Section
2.04
Adjournments
. Any meeting of the stockholders,
annual or special, may be adjourned from time to time to reconvene at the same or some other place, if any, and notice need not be given of any such adjourned meeting if the time, place, if any, thereof and the means of remote communication, if any,
are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days,
a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date is fixed for determining the stockholders entitled to vote at the adjourned meeting, the Board
of Directors shall fix a new record date for notice of the adjourned meeting and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at the adjourned meeting as of the record date fixed for notice of the
adjourned meeting.
Section
2.05
Notice of Meetings
.
Notice of the place (if any), date, hour, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for determining the stockholders entitled to notice of the meeting), and means
of remote communication, if any, of every meeting of stockholders shall be given by the Corporation not less than ten (10) days nor more than sixty (60) days before the meeting (unless a different time is specified by law) to every
stockholder entitled to vote at the meeting as of the record date for determining the stockholders entitled to notice of the meeting. Notices of special meetings shall also specify the purpose or purposes for which the meeting has been called.
Except as otherwise provided herein or permitted by applicable law, notice to stockholders shall be in writing and delivered personally or mailed to the stockholders at their address appearing on the books of the Corporation. Without limiting the
manner by which notice otherwise may be given effectively to stockholders, notice of meetings may be given to stockholders by means of electronic transmission in accordance with applicable law. Notice of any meeting need not be given to any
stockholder who shall, either before or after the meeting, submit a waiver of notice or who shall attend such meeting, except when the stockholder attends for the express purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Any stockholder so waiving notice of the meeting shall be bound by the proceedings of the meeting in all respects as if due notice thereof had been given.
Section
2.06
List of Stockholders
. The Corporation shall
prepare a complete list of the 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 ten (10) days before the date of the
meeting, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares of capital stock of the
Corporation registered in the name of each stockholder at least ten (10) days before any meeting of the stockholders. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least
ten (10) days before the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list was provided with the notice of the meeting; or (b) during ordinary business
hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting the whole time thereof and may be inspected by any stockholder who
is present. If the meeting is held solely by means of remote communication, the list shall also be open for inspection by any stockholder during the whole time of the meeting as provided by applicable law. Except as provided by applicable law, the
stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger and the list of stockholders or to vote in person or by proxy at any meeting of stockholders.
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Section
2.07
Quorum
. Unless otherwise required by
applicable law, the Certificate of Incorporation, or these
by-laws,
at each meeting of the stockholders, a majority in voting power of the shares of capital stock of the Corporation entitled to vote at the
meeting, present in person or represented by proxy, shall constitute a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the chair of the meeting or the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power, by the affirmative vote of a majority in voting power thereof, to adjourn the meeting from time to time, in the manner provided in
Section
2.04
, until a quorum
shall be present or represented. A quorum, once established, shall not be broken by the subsequent withdrawal of enough votes to leave less than a quorum. At any such adjourned meeting at which there is a quorum, any business may be transacted that
might have been transacted at the meeting originally called.
Section
2.08
Organization
. The Board of Directors may
adopt by resolution such rules and regulations for the conduct of the meeting of the stockholders as it shall deem appropriate. At every meeting of the stockholders, the Chair of the Board or, in his or her absence or inability to act, the Chief
Executive Officer (as defined in
Section
4.01
) or, in his or her absence or inability to act, the officer or director whom the Board of Directors shall appoint, shall act as chair of, and preside at, the meeting. The
Secretary or, in his or her absence or inability to act, the person whom the chair of the meeting shall appoint secretary of the meeting, shall act as secretary of the meeting and keep the minutes thereof. Except to the extent inconsistent with such
rules and regulations as adopted by the Board of Directors, the chair of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations, and procedures and to do all such acts as, in the judgment of such
chair, are appropriate for the proper conduct of the meeting. Such rules, regulations, or procedures, whether adopted by the Board of Directors or prescribed by the chair of the meeting, may include, without limitation, the following:
(a)
the establishment of an agenda or order of business for the meeting;
(b)
the determination of when the polls shall open and close for any given matter to be voted on
at the meeting;
(c)
rules and procedures for maintaining order at the meeting and the safety
of those present;
(d)
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 the chair of the meeting shall determine;
(e)
restrictions on entry to the meeting after the time fixed for the commencement thereof; and
(f)
limitations on the time allotted to questions or comments by participants.
Section
2.09
Voting; Proxies
.
(a)
General
. Unless otherwise required by applicable law or provided in the Certificate of
Incorporation, each stockholder shall be entitled to one vote, in person or by proxy, for each share of capital stock held by such stockholder.
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(b)
Election of Directors
. Unless otherwise
required by the Certificate of Incorporation, the election of directors shall be by written ballot. If authorized by the Board of Directors, such requirement of a written ballot shall be satisfied by a ballot submitted by electronic transmission,
provided that any such electronic transmission must be either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized. Unless otherwise required by applicable law, the Certificate of
Incorporation, or these
by-laws,
the election of directors shall be decided by a majority of the votes cast at a meeting of the stockholders by the holders of stock entitled to vote in the election;
provided, however,
that, if the Secretary determines that the number of nominees for director exceeds the number of directors to be elected, directors shall be elected by a plurality of the votes of the shares represented in person or by
proxy at any meeting of stockholders held to elect directors and entitled to vote on such election of directors. For purposes of this
Section
2.09(b)
, a majority of the votes cast means that the number of shares voted
“for” a nominee must exceed the votes cast “against” such nominee’s election. If a nominee for director who is not an incumbent director does not receive a majority of the votes cast, the nominee shall not be elected.
(c)
Other Matters
. Unless otherwise required by applicable law, the Certificate of
Incorporation, or these
by-laws,
any matter, other than the election of directors, brought before any meeting of stockholders shall be decided by the affirmative vote of the majority of shares present in
person or represented by proxy at the meeting and entitled to vote on the matter.
(d)
Proxies
. Each stockholder entitled to vote at a meeting of stockholders may authorize
another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. 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 an 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 electronic transmission either sets forth or is submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. A copy, facsimile
transmission, or other reliable reproduction of a writing or transmission authorized by this
Section
2.09(d)
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. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only so long as it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or
by delivering to the Secretary a revocation of the proxy or a new proxy bearing a later date.
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Section
2.10
Inspectors at Meetings of Stockholders
. In
advance of any meeting of the stockholders, the Board of Directors shall, appoint one (1) or more inspectors, who may be employees of the Corporation, to act at the meeting or any adjournment thereof and make a written report thereof. The Board
of Directors may designate one (1) or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. 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. The inspector or inspectors may appoint or retain other persons or entities to assist the inspector or inspectors in the performance of their duties. In determining the validity and counting of proxies and ballots cast at any meeting of
stockholders, the inspector or inspectors may consider such information as is permitted by applicable law. No person who is a candidate for office at an election may serve as an inspector at such election. When executing the duties of inspector, the
inspector or inspectors shall:
(a)
ascertain the number of shares outstanding and the voting
power of each;
(b)
determine the shares represented at the meeting and the validity of
proxies and ballots;
(c)
count all votes and ballots;
(d)
determine and retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors; and
(e)
certify their determination of the
number of shares represented at the meeting and their count of all votes and ballots.
Section
2.11
Fixing the
Record Date
.
(a)
In order that the Corporation may determine the stockholders entitled to notice of or 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 upon which the resolution fixing the record date is adopted by the Board of Directors, and which
record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining the stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. 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 determining the
stockholders entitled to notice of or to vote at the adjourned meeting.
