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Article
I, Section 6, of the By-laws has been expanded to clarify the Board’s
power to adopt rules regulating stockholder meetings, and the Chairman’s
powers to take actions to ensure the proper conduct of stockholder
meetings. Similarly, Article I, Section 8, of the By-laws clarifies the
Board’s ability to postpone or adjourn stockholder
meetings.
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Article
I, Section 7, of the By-laws adds a new “advance notice by-law” which,
subject to certain exceptions, prevents stockholders from nominating
directors or proposing corporate actions without providing at least 90
days of advance written notice, coupled with information about the
proposal and the proponent to assist the directors and stockholders in
evaluating the proposal.
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Article
I, Section 9, of the By-laws regulates the procedural aspects of any
stockholder initiative to take corporate action through a written consent
solicitation. This new by-law requires all stockholder consents to be
collected within 60 days and would require the proponent to provide
information comparable to that required under the new “advance notice
by-law.”
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Article
II, Sections 7 and 8, of the By-laws, respectively, (i) confirms the
Board’s current power to fill director vacancies but only if approved by
the Company’s incumbent directors (defined as “Continuing
Directors”) during any period in which a stockholder (other than specified
members of the Johnsen family) holds a 10% interest in the Company
(defined as a “Related Person”) and (ii) confirms the stockholders’
current power to remove directors, but would require stockholders to have
cause for the removal and would require a majority vote of stockholders
excluding any Related Person or any affiliate or associate thereof
(defined as the “Independent
Stockholders”).
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Our
indemnification bylaw included in Article II, Section 9, of the
By-laws was expanded to delineate in greater detail the procedures for
directors and officers to request and obtain indemnification and
advancement of expenses in connection with proceedings arising out of
their service on behalf of the
Company.
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Article
VI of the By-laws requires a two-thirds vote of all stockholders and a
separate two-thirds vote of the Independent Stockholders to amend certain
specified key by-law provisions. Under this provision, the Continuing
Directors retain their current independent authority to amend the
By-laws.
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In
addition, the Board approved various conforming changes, plus a small
number of supplemental modifications to each Article designed to update,
clarify or strengthen the By-laws as a whole, including, without
limitation, (i) the modification of provisions governing the quorum for
stockholder and director meetings, the powers of committees of the Board,
and the powers of the chief financial officer and officers reporting to
him or her, and (ii) the addition of Sections 3 and 4 to
Article IV governing notices and the Company’s
offices.
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3.2
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By-laws
of the Registrant, as amended and restated through October 28,
2009.
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99.1
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Press
Release dated October 28, 2009 announcing financial results for the
quarter ended September 30, 2009 and the announcing of the appointment of
Mr. Kenneth H. Beer and Mr. Harris V. Morrissette to the Board of
Directors.
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