第7節。 Voting and Proxies股東對於根據公司的賬簿記錄擁有的有權投票的每股股票有一票表決權,除非法律或證書另有規定。股東可以親自投票或通過書面代理投票,但任何代理在日期後的三年內不得投票或執行,除非代理提供更長的期限。代理應在投票前歸檔給會議秘書。除非代理有其他限制或法律另有規定,代理應使被授權的人在該會議的任何休會時投票,但在該會議的最終休會後無效。對於以兩人或多人名義持有的股票的代理,如果是由或代表其中任何一人執行,則有效,除非在運用代理時,公司收到任何一人的相反書面通知。由股東簽署或代表股東簽署的代理應視爲有效,證明無效的責任應在挑戰者身上。任何直接或間接從其他股東那裏徵求代理的股東必須使用不同於白色的代理卡顏色,白色僅供董事會獨家使用。在任何有爭議的董事選舉中,所有代理卡和選票應在列出任何股東的提名之前列出公司的董事提名。
第三節。 董事提名. Nominations of candidates for election as directors of the Corporation at any Annual Meeting may be made only (a) by, or at the direction of, a majority of the Board of Directors or (b) by any holder of record (both as of the time notice of such nomination is given by the stockholder as set forth below and as of the record date for the Annual Meeting in question) of any shares of the capital stock of the Corporation entitled to vote at such Annual Meeting who complies with the timing, informational and other requirements set forth in this Section 3 or Section 4 of this Article II. Any stockholder who has complied with the timing, informational and other requirements set forth in this Section 3 or Section 4 of this Article II, as applicable, and who seeks to make such a nomination, or his, her or its representative, must be present in person at the Annual Meeting. Only persons nominated in accordance with the procedures set forth in this Section 3 or Section 4 of this Article II shall be eligible for election as directors at an Annual Meeting.
Nominations, other than those made by, or at the direction of, the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the Corporation as set forth in this Section 3 or Section 4 of Article II. A stockholder’s notice shall be timely if delivered to, or mailed to and received by, the Corporation at its principal executive office not less than 75 days nor more than 120 days prior to the Anniversary Date; provided, however, that in the event the Annual Meeting is scheduled to be held on a date more than 30 days before the Anniversary Date or more than 60 days after the Anniversary Date, a stockholder’s notice shall be timely if delivered to, or mailed and received by, the Corporation at its principal executive office not later than the close of business on the later of (i) the 75th day prior to the scheduled date of such Annual Meeting or (ii) the 15th day following the day on which public announcement of the date of such Annual Meeting is first made by the Corporation.
(ii) 爲了根據本節4提名股東提名人,合格股東必須在本節4(b)(i)中規定的時間內,提供本節4(a)(ii)要求提供的信息,並進一步更新和補充該信息(如有必要),以確保所有提供或要求提供的信息在確定在該年度會議上有投票權的股東的記錄日期的營業結束時,以及在該年度會議前十(10)個工作日的日期,均爲真實和正確,並且此更新和補充(或書面通知,說明沒有此更新或補充)必須在記錄日期的營業結束時,送達公司主要執行辦公室的秘書,必須在確定在會議上擁有投票權的股東的記錄日期後的第五(5)個工作日,不遲於會議日期前的第五(5)個工作日(在需在記錄日期時作出的更新和補充的情況下)。
(ii) 提交超過一名股東提名人以納入本節4中公司代理材料的任何合格股東,應根據合格股東希望在公司代理聲明中選擇股東提名人的順序對其進行排序,以防根據本節4提交的股東提名人總數超過本節4(c)(i)所規定的股東提名人的最大數量(包括根據本節4(c)(iii)的操作)。如果根據本節4向年度會議提交的合格股東的股東提名人數量超過本節4(c)(i)所規定的股東提名人的最大數量(包括根據本節4(c)(iii)的操作),則滿足本節4要求的最高排名股東提名人來自每個合格股東(確定是否爲合格股東的股東或股東組將基於本節4的規定在最終代理訪問提名日期的合規性)將被選入公司的代理材料,直到達到最大數量,按照合格股東所披露的持有每個合格股東共有股票的數量從大到小的順序進行。如果經上述方式確定的滿足本節4要求的最高排名股東提名人被選中後,本節4所規定的股東提名人的最大數量仍未達到,則該選擇過程將繼續進行,儘可能多次,每次遵循相同的順序,直到達到本節4所規定的股東提名人的最大數量。根據本節4(c)(ii)最初選擇的股東提名人將是根據本節4所規定的唯一可以被提名或包含在公司的代理材料中的股東提名人。未根據本節4(c)(ii)首次選中的所有剩餘股東提名人的代理訪問提名通知及提名將視爲在最終代理訪問提名日期被相關股東撤回,且在首次選擇後,如果所選的任何一名或多名股東提名人(A)被董事會提名或(B)未被公司代理材料中包含,或出於任何原因未提交選舉,包括但不限於合格股東後續未遵守本節4或合格股東撤回提名的情況,那麼,在每種情況下,除了根據本節4以外,公司將不再在其代理材料中包含任何額外的股東提名人或以其他方式提交股東選舉。
(ii) 爲按照本第11節進行提名,符合條件的股東必須持有公司已發行普通股的所需擁有比例(如下定義)所需股份)在最終代理訪問提名日期連續持有最低持有期限(如下定義)或更長時間,並且必須在適用的年度會議日期(及任何延期或休會)繼續持有所需股票;前提是,最多可由二十(20)個符合條件的股東組成的團體可以將其持股彙總以滿足所需股票的所需擁有比例的要求;但前提是,該團體的每個成員必須在最終代理訪問提名日期之前連續持有所需股票達最低持有期限或更長時間,並且必須在適用的年度會議日期(及任何延期或休會)繼續持有其部分的所需股票。爲本第4節的目的,“所需所有權比例”是指公司已發行和流通的普通股的3%或更高,基於最近公開披露的股份數量,以及“最低持有期”爲三(3)年。