(b)
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 sixty (60) days prior to such action. If no record date is fixed, the record date for determining the 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.
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Section
2.12
Advanced Notice of Stockholder Nominations and
Proposals
.
(a)
Annual Meetings
. At a meeting of the stockholders, only such
nominations of persons for the election of directors and such other business shall be conducted as shall have been properly brought before the annual meeting. Except for nominations that are included in the Corporation’s annual meeting
Statement (as defined in
Section
2.13(c)(ii)
) pursuant to
Section
2.13
, to be properly brought before an annual meeting, nominations or such other business must be:
(i)
specified in the notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors or any committee thereof;
(ii)
otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors or any committee thereof; or
(iii)
otherwise properly brought before an annual meeting by a stockholder who is a stockholder
of record of the Corporation at the time such notice of meeting is delivered, who is entitled to vote at the meeting, and who complies with the notice procedures set forth in this
Section
2.12
.
In addition, any proposal of business (other than the nomination of persons for election to the Board of Directors) must be a
proper matter for stockholder action. For business (including, but not limited to, director nominations) to be properly brought before an annual meeting by a stockholder pursuant to
Section
2.12(a)(iii)
, the stockholder or
stockholders of record intending to propose the business (the “
Proposing Stockholder
”) must have given timely notice thereof pursuant to this
Section
2.12(a)
, in writing to the Secretary even if such matter
is already the subject of any notice to the stockholders or Public Disclosure from the Board of Directors. To be timely, a Proposing Stockholder’s notice for an annual meeting must be delivered to or mailed and received at the principal
executive offices of the Corporation: (x) not later than the close of business on the ninetieth (90th) day, nor earlier than the close of business on the one hundred-twentieth (120th) day, in advance of the anniversary of the previous
year’s annual meeting if such meeting is to be held on a day which is not more than thirty (30) days in advance of the anniversary of the previous year’s annual meeting or not later than sixty (60) days after the anniversary of
the previous year’s annual meeting; and (y) with respect to any other annual meeting of stockholders, including in the event that no annual meeting was held in the previous year, not earlier than the close of business on the one
hundred-twentieth (120th) day prior to the annual meeting and not later than the close of business on the later of: (1) the ninetieth (90th) day prior to the annual meeting and (2) the close of business on the tenth (10th) day following
the first date of Public Disclosure of the date of such meeting. In no event shall the Public Disclosure of an adjournment or postponement of an annual meeting commence a new notice time period (or extend any notice time period). For the purposes of
this
Section
2.12
and
Section
2.13
, “
Public Disclosure
” shall mean a disclosure made in a press release reported by the Dow Jones News Services, The Associated Press, or a
comparable national news service or in a document filed by the Corporation with the Securities and Exchange Commission (“
SEC
”) pursuant to Section 13, 14, or 15(d) of the Exchange Act.
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(b)
Stockholder Nominations
. For the
nomination of any person or persons for election to the Board of Directors pursuant to
Section
2.12(a)(iii)
or
Section
2.12(d)
, a Proposing Stockholder’s notice to the Secretary shall set
forth or include:
(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 class and number of the shares of capital stock of the
Corporation which are owned of record and beneficially by each such nominee (if any);
(iv)
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 Section 14(a) of the Exchange Act;
(v)
a written questionnaire with respect to the background and qualification of such
proposed nominee (which questionnaire shall be provided by the Secretary upon written request) and a written statement and agreement executed by each such nominee acknowledging that such person:
(A)
consents to being named in the Corporation’s proxy statement as a nominee and to
serving as a director if elected,
(B)
intends to serve as a director for the full
term for which such person is standing for election, and
(C)
makes the following
representations: (1) that the director nominee has read and agrees to adhere to the Corporation’s code of ethics (“
Code of Ethics
”), and any other of the Corporation’s policies or guidelines applicable to directors,
including with regard to securities trading, (2) that the director nominee is not and will not become a party to 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 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, and (3) that the director nominee 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 (“
Compensation Arrangement
”) that has not been disclosed to
the Corporation in connection with such person’s nomination for director or service as a director; and
(vi)
as to the Proposing Stockholder:
(A)
the name and address of the Proposing Stockholder as they appear on the Corporation’s
books and of the beneficial owner, if any, on whose behalf the nomination is being made,
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(B)
the class and number of shares of the
Corporation which are owned by the Proposing Stockholder (beneficially and of record) and owned by the beneficial owner, if any, on whose behalf the nomination is being made, as of the date of the Proposing Stockholder’s notice, and a
representation that the Proposing Stockholder 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 within five (5) business days after the record
date for such meeting,
(C)
a description of any agreement, arrangement, or understanding
with respect to such nomination between or among the Proposing Stockholder or the beneficial owner, if any, on whose behalf the nomination is being made and any of their affiliates or associates, and any others (including their names) acting in
concert with any of the foregoing, and a representation that the Proposing Stockholder will notify the Corporation in writing of any such agreement, arrangement, or understanding in effect as of the record date for the meeting within five
(5) business days after the record date for such meeting,
(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 Proposing Stockholder’s
notice by, or on behalf of, the Proposing Stockholder or the beneficial owner, if any, on whose behalf the nomination is being made and any of their 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 such person or any of their affiliates or associates with respect to shares of capital stock of the Corporation, and a representation that the Proposing Stockholder will
notify the Corporation in writing of any such agreement, arrangement, or understanding in effect as of the record date for the meeting within five (5) business days after the record date for such meeting,
(E)
a representation that the Proposing Stockholder is a holder of record of shares of capital
stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice, and
(F)
a representation whether the Proposing Stockholder intends to deliver a proxy statement or
form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve the nomination or otherwise to 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.
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(c)
Other Stockholder Proposals
. For all
business other than director nominations, a Proposing Stockholder’s notice to the Secretary shall set forth as to each matter the Proposing Stockholder proposes to bring before the annual meeting:
(i)
a brief description of the business desired to be brought before the annual meeting;
(ii)
the reasons for conducting such business at the annual meeting;
(iii)
the text of any proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend these
by-laws,
the language of the proposed amendment);
(iv)
any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange
Act) in such business of such stockholder and the beneficial owner (within the meaning of Section 13(d) of the Exchange Act), if any, on whose behalf the business is being proposed;
(v)
any other information relating to such stockholder and beneficial owner, if any, on whose
behalf the proposal is being made, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal and pursuant to and in accordance with Section 14(a) of the
Exchange Act and the rules and regulations promulgated thereunder;
(vi)
a description of all
agreements, arrangements, or understandings between or among such stockholder, the beneficial owner, if any, on whose behalf the proposal is being made, any of their affiliates or associates, and any other person or persons (including their names)
in connection with the proposal of such business and any material interest of such stockholder, beneficial owner, or any of their affiliates or associates, in such business, including any anticipated benefit therefrom to such stockholder, beneficial
owner, or their affiliates or associates; and
(vii)
the information required by
Section
2.12(b)(iv)
above.
(d)
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 Corporation’s notice of meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of the stockholders called by the Board of Directors at which directors are to be elected pursuant to the Corporation’s notice of meeting:
(i)
by or at the direction of the Board of Directors or any committee thereof; or
(ii)
provided that the Board of Directors has determined that directors shall be elected at such
meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this
Section
2.12(d)
is delivered to the Secretary, who is entitled to vote at the meeting, and upon such
election and who complies with the notice procedures set forth in this
Section
2.12
.
