Flowserve Corp 8-K, filed Apr 12, 2023
Flowserve Corp (FLS)
8-K
2023-04-12
For: 2023-04-12
View Original
Added on
April 09, 2026
About this 8-K
Flowserve Corp filed this 8-K on April 12, 2023.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
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
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Date of Report (Date of earliest event reported): April 12, 2023
(Exact Name of Registrant as Specified in its Charter)
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(State or Other Jurisdiction
of Incorporation)
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(Commission File Number) |
(IRS Employer
Identification No.) |
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(Zip Code)
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(972 ) 443-6500
(Registrant’s telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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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):
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule
12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
Election of Directors
On April 12, 2023, Flowserve Corporation (the “Company”) announced that Thomas Okray, Executive Vice President and Chief Financial Officer for Eaton
Corporation (“Eaton”) has been elected by the Company’s Board of Directors (the “Board”) as a new member of the Board, effective April 12, 2023. Mr. Okray joined Eaton in 2021. Prior to joining Eaton, Mr. Okray was the Senior Vice President and
Chief Financial Officer at Grainger from 2018 to 2021 and the Executive Vice President and Chief Financial Officer at Advance Auto Parts from 2016 to 2018.
Mr. Okray fills the newly created directorship resulting from the increase in the number of directors pursuant to resolutions duly adopted by the Board
under the Company’s Amended and Restated By-Laws (as amended and restated, the “By-Laws”) disclosed in Item 5.03 below. In connection with his election to the Board, Mr. Okray has also been appointed as a member of the Audit Committee of the
Board. Mr. Okray is expected to be nominated for reelection by the Company’s shareholders at the 2023 annual meeting of shareholders. There is no agreement or understanding between Mr. Okray and any other person pursuant to which he was selected
as a director.
The Board has made an affirmative determination that Mr. Okray qualifies as an independent director under the New York Stock Exchange listing standards and
the Company’s standards for director independence and qualifies as independent for purposes of Section 10A(m)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Board has also made the affirmative determination that
Mr. Okray qualifies as an “audit committee financial expert” as such term is defined under Item 407(d)(5) of Regulation S-K under the Exchange Act. There have been no transactions directly or indirectly involving Mr. Okray that would be required
to be disclosed pursuant to Item 404(a) of Regulation S-K under the Exchange Act.
Mr. Okray will be compensated for his service on the Board in accordance with the Company’s compensatory and other arrangements for non-employee directors,
which are described in detail in the Company’s definitive proxy statement dated March 31, 2022, under the heading “Director Compensation”.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On April 12, 2023, the Board approved an amendment to the Company’s By-Laws, effective April 12, 2023. Article III, Section 2 of the By-Laws, which sets
forth the number of directors of the Company, was amended by the Board to increase the number of directors of the Company from ten to eleven.
The foregoing description of the amendment contained in the By-Laws is qualified in its entirety by reference to the full text of, and should be read in
conjunction with, the By-Laws, a copy of which is filed with this Current Report on Form 8-K as Exhibit 3.1 and incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On April 12, 2023, the Company issued a press release announcing the election of Mr. Okray. The press release is furnished as Exhibit 99.1 hereto.
The information furnished pursuant to this Item 7.01, including Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or
otherwise subject to the liabilities under that section and shall not be deemed to be incorporated by reference into any filings under the Securities Act of 1933, as amended or the Exchange Act except as shall be expressly set forth by specific
reference in such a filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit No.
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Description
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SIGNATURES
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.
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FLOWSERVE CORPORATION
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Dated: April 12, 2023
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By:
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/S/ SUSAN C. HUDSON
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Susan C. Hudson
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Senior Vice President, Chief Legal Officer and Corporate Secretary
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Exhibit 3.1
FLOWSERVE CORPORATION
BY-LAWS
As Amended and Restated as of April 12, 2023
AMENDED AND RESTATED
BY-LAWS
of
FLOWSERVE CORPORATION
ARTICLE I
OFFICES
OFFICES
The principal business office of Flowserve Corporation (the “Company”) shall be located in the City of Irving, Dallas County,
Texas, and at such place therein as may be determined and designated from time to time by the Board of Directors of the Company (the “Board”). The Company may also have an office or offices at such other place or places as the Board may, from time to
time, designate or as the business of the Company may require.
