SECTION
1. General
Powers. Except as provided in the Certificate of Incorporation
or these By-Laws, the affairs, business and property of the Corporation shall be
managed and controlled by the Board of Directors. The Board may
exercise all such authority and powers of the Corporation and do all such lawful
acts and things as are not by statute or the Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
SECTION
2. Number of
Directors. The number of directors of the Corporation shall
not be less than three nor more than eleven, and may be changed from time to
time by action of not less than a majority of the members of the Board then in
office. Whenever the words “whole Board”, “entire Board” or “total
number of directors” are used in these By-Laws, such words shall mean the number
of directors fixed by the Board and then in effect in accordance with the
provisions of the Certificate of Incorporation or these By-Laws.
SECTION
3. First
Meeting. The first meeting of each newly elected Board of
Directors, of which no notice shall be necessary, shall be held immediately
following the annual meeting of stockholders or any adjournment thereof at the
place the annual meeting of stockholders was held at which such directors were
elected, or at such other place as a majority of the members of the newly
elected Board who are then present shall determine, for the election or
appointment of officers for the ensuing year and the transaction of such other
business as may be brought before such meeting.
SECTION
4. Regular
Meetings. Regular meetings of the Board of Directors, other
than the first meeting, may be held without notice at such times and places as
the Board of Directors may from time to time determine.
6
SECTION
5. Special
Meetings. Special meetings of the Board of Directors may be
called by order of the Chairman of the Board, any Vice Chairman of the Board,
the President or any two directors. Notice of the time and place of
each special meeting shall be given by or at the direction of the person or
persons calling the meeting by mailing the same at least two days before the
meeting or by telephoning, telegraphing or delivering personally the same at
least twenty-four hours before the meeting to each director. Except
as otherwise specified in the notice thereof, or as required by statute, the
Certificate of Incorporation or these By-Laws, any and all business may be
transacted at any special meeting.
SECTION
6. Attendance by Communications
Equipment. Unless otherwise restricted by the Certificate of
Incorporation, members of the Board of Directors, or of any committee designated
by the Board, may participate in a meeting of the Board or any such committee by
means of conference telephone or similar communications equipment whereby all
persons participating in the meeting can hear each other. Participation in any
meeting by such means shall constitute presence in person at such
meeting. Any meeting at which one or more members of the Board of
Directors, or of any committee designated by the Board, shall participate by
means of conference telephone or similar communications equipment shall be
deemed to have been held at the place designated for such meeting, provided that
at least one member is at such place while participating in the
meeting.
SECTION
7. Action Without
Meetings. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee designated by such Board may
be taken without a meeting, if all members of the Board or committee consent
thereto in writing and the writing or writings are filed with the minutes of the
proceedings of the Board or committee.
SECTION
8. Quorum;
Vote. A majority of the directors then in office shall
constitute a quorum for the transaction of business, but less than a quorum may
adjourn any meeting to another time or place from time to time until a quorum
shall be present, whereupon the meeting may be held, as adjourned, without
further notice. Except as otherwise required by statute, the
Certificate of Incorporation or these By-Laws, all matters coming before any
meeting of the Board of Directors shall be decided by the vote of a majority of
the directors present at the meeting, a quorum being present.
SECTION
9. Compensation. A
director or member of a committee may serve the Corporation in any other
capacity and receive compensation therefor. Each director or member
of a committee, other than directors who are officers or employees of the
Corporation, may receive for his or her services as director or member of a
committee, compensation (whether in the form of attendance fees, fixed
remuneration, or otherwise) in such amount as may be fixed from time to time by
the Board of Directors, in addition to reimbursement of traveling or like
expenses.
SECTION
10. Eligibility to Make
Nominations. Nominations of candidates for election as
directors at any meeting of stockholders called for election of directors (an
“Election Meeting”) may be made (1) by any stockholder entitled to vote at
such Election Meeting only in accordance with the procedures established by
Section 11 of this Article II, or (2) by the Board of
Directors. In order to be eligible for election as a director, any
director nominee must comply with the provisions of these
By-Laws.
7
SECTION
11. Procedures for Nominations
by Stockholders.