In the
event the Corporation calls a special meeting of stockholders for the purpose of electing one (1) or more directors to the Board of Directors, any such stockholder entitled to vote in such election of directors may nominate a person or persons
(as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if such stockholder delivers a stockholder’s notice that complies with the requirements of
Section
2.12(b)
to the Secretary at its principal executive offices not earlier than the close of business on the 120th day prior to such
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special meeting and not later than the close of business on the later of: (x) the 90th day prior to such special meeting; or (y) the tenth (10th) day following the date of the first
Public Disclosure 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 the Public Disclosure of an adjournment or postponement of a special meeting commence a new
time period (or extend any notice time period).
(e)
Effect of Noncompliance
. Only
such persons who are nominated in accordance with the procedures set forth in this
Section
2.12
or
Section
2.13
shall be eligible to be elected at any meeting of stockholders of the Corporation to
serve as directors and only such other business shall be conducted at a meeting as shall be brought before the meeting in accordance with the procedures set forth in this
Section
2.12
or
Section
2.13
, as applicable. If any proposed nomination was not made or proposed in compliance with this
Section
2.12
or
Section
2.13
, as applicable, or other business was
not made or proposed in compliance with this
Section
2.12
, then except as otherwise required by applicable law, the chair of the meeting shall have the power and duty to declare that such nomination shall be disregarded or
that such proposed other business shall not be transacted. Notwithstanding anything in these
by-laws
to the contrary, unless otherwise required by law, if a Proposing Stockholder intending to propose business
or make nominations at an annual meeting or propose a nomination at a special meeting pursuant to this
Section
2.12
does not provide the information required under this
Section
2.12
to the
Corporation, including the updated information required by
Section
2.12(b)(vi)(B)
,
Section
2.12(b)(vi)(C)
, and
Section
2.12(b)(vi)(D)
, within five (5) business days
after the record date for such meeting or the Proposing Stockholder (or a qualified representative of the Proposing Stockholder) does not appear at the meeting to present the proposed business or nominations, such business or nominations shall not
be considered, notwithstanding that proxies in respect of such business or nominations may have been received by the Corporation.
(f)
Rule 14a-
8
. Neither this
Section
2.12
nor
Section
2.13
shall apply to a proposal proposed to be made by a stockholder if the stockholder has notified the Corporation of the stockholder’s intention to present the proposal at an annual or special meeting only
pursuant to and in compliance with Rule
14a-8
under the Exchange Act and such proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such meeting.
Section
2.13
Proxy Access
.
(a)
Inclusion of Proxy Access Stockholder Nominee in Proxy Statement
. Subject to the
provisions of this
Section
2.13
, the Corporation shall include in its proxy statement (including its form of proxy and ballot) for an annual meeting of stockholders the name of any stockholder nominee for election to the
Board of Directors submitted pursuant to this
Section
2.13
(each a “
Proxy Access Stockholder Nominee
”) provided:
(i)
timely written notice of such Proxy Access Stockholder Nominee satisfying this
Section
2.13
(“
Proxy Access Notice
”) is delivered to the Corporation by or on behalf of a stockholder or stockholders that, at the time the Proxy Access Notice is delivered, satisfy the ownership and other
requirements of this
Section
2.13
(such stockholder or stockholders, and any person on whose behalf they are acting, the “
Eligible Stockholder
”);
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(ii)
the Eligible Stockholder expressly elects in
writing at the time of providing the Proxy Access Notice to have its Proxy Access Stockholder Nominee included in the Corporation’s proxy statement pursuant to this
Section
2.13
; and
(iii)
the Eligible Stockholder and the Proxy Access Stockholder Nominee otherwise satisfy the
requirements of this
Section
2.13
.
(b)
Timely Notice
. To be
timely, the Proxy Access Notice must be delivered to the Secretary at the principal executive offices of the Corporation, not later than one hundred twenty (120) days nor more than one hundred fifty (150) days prior to the first (1st)
anniversary of the date of the preceding year’s annual meeting;
provided, however
, that in the event that the date of the annual meeting is advanced by more than thirty (30) days or delayed by more than sixty (60) days from the
anniversary of the previous year’s annual meeting, or if no annual meeting was held in the preceding year, the Proxy Access Notice must be delivered not earlier than the close of business on the one hundred-fiftieth (150th) day prior to such
annual meeting and not later than the close of business on the later of: (i) the one hundred-twentieth (120th) day prior to such annual meeting; or (ii) the tenth (10th) day following the day on which Public Disclosure of the date of such
annual meeting is first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of the Proxy Access Notice.
(c)
Information to be
Included in the Corporation
’
s Proxy
Statement
. In addition to including the name of the Proxy Access Stockholder Nominee in the Corporation’s proxy statement for the annual meeting, the Corporation shall also include (collectively, the “
Required
Information
”):
(i)
the information concerning the Proxy Access Stockholder Nominee
and the Eligible Stockholder that is required to be disclosed in the Corporation’s proxy statement pursuant to the Exchange Act, and the rules and regulations promulgated thereunder; and
(ii)
if the Eligible Stockholder so elects, a written statement of the Eligible Stockholder (or
in the case of a group, a written statement of the group), not to exceed five hundred (500) words, in support of its Proxy Access Stockholder Nominee, which must be provided at the same time as the Proxy Access Notice for inclusion in the
Corporation’s proxy statement for the annual meeting (a “
Statement
”).
Notwithstanding anything to
the contrary contained in this
Section
2.13
, the Corporation may omit from its proxy materials any information or Statement that it, in good faith, believes is untrue in any material respect (or omits a material fact
necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading) or would violate any applicable law, rule, regulation, or listing standard. Additionally, nothing in this
Section
2.13
shall limit the Corporation’s ability to solicit against and include in its Statement its own statements relating to any Proxy Access Stockholder Nominee.
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(d)
Proxy Access Stockholder Nominee Limits
.
The number of Proxy Access Stockholder Nominees (including Proxy Access Stockholder Nominees that were submitted by an Eligible Stockholder for inclusion in the Corporation’s Statement pursuant to this
Section
2.13
but
either are subsequently withdrawn or that the Board of Directors decides to nominate (a “
Board Nominee
”)) appearing in the Corporation’s proxy statement with respect to a meeting of stockholders shall not exceed the greater of:
(x) two; or (y) twenty percent (20%) of the number of directors in office as of the last day on which notice of a nomination may be delivered pursuant to this
Section
2.13
(the “
Final Proxy Access
Nomination Date
”) or, if such amount is not a whole number, the closest whole number below twenty percent (20%) (the “
Permitted Number
”);
provided, however
, that:
(i)
in the event that one (1) or more vacancies for any reason occurs on the Board of
Directors at any time after the Final Proxy Access Nomination Date and before the date of the applicable annual meeting of the stockholders and the Board of Directors resolves to reduce the size of the Board of Directors in connection therewith, the
Permitted Number shall be calculated based on the number of directors in office as so reduced;
(ii)
any Proxy Access Stockholder Nominee who is included in the Corporation’s proxy
statement for a particular meeting of stockholders but either: (A) withdraws from or becomes ineligible or unavailable for election at the meeting, or (B) does not receive a number of votes cast in favor of his or her election at least
equal to twenty-five percent (25%) of the shares present in person or represented by proxy at the annual meeting and entitled to vote on the Proxy Access Stockholder Nominee’s election, shall be ineligible to be included in the
Corporation’s Statement as a Proxy Access Stockholder Nominee pursuant to this
Section
2.13
for the next two (2) annual meetings of stockholders following the meeting for which the Proxy Access Stockholder Nominee
has been nominated for election; and
(iii)
any director in office as of the nomination
deadline who was included in the Corporation’s Statement as a Proxy Access Stockholder Nominee for any of the two (2) preceding annual meetings and whom the Board of Directors decides to nominate for election to the Board of Directors also
will be counted against the Permitted Number.