ARTICLE II
SHAREHOLDERS MEETINGS
SHAREHOLDERS MEETINGS
Section 1.
Annual Meeting. The annual meeting of shareholders of the
Company for the purpose of electing directors and for the transaction of such other business as may properly come before the meeting, shall be held on such date and at such hour and place, within or without the State of New York, including by means
of remote communications, as shall be determined by the Board and stated in the notice of the meeting. The Board acting by resolution may postpone and reschedule any previously scheduled annual meeting of shareholders.
Section 2.
Special Meetings.
(a) Subject to the rights of the holders of any series of preferred stock, special meetings of the shareholders of the Company, for any purpose or purposes, unless otherwise
prescribed by statute, may be called only as set forth in Article TENTH of the Certificate of Incorporation.
(b) In order for a shareholder requested special meeting under clause (iv) of Article TENTH of the Certificate of Incorporation (a “Shareholder Requested Special Meeting”)
to be called, one or more requests for a special meeting (each, a “Shareholder Special Meeting Request,” and collectively, the “Shareholder Special Meeting Requests”) must be signed by the Requisite Special Meeting Percent (as such term is defined
in the Certificate of Incorporation) of record holders (or their duly authorized agents) and must be delivered to the Secretary. The Shareholder Special Meeting Request(s) shall be delivered to the Secretary at the principal executive offices of
the Company by registered mail, return receipt requested. Each Shareholder Special Meeting Request shall:
(i) set forth a statement of the specific purpose(s) of the meeting and the matters proposed to be acted on at it;
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(ii) bear the date of signature of each such shareholder (or duly authorized agent) signing the Shareholder Special Meeting Request;
(iii) set forth (a) the name and address, as they appear in the Company’s stock ledger, of each shareholder signing such request (or on whose behalf the Shareholder Special
Meeting Request is signed), (b) the class, if applicable, and the number of shares of common stock of the Company that are owned of record and beneficially by each such shareholder, and (c) include documentary evidence of such shareholder’s record
and beneficial ownership of such stock;
(iv) set forth all information relating to each such shareholder that must be disclosed in solicitations of proxies for election of directors in an election contest (even if
an election contest is not involved), or is otherwise required, in each case, pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”); and
(v) contain the information required by Article II, Section 9(a)(ii)(C) of these By-Laws.
Any requesting shareholder may revoke its special meeting request at any time by written revocation delivered to the Secretary
at the principal executive offices of the Company, and if, following such revocation, there are unrevoked requests from shareholders holding in the aggregate less than the Requisite Special Meeting Percent, the Board, in its discretion, may cancel
the special meeting.
(c) Notwithstanding the foregoing, the Secretary shall not be required to call a special meeting of shareholders if:
(i) the Board calls an annual or special meeting of shareholders to be held not later than 60 days after the date on which a valid Shareholder Special Meeting Request has
been delivered to the Secretary (the “Delivery Date”); or
(ii) the Shareholder Special Meeting Request(s) (A) is received by the Secretary during the period commencing 90 days prior to the first anniversary of the date of the
immediately preceding annual meeting and ending on the date of the next annual meeting; (B) contains an identical or substantially similar item (a “Similar Item”) to an item that was presented at any meeting of shareholders held within 120 days
prior to the Delivery Date (and, for purposes of this clause (B) the election of directors shall be deemed a “Similar Item” with respect to all items of business involving the election or removal of directors); (C) relates to an item of business
that is not a proper subject for action by the party requesting the special meeting under applicable law; (D) was made in a manner that involved a violation of Regulation 14A under the Exchange Act or other applicable law; or (E) does not comply
with the provisions of this Section 2.