11.1. Notice
Requirements. Any stockholder entitled to vote for the
election of a director at an Election Meeting may nominate one or more persons
for such election only if written notice of such stockholder’s intent to make
such nomination is delivered to or mailed and received by the Secretary of the
Corporation. Such notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 90th day
nor earlier than the close of business on the 120th day
prior to the first anniversary of the preceding year’s annual
meeting. The written notice of the stockholder intending to make the
nomination (the “Proponent”) shall set forth: (i) the name, age,
business address and residence address of each nominee proposed in such notice,
(ii) the principal occupation or employment of each such nominee,
(iii) the number of shares of capital stock of the Corporation which are
owned of record and beneficially by each such nominee, (iv) with respect to
each nominee for election or reelection to the Board of Directors, the completed
and signed questionnaire, representation and agreement required by
Section 12 of this Article II, (v) such other information
concerning each such nominee as would be required to be disclosed in a proxy
statement soliciting proxies for the election of such nominee as a director in
an election contest (even if an election contest is not involved), or that is
otherwise required to be disclosed, under the rules of the United States
Securities and Exchange Commission, and (vi) as to the
Proponent: (A) the name, age and address of the
Proponent, and of any holder of record of the Proponent’s shares as they appear
on the Corporation’s books, (B) the class and number of shares of the
Corporation which are owned by the Proponent (beneficially and of record) and
owned by any holder of record of the Proponent’s shares, as of the date of the
Proponent’s notice, and a representation that the Proponent will notify the
Corporation in writing of the class and number of such shares owned of record
and beneficially as of the record date for the meeting promptly following the
later of the record date or the date notice of the record date is first publicly
disclosed, (C) a description of any agreement, arrangement or understanding
with respect to such nomination between or among the Proponent and any of its
affiliates or associates, and any others (including their names) acting in
concert with any of the foregoing, and a representation that the Proponent will
notify the Corporation in writing of any such agreement, arrangement or
understanding in effect as of the record date for the meeting promptly following
the later of the record date or the date notice of the record date is first
publicly disclosed, (D) a description of any agreement, arrangement or
understanding (including any derivative or short positions, profit interests,
options, hedging transactions, and borrowed or loaned shares) that has been
entered into as of the date of the Proponent’s notice by, or on behalf of, the
Proponent or any of its affiliates or associates, the effect or intent of which
is to mitigate loss to, manage risk or benefit of share price changes for, or
increase or decrease the voting power of the Proponent or any of its affiliates
or associates with respect to shares of stock of the Corporation, and a
representation that the Proponent will notify the Corporation in writing of any
such agreement, arrangement or understanding in effect as of the record date for
the meeting promptly following the later of the record date or the date notice
of the record date is first publicly disclosed, (E) a representation that
the Proponent has continuously held at least $1,000 in market value, or 1%,
of the Corporation’s outstanding capital stock entitled to vote for at least one
year by such date of giving written notice or a representation that the
Proponent is entitled to cast votes with respect to at least 5% of the
outstanding capital stock of the Corporation, (F) a representation that the
Proponent is a holder of record of shares of the Corporation entitled to vote at
the annual meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice, and (G) a
representation as to whether the Proponent intends to deliver a proxy statement
and form of proxy to stockholders of the Corporation and/or otherwise solicit
proxies from stockholders in support of the nomination. The Corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as an independent director of the Corporation or that could be material to
a reasonable stockholder’s understanding of the independence, or lack thereof,
of such nominee.
8
11.2. Ineffective
Notice. If the chairman presiding at the Election Meeting
determines that a nomination of any candidate for election as a director was not
made in accordance with the applicable provisions of these By-Laws, such
nomination shall be void. Notwithstanding anything in these By-Laws
to the contrary, unless otherwise required by law, if a Proponent intending to
make a nomination at an Election Meeting pursuant to this Section 11 of
Article II does not provide the information required under clauses (B)
through (D) of subparagraph (vi) of Section 11.1 of Article II to
the Corporation promptly following the later of the record date or the date
notice of the record date is first publicly disclosed, or the Proponent (or a
qualified representative of the Proponent) does not appear at the meeting to
present the nomination, such nomination shall be disregarded, notwithstanding
that proxies in respect of such nomination may have been received by the
Corporation.
