UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) April 29, 2010
_______________________________________________________________________________
UNISYS CORPORATION
_______________________________________________________________________________
(Exact Name of Registrant as Specified in its Charter)
Delaware 1-8729 38-0387840
_______________________________________________________________________________
(State or Other (Commission File Number) (IRS Employer
Jurisdiction of Identification No.)
Incorporation)
Unisys Way
Blue Bell, Pennsylvania 19424
_______________________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
(215) 986-4011
_______________________________________________________________________________
(Registrant's telephone number, including area code)
N/A
_______________________________________________________________________________
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
\ \ Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
\ \ Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
\ \ Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b)
\ \ Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 5.01. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b) In its proxy statement for its 2010 annual meeting of stockholders (the
"Annual Meeting"), Unisys Corporation (the "Company") proposed that its
stockholders approve an amendment to the Company's Bylaws to increase the
mandatory retirement age for directors from age 70 to age 72. The proxy
statement also stated that, if the amendment were approved by stockholders,
Theodore E. Martin, who is 70 years old, would stand for reelection at the
Annual Meeting and that, if the amendment were not approved by stockholders,
Mr. Martin would not be a nominee for election at the meeting and would retire
from the Board at the Annual Meeting. Approval of this Bylaw amendment
required the affirmative vote of not less than 80% of the outstanding shares of
the Company's common stock. Because the proposed amendment received the
affirmative vote of less than 80% of the outstanding shares, it was not
approved at the Annual Meeting held on April 29, 2010. Accordingly, Mr. Martin
retired from the Board at the Annual Meeting.
Item 5.07. Submission of Matters to a Vote of Security Holders.
(a) The Company's Annual Meeting was held on April 29, 2010.
(b) The following matters were voted upon at the Annual Meeting and received
the following votes:
(1) A proposal to approve amendments to the Company's Restated Certificate
of Incorporation and Bylaws to declassify the Board of Directors and provide
for the annual election of all directors beginning at the 2011 Annual Meeting
of Stockholders - 36,439,660 votes for; 497,096 votes against; 87,487
abstentions.
(2) A proposal to approve an amendment to the Company's Bylaws to increase
the mandatory retirement age for directors from age 70 to age 72 - 31,974,141
votes for; 4,998,151 votes against; 51,951 abstentions.
(3) A proposal to approve amendments to the Company's Restated Certificate
of Incorporation and Bylaws to decrease the minimum and maximum number of
directors that may comprise the Board of Directors to a minimum of 7 and a
maximum of 15 - 36,188,550 votes for; 764,009 votes against; 71,684 abstentions.
(4) Election of Directors as follows:
Henry C. Duques - 27,272,331 votes for; 2,487,842 votes against; 457,794
abstentions; 6,806,276 broker non-votes.
Charles B. McQuade - 25,415,530 votes for; 4,369,453 votes against; 432,984
abstentions; 6,806,276 broker non-votes.
(5) A proposal to ratify the selection of KPMG LLP as the company's
independent registered public accounting firm for 2010 - 35,863,702 votes for;
803,550 votes against; 356,991 abstentions.
(6) A proposal to approve the Unisys Corporation 2010 Long-Term Incentive
and Equity Compensation Plan - 22,486,239 votes for; 7,464,558 votes against;
267,170 abstentions; 6,806,276 broker non-votes.
Item 8.01. Other Events
At the Annual Meeting on April 29, 2010, the Company's stockholders approved
amendments (which were described in the Company's proxy statement for the
Annual Meeting) to the Company's Restated Certificate of Incorporation and
Bylaws to (1) declassify the Board of Directors and provide for the annual
election of all directors beginning at the 2011 annual meeting of stockholders
and (2) decrease the minimum and maximum number of directors that may comprise
the Board of Directors to a minimum of 7 and a maximum of 15. Accordingly, on
April 29, 2010, the Company filed a Restated Certificate of Incorporation
incorporating these amendments with the Secretary of State of the State of
Delaware and also amended its Bylaws. A copy of this Restated Certificate of
Incorporation is filed as Exhibit 3.1 to this report. A copy of the Bylaws as
amended through April 29, 2010 is filed as Exhibit 3.2 to this report.
Item 9.01. Financial Statements and Exhibits.
(d) The following exhibits are being filed herewith:
3.1 Restated Certificate of Incorporation of Unisys Corporation filed
with the Secretary of State of the State of Delaware on April 29,
2010.
3.2 Bylaws of Unisys Corporation, as amended through April 29, 2010.
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
UNISYS CORPORATION
Date: April 30, 2010 By: /s/ Nancy Straus Sundheim
---------------------
Nancy Straus Sundheim
Senior Vice President,
General Counsel and
Secretary
EXHIBIT INDEX
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Exhibit
No.
- ------
3.1 Restated Certificate of Incorporation of Unisys Corporation filed
with the Secretary of State of the State of Delaware on April 29,
2010.
3.2 Bylaws of Unisys Corporation, as amended through April 29, 2010.
RESTATED
CERTIFICATE OF INCORPORATION
OF
UNISYS CORPORATION
Unisys Corporation, a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. The name of the corporation is Unisys Corporation and the name
under which the corporation was originally incorporated was Burroughs Delaware
Incorporated. The date of filing of its original Certificate of Incorporation
with the Delaware Secretary of State was February 22, 1984.
2. The Restated Certificate of Incorporation of Unisys Corporation, in
the form attached hereto as Exhibit A, has been duly adopted by the Board of
Directors of Unisys Corporation in accordance with Section 245 of the General
Corporation Law of the State of Delaware. The Restated Certificate of
Incorporation attached hereto as Exhibit A only restates and integrates and
does not further amend the provisions of this corporation's Restated
Certificate of Incorporation, as heretofore amended or supplemented, and there
is no discrepancy between those provisions and the provisions of the Restated
Certificate of Incorporation attached hereto as Exhibit A.
3. The Restated Certificate of Incorporation so adopted reads in full
as set forth on Exhibit A attached hereto and incorporated herein by this
reference.
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be duly executed by its authorized officer on the 29th day
of April, 2010.
UNISYS CORPORATION
By /s/ Nancy Straus Sundheim
-------------------------
Name: Nancy Straus Sundheim
Title: Senior Vice President,
General Counsel and
Secretary
Exhibit A
RESTATED
CERTIFICATE OF INCORPORATION
OF
UNISYS CORPORATION
ARTICLE I
The name of the corporation (hereinafter called the "Corporation") is
Unisys Corporation.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The purpose or purposes for which the Corporation is organized are:
To engage in the business of designing, manufacturing and marketing of
components, products, systems and forms and supplies for the recording, storing,
handling, computing, processing and communicating of information and data, and
of providing related services; and
To engage in any other lawful act or activity for which a corporation may
be organized under the General Corporation Law of Delaware.