In the event that the number of Proxy Access Stockholder Nominees submitted
by Eligible Stockholders pursuant to this
Section
2.13
exceeds the Permitted Number, each Eligible Stockholder shall select one (1) Proxy Access Stockholder Nominee for inclusion in the Corporation’s proxy
statement until the Permitted Number is reached, going in order of the amount (from greatest to least) of voting power of the Corporation’s capital stock entitled to vote on the election of directors as disclosed in the Proxy Access Notice. If
the Permitted Number is not reached after each Eligible Stockholder has selected one (1) Proxy Access Stockholder Nominee, this selection process shall continue as many times as necessary, following the same order each time, until the Permitted
Number is reached.
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(e)
Eligibility of Nominating Stockholder;
Stockholder Groups
. An Eligible Stockholder must have owned (as defined below) continuously for at least three (3) years a number of shares that represents three percent (3%) or more of the outstanding shares of the Corporation then
entitled to vote in the election of directors (the “
Required Shares
”) as of both the date the Proxy Access Notice is delivered to or received by the Corporation in accordance with this
Section
2.13
and the
record date for determining the stockholders entitled to vote at the meeting. For purposes of satisfying the ownership requirement under this
Section
2.13
, the voting power represented by the shares of the
Corporation’s capital stock owned by one (1) or more stockholders, or by the person or persons who own shares of the Corporation’s capital stock and on whose behalf any stockholder is acting, may be aggregated, provided that:
(i)
the number of stockholders and other persons whose ownership of shares is aggregated for such
purpose shall not exceed twenty (20); and
(ii)
each stockholder or other person whose shares
are aggregated shall have held such shares continuously for at least three (3) years.
Whenever an Eligible
Stockholder consists of a group of stockholders or other persons, any and all requirements and obligations for an Eligible Stockholder set forth in this
Section
2.13
must be satisfied by and as to each such stockholder or
other person, except that shares may be aggregated to meet the Required Shares as provided in this
Section
2.13(e)
. With respect to any one (1) particular annual meeting, no stockholder or other person may be a member
of more than one (1) group of persons constituting an Eligible Stockholder under this
Section
2.13
.
(f)
Funds
. A group of two (2) or more funds shall be treated as one
(1) stockholder or person for this
Section
2.13
provided that the other terms and conditions in this
Section
2.13
are met (including
Section
2.13(h)(v)(A)
) and the
funds are:
(i)
under common management and investment control;
(ii)
under common management and funded primarily by the same employer (or by a group of related
employers that are under common control); or
(iii)
a “group of investment
companies,” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended.
(g)
Ownership
. For purposes of this
Section
2.13
, an Eligible
Stockholder shall be deemed to “
own
” only those outstanding shares of the Corporation’s capital stock as to which the person 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 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:
(A)
sold by such person or any of its affiliates in any transaction that has not been settled or
closed,
-14-
(B)
borrowed by such person or any of its
affiliates for any purposes or purchased by such person or any of its affiliates pursuant to an agreement to resell, or
(C)
subject to any option, warrant, forward contract, swap, contract of sale, other derivative,
or similar agreement entered into by such person 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 outstanding shares of the Corporation’s
capital stock, 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 person’s or affiliates’ full right to
vote or direct the voting of any such shares; or (2) hedging, offsetting, or altering to any degree gain or loss arising from the full economic ownership of such shares by such person or affiliate.
An Eligible Stockholder “
owns
” shares held in the name of a nominee or other intermediary so long as the
Eligible 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. An Eligible Stockholder’s ownership of shares shall be deemed to
continue during any period in which the Eligible 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 person. An Eligible Stockholder’s
ownership of shares shall be deemed to continue during any period in which the Eligible Stockholder has loaned such shares, provided that the Eligible Stockholder has the power to recall such loaned shares on five (5) business days’ notice
and recalls such loaned shares not more than five (5) business days after being notified that any of its Proxy Access Stockholder Nominees will be included in the Corporation’s proxy statement. The terms “
owned
,”
“
owning
,” and other variations of the word “
own
” shall have correlative meanings. For purposes of this
Section
2.13
, the term “
affiliate
” shall have the meaning ascribed
thereto in the regulations promulgated under the Exchange Act.
(h)
Nomination Notice and
Other Eligible Stockholder Deliverables
. An Eligible Stockholder must provide with its Proxy Access Notice the following information in writing to the Secretary:
(i)
one (1) or more written statements from the record holder of the shares (and from each
intermediary through which the shares are or have been held during the requisite three-year
(3-year)
holding period) verifying that, as of a date within seven (7) calendar days prior to the date the Proxy
Access Notice is delivered to or received by the Corporation, the Eligible Stockholder owns, and has owned continuously for the preceding three (3) years, the Required Shares, and the Eligible Stockholder’s agreement to provide:
(A)
within five (5) business days after the record date for the meeting, written statements
from the record holder and intermediaries verifying the Eligible Stockholder’s 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 applicable annual meeting of stockholders;
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(ii)
the Eligible Stockholder’s representation
and agreement that the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under this
Section
2.13
):
(A)
intends to continue to satisfy the eligibility requirements described in this
Section
2.13
through the date of the annual meeting, including a statement,
(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
meeting any person other than the Proxy Access Stockholder Nominee(s) being nominated pursuant to this
Section
2.13
,
(D)
has not engaged and will not engage in, and has not and will not be, a
“participant” in another person’s “solicitation” within the meaning of Rule
14a-1(l)
under the Exchange Act in support of the election of any individual as a director at the meeting
other than its Proxy Access Stockholder Nominee(s) or a Board Nominee,
(E)
will not
distribute to any stockholder any form of proxy for the meeting other than the form distributed by the Corporation,
(F)
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 to make the statements made, in light of the circumstances under which they were
made, not misleading,
(G)
agrees to assume all liability stemming from any legal or
regulatory violation arising out of the Eligible Stockholder’s communications with the Corporation’s stockholders or out of the information that the Eligible Stockholder provides to the Corporation,
(H)
agrees to indemnify and hold harmless the Corporation and each of its directors, officers,
and employees individually against any liability, loss, or damages in connection with any threatened or pending action, suit, or Proceeding (as defined in
Section
5.01
), whether legal, administrative, or investigative,
against the Corporation or any of its directors, officers, or employees arising out of any nomination submitted by the Eligible Stockholder pursuant to this
Section
2.13
,
(I)
will file with the SEC any solicitation or other communication with the Corporation’s
stockholders relating to the meeting at which the Proxy Access Stockholder Nominee will be nominated, regardless of whether any such filing is required under Section 14 of the Exchange Act or whether any exemption from filing is available for
such solicitation or other communication under Section 14 of the Exchange Act, and
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(J)
will comply with all other applicable laws,
rules, regulations, and listing standards with respect to any solicitation in connection with the meeting;
(iii)
the written consent of each Proxy Access Stockholder Nominee to be named in the
Corporation’s proxy statement, and form of proxy and ballot and, as a nominee and, if elected, to serve as a director;
(iv)
a copy of the Schedule 14N (or any successor form) that has been filed with the SEC as
required by Rule
14a-18
under the Exchange Act;
(v)
in the case of a nomination by a group of stockholders that together is an Eligible
Stockholder:
(A)
documentation satisfactory to the Corporation demonstrating that a group
of funds qualifies pursuant to the criteria set forth in
Section
2.13(f)
to be treated as one (1) stockholder or person for purposes of this
Section
2.13
, and
(B)
the designation by all group members of one (1) group member that is authorized to act
on behalf of all members of the nominating stockholder group with respect to the nomination and matters related thereto, including withdrawal of the nomination; and
(vi)
if desired, a Statement.