SECTION
12. Submission of
Questionnaire. To be
eligible to be a nominee for election or reelection as a director of the
Corporation, a person must deliver (in accordance with the time periods
prescribed for delivery of notice under Section 11 of this Article II
of these By-Laws) to the Secretary of the Corporation at the principal executive
offices of the Corporation a written questionnaire with respect to the
background and qualification of such person and the background of any other
person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the Secretary upon written request) and a
written representation and agreement (in the form provided by the Secretary upon
written request) that such person (i) is not and will not become a party to
(A) any agreement, arrangement or understanding with, and has not given any
commitment or assurance to, any person or entity as to how such person, if
elected as a director of the Corporation, will act or vote on any issue or
question (a “Voting Commitment”) that has not been disclosed to the Corporation
or (B) any Voting Commitment that could limit or interfere with such
person’s ability to comply, if elected as a director of the Corporation, with
such person’s fiduciary duties under applicable law, (ii) is not and will
not become a party to any agreement, arrangement or understanding with any
person or entity other than the Corporation with respect to any direct or
indirect compensation, reimbursement or indemnification in connection with
service or action as a director that has not been disclosed therein,
(iii) in such person’s individual capacity and on behalf of any person or
entity on whose behalf the nomination is being made, would be in compliance, if
elected as a director of the Corporation, and will comply with, applicable law
and all applicable publicly disclosed corporate governance, conflict of
interest, corporate opportunities, confidentiality and stock ownership and
trading policies and guidelines of the Corporation and (iv) consents to
serve as a director of the Corporation if so elected.
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ARTICLE
III
COMMITTEES
SECTION
1. Executive
Committee. The Board of Directors may, by resolution passed by
a majority of the whole Board, designate from among its members an Executive
Committee to consist of three or more members and may designate one of such
members as chairman. The Board may also designate one or more of its
members as alternates to serve as a member or members of the Executive Committee
in the absence of a regular member or members. Except as provided in
Section 4 of this Article III, the Executive Committee 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, and the Executive
Committee may authorize the seal of the Corporation to be affixed to all papers
which may require it.
SECTION
2. Other
Committees. The Board of Directors shall establish a
Compensation Committee, an Audit Committee and a Corporate Governance Committee,
each of such Committees consisting of independent directors qualified for
service thereon in accordance with all laws, regulations and stock exchange
rules applicable to the Corporation. Each Committee shall prepare and recommend
to the Board of Directors for adoption a charter, and any amendments thereto,
which shall establish the duties and responsibilities of the Committee. The
Board of Directors may establish from time to time such other committees as it
deems appropriate. The Board of Directors, acting by a majority of the whole
Board, may also appoint from among its own members or otherwise such other
committees as the Board may determine, to have such powers and duties as shall
from time to time be prescribed by the Board and which, in the discretion of the
Board, may be designated as committees of the Board.
SECTION
3. Quorum and
Discharge. A majority of the entire committee shall constitute
a quorum for the transaction of business of any committee and may fix its rules
of procedure. The Board of Directors may discharge any committee either with or
without cause at any time.
SECTION
4. Powers of
Committees. No committee designated or appointed by the Board
of Directors shall have the power or authority of the Board in reference to
(a) amending the Certificate of Incorporation, (b) adopting an
agreement of merger or consolidation, (c) recommending to the stockholders
the sale, lease or exchange of all or substantially all of the Corporation’s
property and assets, (d) recommending to the stockholders a dissolution of
the Corporation or a revocation of a dissolution, (e) amending the By-Laws
of the Corporation, (f) declaring dividends, (g) designating
committees, (h) filling vacancies among committee members or
(i) removing officers. The Executive Committee shall have the
power and authority of the Board to authorize the issuance of shares of capital
stock of the Corporation of any class or any series of any
class.