(d) Except as provided in the next sentence, any special meeting shall be held at such date and time as may be fixed by the Board in accordance with these By-Laws and the
New York Business Corporation Law (the “NYBCL”). In the case of a Shareholder Requested Special Meeting, such meeting shall be held at such date and time as may be fixed by the Board, on condition that: (i) the date of any Shareholder Requested
Special Meeting shall be not more than 60 days after the record date for such meeting (the “Special Meeting Record Date”), which shall be fixed in accordance with Article II, Section 7 of these By-Laws; (ii) if the Board fails to designate, within
10 days after the Delivery Date, a date and time for a Shareholder Requested Special Meeting, then such meeting shall be held at 9:00 a.m. local time on the 60th day after the Special Meeting Record Date (or, if that day shall not be a business
day, then on the next preceding business day); and (iii) in the event that the Board fails to designate a place, including by means of remote communications, for a Shareholder Requested Special Meeting within 10 days after the Delivery Date, then
such meeting shall be held at the Company’s principal executive offices. In fixing a date and time for any Shareholder Requested Special Meeting, the Board may consider such factors as it deems relevant within the good faith exercise of business
judgment, including, without limitation, the nature of the matters to be considered, the facts and circumstances surrounding any request for meeting and any plan of the Board to call an annual meeting or a special meeting.
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(e) Any previously scheduled special meeting of shareholders may be adjourned or postponed from time to time by the Board whether or not a quorum is present, but in the
absence of a quorum, no other business may be transacted at such meeting.
(f) Only such business shall be conducted at a special meeting of shareholders as shall have been brought before the meeting pursuant to the Company’s notice of meeting.
Business transacted at any Shareholder Requested Special Meeting shall be limited to the purpose(s) stated in the Shareholder Special Meeting Request(s), except that nothing herein shall prohibit the Board from submitting matters, whether or not
described in the Shareholder Special Meeting Request(s), to the shareholders at any Shareholder Requested Special Meeting. Notwithstanding the provisions of this Section 2, unless otherwise required by law, if the shareholders (or qualified
representatives of the shareholders) who submitted Shareholder Special Meeting Requests do not appear at the Shareholder Requested Special Meeting to present the matters to be presented for consideration that were specified in the Shareholder
Special Meeting Request, the Company need not present such matters for a vote at such meeting.
Section 3.
Notice of Meetings. Notice of the place, date and hour and
purpose or purposes of any meeting of shareholders shall be given personally, by mail or electronically, not less than 10 or more than 60 days before the date of the meeting, to each shareholder entitled to vote at the meeting. If mailed, the
notice shall be deemed given when deposited in the United States mail, postage prepaid, addressed to the shareholder at the shareholder’s address as it appears on the record of shareholders of the Company, unless the shareholder shall have filed
with the Secretary of the Company a written request that notices to the shareholder be mailed to a different address, in which case it shall be mailed to the address designated in such request. If transmitted electronically, the notice shall be
deemed given when directed to the shareholder’s electronic mail address as supplied by the shareholder to the Secretary of the Company or as otherwise directed pursuant to the shareholder’s authorization or instructions. Any and all notices of a
meeting may be waived by a shareholder by submitting a written or electronic waiver either before or after the meeting. The attendance of any shareholder at a meeting in person or by proxy, without protesting prior to the conclusion of the meeting
the lack of notice of such meeting, shall constitute a waiver of notice by such shareholder.
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Section 4.
Remote Communications. The Board, acting in its sole discretion,
may establish guidelines and procedures in accordance with applicable provisions of the NYBCL and any other applicable law for the participation of shareholders by means of remote communications, and may determine that any meeting of shareholders
will not be held at any place, but will be held solely by means of remote communications. Shareholders and proxy holders complying with such procedures and guidelines and otherwise entitled to vote at a meeting of shareholders shall be deemed
present in person and entitled to vote at a meeting of shareholders, whether such meeting is to be held at a designated place or solely by means of remote communications.