ARTICLE IV
Section 1. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 112,000,000 shares, divided into
two classes consisting of 72,000,000 shares of Common Stock, par value $.01 per
share ("Common Stock"), and 40,000,000 shares of Preferred Stock, par value $1
per share ("Preferred Stock"). The Board of Directors shall have authority by
resolution to issue the shares of Preferred Stock from time to time on such
terms as it may determine and to divide the Preferred Stock into one or more
series and, in connection with the creation of any such series, to determine
and fix by the resolution or resolutions providing for the issuance of shares
thereof:
A. the distinctive designation of such series, the number of
shares which shall constitute such series, which number may be increased or
decreased (but not below the number of shares then outstanding) from time to
time by action of the Board of Directors, and the stated value thereof, if
different from the par value thereof;
B. the dividend rate, the times of payment of dividends on the
shares of such series, whether dividends shall be cumulative, and, if so, from
what date or dates, and the preference or relation which such dividends will
bear to the dividends payable on any shares of stock of any other class or any
other series of this class;
C. the price or prices at which, and the terms and conditions on
which, the shares of such series may be redeemed;
D. whether or not the shares of such series shall be entitled to
the benefit of a retirement or sinking fund to be applied to the purchase or
redemption of such shares and, if so entitled, the amount of such fund and the
terms and provisions relative to the operation thereof;
E. whether or not the shares of such series shall be convertible
into, or exchangeable for, any other shares of stock of the Corporation or any
other securities and, if so convertible or exchangeable, the conversion price
or prices, or the rates of exchange, and any adjustments thereof, at which such
conversion or exchange may be made, and any other terms and conditions of such
conversion or exchange;
F. the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding up or upon any
distribution of the assets, of the Corporation;
G. whether or not the shares of such series shall have priority
over or parity with or be junior to the shares of any other class or series in
any respect, or shall be entitled to the benefit of limitations restricting (i)
the creation of indebtedness of the Corporation, (ii) the issuance of shares of
any other class or series having priority over or being on a parity with the
shares of such series in any respect, or (iii) the payment of dividends on, the
making of other distributions in respect of, or the purchase or redemption of
shares of any other class or series on parity with or ranking junior to the
shares of such series as to dividends or assets, and the terms of any such
restrictions, or any other restriction with respect to shares of any other
class or series on parity with or ranking junior to the shares of such series
in any respect;
H. whether such series shall have the voting rights, in addition
to any voting rights provided by law and, if so, the terms of such voting
rights, which may be general or limited; and
I. any other powers, preferences, privileges, and relative
participating, optional, or other special rights of such series, and the
qualifications, limitations or restrictions thereof, to the full extent now or
hereafter permitted by law.
The powers, preferences and relative participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding. All shares of any one series of
Preferred Stock shall be identical in all respects with all other shares of
such series, except that shares of any one series issued at different times
may differ as to the dates from which dividends thereon shall be cumulative.
Section 2. Each holder of Common Stock shall be entitled to one vote for
each share of Common Stock held of record on all matters on which stockholders
generally are entitled to vote. Subject to the provisions of law and the
rights of the Preferred Stock and any other class or series of stock having a
preference as to dividends over the Common Stock then outstanding, dividends
may be paid on the Common Stock at such times and in such amounts as the Board
of Directors shall determine. Upon the dissolution, liquidation or winding up
of the Corporation, after any preferential amounts to be distributed to the
holders of the Preferred Stock and any other class or series of stock having a
preference over the Common Stock then outstanding have been paid or declared
and set apart for payment, the holders of the Common Stock shall be entitled to
receive all the remaining assets of the Corporation available for distribution
to its stockholders ratably in proportion to the number of shares held by them,
respectively.
Section 3. Junior Preferred Stock:
A. Designation and Amount. The shares of such series shall be
designated as "Junior Participating Preferred Stock" (the "Junior Preferred
Stock") and the number of shares constituting such series shall be 1,500,000.
Such number of shares may be increased or decreased by resolution of the Board
of Directors; provided, that no decrease shall reduce the number of shares of
Junior Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Corporation.
B. Dividends and Distributions.
(i) Subject to the prior and superior rights of the holders
of any shares of any series of Preferred Stock ranking prior and superior to
the shares of Junior Preferred Stock with respect to dividends, the holders of
shares of Junior Preferred Stock, in preference to the holders of Common Stock
and of any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Junior Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $15 or (b) subject to the provision for
adjustment hereinafter set forth, 300 times the aggregate per share amount of
all cash dividends, and 300 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock, or a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise), declared on the Common
Stock since the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Junior Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(ii) The Corporation shall declare a dividend or
distribution on the Junior Preferred Stock as provided in Paragraph (i) of this
Subsection immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $15 per share on the Junior Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on
outstanding shares of Junior Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Junior
Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of Junior
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Junior Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Junior Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the payment
thereof.
C. Voting Rights. The holders of shares of Junior Preferred
Stock shall have the following voting rights:
(i) Subject to the provision for adjustment hereinafter set
forth, each share of Junior Preferred Stock shall entitle the holder thereof to
300 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders of shares
of Junior Preferred Stock were entitled immediately prior to such event shall
be adjusted by multiplying such number by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(ii) Except as otherwise provided herein or by law, the
holders of shares of Junior Preferred Stock and the holders of shares of Common
Stock shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(iii) The Certificate of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Junior Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Junior Preferred Stock, voting together
as a single series.
(iv) Except as set forth herein, holders of Junior
Preferred Stock shall have no voting rights.
D. Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or
distributions payable on the Junior Preferred Stock as provided in Subsection B
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Junior Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(a) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for consideration
any shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Junior Preferred Stock;
(b) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Junior
Preferred Stock, except dividends paid ratably on the Junior Preferred Stock
and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are
then entitled; or
(c) purchase or otherwise acquire for consideration
any shares of Junior Preferred Stock, or any shares of stock ranking on a
parity with the Junior Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(ii) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under Paragraph (i) of
this Subsection (D) purchase or otherwise acquire such shares at such time and
in such manner.
E. Reacquired Shares. Any shares of Junior Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new series of Preferred
Stock, subject to the conditions and restrictions on issuance set forth herein.
F. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution, or winding up) to the Junior
Preferred Stock unless, prior thereto, the holders of shares of Junior
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Junior
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 300
times the aggregate amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Junior
Preferred Stock, except distributions made ratably on the Junior Preferred Stock
and all other such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any time declare or pay
any dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of shares of
Junior Preferred Stock were entitled immediately prior to such event under the
proviso in clause (1) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
G. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Junior Preferred Stock shall at the same time be similarly exchanged or changed
in an amount per share (subject to the provision for adjustment hereinafter set
forth) equal to 300 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Junior Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
H. No Redemption. The shares of Junior Preferred Stock shall
not be redeemable.
