- --------------------------------------------------------------------------------
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): DECEMBER 8, 2004
-----------------------
CRYOLIFE, INC.
(Exact name of registrant as specified in its charter)
-------------------------
FLORIDA 1-13165 59-2417093
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
1655 ROBERTS BOULEVARD N.W., KENNESAW, GA 30144
(Address of principal executive office) (zip code)
Registrant's telephone number, including area code: (770) 419-3355
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 (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
- --------------------------------------------------------------------------------
ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; COMPENSATION.
Effective December 8, 2004, the By-laws of the Company were amended. Article
III, Section 10 was deleted and replaced with a revised Section 10. The revision
amends that section to specify that either the Board of Directors or a committee
may set the compensation of non-employee directors, as provided by the Florida
Business Corporation Act. The prior provision provided that by resolution of the
Board the directors may be paid either a fixed sum for attendance at each
meeting or a stated salary. The amendment also provides that all directors shall
be reimbursed for the expense of attendance at meetings unless otherwise
determined by the Board of Directors or a committee, which represents a change
from the prior provision to the effect that expenses may be paid by resolution
of the Board. Finally, the amendment provides that directors may receive payment
for services as directors and also serve the Company in other capacities, which
is substantially equivalent to the prior provision.
ITEM 9.01(C) EXHIBITS.
Exhibit Number Description
-------------- -----------
3.2 By-laws of the Company, as amended.
2
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
CryoLife, Inc. has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CRYOLIFE, INC.
Date: December 10, 2004 By: /s/ D.A. Lee
-------------------------------------------
D. Ashley Lee, Executive Vice President,
Chief Operating Officer and
Chief Financial Officer
3
EXHIBIT 3.2
BY-LAWS
OF
CRYOLIFE, INC.
ARTICLE I
Offices
The principal Office shall be in the City of Tampa, County of Hillsborough,
and State of Florida.
The corporation may also have offices at such other places both within and
without the State of Florida as the Board of Directors may from time to time
determine or the business of the corporation may require.
ARTICLE II
Stockholders
Section 1. Annual Meeting. The annual meeting of the stockholders shall be
held within the seven (7) month period beginning with the first day of the last
month of the fiscal year of the corporation for the purpose of electing
Directors and for the transaction of such other business as may come before the
meeting, the actual day thereof to be set forth in the Notice of Meeting or in
the Call and Waiver of Notice of Meeting. If the election of Directors shall not
be held at any such annual meeting of the stockholders or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a special
meeting of the stockholders as soon thereafter as may be convenient.
Section 2. Special Meetings. Special meetings of the stockholders for any
purposes, unless otherwise prescribed by law or by the Articles of
Incorporation, may be called by the President or Secretary at the request in
writing of a majority of the Board of Directors then in office, or at the
request in writing of stockholders owning not less than one-tenth (1/10) of the
entire capital stock of the corporation issued and outstanding and entitled to
vote thereat. Such request shall state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice thereof.
REVISED AND ADOPTED 6/18/92 AND 3/18/94 AND 4/29/03 AND 12/4/03 AND 11/2/04 AND
12/8/04
Section 3. Place of Meeting. The Board of Directors may designate any
place, whether within or without the State of Florida unless otherwise
prescribed by law or by the Articles of Incorporation, as the place of meeting
for any annual meeting or for any special meeting of the stockholders. In the
absence of any such designation, the meeting shall be held at an office of the
company or at any place near an office of the company. A waiver of notice signed
by all stockholders entitled to vote at a meeting may designate any place,
either within or without the State of Florida unless otherwise prescribed by law
or by the Articles of Incorporation, as the place for the holding of such
meeting. If no designation is made, or if a special meeting be otherwise called,
the place of meeting shall be at any office of the corporation.
Section 4. Notice of Meeting. Written or printed notice stating the place,
day and hour of the meeting, and in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not less than
ten (10) nor more than sixty (60) days before the date of the meeting, either
personally or by first-class mail, by or at the direction of the President or
the Secretary, or the officer or persons that called the meeting, to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the stockholder at his address as it appears on the stock transfer
books of the corporation, with postage thereon prepaid.
Section 5. Waiver of Notice of Meeting. When stockholders who hold
four-fifths (4/5) of the voting stock having the right and entitled to vote at
any meeting, shall be present at such meeting, however called or notified, and
shall sign a written consent thereto on the record of the meeting, the acts of
such meeting shall be as valid as if legally called and notified.