Section 5.
Quorum. Except as otherwise provided by law, at a meeting of the
shareholders, the holders of a majority of the votes of outstanding shares of stock of the Company, entitled to vote at such meeting, whether present in person or represented by proxy, shall constitute a quorum. If at any meeting there shall be no
quorum, the chairman of such meeting may, to the extent permitted by law, adjourn the meeting from time to time, without notice other than announcement at the meeting, until such quorum shall have been obtained, when any business may be transacted
which might have been transacted at the meeting as first convened had there been a quorum.
Section 6.
Voting and Inspectors.
(a) Except as otherwise provided by law, the Certificate of Incorporation or these By-Laws, at each meeting of the shareholders, each holder of record of outstanding shares
of stock of the Company on the record date fixed for determination of shareholders entitled to vote at such meeting shall be entitled to one vote for each share of stock held of record either in person or by proxy. No proxy shall be valid after the
expiration of 11 months from the date of its execution unless the shareholder executing the proxy shall have specified therein the length of time it is to continue in force which shall be for some limited period. Except as otherwise provided by
law, at elections of directors at an annual or special meeting of shareholders at which a quorum is present, a director shall, except in a contested election, be elected by a majority of the votes cast in favor of or against such nominee by the
holders of shares entitled to vote in the election. In a contested election, a director shall be elected by a plurality of the votes cast in favor of or against such nominee by the holders of shares entitled to vote in the election. An election
shall be considered to be contested if, as of the date that is 21 days prior to the date that the Company files its definitive proxy statement (regardless of whether or not thereafter revised or supplemented, and regardless of whether any notice of
shareholder business or nominations have been withdrawn or deemed invalid by a court of competent jurisdiction), there are more nominees for election than positions on the Board to be filled by election at that meeting. Except as otherwise provided
by law or the Certificate of Incorporation, any other action at an annual or special meeting of shareholders at which a quorum is present shall be authorized by a majority of the votes cast in favor of or against such action by the holders of
shares entitled to vote thereon.
(b) Before any meeting of shareholders, the Board may, but need not, appoint one or more inspectors of election to act at the meeting or its adjournment or postponement and
make a written report. If the Board does not make such appointment, or if the person or persons are unable to act at the meeting, then the person presiding at the meeting may make such appointment. Each inspector, before entering upon the discharge
of the inspector’s duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of the inspector’s ability, and who shall take charge of the polls and after the
balloting shall make a certificate of the result of the vote taken. The inspector(s), if any, shall also confirm the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence
of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders. No director of the Company or candidate for the office of director shall be appointed as an inspector of elections.
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Section 7.
Record Date. In order that the Board may determine the
shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment or postponement thereof, or for the purpose of determining shareholders entitled to receive payment of any dividend or the distribution or allotment of
any rights, or for the purpose of any other action other than consent to corporate action by shareholders in writing without a meeting, the Board may, except as otherwise provided herein or required by law, fix a date as the record date for any
such determination of shareholders, which date shall not be more than 60 or less than 10 days prior to the date of any meeting of the shareholders or more than 60 days prior to the payment of any dividend or the allotment of any rights or any other
action; and in such case only holders of record of stock at the time so fixed shall be entitled to notice of or to vote at such meeting or any adjournment or postponement thereof, or to receive such dividend distribution or rights, as the case may
be. If no record date is fixed, ii) the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day immediately prior to the day on which notice is
given, or if no notice is given, the day on which the meeting is held and iii) the record date for any purpose other than that specified in clause (a) or for corporate action by shareholders in writing without a meeting shall be at the close of
business on the day on which the resolution of the Board relating thereto is adopted.