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SECTION
5. Committee
Meetings. Regular meetings of any committee designated or
appointed by the Board of Directors shall be held at such times and places and
on such notice, if any, as the committee may from time to time
determine. Special meetings of any committee designated or appointed
by the Board may be called by order of the Chairman of the Board, any Vice
Chairman of the Board, President of the Corporation, Chairman of the committee
or any two members of any such committee. Notice shall be given of
the time and place of each special meeting by mailing the same at least two days
before the meeting or by telephoning, telegraphing or delivering personally the
same at least twenty-four hours before the meeting to each committee
member. Except as otherwise specified in the notice thereof or as
required by statute, the Certificate of Incorporation or these By-Laws, any and
all business may be transacted at any regular or special meeting of a
committee. The Secretary of the Corporation shall keep the minutes of
the meetings of all committees designated or appointed by the Board of Directors
and shall be the custodian of all such corporate records.
ARTICLE
IV
OFFICERS
SECTION
1. Number and
Designation. The Board of Directors shall elect as executive
officers: a Chairman of the Board, a President, Chief Executive
Officer, one or more Vice Presidents (each of whom may be assigned by the Board
of Directors or the Chief Executive Officer an additional title descriptive of
the functions assigned to such officer and one or more of whom may be designated
executive or senior Vice President), a Secretary and a Treasurer. The
Board of Directors may also elect one or more Vice Chairmen of the Board, one or
more Assistant Secretaries, one or more Assistant Treasurers, and such other
officers, as the Board of Directors may deem necessary. The Chairman
of the Board, any Vice Chairman of the Board and the President shall be elected
from among the directors. Any two offices may be held by one person,
but in any case where the By-Laws or resolutions of the Board of Directors
provide for the signature of the incumbents of two or more offices of the
Corporation upon the certificates of stock, notes, checks or other instruments
or documents issued by they Corporation, no one person shall sign in more than
one capacity. The executive officers shall be elected annually by the Board of
Directors at its first meeting following the annual election of directors, but
in the event of the failure of the Board so to elect any executive officer, such
executive officer may be elected at any subsequent meeting of the Board of
Directors. The Board of Directors may at any meeting elect additional
Vice Presidents or assistant officers. Each executive officer shall
hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his successor shall have been duly
elected and qualified, except in the event of the earlier termination of his
term of office through death, resignation, removal or otherwise. Any
vacancy in an executive office may be filled for the unexpired portion of the
term of such office by the Board of Directors at any regular or special
meeting.
SECTION
2. The Chairman of the
Board. The Chairman of the Board (i) shall preside at all
meetings of the stockholders and of the Board of Directors, (ii) may
execute stock certificates, contracts and other instruments in the name of the
Corporation, and appoint and discharge agents and employees, and
(iii) shall have such other powers and perform such other duties as the
Board of Directors may from time to time prescribe.
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SECTION
3. Vice Chairman of the
Board. The Vice Chairman of the Board, or if more than one,
the Vice Chairmen of the Board, (i) to the extent empowered by the Board,
shall perform the duties of the Chairman of the Board in the absence of the
Chairman of the Board, or in the event of his inability to act, (ii) shall
have such other powers and perform such other duties as the Board of Directors
may from time to time prescribe, and (iii) may also execute stock
certificates, contracts and other instruments in the name of the Corporation,
and appoint and discharge agents and employees.
SECTION
4. President. The
President (i) shall have such powers and perform such duties as the Board
of Directors may from time to time prescribe, (ii) in the absence of and/or
in the event of the inability of both the Chairman of the Board and the Vice
Chairman of the Board to act, shall perform the duties of the Chairman of the
Board, (iii) may execute stock certificates, contracts and other
instruments in the name of the Corporation, and (iv) except as herein
otherwise provided, shall perform all other duties incident to the office of
President.
SECTION
5. Chief Executive
Officer. The officer designated by the Board of Directors as
the Chief Executive Officer of the Corporation shall have general and active
control of its business and affairs. The Chief Executive Officer
shall have general power to appoint or designate all employees and agents of the
Corporation whose appointment or designation is not otherwise provided for and
to fix the compensation thereof, subject to the provisions of these By-Laws; to
remove or suspend any employee or agent who shall not have been elected or
appointed by the Board of Directors or other body; to suspend for cause any
employee, agent, or officer, other than an elected officer, pending final action
by the body which shall have appointed such employee, agent, or officer; and to
exercise all the powers usually pertaining to the office held by the Chief
Executive Officer of a corporation.