I. Rank. Nothing herein shall preclude the Board of Directors
from creating or authorizing any class or series of Preferred Stock ranking on
a parity with or prior to the Junior Preferred Stock as to the payment of
dividends or the distribution of assets.
ARTICLE V
Section 1. Vote Required for Certain Business Combinations.
A. Higher Vote for Certain Business Combinations. In addition
to any affirmative vote required by law or this Restated Certificate of
Incorporation, and except as otherwise expressly provided in Section 2 of this
Article V:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of transactions) to or
with any Interested Stockholder or any Affiliate of any Interested Stockholder
of any assets of the Corporation or any Subsidiary having an aggregate Fair
Market Value of $50,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market Value
of $50,000,000 or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf of an
Interested Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class or equity or
convertible securities of the Corporation or any Subsidiary which is directly
or indirectly owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock"),
voting together as a single class (it being understood that for purposes of
this Article V, each share of the Voting Stock shall have the number of votes
granted to it pursuant to Article IV of this Restated Certificate of
Incorporation). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that a lesser percentage may be specified,
by law or in any agreement with any national securities exchange or otherwise.
B. Definition of "Business Combination". The term "Business
Combination" as used in this Article V shall mean any transaction which is
referred to in any one or more of clauses (i) through (v) of Paragraph A of
this Section I.
Section 2. When Higher Vote is Not Required. The provisions of Section 1
of this Article V shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provisions of this Restated
Certificate of Incorporation, if all of the conditions specified in either the
following Paragraphs A and B are met:
A. Approval by Disinterested Directors. The Business Combination
shall have been approved by a majority of the Disinterested Directors (as
hereinafter defined).
B. Price and Procedure Requirements. All of the following
conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market
Value (as hereinafter defined) as of the date of the consummation of the
Business Combination of consideration other than cash to be received per share
by holders of Common Stock in such Business Combination shall be at least equal
to the higher of the following:
(a) (if applicable) the highest per share price
(including any brokerage commission, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any shares of Common Stock (or for
any shares of common stock of Burroughs Corporation, a Michigan corporation,
the predecessor to the Corporation) acquired by it (1) within the two-year
period immediately prior to the first public announcement of the proposal of
the Business Combination (the "Announcement Date") or (2) in the transaction in
which it became an Interested Stockholder, whichever is higher; and
(b) the Fair Market Value per share of Common Stock
(or for any shares of common stock of Burroughs Corporation, a Michigan
corporation, the predecessor of the Corporation) on the Announcement Date or on
the date on which the Interested Stockholder became an Interested Stockholder
(such latter date is referred to in this Article V as the "Determination Date"),
whichever is higher.
(ii) The aggregate amount of the cash and the Fair Market
Value as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of shares of
any other class of outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the requirements of this
paragraph B(ii) shall be required to be met with respect to every class of
outstanding Voting Stock, whether or not the Interested Stockholder has
previously acquired any shares of a particular class of Voting Stock):
(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any shares of such class of Voting
Stock acquired by it (1) within the two-year period immediately prior to the
Announcement Date or (2) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(b) (if applicable) the highest preferential amount
per share to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation; and
(c) the Fair Market Value per share of such class of
Voting Stock on the Announcement Date or on the Determination Date, whichever
is higher.
(iii) The consideration to be received by holders of a
particular class of outstanding Voting Stock (including Common Stock) shall be
in cash or in the same form as the Interested Stockholder has previously paid
for shares of such class of Voting Stock. If the Interested Stockholder has
paid for shares of any class of Voting Stock with varying forms of
consideration, the form of consideration for such class of Voting Stock shall
be either cash or the form used to acquire the largest number of shares of such
class of Voting Stock previously acquired by it.
(iv) After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such Business
Combination: (a) except as approved by a majority of the Disinterested
Directors, there shall have been no failure to declare and pay at the regular
date therefor any full quarterly dividends (whether or not cumulative) on the
outstanding Preferred Stock; (b) there shall have been (1) no reduction in the
annual rate of dividends paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock), except as approved by a majority
of the Disinterested Directors, and (2) an increase in such annual rate of
dividends as necessary to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is approved by a
majority of the Disinterested Directors; and (c) such Interested Stockholder
shall have not become the beneficial owner of any additional shares of Voting
Stock except as part of the transaction which results in such Interested
Stockholder becoming an Interested Stockholder.
(v) After such Interested Stockholder has become an
Interested Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a stockholder), of
any loans, advances, guarantees, pledges or other financial assistance or any
tax credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder (or
any subsequent provisions replacing such Act, rules or regulations) shall be
mailed to public stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
Section 3. Certain Definitions. For the purpose of this Article V:
A. A "person" shall mean any individual or firm, corporation,
partnership, limited partnership, joint venture, trust, unincorporated
association or other entity.
B. "Interested Stockholder" shall mean any person (other than
the Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of
more than 20% of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 20% or more of the voting power of
then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns, directly or indirectly;
or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b) the right to vote
pursuant to any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly,
by any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Voting Stock.
D. For the purpose of determining whether a person is an
Interested Stockholder pursuant to Paragraph B of this Section 3, the number of
shares of Voting Stock deemed to be outstanding shall include shares deemed
owned through application of Paragraph C of this Section 3, but shall not
include any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on February 24, 1984.
F. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in Paragraph B of this Section 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
G. "Disinterested Director" means any member of the Board of
Directors of the Corporation (the "Board") who is unaffiliated with the
Interested Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of a
Disinterested Director who is not an affiliate of the Interested Stockholder
and is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board.
H. "Fair Market Value" means (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange - Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on the Exchange,
on the principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in use, or if no such quotations
are available, the fair market value on the date in question of a share of such
stock as determined by the Board in good faith; and (ii) in the case of
property other than cash or stock, the fair market value of such property on
the date in question as determined by the Board in good faith.
I. In the event of any Business Combination in which the
Corporation survives, the phrase "other consideration to be received" as used
in Paragraphs B(i) and (ii) of Section 2 of this Article V shall include the
shares of Common Stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
Section 4. Powers of the Board of Directors. A majority of the directors
of the Corporation shall have the power and duty to determine for the purposes
of this Article V, on the basis of information known to them after reasonable
inquiry, (A) whether a person is an Interested Stockholder, (B) the number of
shares of Voting Stock beneficially owned by any persons, (C) whether a person
is an Affiliate or Associate of another and (D) whether the assets which are
the subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market Value of
$50,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article V shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
ARTICLE VI
BOARD OF DIRECTORS
Section 1. Number. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors which, subject to any
right of the holders of any series of Preferred Stock then outstanding to elect
additional directors under specified circumstances, shall consist of not less
than 7 nor more than 15 persons. The exact number of directors within the
minimum and maximum limitations specified in the preceding sentence shall be
fixed from time to time by the Board of Directors pursuant to a resolution
adopted by a majority of the entire Board of Directors.