For the purpose of determining the shareholders entitled to consent to corporate action in writing without a meeting, the Board
may fix a record date, which date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is
adopted by the Board. If no record date has been fixed by the Board, the record date for determining shareholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board is required by the provisions of
New York law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Company by delivery to its registered office in the State of New York, its principal place of business,
or an officer or agent of the Company having custody of the book in which proceedings of meetings of shareholders are recorded. Delivery made to the Company’s registered office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board, and prior action by the Board is required by the provisions of New York law, the record date for determining the shareholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board adopts the resolutions taking such prior action.
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Section 8.
Conduct of Meeting.
(a) Meetings of shareholders shall be presided over by the chairman of the meeting who shall be designated by the Board. The Secretary or Assistant Secretary of the Company
shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the chairman of the meeting shall appoint a secretary of the meeting.
(b) The Board shall be entitled to make such rules or regulations for the conduct of meetings of shareholders as it shall deem necessary, appropriate or convenient. Subject
to such rules and regulations of the Board, if any, the chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman of the meeting, are
necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, convening the meeting and recessing or adjourning the meeting (whether or not a quorum is present); regulating the opening and closing of the
polls for balloting and matters that are to be voted on by ballot; establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation
or attendance in the meeting to shareholders of record entitled to vote at the meeting, their duly authorized and constituted proxies, or such other persons as the chairman of the meeting shall determine; establishing rules and procedures with
respect to the recess and adjournment or postponement of the meeting; restricting entry to the meeting after the time fixed for the commencement thereof; restricting the use of any audio or video recording devices at the meeting and establishing
limitations on the time allotted to questions or comments by participants.
Section 9.
Notice of Shareholder Business and Nominations.
(a) Annual Meeting.
(i) Except as expressly provided in Article II, Section 10, nominations of persons for election to the Board and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders only i. pursuant to the Company’s notice of meeting (or any supplement thereto), ii. by or at the direction of the Board (or any committee thereof) or iii. by a shareholder of the
Company who is a shareholder of record at the time the notice provided for in this Section 9 is delivered to the Secretary of the Company and at the time the polls are opened at such annual meeting of shareholders to receive formal nominations, who
is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 9. For the avoidance of doubt, except as expressly provided in Article II, Section 10, clause (C) above shall be the exclusive means for a
shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 of the Exchange Act and included in the Company’s notice of meeting) before an annual meeting of shareholders.
(ii) For nominations or other business to be properly brought before an annual meeting by a shareholder pursuant to Section 9(a)(i)(C) of this Article II the shareholder must
have given timely notice thereof in writing to the Secretary of the Company and such business must be a proper subject for shareholder action under the NYBCL. To be considered timely, a shareholder’s notice must be delivered by registered mail to,
or received by, the Secretary of the Company at the principal business office of the Company not less than 90 nor more than 120 days before the first anniversary of the preceding year’s annual meeting of shareholders; provided, however, that in the
event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the shareholder to be considered timely must be so delivered not more than 120 days before the annual meeting and not
less than the later of (A) 90 days before such annual meeting or (B) 10 days following the date on which public announcement of the date of such meeting is first made by the Company. In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above. Nothing in this Section 9 shall be deemed to affect any rights of a shareholder to request
inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
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Such proposing shareholder’s notice shall set forth:
(A) as to each person whom the shareholder proposes to nominate for election or re-election as a director:
(1) all information relating to such person that is required to be disclosed pursuant to and in accordance with Regulation 14A under the Exchange Act (including, without
limitation, such person’s written consent to being named in the Company’s proxy statement as a nominee and to serving a full term as a director if elected);
(2) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other
material relationships, between or among the proposing shareholder and any Shareholder Associated Person (defined below), if any, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in
concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 of Regulation S-K promulgated under the Securities Act of 1933, as amended and the rules and
regulations promulgated thereunder (the “Securities Act”), if the proposing shareholder or any Shareholder Associated Person (as defined below) were the “registrant” for purposes of such rule and the nominee were a director or executive officer of
such registrant;
(3) a fully completed written questionnaire with respect to the background, qualifications and character of such nominee and the background of any other person or entity on
whose behalf the nomination is being made (which questionnaire the proposed nominee or the proposing shareholder shall request in writing by registered mail from the Secretary of the Company at least 10 days prior to the submission of the proposing