SECTION
6. Vice
Presidents. Whenever there is more than one Vice President,
the Board of Directors shall decide upon the order of their seniority and may
designate one or more to be executive or senior Vice Presidents. In
the absence or inability to act of the President, or if the office of President
be vacant, the Vice Presidents, in order of seniority, subject to the right of
the Board of Directors from time to time to extend or confine such powers and
duties, may exercise all the powers of the President. Each Vice
President shall have such other powers and shall perform such other duties as
may be assigned to him by the Board of Directors.
SECTION
7. Treasurer. The
Treasurer, subject to the right of the Board of Directors from time to time to
extend or confine his powers and duties or assign them to others, shall have
general supervision over the care and custody of the funds and securities of the
Corporation and shall deposit in the name of the Corporation in such bank or
banks, trust company or trust companies, and in such safe deposit company or
companies or invest in securities of such money market fund or funds, as the
Board of Directors or the executive committee may designate, shall have
supervision over the accounts of all receipts and disbursements of the
Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the powers and
perform the duties usually incident to the office of Treasurer, and shall have
such other powers and perform such other duties as may be assigned to him by the
Board of Directors.
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SECTION
8. Secretary. The
Secretary, subject to the right of the Board of Directors from time to time to
extend or confine his powers and duties or to assign them to others, shall act
as Secretary of all meetings of the stockholders and of the Board of Directors
at which he is present, shall have supervision over the giving and serving of
notices of the Corporation, shall be the custodian of the corporate records and
of the corporate seal of the Corporation, shall be empowered to affix the
corporate seal to documents, execution of which, on behalf of the Corporation,
under its seal, is duly authorized, and when so affixed may attest the same,
shall exercise the powers and perform the duties usually incident to the office
of Secretary, and shall exercise such other powers and perform such other duties
as may be assigned to him by the Board of Directors. The Secretary shall, if the
law so provides, be sworn to the faithful discharge of his duties.
SECTION
9. Other
Officers. The Assistant Secretaries, the Assistant Treasurers
and all other officers shall hold office during the pleasure of the Board of
Directors and shall exercise such powers and perform such duties as may be
assigned to each by the Board of Directors.
SECTION
10. Term of Office; Removal and
Vacancy. Each officer shall hold his office until his
successor is elected and qualified or until his earlier resignation or
removal. Any officer or agent shall be subject to removal with or
without cause at any time by the Board of Directors. Vacancies in any office
whether occurring by death, resignation, removal or otherwise, may be filled by
the Board of Directors.
SECTION
11. Power to Vote
Stock. Unless otherwise ordered by the Board of Directors, the
Chairman of the Board, the Vice Chairman of the Board and the President each
shall have full power and authority on behalf of the Corporation to attend and
to vote at any meeting of stockholders of any corporation in which the
Corporation may hold stock, and may exercise on behalf of this Corporation any
and all of the rights and powers incident to the ownership of such stock at any
such meeting and shall have power and authority to execute and deliver proxies,
waivers and consents on behalf of the Corporation in connection with the
exercise by the Corporation of the rights and powers incident to the ownership
of such stock. The Board of Directors may, from time to time, confer
like powers upon any other person or persons.
ARTICLE
V
CAPITAL
STOCK
SECTION
1. Certificates for
Stock. Each holder of stock represented by certificates shall
be entitled to a certificate or certificates signed by or in the name
of the Corporation by the Chairman of the Board, the Vice Chairman of
the Board, the President, or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an
Assistant Secretary, certifying the number of shares of
stock of the Corporation owned by such stockholder. Any or
all of the signatures on the certificates may be a facsimile.
In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he, she or it was such
officer, transfer agent or registrar at the date of issue.
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All
certificates of each class or series shall be consecutively numbered and shall
be entered in the books of the Corporation as they are issued. Every
certificate shall certify the name of the person owning the shares represented
thereby, with the number of shares and the date of issue. The names
and addresses of all persons owning shares of the Corporation, with the number
of shares owned by each and the date or dates of issue of the shares held by
each, shall be entered in the books of the Corporation kept for that purpose by
the proper officers, agents or employees of the Corporation.