Section 2. Terms. The directors, other than those who may be elected by
the holders of any series of Preferred Stock, shall, commencing with the Annual
Meeting of Stockholders scheduled to be held in calendar year 2011 (the "2011
Annual Meeting"), be elected at each Annual Meeting of Stockholders for a term
expiring at the next Annual Meeting of Stockholders following their election
and shall remain in office until their successors shall have been elected and
qualified or until their earlier death, resignation, retirement,
disqualification or removal. The term of office of each director serving on
the Board of Directors immediately prior to the election of directors at the
2011 Annual Meeting (other than any directors elected by holders of Preferred
Stock) shall expire at the 2011 Annual Meeting, notwithstanding that any such
director may have been elected for a term that extended beyond the date of the
2011 Annual Meeting, but such director may remain in office beyond the
expiration of such term expiring at the 2011 Annual Meeting until a successor
is elected and qualified or until such director's earlier death, resignation,
retirement, disqualification or removal.
Section 3. Stockholder Nomination of Director Candidates. Advance notice
of stockholder nominations for the election of directors shall be given in the
manner provided in the Bylaws of the Corporation.
Section 4. Newly Created Directorships and Vacancies. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by a majority vote of the directors then in office, even if
less than a quorum. Any director so chosen (other than a director elected by
holders of Preferred Stock) shall hold office for a term expiring at the next
Annual Meeting of Stockholders following his or her election and shall remain
in office until such director's successor shall have been elected and qualified
or until such director's earlier death, resignation, retirement,
disqualification or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Section 5. Removal. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time, with or without cause, by
the affirmative vote of the holders of at least 80% of the voting power of all
of the shares of the Corporation entitled to vote thereon, voting together as a
single class.
ARTICLE VII
STOCKHOLDER ACTION
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders. Except as otherwise required by law and subject
to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, special
meetings of stockholders of the Corporation may be called only by the Board of
Directors pursuant to a resolution approved by a majority of the entire Board
of Directors.
ARTICLE VIII
BYLAW AMENDMENTS
The Board of Directors shall have power to make, alter, amend and repeal
the Bylaws of the Corporation (except so far as the Bylaws of the Corporation
adopted by the stockholders shall otherwise provide). Any Bylaws made by the
Directors under the powers conferred hereby may be altered, amended or repealed
by the Directors or by the stockholders. Notwithstanding the foregoing and
anything contained in this Restated Certificate of Incorporation or the Bylaws
to the contrary, Sections 2 and 3 of Article I and Sections 1 through 5 of
Article II of the Bylaws shall not be altered, amended or repealed and no
provision inconsistent therewith shall be adopted without the affirmative vote
of the holders of at least 80% of the voting power of all the shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class.
ARTICLE IX
AMENDMENTS TO
CERTIFICATE OF INCORPORATION
Notwithstanding any other provisions of the Certificate of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
Bylaws of the Corporation), the affirmative vote of the holders of 80% or more
of the voting power of the shares of the then outstanding voting stock of the
Corporation, voting together as a single class, shall be required to amend or
repeal, or adopt any provisions inconsistent with, Articles V, VI, VII, VIII or
this Article IX of this Restated Certificate of Incorporation.
ARTICLE X
Section 1. Elimination of Certain Liability of Directors. A director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in Paragraph (b) hereof, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. The right to indemnification conferred in this Section
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action of
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under Paragraph
(a) of this Section is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of providing such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
UNISYS CORPORATION
BYLAWS
ARTICLE I
Stockholders
SECTION 1. Annual Meeting of Stockholders.
The Board of Directors may fix the date, time and place of the annual
meeting of stockholders, but if no such date and time is fixed and designated
by the Board of Directors, the annual meeting of stockholders shall be held on
the last Thursday in April in each year. At the annual meeting, the stockholders
then entitled to vote shall elect directors and shall transact such other
business as may properly be brought before the meeting.
SECTION 2. Special Meetings of Stockholders.
Subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
special meetings of the stockholders for any purpose may be called only by a
majority of the entire Board of Directors.
SECTION 3. Stockholder Action.
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
SECTION 4. Place of Meeting.
All meetings of the stockholders of the Corporation shall be held at such
place as shall be designated by the Board of Directors in the notice of such
meeting.
SECTION 5. Notice of Business to be Transacted.
(a) Annual Meetings.
(1) Nominations of persons for election to the Board of Directors
of the Corporation shall be made pursuant to Article II, Section 5 of these
bylaws. The proposal of business other than director nominations to be
transacted by the stockholders may be made at an annual meeting of stockholders
(a) pursuant to the Corporation's notice with respect to such meeting, (b) by
or at the direction of the Board of Directors, or (c) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of the notice
provided for in these bylaws, who is entitled to vote at the meeting and who
has complied with the notice procedures set forth in this section.
(2) For business other than director nominations to be properly
brought before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (1) of this section, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such business must
be a proper matter for stockholder action under the Delaware General
Corporation Law (the "GCL"). To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Corporation not less than 90 days prior to the first anniversary of the
preceding year's annual meeting of stockholders; provided, however, that in the
event that the date of the annual meeting is more than 30 days prior to or more
than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the 90th day prior to such annual
meeting or later than the 7th day following the day on which notice of the date
of such meeting is first given. Such stockholder's notice shall set forth (a)
as to any business that the stockholder proposes to bring before the meeting, a
brief description of such business, the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; and (b) as
to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the proposal is made (i) the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial owner and (ii)
the class and number of shares of the capital stock of the Corporation which
are owned beneficially and of record by such stockholder and such beneficial
owner.
(3) Only such business shall be conducted at an annual meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this section and, with respect to the election of
directors, Article II, Section 5. The chairman of the meeting shall determine
whether any business proposed to be transacted by the stockholders has been
properly brought before the meeting and, if any proposed business has not been
properly brought before the meeting, the chairman shall declare that such
proposed business shall not be presented for stockholder action at the meeting.
(b) Special Meetings. Nominations of persons for election to the Board
of Directors may be made by stockholders at special meetings of stockholders at
which directors are to be selected pursuant to the stockholders' notice
requirements of Article II, Section 5 of these bylaws. Stockholders shall not
propose business at any special meetings of stockholders.
(c) Proxy Rules. Nothing in this Section 5 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Securities Exchange Act of
1934.
SECTION 6. Quorum, Manner of Acting and Adjournment and Postponement.