(i)
Stockholder Nominee Agreement
. Each Proxy Access Stockholder Nominee must:
(i)
provide within five (5) business days of the Corporation’s request an executed
agreement, in a form deemed satisfactory to the Corporation, providing the following representations:
(A)
the Proxy Access Stockholder Nominee has read and agrees to adhere to the Corporation’s
Code of Ethics and any other of the Corporation’s policies or guidelines applicable to directors, including with regard to securities trading,
(B)
the Proxy Access Stockholder Nominee is not and will not become a party to: (1) any
Voting Commitment that has not been disclosed to the Corporation; or (2) 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, and
(C)
the Proxy Access Stockholder Nominee is not
and will not become a party to any Compensation Arrangement in connection with such person’s nomination for director or service as a director that has not been disclosed to the Corporation;
(ii)
complete, sign, and submit all questionnaires required of the current Board of Directors
within five (5) business days of receipt of each such questionnaire from the Corporation; and
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(iii)
provide within five (5) business days of
the Corporation’s request such additional information as the Corporation determines may be necessary to permit the Board of Directors to determine whether such Proxy Access Stockholder Nominee meets the requirements of this
Section
2.13
or the Corporation’s requirements with regard to director qualifications and policies and guidelines applicable to directors, including whether:
(A)
such Proxy Access Stockholder Nominee is independent under the independence requirements,
including the committee independence requirements, set forth in the listing standards of the stock exchange on which shares of the Corporation’s capital stock are listed, any applicable rules of the SEC, and any publicly disclosed standards
used by the Board of Directors in determining and disclosing the independence of the directors (the “
Independence Standards
”),
(B)
such Proxy Access Stockholder Nominee has any direct or indirect relationship with the
Corporation that has not been deemed categorically immaterial pursuant to the Corporation’s Code of Ethics, and
(C)
such Proxy Access Stockholder Nominee is not and has not been subject to: (1) any event
specified in Item 401(f) of Regulation
S-K
promulgated under the Securities Act of 1933, as amended (the “
Securities Act
”), or (2) any order of the type specified in Rule 506(d) of
Regulation D promulgated under the Securities Act.
(j)
Eligible Stockholder/Proxy Access
Stockholder Nominee Undertaking
. In the event that any information or communications provided by the Eligible Stockholder or Proxy Access Stockholder Nominee to the Corporation or its stockholders ceases to be true and correct in any respect or
omits a fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Stockholder or Proxy Access Stockholder Nominee, as the case may be, shall promptly notify the Secretary of
any such inaccuracy or omission in such previously provided information and of the information that is required to make such information or communication true and correct. Notwithstanding the foregoing, the provision of any such notification
pursuant to the preceding sentence shall not be deemed to cure any defect or limit the Corporation’s right to omit a Proxy Access Stockholder Nominee from its proxy materials as provided in this
Section
2.13
.
(k)
Exceptions Permitting Exclusion of Proxy Access Stockholder Nominee.
The Corporation
shall not be required to include, pursuant to this
Section
2.13
, a Proxy Access Stockholder Nominee in its proxy statement (or, if the proxy statement has already been filed, to allow the nomination of a Proxy Access
Stockholder Nominee, notwithstanding that proxies in respect of such vote may have been received by the Corporation):
(i)
if the Eligible Stockholder who has nominated such Proxy Access Stockholder Nominee has
nominated for election to the Board of Directors at the meeting any person other than pursuant to this
Section
2.13
, or has or is engaged in, or has been or is a “participant” in another person’s,
“solicitation” within the meaning of Rule
14a-1(l)
under the Exchange Act in support of the election of any individual as a director at the meeting other than its Proxy Access Stockholder Nominee(s)
or a Board Nominee;
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(ii)
if the Corporation has received a notice
(whether subsequently withdrawn) that a stockholder intends to nominate any candidate for election to the Board of Directors pursuant to the advanced notice requirements in
Section
2.12
of these
by-laws;
(iii)
who is not independent under the
Independence Standards;
(iv)
whose election as a member of the Board of Directors would
violate or cause the Corporation to be in violation of these
by-laws,
the Corporation’s Certificate of Incorporation, Code of Ethics, or other document setting forth qualifications for directors, the
listing standards of the stock exchange on which shares of the Corporation’s capital stock is listed, or any applicable state or federal law, rule, or regulation;
(v)
if the Proxy Access Stockholder Nominee is or becomes a party to any undisclosed Voting
Commitment;
(vi)
if the Proxy Access Stockholder Nominee is or becomes a party to any
undisclosed Compensation Arrangement;
(vii)
who is or has been, within the past three
(3) years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended;
(viii)
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 past ten (10) years;
(ix)
who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated
under the Securities Act; or
(x)
if such Proxy Access Stockholder Nominee or the applicable
Eligible Stockholder shall have provided information to the Corporation in respect of such nomination that 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 shall have breached its or their agreements, representations, undertakings, or obligations pursuant to this
Section
2.13
.
(l)
Invalidity.
Notwithstanding anything to the contrary set forth herein, the Board of
Directors or the person presiding at the meeting shall be entitled to declare a nomination by an Eligible Stockholder to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received
by the Corporation; and the Corporation shall not be required to include in its proxy statement any successor or replacement nominee proposed by the applicable Eligible Stockholder or any other Eligible Stockholder if:
(i)
the Proxy Access Stockholder Nominee or the applicable Eligible Stockholder shall have
breached its or their agreements, representations, undertakings, or obligations pursuant to this
Section
2.13
, as determined by the Board of Directors or the person presiding at the meeting; or
(ii)
the Eligible Stockholder (or a qualified representative thereof) does not appear at the
meeting to present any nomination pursuant to this
Section
2.13
.
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(m)
Interpretation
. The Board of Directors
(or any other person or body authorized by the Board of Directors) shall have the power and authority to interpret this
Section
2.13
and to make any and all determinations necessary or advisable to apply this
Section
2.13
to any persons, facts, or circumstances, including the power to determine whether:
(i)
a person or group of persons qualifies as an Eligible Stockholder;
(ii)
outstanding shares of the Corporation’s capital stock are “owned” for
purposes of meeting the ownership requirements of this
Section
2.13
;
(iii)
a notice complies with the requirements of this
Section
2.13
;
(iv)
a person satisfies the qualifications and requirements to be a Proxy Access Stockholder
Nominee;
(v)
inclusion of the Required Information in the Corporation’s proxy statement
is consistent with all applicable laws, rules, regulations, and listing standards; and
(vi)
any and all requirements of this
Section
2.13
have been satisfied.
(vii)
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 conclusive and binding on all persons, including the Corporation and all record or beneficial owners of stock of the Corporation.