SECTION
2. Transfer of
Stock. Shares of stock represented by certificates shall be
transferable on the books of the Corporation by the holder thereof, in person or
by duly authorized attorney, upon the surrender for cancellation of the
certificate or certificates representing the shares to be transferred, properly
endorsed, with such proof or guarantee of the authenticity of the signature as
the Corporation or its agents may reasonably require.
Upon the
receipt of proper transfer instructions from the registered owner of
uncertificated shares, issuance of new equivalent uncertificated shares or
certificated shares (as applicable) shall be made to the stockholder entitled
thereto and the transaction shall be recorded upon the books of the
Corporation.
SECTION
3. Ownership of
Stock. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the owner thereof in fact and shall
not be bound to recognize any equitable or other claim to or interest in such
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise expressly provided by
law.
SECTION
4. Lost, Stolen or Destroyed
Certificates. The Board of Directors may direct a new
certificate or certificates or one or more uncertificated shares (as applicable)
to be issued in place of any certificate or certificates theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of the fact by the person claiming the certificate or
certificates to be lost, stolen or destroyed. In its discretion and as a
condition precedent to the issuance of any such new certificate or certificates
or one or more uncertificated shares, the Board of Directors may require that
the owner of such lost, stolen or destroyed certificate or certificates, or such
person’s legal representative, advertise the same in such manner as the Board
shall require and/or give the Corporation and its transfer agent or agents,
registrar or registrars a bond in such form and amount as the Board of Directors
may direct as indemnity against any claim that may be made
against the Corporation and its transfer agent or agents, registrar
or registrars, and that the owner requesting such new certificate or
certificates or one or more uncertificated shares obtain a final order or decree
of a court of competent jurisdiction as such owner’s right to receive such new
certificate or certificates or one or more uncertificated
shares.
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ARTICLE
VI
MISCELLANEOUS
SECTION
1. Corporate
Seal. The seal of the Corporation shall be circular in form
and shall contain the name of the Corporation and the year and state of
incorporation.
SECTION
2. Fiscal
Year. The Board of Directors shall have power to fix and, from
time to time, change the fiscal year of the Corporation.
SECTION
3. Amendments. The
Board of Directors shall have the power to make, alter or repeal the By-Laws of
the Corporation subject to the power of the stockholders to alter or repeal the
By-Laws made or altered by the Board of Directors.
SECTION
4. Checks. All
checks, drafts, notes and other orders for the payment of money shall be signed
by such officer or officers or agents from time to time may be designated by the
Board of Directors or by such officers of the Corporation as may be designated
by the Board to make such designation.
ARTICLE
VII
INDEMNIFICATION
SECTION
1. Right to
Indemnification. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
“proceeding”) by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, nonprofit entity, or other enterprise,
including service with respect to employee benefit plans, against all liability
and loss suffered and reasonable expenses (including reasonable attorneys’ fees)
incurred by such person. The Corporation shall be required to
indemnify a person in connection with a proceeding (or part thereof) initiated
by such person only if the proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation.
SECTION
2. Prepayment of
Expenses. The Corporation shall pay the reasonable expenses
(including reasonable attorneys’ fees) incurred by an officer or director of the
Corporation in defending any proceeding in advance of its final disposition,
provided, however, that the payment of such expenses shall be made only upon
receipt of an undertaking by the director or officer to repay all amounts
advanced if it is, and to the extent that it is, ultimately determined that the
director or officer is not entitled to be indemnified. Payment of
such reasonable expenses incurred by other employees and agents of the
Corporation may be made by the Board of Directors in its discretion upon such
terms and conditions, if any, as it deems appropriate.
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SECTION
3. Nonexclusivity of
Rights. The right conferred on any person by this Article VII
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
SECTION
4. Other
Indemnification. The Corporation’s obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or non-profit entity shall be reduced by any amount such
person actually collects as indemnification from such other corporation,
partnership, joint venture, trust, non-profit entity, or other
enterprise.
SECTION
5. Amendment or
Repeal. Any repeal or modification of the foregoing provisions
of this Article VII shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
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