(a) Quorum, Adjournment and Postponement. The holders of a majority of
the shares entitled to vote, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders except as otherwise
provided by the GCL, by the certificate of incorporation or by these bylaws.
Whether or not a quorum is present or represented at any meeting of the
stockholders, the chairman of the meeting shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting. At any such adjourned meeting at which a quorum is present or
represented, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting. The stockholders present in person
or by proxy at a meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding withdrawal of enough stockholders
to leave less than a quorum. Any meeting of stockholders, whether special or
annual, may be postponed by resolution of the Board of Directors upon public
notice given prior to the date of such meeting.
(b) Manner of Acting. In all matters other than the election of
directors, the affirmative vote of the majority of shares present in person or
represented by proxy at the meeting and entitled to vote thereon shall be the
act of the stockholders, unless the question is one upon which, by express
provision of the applicable statute, the certificate of incorporation or these
bylaws, a different vote is required in which case such express provision shall
govern and control the decision of the question.
SECTION 7. Required Vote for Directors
(a) Required Vote. Each director to be elected by stockholders shall be
elected by the vote of the majority of the votes cast at any meeting for the
election of directors at which a quorum is present, provided that if the number
of nominees exceeds the number of directors to be elected, directors shall be
elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors. For purposes of this bylaw, a majority of votes cast shall mean
that the number of shares voted "for" a director's election exceeds 50% of the
number of votes cast with respect to that director's election. Votes cast
shall include votes to withhold authority in each case and exclude abstentions
with respect to that director's election.
(b) Resignation. If a nominee for director who is an incumbent director
does not receive the vote required by Article I, Section 7(a) of these bylaws
at any meeting at which he or she has been nominated for election and no
successor has been elected at such meeting, the director shall promptly tender
his or her resignation to the Board of Directors in accordance with the
irrevocable undertaking specified in Article I, Section 8 of these bylaws or
any other commitment, undertaking or agreement of such director. The
Nominating and Corporate Governance Committee (or such other committee as the
Board of Directors may appoint in accordance with Article II, Section 10 of
these bylaws) shall make a recommendation to the Board of Directors as to
whether to accept or reject the tendered resignation, or whether other action
should be taken. The Board of Directors shall act on the tendered resignation,
taking into account the Nominating and Corporate Governance Committee's
recommendation, and publicly disclose (by a press release, a filing with the
Securities and Exchange Commission or other broadly disseminated means of
communication) its decision regarding the tendered resignation and the
rationale behind the decision within 90 days from the date of the certification
of the election results. The Nominating and Corporate Governance Committee in
making its recommendation, and the Board of Directors in making its decision,
may each consider any factors or other information that it considers
appropriate and relevant. The director who tenders his or her resignation
shall not participate in the recommendation of the Nominating and Corporate
Governance Committee or the decision of the Board of Directors with respect to
his or her resignation. If such incumbent director's resignation is not
accepted by the Board of Directors, such director shall continue to serve until
the next annual meeting and until his or her successor is duly elected, or his
or her earlier resignation or removal. If a director's resignation is accepted
by the Board of Directors pursuant to this bylaw, or if a nominee for director
is not elected and the nominee is not an incumbent director, then the Board of
Directors, in its sole discretion, may fill any resulting vacancy pursuant to
the provisions of Article II, Section 3 of these bylaws or may decrease the
size of the Board of Directors pursuant to the provisions of Article II, Section
1 of these bylaws.
SECTION 8. Directors' Questionnaire, Representation and Agreement.
To be eligible to be a nominee for election or reelection as a director of
the Corporation, a person must deliver (in accordance with the time periods
prescribed for delivery of notice under Article II, Section 5 of these bylaws)
to the Secretary at the principal executive offices of the Corporation a
written questionnaire with respect to the background and qualification of such
person and the background of any other person or entity on whose behalf the
nomination is being made (which questionnaire shall be provided by the
Secretary upon written request) and a written representation and agreement (in
the form provided by the Secretary upon written request), which agreement shall
(i) include an irrevocable undertaking to tender his or her resignation in the
event that such director does not receive the vote required by Article I,
Section 7(a) of these bylaws at any meeting at which he or she has been
nominated for election and no successor has been elected at such meeting and
(ii) provide that such person (A) will abide by the requirements of Article I,
Sections 7(a) and (b) of these bylaws, (B) is not and will not become a party
to (1) any agreement, arrangement or understanding with, and has not given any
commitment or assurance to, any person or entity as to how such person, if
elected as a director of the Corporation, will act or vote on any issue or
question (a "Voting Commitment") that has not been disclosed to the Corporation
or (2) any Voting Commitment that could limit or interfere with such person's
ability to comply, if elected as a director of the Corporation, with such
person's fiduciary duties under applicable law, (C) is not and will not become
a party to any agreement, arrangement or understanding with any person or
entity other than the Corporation with respect to any direct or indirect
compensation, reimbursement or indemnification in connection with service or
action as a director that has not been disclosed therein, and (D) in such
person's individual capacity and on behalf of any person or entity on whose
behalf the nomination is being made, would be in compliance, if elected as a
director of the Corporation, and will comply with all applicable publicly
disclosed corporate governance, conflict of interest, confidentiality and stock
ownership and trading policies and guidelines of the Corporation.
SECTION 9. Organization and Conduct of Business.
At every meeting of the stockholders, the Chairman of the Board, if there
be one, or in the case of a vacancy in the office or absence of the Chairman of
the Board, one of the following persons present in the order stated: the Vice
Chairman, if one has been appointed, the Chief Executive Officer, the President,
the Vice Presidents in their order of rank or seniority, a chairman designated
by the Board of Directors or a chairman chosen by the stockholders entitled to
cast a majority of the votes which all stockholders present in person or by
proxy are entitled to cast, shall act as chairman, and the Secretary, or, in
the absence of the Secretary, an Assistant Secretary, or in the absence of the
Secretary and the Assistant Secretaries, a person appointed by the chairman,
shall act as secretary. The chairman of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including
such regulation of the manner of voting and the conduct of discussion as may
seem to him in order.
SECTION 10. Voting.
(a) General Rule. Unless otherwise 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 having voting power held by such
stockholder.
(b) Voting and Other Action by Proxy. At any meeting of the stockholders,
every stockholder entitled to vote may vote in person or by proxy authorized by
an instrument in writing or by a transmission permitted by law filed in
accordance with the procedure established for the meeting. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this paragraph may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
All voting, except where otherwise required by law, these bylaws or the
certificate of incorporation, may be by a voice vote. Any vote not taken by
voice shall be taken by ballots, each of which shall state the name of the
stockholder or proxy voting and such other information as may be required under
the procedure established for the meeting.
SECTION 11. Voting Lists.
The Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote
at the meeting. The list shall be arranged in alphabetical order, showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. This list shall presumptively
determine the identity of the stockholders entitled to vote at the meeting and
the number of shares held by each of them.
SECTION 12. Inspectors of Election.
(a) Appointment. All elections of directors shall be by written ballot.
In advance of any meeting of stockholders the Board of Directors shall appoint
one or more inspectors to act at the meeting. No person who is a candidate for
office shall act as an inspector. In case any person appointed as an inspector
fails to appear or fails or refuses to act, the vacancy may be filled by
appointment made by the Board of Directors in advance of the convening of the
meeting, or at the meeting by the chairman of the meeting.
(b) Duties. Inspectors shall determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum and the authenticity, validity and effect of proxies and
ballots, shall receive votes or ballots, shall hear and determine all
challenges and questions in any way arising in connection with the right to
vote, shall count and tabulate all votes and ballots, shall determine and
certify the result, and shall do such acts as may be proper to conduct the
election or vote with fairness to all stockholders. If there be more than one
inspector of election, the decision, act or certificate of a majority shall be
effective in all respects as the decision, act or certificate of all.
(c) Report. On request of the chairman of the meeting or of any
stockholder or his proxy, the inspectors shall make a report in writing of any
challenge or question or matter determined by them, and execute a certificate
of any fact found by them.
(d) Opening and Closing of Polls. The date and time of the opening and
closing of the polls for each matter to be voted upon at the meeting shall be
determined by the chairman of the meeting and announced at the meeting. No
ballot, proxies or votes, nor any revocations thereof or changes thereto, shall
be accepted by the inspectors after the closing of the polls unless the Court
of Chancery in Delaware upon application by a stockholder shall determine
otherwise.
ARTICLE II
Directors
SECTION 1. Number.
The business and affairs of the Corporation shall be managed under the
direction of the Board of Directors which, subject to any right of the holders
of any series of Preferred Stock then outstanding to elect additional directors
under specified circumstances, shall consist of not less than 7 nor more than
15 persons. The exact number of directors within the minimum and maximum
limitations specified in the preceding sentence shall be fixed from time to
time by the Board of Directors pursuant to a resolution adopted by a majority
of the entire Board of Directors.
SECTION 2. Terms.
The directors, other than those who may be elected by the holders of any
series of Preferred Stock, shall, commencing with the Annual Meeting of
Stockholders scheduled to be held in calendar year 2011 (the "2011 Annual
Meeting"), be elected at each Annual Meeting of Stockholders for a term expiring
at the next Annual Meeting of Stockholders following their election and shall
remain in office until their successors shall have been elected and qualified or
until their earlier death, resignation, retirement, disqualification or removal.
The term of office of each director serving on the Board of Directors
immediately prior to the election of directors at the 2011 Annual Meeting (other
than any directors elected by holders of Preferred Stock) shall expire at the
2011 Annual Meeting, notwithstanding that any such director may have been
elected for a term that extended beyond the date of the 2011 Annual Meeting,
but such director may remain in office beyond the expiration of such term
expiring at the 2011 Annual Meeting until a successor is elected and qualified
or until such director's earlier death, resignation, retirement ,
disqualification or removal.
SECTION 3. Newly Created Directorships and Vacancies.
Subject to the rights of the holders of any series of Preferred Stock then
outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the directors then
in office, even if less than a quorum. Any director so chosen (other than a
director elected by holders of Preferred Stock) shall hold office for a term
expiring at the next Annual Meeting of Stockholders following his or her
election and shall remain in office until such director's successor shall have
been elected and qualified or until such director's earlier death, resignation,
retirement, disqualification or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
SECTION 4. Removal.
Subject to the rights of the holders of any series of Preferred Stock then
outstanding, any director, or the entire Board of Directors, may be removed
from office at any time, with or without cause, by the affirmative vote of the
holders of at least 80% of the voting power of all of the shares of the
Corporation entitled to vote thereon, voting together as a single class.
SECTION 5. Nomination of Director Candidates.
(a) Nominations of candidates for election as directors of the Corporation
at any meeting of stockholders called for election of directors (an "Election
Meeting") may be made by the Board of Directors or by any stockholder entitled
to vote at such Election Meeting.
(b) Nominations made by the Board of Directors shall be made at a meeting
of the Board of Directors, or by written consent of directors in lieu of a
meeting, not less than 30 days prior to the date of the Election Meeting, and
such nomination shall be reflected in the minute books of the Corporation as of
the date made. At the request of the Secretary of the Corporation each
proposed nominee shall provide the Corporation with such information concerning
himself as is required, under the rules of the Securities and Exchange
Commission, to be included in the Corporation's proxy statement soliciting
proxies for his election as a director.
(c) Not less than 90 days prior to the date of the Election Meeting in
the case of an annual meeting, and not more than 7 days following the date of
notice of the meeting in the case of a special meeting, any stockholder who
intends to make a nomination at the Election Meeting shall deliver a notice to
the Secretary of the Corporation setting forth (i) the name, age, business
address and residence address of each nominee proposed in such notice, (ii)
the principal occupation or employment of each such nominee, (iii) the number
of shares of capital stock of the Corporation which are beneficially owned by
each such nominee, (iv) a statement that the nominee is willing to be nominated
and (v) such other information concerning each such nominee as would be
required, under the rules of the Securities and Exchange Commission, in a proxy
statement soliciting proxies for the election of such nominees.
(d) In the event that a person is validly designated as a nominee in
accordance with paragraph (b) or paragraph (c) hereof and shall thereafter
become unable or unwilling to stand for election to the Board of Directors, the
Board of Directors or the stockholder who proposed such nominee, as the case
may be, may designate a substitute nominee.
(e) If the Chairman of the Election Meeting determines that a nomination
was not made in accordance with the foregoing procedures, such nominations
shall be void.
No person shall be elected a director of the Corporation after having
attained the age of seventy years.
SECTION 6. Organization.
At every meeting of the Board of Directors, the Chairman of the Board or,
in the case of a vacancy in the office or absence of the Chairman of the Board,
a chairman chosen by a majority of the directors present, shall preside, and
the Secretary, or, in the absence of the Secretary, an Assistant Secretary, or
in the absence of the Secretary and the Assistant Secretaries, any person
appointed by the chairman of the meeting, shall act as secretary.
SECTION 7. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place or
places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required.
SECTION 8. Special Meetings.
Special meetings of the Board of Directors shall be held whenever called
by the Chairman of the Board or by three or more of the directors and shall be
held at such place, on such date and at such time as they or he shall fix.
SECTION 9. Quorum, Manner of Acting and Adjournment.