shareholder’s notice);
(4) a written representation and agreement (which written representation and agreement the proposed nominee or the proposing shareholder shall request in writing by
registered mail from the Secretary of the Company at least 10 days prior to the submission of the proposing shareholder’s notice) that such proposed nominee (a) is not and will not become a party to (i) any agreement, arrangement or understanding
(whether written or oral) with, and has not given and will not give any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Company, will act or vote in such capacity on any issue or question (a
“Voting Commitment”) that has not been disclosed to the Company or (ii) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Company, with such person’s fiduciary duties under
applicable law, (b) is not and will not become a party to any agreement, arrangement or understanding (whether written or oral) with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director of the Company that has not been disclosed to the Company, and (c) 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 Company, and will comply with all applicable law, all applicable rules of the U.S. exchange upon which the common stock of the Company is listed and all applicable, publicly disclosed
corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and other guidelines of the Company (including a requirement to preserve and maintain the confidentiality of the Company’s material non-public
information); and
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(5) any other information relating to the proposed nomination that is required to be disclosed under applicable law;
(B) as to any other business that the proposing shareholder proposes to bring before the meeting:
(1) a brief description of the business desired to be brought before the meeting;
(2) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend
these By-Laws, the language of the proposed amendment);
(3) the reasons for conducting such business at the meeting; and
(4) any other information relating to the proposal that is required to be disclosed under applicable law; and
(C) as to the proposing shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made and any Shareholder Associated
Person:
(1) the name and address of such proposing shareholder, as they appear on the Company’s books, and of such beneficial owner and any Shareholder Associated Person;
(2) the class or series and number of shares of stock of the Company that are owned, directly or indirectly, beneficially and of record by the proposing shareholder and any
beneficial owner and Shareholder Associated Person;
(3) 2. any option, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege or a settlement payment or mechanism at
a price related to any security of the Company or with a value derived in whole or in part from the value of any security of the Company, whether or not such instrument or right shall be subject to settlement in the underlying class or series of
capital stock of the Company or otherwise (a “Derivative Instrument”), directly or indirectly owned beneficially by the proposing shareholder or any Shareholder Associated Person, and any other direct or indirect opportunity to profit or share in
any profit derived from any increase or decrease in the value of shares of the Company; 3. any proxy, contract, arrangement, understanding or relationship pursuant to which the proposing shareholder or any Shareholder Associated Person has, whether
alone or with any other Person (defined below), a right to vote, or the ability to control or otherwise influence, explicitly or implicitly, any other shareholder’s or Shareholder Associated Person’s voting of, any security of the Company; 4. any
short interest of the proposing shareholder or any Shareholder Associated Person in any security of the Company (for purposes of this By-Law, a person shall be deemed to have a short interest in a security if such person directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security); 5. any rights to dividends on the shares of the
Company owned beneficially by the proposing shareholder or any Shareholder Associated Person that are separated or separable from the underlying shares of the Company; 6. any proportionate interest in shares of the Company or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which the proposing shareholder or any Shareholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner; 7. any
performance-related fees (other than asset-based fees) that the proposing shareholder or any Shareholder Associated Person is entitled to based on any increase or decrease in the value of shares of the Company or Derivative Instruments, if any, as
of the date of such notice, including without limitation, any such interests; 8. any other information relating to such proposing shareholder and any Shareholder Related Person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations thereunder, including, without limitation, any
such interests of the type described in items (a) through (g) of this Section 9(a)(ii)(C)(3) held by members of the proposing shareholder’s or any Shareholder Associated Person’s immediate family sharing the same household;
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(4) a representation that the proposing shareholder is a holder of record of stock of the Company entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to propose such business or nomination;
(5) any personal or other substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such proposed nomination or business of the proposing
shareholder and the beneficial owner, if any, on whose behalf the proposal is made and a description of all agreements, arrangements and understandings between the proposing shareholder or any Shareholder Associated Person, if any, of such
shareholder and any other person or persons (including their names) in connection with the proposal of such nomination or business by the shareholder; and
(6) a representation as to whether the proposing shareholder or the beneficial owner, if any, intends or is part of a group that intends to 9. deliver a proxy statement or
form of proxy to holders of at least the percentage of the Company’s outstanding stock required to approve or adopt the proposal or elect the nominee or 10. otherwise to solicit proxies from shareholders in support of such proposal or nomination.