ARTICLE 3
Board of Directors
Section
3.01
General Powers
. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors may adopt such rules and
procedures, not inconsistent with the Certificate of Incorporation, these
by-laws,
or applicable law, as it may deem proper for the conduct of its meetings and the management of the Corporation.
Section
3.02
Number; Term
of Office
. The Board of
Directors shall consist of not less than three (3) and not more than nine (9) directors as fixed from time to time by resolution of a majority of the total number of directors that the Corporation would have if there were no vacancies.
Each director shall hold office until a successor is duly elected and qualified or until the director’s earlier death, resignation, disqualification, or removal.
Section
3.03
Newly Created Directorships and Vacancies
.
Any newly created directorships resulting from an increase in the authorized number of directors and any vacancies occurring in the Board of Directors, shall be filled solely by the affirmative votes of a majority of the remaining members of the
Board of Directors, although less than a quorum, or by a sole remaining director. A director so elected shall be elected to hold office until the earlier of the expiration of the term of office of the director whom he or she has replaced, a
successor is duly elected and qualified, or the earlier of such director’s death, resignation, or removal.
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Section
3.04
Resignation
. Any director may resign at any
time by notice given in writing or by electronic transmission to the Corporation. Such resignation shall take effect at the date of receipt of such notice by the Corporation or at such later effective date or upon the happening of an event or events
as is therein specified. A verbal resignation shall not be deemed effective until confirmed by the director in writing or by electronic transmission to the Corporation.
Section
3.05
Removal
. Except as prohibited by applicable
law or the Certificate of Incorporation, the stockholders holding a majority of the shares then entitled to vote at an election of directors may remove any director from office with or without cause.
Section
3.06
Fees and Expenses
. Directors shall receive
such fees for their services on the Board of Directors or any committee thereof and such reimbursement of their expenses as may be fixed or determined by the Board of Directors.
Section
3.07
Regular Meetings
. Regular meetings of the
Board of Directors may be held without notice at such times and at such places as may be determined from time to time by the Board of Directors.
Section
3.08
Special Meetings
. Special meetings of the
Board of Directors may be held at such times and at such places as may be determined by the Chair of the Board or the Chief Executive Officer on at least twenty-four (24) hours’ notice to each director given by one of the means specified
in
Section
3.11
hereof, other than by mail, or on at least three (3) days’ notice if given by mail. Special meetings shall be called by the Chair of the Board or the Chief Executive Officer in like manner and on
like notice on the written request of any two (2) or more directors. The notice need not state the purposes of the special meeting and, unless indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section
3.09
Telephone Meetings
. Meetings of either the
Board of Directors or committees of the Board of Directors may be held by means of telephone conference or other communications equipment by means of which all persons participating in the meeting can hear each other and be heard. Participation by a
director in a meeting pursuant to this
Section
3.09
shall constitute presence in person at such meeting.
Section
3.10
Adjourned Meetings
. A majority of the directors present at any meeting of the Board of Directors, including an adjourned meeting, whether a quorum is present, may adjourn and reconvene such meeting to another time and place.
At least twenty-four (24) hours’ notice of any adjourned meeting of the Board of Directors shall be given to each director whether or not present at the time of the adjournment, if such notice shall be given by one of the means specified
in
Section
3.11
hereof other than by mail, or at least three (3) days’ notice if by mail. Any business may be transacted at an adjourned meeting that might have been transacted at the meeting as originally called.
Section
3.11
Notices
. Subject to
Section
3.08
,
Section
3.10
, and
Section
3.12
, hereof, whenever notice is required to be given to any director by applicable law, the Certificate of Incorporation, or these
by-laws,
such notice shall be deemed given effectively if given in person or by telephone, mail addressed to such director at such director’s address as it appears on the records of the Corporation,
facsimile,
e-mail,
or by other means of electronic transmission.
-21-
Section
3.12
Waiver of Notice
. Whenever notice to directors
is required by applicable law, the Certificate of Incorporation, or these
by-laws,
a waiver thereof, in writing signed by, or by electronic transmission by, the director entitled to the notice, whether before
or after such notice is required, shall be deemed equivalent to notice. Attendance by a director at a meeting shall constitute a waiver of notice of such meeting except when the director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that the meeting was not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special Board of Directors or any committee
meeting need be specified in any waiver of notice.
Section
3.13
Organization
. At each regular or special
meeting of the Board of Directors, the Chair of the Board or, in his or her absence, another director or officer selected by the Board of Directors shall preside. The Secretary shall act as secretary at each meeting of the Board of Directors. If the
Secretary is absent from any meeting of the Board of Directors, an assistant secretary of the Corporation shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all assistant secretaries
of the Corporation, the person presiding at the meeting may appoint any person to act as secretary of the meeting.
Section
3.14
Quorum of Directors
. Except as otherwise required by applicable law, the Certificate of Incorporation, or these
by-laws,
the presence of a
majority of the total number of directors on the Board of Directors shall be necessary and sufficient to constitute a quorum for the transaction of business at any meeting of the Board of Directors.
Section
3.15
Action by Majority Vote
. Except as otherwise
provided by these
by-laws,
the Certificate of Incorporation, or required by applicable law, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the
Board of Directors.
Section
3.16
Action Without
Meeting
. Unless otherwise restricted by the Certificate of Incorporation or these
by-laws,
any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writings or electronic transmissions are filed with the minutes of proceedings of the
Board of Directors or committee in accordance with applicable law.
Section
3.17
Chair of the Board
. The Board of Directors
may annually elect one (1) of its members to be its chair (the “
Chair of the Board
”) and shall fill any vacancy in the position of Chair of the Board at such time and in such manner as the Board of Directors shall determine.
Except as otherwise provided in these
by-laws,
the Chair of the Board shall preside at all meetings of the Board of Directors and of stockholders. The Chair of the Board shall perform such other duties and
services as shall be assigned to or required of the Chair of the Board by the Board of Directors.
-22-
Section
3.18
Committees of
the Board
of
Directors
. The Board of Directors may designate one (1) or more committees, each committee to consist of one (1) or more of the directors of the Corporation. The Board of Directors may designate one (1) or more directors as
alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members
present at the meeting and not disqualified from voting, whether such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent permitted by applicable 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 and may authorize the seal of
the Corporation to be affixed to all papers that may require it to the extent so authorized by the Board of Directors. Unless the Board of Directors provides otherwise, at all meetings of such committee, a majority of the then authorized members of
the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep
regular minutes of its meetings. Unless the Board of Directors provides otherwise, each committee designated by the Board of Directors may make, alter, and repeal rules and procedures for the conduct of its business. In the absence of such rules and
procedures each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to this
ARTICLE 3
.
Section
3.19
Corporate Governance Compliance
. Without otherwise limiting the powers of
the Board of Directors set forth in this
ARTICLE 3
, and provided that shares of capital stock of the Corporation are listed for trading on either the Nasdaq National Market (“
NASDAQ
”) or the New York Stock Exchange
(“
NYSE
”), the Corporation shall comply with the corporate governance rules and requirements of the NASDAQ or the NYSE, as applicable, including but not limited to, the Board of Directors taking all necessary action to ensure that
(a) it has a majority of independent directors and (b) the Board of Directors has all of the committees required by either the NASDAQ or NYSE, as applicable.