(a) General Rule. One-half of the total number of directors shall
constitute a quorum for the transaction of business at all meetings of the
Board of Directors. The vote of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board of
Directors, except (1) as may be otherwise specifically provided by the GCL or
by the certificate of incorporation; and (2) for any amendment to these bylaws,
which shall require the vote of not less than a majority of the directors then
in office. If a quorum is not present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without further waiver or notice other than announcement at the meeting,
until a quorum is present.
(b) Unanimous Written Consent. Unless otherwise restricted by the
certificate of incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting, if all
members of the Board consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the Board of Directors.
(c) Conference Telephone Meetings. One or more directors of the Board of
Directors may participate in a meeting by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation in this manner constitutes
presence in person at the meeting.
SECTION 10. Committees of the Board of Directors.
(a) Establishment and Powers. The Board of Directors may, by resolution
adopted by a majority of the whole Board, establish one or more committees,
each committee to consist of one or more directors. The Board may designate
one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee and the alternate or
alternates, if any, designated for such member, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not they constitute a quorum, may unanimously appoint another director to act
at the meeting in the place of any such absent or disqualified member. Subject
to the provisions of the GCL, committees established by the Board of Directors
shall have such power and authority as provided by resolution of the board.
Each committee so formed shall have such name as may be determined from time
to time by resolution adopted by the Board of Directors and shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
(b) Committee Procedures and Conduct of Business. Each committee of the
Board of Directors may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings of committees. A majority of the members
of any committee shall constitute a quorum unless the committee shall consist
of one (1) or two (2) members, in which event one (1) member and two (2)
members, respectively, shall constitute a quorum; and all matters shall be
determined by a majority vote of the members present. Action may be taken by
any committee without a meeting if all members thereof consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of such committee.
SECTION 11. Compensation of Directors.
Unless otherwise restricted by the certificate of incorporation, the Board
of Directors shall have the authority to fix the fees and other compensation of
directors.
SECTION 12. Chairman of the Board
The Board of Directors shall elect the Chairman of the Board from among
the members of the board. The Chairman of the Board shall preside at all
meetings of the stockholders and of the Board of Directors and shall perform
such other duties as may from time to time be assigned to him or her by the
Board of Directors.
ARTICLE III
Notice - Waivers - Meetings
SECTION 1. Notice, What Constitutes.
Whenever, under the provisions of the GCL or of the certificate of
incorporation or of these bylaws, notice is required to be given to any
director or stockholder, such notice may be given in writing, by mail or by
telegram (with messenger service specified), telex or TWX (with answerback
received) or courier service, charges prepaid, or by facsimile transmission to
the address (or to the telex, TWX, facsimile or telephone number) of the person
appearing on the books of the Corporation, or in the case of directors,
supplied to the Corporation for the purpose of notice. If the notice is sent
by mail, telegraph or courier service, it shall be deemed to be given when
deposited in the United States mail or with a telegraph office or courier
service for delivery to that person or, in the case of telex or TWX, when
dispatched, or in the case of facsimile transmission, when electronically
received.
SECTION 2. Notice of Meetings of Board of Directors.
Notice of a regular meeting of the Board of Directors need not be given.
Notice of every special meeting of the Board of Directors shall be given to
each director by telephone or in writing at least 24 hours (in the case of
notice by telephone, telex, TWX or facsimile transmission) or 48 hours (in the
case of notice by telegraph, courier service or express mail) or five days (in
the case of notice by first class mail) before the time at which the meeting is
to be held. Every such notice shall state the time and place of the meeting.
Unless otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
SECTION 3. Notice of Meetings of Stockholders.
Written notice of the place, date and hour of every meeting of the
stockholders, whether annual or special, shall be given to each stockholder of
record entitled to vote at the meeting not less than ten nor more than 60 days
before the date of the meeting and shall state the purpose or purposes thereof.
If the notice is sent by mail, it shall be deemed to have been given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at the address of the stockholder as it appears on the records of
the Corporation.
SECTION 4. Waivers of Notice.
(a) Written Waiver. Whenever notice is required to be given under any
provisions of the GCL or the certificate of incorporation or these bylaws, a
written waiver, signed by the person or persons entitled to the notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders, directors, or members of a committee of
directors need be specified in any written waiver of notice of such meeting.
(b) Waiver by Attendance. Attendance of a person at a meeting, either in
person or by proxy, shall constitute a waiver of notice of such meeting, except
where a person attends a meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened.
ARTICLE IV
Officers
SECTION 1. Number, Qualifications and Designation.
The officers of the Corporation shall be chosen by the Board of Directors
and shall be a Chief Executive Officer, a President, one or more Vice
Presidents, a Secretary, a Treasurer, a Controller and such other officers as
may be elected in accordance with the provisions of Section 3 of this Article
IV. Any number of offices may be held by the same person.
SECTION 2. Election and Term of Office.
The officers of the Corporation, except those appointed by delegated
authority pursuant to section 3 of this Article IV, shall be elected annually
by the Board of Directors, and each such officer shall hold office for a term
of one year and until a successor is elected and qualified, or until his or her
earlier resignation or removal. Any officer may resign at any time upon
written notice to the Corporation. Any officer may be removed from office at
any time by the affirmative written vote of a majority of the directors then in
office. Notwithstanding anything to the contrary in these by-laws and
regardless of whether the officer has tendered his/her resignation, an
officer's term of office and employment shall terminate on the first day of the
month following the officer's attainment of age sixty-five unless, in the case
of any particular officer, the Board of Directors shall have determined
otherwise.
SECTION 3. Other Officers, Committees and Agents.
The Board of Directors may from time to time elect such other officers,
which may include, at the Board's discretion, the Chairman of the Board and a
Vice Chairman, and appoint such committees, employees or other agents as it
deems necessary, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as are provided in these bylaws, or as the
Board of Directors may from time to time determine. The Board of Directors may
delegate to any officer or committee the power to appoint subordinate officers
and to retain or appoint employees or other agents, or committees thereof, and
to prescribe the authority and duties of such subordinate officers, committees,
employees or other agents.
SECTION 4. The Chief Executive Officer.
The Chief Executive Officer shall have general responsibility for the
management and control of the business of the Corporation, shall perform all
duties and have all powers that are commonly incident to the office of Chief
Executive Officer and shall perform such other duties as may from time to time
be assigned to him or her by the Board of Directors.
SECTION 5. The President.
The President shall perform such duties as from time to time may be
assigned by the Board of Directors or by the Chief Executive Officer.
SECTION 6. The Vice Presidents.
The Vice Presidents shall perform such duties as may from time to time be
assigned to each and any of them by the Board of Directors or by the Chief
Executive Officer. A Vice President or Vice Presidents may have such
additional designations as the Board may approve.
SECTION 7. The Secretary.