Section 6. Voting Lists. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten (10) days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address and the number and class and series of
shares held by each, which list, for a period of ten (10) days prior to such
meeting, shall be kept on file at the principal office of the corporation and
shall be subject to inspection by any stockholder during the whole time of the
meeting. The original stock transfer book shall be prima facie evidence as to
who are the stockholders entitled to examine such list or transfer books or to
vote at any meeting of the stockholders.
Section 7. Quorum. A majority of the outstanding shares of the corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of stockholders, unless otherwise provided in the Articles of
Incorporation, but in no event shall a quorum consist of less than one-third
(1/3) of the shares entitled to vote at the meeting. If less than a majority of
the outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. The stockholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding quorum.
2
Section 8. Voting of Shares. Each stockholder entitled to vote shall at
every meeting of the stockholders be entitled to one vote in person for each
share of voting stock held by him. Such right to vote shall be subject to the
right of the Board of Directors to close the transfer books or to fix a record
date for voting stockholders as hereinafter provided, and if such Directors
shall not have exercised such right, no share of stock shall be voted on at any
election for Directors which shall have been transferred on the books of the
corporation within twenty (20) days next preceding such election. No stockholder
shall enter into a voting trust agreement or any other type agreement vesting
another person with the authority to exercise the voting power of any or all of
his stock.
Section 9. Proxies. At all meetings of stockholders, a stockholder may vote
by proxy, executed in writing by the stockholder or by his duly authorized
attorney-in-fact; but no proxy shall be valid after eleven (11) months from its
date, unless the proxy provides for a longer period. Such proxies shall be filed
with the Secretary of the corporation before or at the time of the meeting.
ARTICLE III
Board of Directors
Section 1. General Powers. The business and affairs of the corporation
shall be managed by its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of Directors of
the corporation shall be not less than one (1) nor more the fifteen (15), the
number of the same shall be fixed by the Board of Directors at any regular or
special meeting. Each Director shall hold office until the next annual meeting
of stockholders and until his successor has been qualified, unless sooner
removed by the stockholders at any general or special meeting. None of the
Directors need be residents of the State of Florida.
Section 3. Annual Meeting. After each annual meeting of stockholders, the
Board of Directors shall hold its annual meeting at the same place as and
immediately following such annual meeting of stockholders for the purpose of the
election of officers and the transaction of such other business as may come
before the meeting; and, if a majority of the Directors be present at such place
and time, no prior notice of such meeting shall be required to be given to the
Directors. The place and time of such meeting may also be fixed by written
consent of the Directors.
Section 4. Regular Meetings. Regular meetings of the Board of Directors may
be held without notice at such time and at such place as shall be determined
from time to time by the Board of Directors.
Section 5. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board, if there be one, or the President or any
two (2) Directors. The persons authorized to call special meetings of the Board
of Directors may fix the place for holding any special meetings of the Board of
Directors called by them.
3
Section 6. Notice. Notice of any special meeting shall be given at least
three (3) days prior thereto by written notice delivered personally or mailed to
each Director at his business address, or by telegram. If mailed, such notice
shall be deemed to be delivered when deposited in United States mail so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. Any Director may waive notice of such meeting, either before,
at or after such meeting. The attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting, except where a director attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened.
Section 7. Quorum. A majority of the Directors shall constitute a quorum,
but a smaller number may adjourn from time to time, without further notice,
until a quorum is secured.
Section 8. Manner of Acting. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
Section 9. Vacancies. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
Directors though less than a quorum of the Board of Directors. A Director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office.
Section 10. Compensation. The compensation of non-employee Directors for
their services as a Director may be fixed by resolution of the Board of
Directors, or by a duly authorized committee of the Board of Directors. Unless
otherwise determined by the Board of Directors or such committee, Directors
shall be paid their expenses of attendance at each meeting of the Board of
Directors or committee thereof. No payment received by a Director for services
as a Director shall preclude a Director from serving the corporation in any
other capacity.
Section 11. Presumption of Assent. A director of the corporation who is
present at a meeting of its Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken, unless
he votes against such action or abstains from voting in respect thereto because
of an asserted conflict of interest.
Section 12. Informal Action by Board. Any action required or permitted to
be taken by any provisions of law, of the Articles of Incorporation or of these
By-Laws at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if, prior to such action, a written consent thereto
is signed by all members of the Board or of such committee, as the case may be,
setting forth the actions of the Board or of the committee.
Section 13. Telephonic Meetings. Members of the Board of Directors or an
executive committee shall be deemed present at a meeting of such board or
committee if a conference telephone, or similar communications equipment by
means of which all persons participating in the meeting can hear each other at
the same time, is used.
4
Section 14. Removal. Any director may be removed, with or without cause, by
the stockholders at any general or special meeting of the stockholders whenever,
in the judgment of the stockholders, the best interests of the corporation will
be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person removed. This by-law shall not be subject to
change by the Board of Directors.