ARTICLE 4
Officers
Section
4.01
Positions and Election
. The officers of the Corporation shall be chosen by the Board of Directors and shall include a chief executive officer (the “
Chief Executive
Officer
”
), a president (the “
President
”), a chief financial officer (the “
Chief Financial Officer
”), a treasurer (the “
Treasurer
”), and a secretary (the
“
Secretary
”). The Board of Directors, in its discretion, may also elect one or more vice presidents, assistant treasurers, assistant secretaries, and other officers in accordance with these
by-laws.
Any two (2)
or more offices may be held by the same person.
Section
4.02
Term
. Each officer of the Corporation shall hold office until such officer’s successor is elected and qualified or until such officer’s earlier death, resignation, or removal. Any officer elected or appointed by the Board of
Directors may be removed by the Board of Directors at any time with or without cause by the majority vote of the members of the Board of Directors then in office. The removal of an officer shall be without prejudice to his or her contract rights, if
any. The election or appointment of an officer shall not of itself create contract rights. Any officer of the Corporation may resign at any time by giving written notice of his or her resignation to the Chief Executive Officer, President, or the
Secretary. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Should any vacancy occur among the officers, the position shall be filled for the unexpired portion of the term by appointment made by the Board of Directors.
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Section
4.03
Chief Executive Officer
. The Chief Executive
Officer shall, subject to the provisions of these
by-laws
and the control of the Board of Directors, have general supervision, direction, and control over the business of the Corporation and over its officers.
The Chief Executive Officer shall perform all duties incident to the office of the Chief Executive Officer, and any other duties as may be from time to time assigned to the Chief Executive Officer by the Board of Directors, in each case subject to
the control of the Board of Directors.
Section
4.04
President
. The President shall report and be
responsible to the Chief Executive Officer. The President shall have such powers and perform such duties as from time to time may be assigned or delegated to the President by the Board of Directors or the Chief Executive Officer or that are incident
to the office of president.
Section
4.05
Vice
Presidents
. Each vice president of the Corporation shall have such powers and perform such duties as may be assigned to him or her from time to time by the Board of Directors, the Chief Executive Officer, or the President, or that are incident
to the office of vice president.
Section
4.06
Secretary
. The Secretary shall attend all
sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for committees of the Board of Directors when
required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors, the Chair of the Board, or
the Chief Executive Officer. The Secretary shall keep in safe custody the seal of the Corporation and have authority to affix the seal to all documents requiring it and attest to the same.
Section
4.07
Chief Financial Officer
. The Chief Financial
Officer shall be the principal financial officer of the Corporation and shall have such powers and perform such duties as may be assigned by the Board of Directors, the Chair of the Board, or the Chief Executive Officer.
Section
4.08
Treasurer
. The Treasurer of the Corporation
shall have the custody of the Corporation’s funds and securities, except as otherwise provided by the Board of Directors, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the Chief Executive Officer and the President and the directors, at the regular meetings of the Board of Directors, or whenever they may require it, an account of
all his or her transactions as Treasurer and of the financial condition of the Corporation.
Section
4.09
Other Officers
. Such other officers as the
Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such
other officers and to prescribe their respective duties and powers.
Section
4.10
Duties of Officers May Be Delegated
. In case
any officer is absent, or for any other reason that the Board of Directors may deem sufficient, the Chief Executive Officer, the President, or the Board of Directors may delegate for the time being the powers or duties of such officer to any other
officer or to any director.
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ARTICLE 5
INDEMNIFICATION
Section
5.01
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, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation
as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, enterprise, or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses
(including attorneys’ fees) reasonably incurred by such person. Notwithstanding the preceding sentence, except for claims for indemnification (following the final disposition of such Proceeding), the Corporation shall be required to indemnify a
person in connection with a Proceeding (or part thereof) commenced by such person only if the commencement of such Proceeding (or part thereof) by the person was authorized in the specific case by the Board of Directors.
Section
5.02
Advancement of Expenses
. The Corporation
shall pay the expenses (including attorneys’ fees) incurred by a director, officer, employee, or agent of the Corporation in defending any Proceeding in advance of its final disposition, upon receipt of an undertaking by or on behalf of such
person to repay all amounts advanced, if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such person is not entitled to be indemnified for such expenses under this
Section
5.02
or otherwise. Payment of such expenses incurred by such person, may be made by the Corporation, subject to such terms and conditions as the general counsel of the Corporation in his or her discretion deems
appropriate.
Section
5.03
Non-Exclusivity
of Rights
. The rights conferred on any person by this
ARTICLE 5
will not be exclusive of any other right 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, both as to action in his or her official capacity and as to action in
another capacity while holding office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees, or agents respecting indemnification and advances, to the fullest extent not
prohibited by the Delaware General Corporation Law (“
DGCL
”).
Section
5.04
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 nonprofit entity shall be reduced by any amount
such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise, or nonprofit entity.
Section
5.05
Insurance
. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of Corporation as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, enterprise, or nonprofit entity against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power
to indemnify him or her against such liability under the provisions of the DGCL.
-25-
Section
5.06
Repeal, Amendment, or Modification
. Any
amendment, repeal, or modification of this
ARTICLE 5
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.
ARTICLE 6
Stock Certificates and Their Transfer
Section
6.01
Certificates Representing Shares
. The shares
of capital stock of the Corporation shall be represented by certificates;
provided that
the Board of Directors may provide by resolution or resolutions that some or all of any class or series shall be uncertificated shares that may be
evidenced by a book-entry system maintained by the registrar of such stock. If shares are represented by certificates, such certificates shall be in the form, other than bearer form, approved by the Board of Directors. The certificates representing
shares of stock shall be signed by, or in the name of, the Corporation by any two (2) authorized officers 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
6.02
Transfers of Stock
. Stock of the Corporation
shall be transferable in the manner prescribed by law and in these
by-laws.
Transfers of stock shall be made on the books administered by or on behalf of the Corporation only by the direction of the registered
holder thereof or such person’s attorney, lawfully constituted in writing, and, in the case of certificated shares, upon the surrender to the Corporation or its transfer agent or other designated agent of the certificate thereof, which shall be
cancelled before a new certificate or uncertificated shares shall be issued.
Section
6.03
Transfer Agents and Registrars
. The Board of
Directors may appoint, or authorize any officer or officers to appoint, one (1) or more transfer agents and one (1) or more registrars.
Section
6.04
Lost,
Stolen, or Destroyed
Certificates
. The Board of Directors or the Secretary may direct a new certificate or uncertificated shares to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed upon the
making of an affidavit of that fact by the owner of the allegedly lost, stolen, or destroyed certificate. When authorizing such issue of a new certificate or uncertificated shares, the Board of Directors or the Secretary may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of the lost, stolen, or destroyed certificate, or the owner’s legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made
against the Corporation with respect to the certificate alleged to have been lost, stolen, or destroyed or the issuance of such new certificate or uncertificated shares.
ARTICLE 7
General Provisions
Section
7.01
Seal
. The seal of the Corporation shall be in such form as shall be approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise, as may be prescribed by law or custom or by the Board of Directors.
Section
7.02
Fiscal Year
. The fiscal year of the
Corporation shall begin on January 1 and end on December 31 of each year.
-26-
Section
7.03
Checks,
Notes, Drafts
, Etc
. All
checks, notes, drafts, or other orders for the payment of money of the Corporation shall be signed, endorsed, or accepted in the name of the Corporation by such officer, officers, person, or persons as from time to time may be designated by the
Board of Directors or by an officer or officers authorized by the Board of Directors to make such designation.