(I) a written undertaking (in the form provided by the Secretary upon written request) that the Eligible Stockholder agrees to (I) assume all liability stemming from any legal or regulatory violation arising out of the communications with stockholders of the Corporation by the Eligible Stockholder, its affiliates and associates, or their respective agents or representatives, either before or after the furnishing of the Notice of Proxy Access Nomination, or out of the facts, statements or information that the Eligible Stockholder or its Stockholder Nominee(s) has provided or will provide to the Corporation or filed with the Securities and Exchange Commission, (II) indemnify and hold harmless the Corporation and each of its directors, officers, agents, employees, affiliates, control persons or other persons acting on behalf of the Corporation individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its directors, officers, agents, employees, affiliates, control persons or other persons acting on behalf of the Corporation arising out of any nomination of a Stockholder Nominee submitted by the Eligible Stockholder pursuant to this Section 4, and (III) promptly provide to the Corporation such additional information as requested pursuant to this Section 4.
In connection with clause (A) of the preceding sentence, if any intermediary which verifies the Eligible Stockholder’s ownership of the Required Shares for the Minimum Holding Period is not the record holder of such shares, a Depository Trust Company (“DTC”) participant or an affiliate of a DTC participant, then the Eligible Stockholder will also need to provide a written statement as required by clause (A) of the preceding sentence from the record holder of such shares, a DTC participant or an affiliate of a DTC participant that CAN verify the holdings of such intermediary.
(ii) 任何被納入公司代理材料的股東提名人,如果在特定股東年度會議上 (a) 退出或變得不合資格或無法當選爲董事會成員,或 (b) 未獲得至少二十五百分之(25%)的「贊成」票數(爲避免疑義,排除了任何經紀人無投票),將不具有按照本節第4條在接下來的兩個股東年度會議上提名或被納入公司代理材料的資格。
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(iii) Notwithstanding anything to the contrary set forth herein, if the Board of Directors or a designated committee thereof determines that any stockholder nomination was not made in accordance with the terms of this Section 4 or that the information provided in a Notice of Proxy Access Nomination does not satisfy the informational requirements of this Section 4 in any material respect, then such nomination shall not be considered at the applicable Annual Meeting. Additionally, such nomination will not be considered at the Annual Meeting in question if the Eligible Stockholder (or a qualified representative thereof) or, in the case of an Eligible Stockholder that is comprised of a group of stockholders, the Eligible Stockholder Designee (or a qualified representative thereof) does not appear at the applicable Annual Meeting to present any nomination of the Stockholder Nominee(s) included in the Corporation’s proxy materials pursuant to this Section 4. For purposes of this Section 4, to be considered a qualified representative of a stockholder, a person must be duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as its proxy at the Annual Meeting and such person must produce such writing or electronic transmission, or a reliable reproduction thereof, at such Annual Meeting. If the Board of Directors or a designated committee thereof determines that a nomination was made in accordance with the terms of this Section 4, the Board of Directors or such designated committee thereof shall so declare at the applicable Annual Meeting and ballots shall be provided for use at such meeting with respect to such Stockholder Nominee.