ARTICLE IV
Officers
Section 1. Number and Qualifications. The officers of the corporation shall
be a Chairman of the Board, a President, a Secretary and a Treasurer, each of
whom shall be elected by the Board of Directors. The Board of Directors may also
elect one or more Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, one or more Assistant Secretaries and Assistant Treasurers and such
other officers as the Board of Directors shall deem appropriate. Two (2) or more
offices may be held by the same person.
Section 2. Election and Term of Office. The officers of the corporation
shall be elected annually by the Board of Directors at its first meeting after
each annual meeting of the stockholders. If the election of officers shall not
be held at such meeting, such election shall be held as soon thereafter as may
be convenient. Each officer shall hold office until his successor shall have
been duly elected and shall have qualified, or until his death, or until he
shall resign or shall have been removed in the manner hereinafter provided.
Section 3. Removal. Any officer elected or appointed by the Board of
Directors may be removed by the board of Directors whenever in its judgment the
best interests of the corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 5. Duties of Officers. The Chairman of the Board of the
corporation, or the Presiding Director if there shall not be a Chairman of the
Board, shall preside at all meetings of the Board of Directors and of the
stockholders which he shall attend. The Chairman or the President shall be the
chief executive officer of the corporation, as specified by the Board of
Directors. Subject to the foregoing, the officers of the corporation shall have
such powers and duties as usually pertain to their respective offices and such
additional powers and duties specifically conferred by law, by the Articles of
Incorporation, by these By-Laws, or as may be assigned to them from time to time
by the Board of Directors.
Section 6. Salaries. The salaries of the officers shall be fixed from time
to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a Director of the
corporation.
5
Section 7. Delegation of Duties. In the absence of or disability of any
officer of the corporation or for any other reason deemed sufficient by the
Board of Directors, the Board may delegate his powers or duties to any other
officer or to any other Director for the time being.
ARTICLE V
Executive and Other Committees
Section 1. Creation of Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate an Executive
Committee and one or more other committees, each to consist of one (1) or more
of the Directors of the corporation.
Section 2. Executive Committees. The Executive committee, if there shall be
one, shall consult with and advise the officers of the corporation in the
management of its business and shall have and may exercise, to the extent
provided in the resolution of the Board of Directors creating such Executive
Committee, such powers of the Board of Directors as can be lawfully delegated by
the Board.
Section 3. Other Committees. Such other committees shall have such
functions and may exercise the powers of the Board of Directors as can be
lawfully delegated and to the extent provided in the resolution or resolutions
creating such committee or committees.
Section 4. Meetings of Committees. Regular meetings of the Executive
Committee and other committees may be held without notice at such time and at
such place as shall from time to time be determined by the Executive Committee
or such other committees, and special meetings of the Executive Committee or
such other committees may be called by any member thereof upon two (2) days
notice to each of the other members of such committee, or on such shorter notice
as may be agreed to in writing by each of the other members of such committee,
given either personally or in the manner provided in Section 6 of Article III of
these By-Laws (pertaining to notice for Directors' meetings).
Section 5. Vacancies on Committees. Vacancies on the Executive Committee or
on such other committees may be filled by the Board of Directors then in office
at any regular or special meeting.
Section 6. Quorum of Committees. At all meetings of the Executive Committee
or such other committees, a majority of the committee's members then in office
shall constitute a quorum for the transaction of business.
Section 7. Manner of Acting of Committee. The acts of a majority of the
members of the Executive Committee, or such other committees, present at any
meeting at which there is a quorum, shall be the act of such committee.
6
Section 8. Minutes of Committees. The Executive Committee, if there shall
be one, and such other committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required.
Section 9. Compensation. Members of the Executive Committee and such other
committees may be paid compensation in accordance with the provisions of Section
10 of Article III (pertaining to compensation of Directors).
ARTICLE VI
Indemnification of Director and Officers
If in the judgment of a majority of the entire Board of Directors
(excluding from such majority any director under consideration for
indemnification), the criteria set forth in Section 607.0l4(l) or (2) of the
Florida General Corporation Act have been met, then the Company shall indemnify
any officer or director, or former officer or director, his personal
representatives, devisees or heirs, in the manner and to the extent contemplated
by Section 607.0l4.
ARTICLE VII
Certificates of Stock
Section 1. Certificates for Shares. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by a President or a
Vice President and the Secretary or an Assistant Secretary, exhibiting the
holder's name and certifying the number of shares owned by him in the
corporation. The certificates shall be numbered and entered in the books of the
corporation as they are issued.