The Secretary, or an Assistant Secretary, shall attend all meetings of the
stockholders, the Board of Directors and committees thereof and shall record
the proceedings of the stockholders and of the directors and of committees of
the Board in a book or books to be kept for that purpose; shall see that
notices are given and records and reports properly kept and filed by the
Corporation as required by law; shall be the custodian of the seal of the
Corporation and see that it is affixed to all documents to be executed on
behalf of the Corporation under its seal; and, in general, shall perform all
duties incident to the office of Secretary, and such other duties as may from
time to time be assigned by the Board of Directors or by the Chief Executive
Officer.
SECTION 8. The Treasurer.
The Treasurer, or an Assistant Treasurer, shall have or provide for the
custody of the funds or other property of the Corporation; shall collect and
receive or provide for the collection and receipt of moneys earned by or in any
manner due to or received by the Corporation; shall deposit all funds in his or
her custody as Treasurer in such banks or other places of deposit as the Board
of Directors may from time to time designate; whenever so required by the Board
of Directors, shall render an account showing his or her transactions as
Treasurer and the financial condition of the Corporation; and, in general,
shall discharge such other duties as may from time to time be assigned by the
Board of Directors or by the Chief Executive Officer.
SECTION 9. The Controller.
The Controller shall provide and maintain financial and accounting
controls over the business and affairs of the Corporation. He or she shall
maintain adequate records of the assets, liabilities and financial transactions
of the Corporation, and shall direct the preparation of financial statements,
reports and analyses. He or she shall perform all acts incident to the
position of Controller subject to the control of the Board of Directors and the
Chief Executive Officer.
SECTION 10. General Counsel.
The Corporation may have a General Counsel who shall be appointed by
resolution of the Board of Directors and who shall have general supervision of
all matters of a legal nature concerning the Corporation.
SECTION 11. Officers' Bonds.
No officer of the Corporation need provide a bond to guarantee the
faithful discharge of the officer's duties unless the Board of Directors shall
by resolution so require a bond in which event such officer shall give the
Corporation a bond (which shall be renewed if and as required) in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of office.
SECTION 12. Compensation.
The compensation of the officers of the Corporation elected by the Board
of Directors shall be fixed from time to time by the Board of Directors or a
committee thereof designated for such purpose.
ARTICLE V
Certificates of Stock, Transfer, Etc.
SECTION 1. Form and Issuance.
(a) Issuance and Form. The shares of the capital stock of the Corporation
shall be represented by certificates in such form as shall be approved by the
Board of Directors or shall be uncertificated shares. To the extent that
shares are represented by certificates, such certificates shall be signed by
the Chairman or the Chief Executive Officer or the President or any Vice
President and by the Treasurer or the Secretary.
(b) Records and Regulations. The stock record books shall be kept by the
Secretary or by any registrar, stock transfer agent or other agency designated
by the Board of Directors for that purpose. The shares of the capital stock of
the Corporation shall be registered in the stock ledger and transfer books of
the Corporation as they are issued. Except as may otherwise be required by the
Corporation's certificate of incorporation or the GCL, the Board of Directors
may make such other rules and regulations concerning the issue, transfer and
registration of certificated or uncertificated shares of the capital stock of
the Corporation as it deems necessary or appropriate from time to time.
(c) Signatures. Any of or all the signatures upon the stock certificates
of the Corporation may be a facsimile. In case any officer, transfer agent or
registrar who has signed, or whose facsimile signature has been placed upon,
any share certificate shall have ceased to be such officer, transfer agent or
registrar, before the certificate is issued, it may be issued with the same
effect as if the signatory were such officer, transfer agent or registrar at
the date of its issue.
SECTION 2. Transfer of Stock.
Transfers of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. In the case of
shares represented by a certificate, an outstanding certificate for the number
of shares involved shall be surrendered for cancellation, properly endorsed,
before a new certificate is issued therefor, except where a certificate is
issued in accordance with Section 3 of this Article.
SECTION 3. Lost, Stolen, Destroyed or Mutilated Certificates.
The Corporation may direct a new certificate of stock 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 person claiming the certificate of stock to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates, the
Corporation may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or the legal representative of the owner, to give the Corporation
a bond sufficient to indemnify the Corporation against any claim that may be
made against the Corporation on account of the alleged loss, theft or
destruction of such certificate or the issuance of such new certificate.
SECTION 4. Record Holder of Shares.
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the GCL.
SECTION 5. Determination of Stockholders of Record.
(a) Meetings of Stockholders. 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 60 nor less than ten days before the
date of such meeting. If no record date is fixed by the Board of Directors,
the record date for determining stockholders entitled to notice of 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
unless the Board of Directors fixes a new record date for the adjourned meeting.
(b) Dividends. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights of the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than 60 days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
ARTICLE VI
General Provisions
SECTION 1. Dividends.
Subject to the restrictions contained in the GCL and any restrictions
contained in the certificate of incorporation, the Board of Directors may
declare and pay dividends upon the shares of capital stock of the Corporation.
SECTION 2. Contracts.
Except as otherwise provided in these bylaws, the Board of Directors or
the Chief Executive Officer, to the extent authorized by the Board, may
authorize any officer or officers, or any agent or agents, to enter into any
contract or to execute or deliver any instrument on behalf of the Corporation
and such authority may be general or confined to specific instances.
SECTION 3. Corporate Seal.
The Corporation shall have a corporate seal, which shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal, Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or in any other manner reproduced. If and when so directed by the
Board or a committee thereof, duplicates of the seal may be kept and used by
the Secretary or Treasurer or by an Assistant Secretary or Assistant Treasurer.
SECTION 4. Amendment of Bylaws.
Subject to the provisions of the certificate of incorporation, these
bylaws may be altered, amended or repealed or new bylaws may be adopted either
(1) by vote of the stockholders at a duly held annual or special meeting of
stockholders, or (2) by vote of a majority of the Board of Directors at any
regular or special meeting of directors.
SECTION 5. Action with Respect to Securities of Other Corporations.
The Chairman of the Board, the Vice Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Treasurer or
Secretary, or such other person appointed by such officer or the Board of
Directors, shall have the power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of stockholders of or with
respect to any action of stockholders of any other corporation in which the
Corporation may hold securities and otherwise to exercise any and all rights
and powers which the Corporation may possess by reason of its ownership of
securities in such other corporation. The Corporation shall not directly or
indirectly vote any shares issued by it.
SECTION 6. Fiscal Year.
The fiscal year of the Corporation shall end on the thirty-first of
December in each year.
SECTION 7. Time Periods.
In applying any provision of these bylaws that requires that an act be
done or not be done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
SECTION 8. Confidentiality Policies.
The provisions of these Bylaws shall be subject to any policies with
respect to inspectors of election and confidential proxy voting which may be
adopted by the Board of Directors from time to time and which are not
inconsistent with applicable law.