(f) This Section 4 provides the exclusive method for stockholders to include nominees for Director in the Corporation’s proxy materials (other than with respect to Rule 14a-19 to the extent applicable with respect to forms of proxies). A stockholder’s compliance with the procedures set forth in this Section 4 will not also be deemed to constitute compliance with the procedures set forth in, or notice of nomination pursuant to, Section 3 of this Article II.
第十一節。 Notice of Meetings由秘書或助理秘書負責向每位董事發出所有特別董事會會議的時間、日期和地點通知,若該人因故去世、缺席、無能力或拒絕通知,則由董事長(如果有選舉的話)或總裁或董事長指定的其他官員發出通知。任何特別董事會會議的通知應以親自、電話、傳真、電傳、電報或其他書面電子通訊的方式發送給每位董事,發送到其工作或家庭地址,至少應提前24小時通知,或以書面通知寄送到其工作或家庭地址,至少提前48小時通知。該通知在親自送達、通過電話告知、通過郵件郵寄(郵資已付)、通過電傳或傳真發送時,或在通過電報發送時交付給電報公司後,視爲已經送達。
第二節。 轉讓. Subject to any restrictions on transfer and unless otherwise provided by the Board of Directors, shares of stock that are represented by a certificate may be transferred on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate theretofore properly endorsed or accompanied by a written assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require. Shares of stock that are not represented by a certificate may be transferred on the books of the Corporation by submitting to the Corporation or its transfer agent such evidence of transfer and following such other procedures as the Corporation or its transfer agent may require.
第四節。 誠信. No indemnification shall be provided pursuant to this Article V to an Officer or to a Non-Officer Employee with respect to a matter as to which such person shall have been finally adjudicated in any Proceeding (i) not to have acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, and (ii) with respect to any criminal Proceeding, to have had reasonable cause to believe his or her conduct was unlawful. In the event that a Proceeding is compromised or settled prior to final adjudication so as to impose any liability or obligation upon an Officer or Non-Officer Employee, no indemnification shall be provided pursuant to this Article V to said Officer or Non-Officer Employee with respect to a matter if there be a determination that with respect to such matter such person did not act in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal Proceeding, had no reasonable cause to believe his or her conduct was unlawful. The determination contemplated by the preceding sentence shall be made by (i) a majority vote of those Directors who are not involved in such Proceeding (the “利益無關的董事”); (ii) by the stockholders; or (iii) if directed by a majority of Disinterested Directors, by independent legal counsel in a written opinion. However, if more than half of the Directors are not Disinterested Directors, the determination shall be made by (i) a majority vote of a committee of one or more disinterested Director(s) chosen by the Disinterested Director(s) at a regular or special meeting; (ii) by the stockholders; or (iii) by independent legal counsel chosen by the Board of Directors in a written opinion.
第5節。 Prior to Final Disposition. Unless otherwise determined by (i) the Board of Directors, (ii) if more than half of the Directors are involved in a Proceeding by a majority vote of a committee of one or more Disinterested Director(s) chosen in accordance with the procedures specified in Section 4 of this Article or (iii) if directed by the Board of Directors, by independent legal counsel in a written opinion, any indemnification extended to an Officer or Non-Officer Employee pursuant to this Article V shall include payment by the Corporation or a subsidiary of the Corporation of Expenses as the same are incurred in defending a Proceeding in advance of the final disposition of such Proceeding upon receipt of an undertaking by such Officer or Non-Officer Employee seeking indemnification to repay such payment if such Officer or Non-Officer Employee shall be adjudicated or determined not to be entitled to indemnification under this Article V.
第6節。 權利的合同性質. The foregoing provisions of this Article V shall be deemed to be a contract between the Corporation and each Officer and Non-Officer Employee who serves in such capacity at any time while this Article V is in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any Proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts. If a claim for indemnification or advancement of expenses hereunder by an Officer or Non-Officer Employee is not paid in full by the Corporation within 60 days after a written claim for indemnification or documentation of expenses has been received by the Corporation, such Officer or Non-Officer Employee 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, such Officer or Non-Officer Employee shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such indemnification or advancement of expenses under this Article V shall not be a defense to the action and shall not create a presumption that such indemnification or advancement is not permissible
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第7節。 Non-Exclusivity of Rights. The provisions in respect of indemnification and the payment of expenses incurred in defending a Proceeding in advance of its final disposition set forth in this Article V shall not be exclusive of any right which any person may have or hereafter acquire under any statute, provision of the Certificate or these By-Laws, agreement, vote of stockholders or disinterested directors or otherwise; provided, however, that in the event the provisions of this Article V in any respect conflict with the terms of any agreement between the Corporation or any of its subsidiaries and any person entitled to indemnification under this Article V, then the provision which is more favorable to the relevant individual shall govern.