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For purposes of this Section 9, “Shareholder Associated Person” shall mean i. any Person directly or indirectly controlling,
controlled by or under common control with, or acting in concert with, a given shareholder, beneficial owner, shareholder nominee and their respective affiliates and associates (as defined under Rule 12b-2 under the Exchange Act or any successor
provision), ii. any beneficial owner of any securities of the Company owned of record or beneficially by a given shareholder (other than a shareholder that is a depositary), iii. any Person directly or indirectly controlling, controlled by or under
common control with any person identified under clause (B), and iv. any other shareholder of the Company known by the proposing shareholder to support the nominations or other business proposal(s) of such shareholder.
(iii) The proposing shareholder providing notice of a proposed nomination for election to the Board or business proposal shall update and supplement such notice to the extent
necessary so that the information provided or required to be provided in such notice shall be true, complete, and correct as of the record date for determining shareholders entitled to notice of the meeting and as of the date that is 15 days prior
to the meeting or any adjournment or postponement thereof. All information provided in the proposing shareholder’s notice must be true, complete, and correct as of the date of its initial submission to the Company, and any supplements to such
initial shareholder’s notice shall be true, complete, and correct as of the dates provided in the preceding sentence, and any such update or supplement shall be made only to the extent that information has changed since the proposing shareholder’s
prior submission of his or her notice. Any such update or supplement shall be delivered in writing by registered mail to the Secretary of the Company at the principal executive offices of the Company not later than 5 days after the record date for
determining shareholders entitled to notice of the meeting (in the case of any update or supplement required to be made as of the record date for determining shareholders entitled to notice of the meeting), not later than 10 days prior to the date
for the meeting or any adjournment or postponement thereof (in the case of any update or supplement required to be made as of 15 days prior to the meeting or any adjournment or postponement thereof).
(iv) Notwithstanding the foregoing provisions of this Section 9, the proposing shareholder shall also provide to the Company such additional information as the Company may
reasonably request. The Company may request such additional information, which may be in the form of an interview with a nominee at the Board’s request, necessary to permit the Board to determine the character, fitness and eligibility of such
person to serve as a director of the Company, including information relevant to a determination of whether such person can be considered an independent director and that could be material to a reasonable shareholder’s understanding of the
independence, or lack thereof, character and fitness to serve as a director. The nominee will provide facts, statements and other information in all communications with the Company and its shareholders that are or will be true and correct in all
material respects and have not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
(b) Special Meetings. Only such business shall be conducted at a special meeting of shareholders as shall have been brought before the meeting pursuant to the Company’s
notice of meeting.
(c) General.
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(i) Except as expressly provided in Article II, Section 10, only such persons who are nominated in accordance with the procedures set forth in this Section 9 shall be
eligible to be elected at an annual meeting of shareholders of the Company 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 Section 9. Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (A) to determine whether a nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in this Section 9 (including whether the shareholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group that
solicited) or did not so solicit, as the case may be, proxies in support of such shareholder’s nominee or proposal in compliance with such shareholder’s representation as required by Section 9(a)(ii)(C)(6) of this Article II) and (B) if any
proposed nomination or business was not made or proposed in compliance with this Section 9, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of
this Section 9, unless otherwise required by law, if the shareholder (or a qualified representative of the shareholder) does not appear at the annual meeting of shareholders to present a nomination or proposed business, such nomination shall be
disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Company.