Section 2. Transfer of Shares. Transfers of shares of the corporation shall
be made upon its books by the holder of the share in person or by his lawfully
constituted representative, upon surrender of the certificate of stock for
cancellation. The person in whose name shares stand on the books of the
corporation shall be deemed by the corporation to be the owner thereof for all
purposes and the corporation shall not be bound to recognize any equitable or
other claim to or interest in such share on the part of any other person whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Florida.
Section 3. Facsimile Signature. Where a certificate is manually signed on
behalf of a transfer agent or a registrar other then the corporation itself or
an employee of the corporation, the signature of any such President, Vice
President, Secretary or Assistant Secretary may be a facsimile. In case any
officer or officers who have signed, or whose facsimile signature or signatures
have been used, shall cease to be such officer or officers of the corporation,
such certificate or certificates may nevertheless be adopted by the corporation
and be issued and delivered as though the person or persons who signed such
7
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the corporation.
Section 4. Lost Certificate. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
their certificate of stock to be lost or destroyed. When authorizing such issue
of new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
ARTICLE VIII
Record Date
The Board of Directors is authorized, from time to time, to fix in advance
a date, not more than sixty (60) nor less than ten (10) days before the date of
any meeting of stockholders, or not more than sixty (60) days prior to the date
for the payment of any dividend or the date for the allotment of rights, or the
date when any change or conversion or exchange of stock shall go into effect, or
a date in connection with the obtaining of the consent of stockholders for any
purpose, as a record date for the determination of the stockholders entitled to
notice of and to vote at any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend or to any such allotment, or to
exercise the rights in respect of any such change, conversion or exchange of
stock; or to give such consent, as the case may be; and, in such case, such
stockholders and only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to such notice of, and to vote at such
meeting and any adjournment thereof, or to receive payment of such dividend, or
to receive such allotment of rights, or to exercise such rights or to give such
consent, as the case may be, notwithstanding any transfer of any stock on the
books of the corporation after any such record date fixed as aforesaid.
ARTICLE IX
Dividends
The Board of Directors may from time to time declare, and the corporation
may pay, dividends on its outstanding shares of capital stock in the manner upon
the terms and conditions provided by the Articles of Incorporation and by-laws.
Dividends may be paid in cash, in property, or in shares of stock, subject to
the provisions of the Articles of Incorporation and by-laws.
8
ARTICLE X
Fiscal Year
The fiscal year of the corporation shall be the twelve (12) month period
selected by the Board of Directors as the taxable year of the corporation for
federal income tax purposes
ARTICLE XI
Seal
The corporate seal shall bear the name of the corporation, which shall be
between two concentric circles, and in the inside of the inner circle shall be
the calendar year of incorporation, an impression of said seal appearing in the
margin hereof.
ARTICLE XII
Stock in Other Corporations
Shares of stock in other corporations held by this corporation shall be
voted by such officer or officers of this corporation as the Board of Directors
shall from time to time designate for the purpose or by a proxy thereunto duly
authorized by said Board.
ARTICLE XIII
Amendments
These By-Laws may be altered, amended or repealed and new by-laws may be
adopted by the Board of Directors; provided that any by-law or amendment thereto
as adopted by the Board of Directors may be altered, amended or repealed by vote
of the stockholders entitled to vote thereon, or a new by-law in lieu thereof
may be adopted by the stockholders. No by-law which has been altered, amended or
adopted by such a vote of the stockholders may be altered, amended or repealed
by a vote of the Directors until two (2) years shall have expired since such
action by vote of such stockholders.
ARTICLE XIV
Reimbursement of Disallowed Expenses
Any payments made to an officer of the corporation such as salary,
commission, bonus, interest or rent, or for entertainment expenses incurred by
him, which shall be disallowed in whole or in part as a deductible expense by
the Internal Revenue Service, shall be reimbursed by such officer to the
corporation to the full extent of such disallowance. It shall be the duty of the
9
Directors, as a Board, to enforce payment of each such amount disallowed.
Reimbursement of such disallowed amounts may, subject to the determination of
the directors, be withheld in proportionate amounts from the future compensation
payments of the officer until the amount owed to the corporation has been
recovered.
ARTICLE XV
Advance Notice of Shareholder Nominations and Proposals
Section 1 Nominations and Proposal Requirements. Nominations of persons for
election to the Board of Directors and proposals of business to be transacted by
the shareholders may be made at an annual meeting of shareholders (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 shareholder of record of the
Corporation who (1) was a shareholder of record at the time of the giving of the
notice provided for in the following paragraph, (2) is entitled to vote at the
meeting and (3) has complied with the notice procedures set forth in this
Article.