Section
7.04
Conflict with
Applicable
Law or Certificate of Incorporation
. These
by-laws
are adopted subject to any applicable law and the
Certificate of Incorporation. Whenever these
by-laws
may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of
Incorporation.
Section
7.05
Books and Records
. Any
records administered by or on behalf of the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be maintained on any information storage device, method, or one (1) or more
electronic networks or databases (including one (1) or more distributed electronic networks or databases);
provided that
the records so kept can be converted into clearly legible paper form within a reasonable time, and, with respect to
the stock ledger, the records so kept comply with Section 224 of the DGCL. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to applicable law.
Section
7.06
Forum for Adjudication of Disputes
. Unless
the Corporation consents in writing to the selection of an alternative forum, either the courts of the State of Texas, sitting in the State of Texas, in the City of Dallas, and the county of Dallas or, if such courts do not have jurisdiction, the
federal district courts of the United States of America sitting in the Northern District of Texas shall be the sole and exclusive forums (“
Exclusive Forums
”) for: (a) any derivative action or Proceeding brought on behalf of the
Corporation; (b) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee, or agent of the Corporation to the Corporation or the Corporation’s stockholders; (c) any action asserting a claim
arising pursuant to any provision of the DGCL, the Certificate of Incorporation, or these
by-laws;
or (d) any action asserting a claim governed by the internal affairs doctrine; and in each case, subject
to said court having personal jurisdiction over the indispensable parties named as defendants therein. If any action the subject matter of which is within the scope of this
Section
7.06
is filed in a court other than a
court located within the Exclusive Forums (a “
Foreign Action
”) in the name of any stockholder, such stockholder shall be deemed to have consented to: (i) the personal jurisdiction of the state and federal courts located within
the Exclusive Forums in connection with any action brought in any such court to enforce this
Section
7.06
(an “
Enforcement Action
”); and (ii) having service of process made upon such stockholder in any
such Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be
deemed to have notice of and consented to the provisions of this
Section
7.06
.
ARTICLE 8
Amendments
These
by-laws
may be adopted, amended, or repealed by the stockholders entitled to vote;
provided, however,
that the Corporation may, in its Certificate of Incorporation, confer the power to adopt, amend, or repeal
these
by-laws
upon the Board of Directors;
and, provided further, that
any proposal by a stockholder to amend these
by-laws
will be subject to the provisions of
ARTICLE 2
of these
by-laws
except as otherwise required by law. The fact that such power has been so conferred upon the Board of Directors will not divest the stockholders of the power, nor limit their
power to adopt, amend, or repeal
by-laws.
-27-
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ANNUAL MEETING OF STOCKHOLDERS OF FUSE MEDICAL, INC.
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Date:
Wednesday, June 26, 2019
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Time:
4:00 P.M. (Central Daylight Time)
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Place:
Hyatt Regency North Dallas
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701 East Campbell Road
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Richardson, TX 75081
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See Voting Instruction on Reverse Side.
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Please make your marks like
this:
☒
Use only dark black pencil or pen
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The Board of Directors Recommends a Vote
FOR
proposals 1, 2, and 3.
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1:
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The election of five (5) directors to serve on the board
of directors
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Board
Recommends
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For
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Against
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Abstain
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01 Renato V. Bosita, Jr., MD
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☐
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☐
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☐
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For
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02 Mark W. Brooks
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☐
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☐
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☐
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For
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03 Ricky Raj S. Kalra, MD
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☐
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☐
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☐
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For
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04 William E. McLaughlin, III
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☐
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☐
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☐
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For
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05 Christopher C. Reeg
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☐
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☐
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☐
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For
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For
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Against
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Abstain
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2:
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The ratification of the appointment of Montgomery Coscia Greilich, LLP as our independent registered public accounting firm for the fiscal year ended December 31, 2018 and the fiscal year ending December 31, 2019.
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☐
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☐
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☐
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For
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For
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Against
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Abstain
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3:
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The ratification of the adoption of the amended and restated bylaws of Fuse Medical, Inc.
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☐
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☐
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☐
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For
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4:
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To transact such other business as may properly come before our Annual Meeting and any adjournment or postponement thereof.
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To attend the meeting and vote your
shares
☐
in person, please mark this box.
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Authorized Signatures - This section must be
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completed for your instructions to be executed.
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Please Sign Here
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Please Date Above
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Please Sign Here
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Please Date Above
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Please sign exactly as your name(s) appears on your stock
certificate. If held in joint tenancy, all persons should sign. Trustees, administrators, etc., should include title and authority. Corporations should provide the full name of the corporation and the title of the authorized officer signing the
proxy.
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Annual Stockholder Meeting of Fuse Medical, Inc.
to be held on Wednesday, June 26, 2019
for holders as of May 8, 2019
This proxy is being solicited on behalf of the Board of Directors
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INTERNET
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VOTE BY:
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TELEPHONE
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Go To
www.proxydocs.com/FZMD
• Cast your vote online
• View meeting documents
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OR
MAIL
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866-230-8609
• Use any touch-tone telephone
• Have your proxy card/voting instruction
form ready
• Follow the simple
recorded instructions
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OR
• Mark, sign and date your proxy card/voting instruction form
• Detach your proxy card/voting instruction form
• Return your proxy card/voting instruction form in the postage-paid envelope provided
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The undersigned hereby appoints Christopher C. Reeg and William E. McLaughlin III, as proxies, with full power of substitution
and revocation, and authorizes each of them to vote all of the shares of common stock of Fuse Medical, Inc. that the undersigned is entitled to vote at said meeting and any adjournment thereof upon the matters specified and upon such other matters
as may be properly brought before the annual meeting or any adjournment thereof, conferring authority upon such true and lawful attorneys-in-fact to vote in their discretion on such other matters as may properly come before the meeting and revoking
any proxy heretofore given.
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED AS
DIRECTED OR, IF NO DIRECTION IS GIVEN ON A SIGNED PROXY CARD, SHARES WILL BE VOTED FOR THE ELECTION OF THE DIRECTOR NOMINEES IN ITEM 1 and FOR THE PROPOSALS IN ITEMS 2 AND 3, AS RECOMMENDED BY THE BOARD OF DIRECTORS.
All votes must be received by 11:59 P.M., Central Daylight Time, June
25, 2019
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PROXY TABULATOR FOR
FUSE MEDICAL, INC.
P.O. BOX 8016
CARY, NC 27512-9903
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Revocable Proxy — Fuse Medical, Inc.
Annual Stockholder Meeting
June 26, 2019 4:00 p.m.
(Central Daylight Time)
This Proxy is solicited on behalf of the Board of Directors
The undersigned appoints Christopher C. Reeg and William E. McLaughlin III with full
power of substitution, to act as proxies for the undersigned, and to vote all shares of common stock of Fuse Medical, Inc. that the undersigned is entitled to vote at the Annual Meeting of Stockholders on Wednesday, June 26, 2019 at 4:00 p.m. at the
Hyatt Regency North Dallas, located at 701 East Campbell Road, Richardson, TX 75081, and any and all adjournments thereof.
This proxy is revocable and will be voted as directed. However, if no instructions are specified on a signed proxy card, the proxy will be voted FOR the
election of the director nominees specified in item 1 and FOR the proposals in items 2 and 3, as recommended by the Board of Directors.
(CONTINUED AND TO BE SIGNED ON REVERSE SIDE)
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