For nominations or other business to be properly brought before an annual
meeting by a shareholder pursuant to clause (c) of the foregoing paragraph, (1)
the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation, (2) such business must be a proper matter for
shareholder action under the Florida Business Corporation Code, (3) if the
shareholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as
that term is defined in this paragraph, such shareholder or beneficial owner
must, (i) in the case of a proposal, have delivered a proxy statement and form
of proxy to holders of at least the percentage of the Corporation's voting
shares required under applicable law to carry any such proposal, or, (ii) in the
case of a nomination or nominations, have delivered a proxy statement and form
of proxy to holders of a percentage of the Corporation's voting shares
reasonably believed by such shareholder or beneficial holder to be sufficient to
elect the nominee or nominees proposed to be nominated by such shareholder, and
must, in either case, have included in the materials accompanying such notice to
the Corporation, the Solicitation Notice and any proxy statement and form of
proxy utilized or to be utilized by such person, and (4) if no Solicitation
Notice relating thereto has been timely provided pursuant to this Article, the
shareholder or beneficial owner proposing such business or nomination must not
have solicited, and must represent that he, she or it will not solicit, a number
of proxies sufficient to have required the delivery of such a Solicitation
Notice under this Article. To be timely, a stockholder's notice and the required
accompanying materials shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than ninety (90) nor more than one
hundred eighty (180) days prior to the first anniversary (the "Anniversary") of
the date on which the Corporation first mailed its proxy materials for the
preceding year's annual meeting of shareholders; provided, however, that if the
date of the annual meeting is advanced more than thirty (30) days prior to or
delayed by more than thirty (30) days after the anniversary of the preceding
year's annual meeting, notice by the shareholder to be timely must be so
delivered not later than the close of business on the later of (i) the 90th day
prior to such annual meeting or (ii) the 10th day following the day on which
public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom the shareholder
proposes to nominate for election or reelection as a director all information
relating to such person as would be required to be disclosed in solicitations of
proxies for the election of such nominees as directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and shall contain such person's written consent to serve as a director if
elected; (b) as to any other business that the shareholder proposes to bring
before the meeting, a brief description of such business, the reasons for
10
conducting such business at the meeting and any material interest in such
business of such shareholder and the beneficial owner, if any, on whose behalf
the proposal is made; (c) as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nominations or proposal is made
(i) the name and address of such shareholder, and of such beneficial owner, as
they appear on the Corporation's books, (ii) the class and number of shares of
the Corporation that are owned beneficially and of record by such shareholder
and such beneficial owner, and (iii) whether such shareholder or beneficial
owner has delivered or intends to deliver a proxy statement and form of proxy to
holders of, in the case of a proposal, at least the percentage of the
Corporation's voting shares required under applicable law to carry the proposal
or, in the case of a nomination or nominations, a sufficient number of holders
of the Corporation's voting shares to elect such nominee or nominees (the notice
described in this sentence, a "Solicitation Notice").
Section 2. Increase in Number of Directors. Notwithstanding anything in the
second sentence of the second paragraph of Section 1 of this Article XV to the
contrary, in the event that the number of directors to be elected to the Board
is increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board made by the Corporation
at least fifty-five (55) days prior to the Anniversary, a stockholder's notice
required by this Article shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 10th day following the day on which
such public announcement is first made by the Corporation.
Section 3. Compliance with Procedures. Only persons nominated in accordance
with the procedures set forth in this Article XV shall be eligible to serve as
directors and only such business shall be conducted at an annual meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Article. The chairman of the meeting shall have
the power and the duty to determine whether a nomination or any business
proposed to be brought before the meeting has been made in accordance with the
procedures set forth in these Bylaws and, if any proposed nomination or business
is not in compliance with these Bylaws, to declare that such defective proposed
business or nomination shall not be presented for shareholder action at the
meeting and shall be disregarded.
Section 4. Nominations at Special Meetings. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
shareholders at which directors are to be elected pursuant to the Corporation's
notice of meeting (a) by or at the direction of the Board or (b) by any
shareholder of record of the Corporation who is a shareholder of record at the
time of giving of notice provided for in this paragraph, who shall be entitled
to vote at the meeting and who complies with the notice procedures set forth in
this Article XV. Nominations by shareholders of persons for election to the
Board may be made at such a special meeting of shareholders if the stockholder's
11
notice required by the second paragraph of this Article XV shall be delivered to
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the later of 90th day prior to such special
meeting or the 10th day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed by the
Board to be elected at such meeting.
Section 5. General. For purposes of this Article, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Article XV, a shareholder
must also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to matters set forth in this
Article XV. Nothing in this Article XV shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
12