Section 10.
Shareholder Nominations of Directors to be Included in the Company’s Proxy Materials.
(a) Whenever the Board solicits proxies with respect to the election of directors at an annual meeting of the shareholders, subject to the provisions of this Section 10, the
Company shall include in its proxy statement for such annual meeting, in addition to any persons nominated for election by the Board or any committee thereof, the name, together with the Required Information (as defined below), of any person or
persons, as applicable, properly nominated for election (each, a “Shareholder Nominee”) to the Board by any single shareholder that satisfies, or by a group of shareholders, that together satisfy, the ownership requirements of Sections 10(d) and 10(e)
(such person or group, the “Eligible Shareholder”), and who expressly elects at the time of providing the notice (the “Proxy Access Nomination Notice”) required by this Section 10 to have its nominee or nominees, as applicable, included in the
Company’s proxy materials. For purposes of this Section 10, the “Required Information” that the Company will include in its proxy statement is the information provided to the Secretary of the Company concerning each Shareholder Nominee and the
Eligible Shareholder that is required to be disclosed in the Company’s proxy statement by Section 14 of the Exchange Act, and, if the Eligible Shareholder so elects, a written statement, not to exceed 500 words, in support of the Shareholder
Nominee’s candidacy (the “Statement”). Notwithstanding anything to the contrary contained in this Section 10, the Company may omit from its proxy materials any information or Statement (or portion thereof) that it, in good faith, believes would
violate any applicable law or regulation.
(b) To be timely for purposes of this Section 10, the Proxy Access Nomination Notice and Required Information must be addressed to the Secretary of the Company and delivered
to or mailed to and received by the Secretary by the close of business at the principal executive offices of the Company not less than 120 or more than 150 days prior to the one-year anniversary date of the day (as stated in the Company’s proxy
materials) the definitive proxy statement was first sent to shareholders in connection with the preceding year’s annual meeting of shareholders; provided, however, that in the event that the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, the Proxy Access Nomination Notice and Required Information to be considered timely must be so delivered not more than 150 days before the annual meeting and not less than the later of (ii) 120 days
before such annual meeting or (iii) 10 days following the date on which public announcement of the date of such meeting is first made by the Company (with the last day of eligible delivery under this section being referred to herein as the “Final
Proxy Access Nomination Date”). In no event shall the public announcement of an adjournment or postponement of an annual meeting of shareholders for which notice has been given, commence a new time period (or extend any time period) for the giving
of a Proxy Access Nomination Notice as described above.
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(c) The maximum number of Shareholder Nominees nominated by all Eligible Shareholders that will be included in the Company’s proxy materials with respect to an annual
meeting of shareholders shall be the greater of two or 20% of the number of directors in office as of the Final Proxy Access Nomination Date, rounded down to the closest whole number (if 20% is not a whole number) (the “Maximum Number”). In the
event that one or more vacancies for any reason occurs on the Board after the Final Proxy Access Nomination Date but before the date of the annual meeting and the Board resolves to reduce the size of the Board in connection therewith, the Maximum
Number of Shareholder Nominees included in the Company’s proxy materials shall be calculated based on the number of directors in office as so reduced. Any individual nominated by an Eligible Shareholder for inclusion in the Company’s proxy
materials pursuant to this Section 10 whom the Board decides to nominate as a nominee for director at the upcoming annual meeting of shareholders shall be counted as one of the Shareholder Nominees for purposes of determining when the Maximum
Number of Shareholder Nominees provided for in this Section 10 has been reached. Any Eligible Shareholder submitting more than one Shareholder Nominee for inclusion in the Company’s proxy materials shall rank such Shareholder Nominees based on the
order that the Eligible Shareholder desires such Shareholder Nominees to be selected for inclusion in the Company’s proxy statement in the event that the total number of Shareholder Nominees submitted by Eligible Shareholders exceeds the Maximum
Number of nominees provided for in this Section 10. In the event that the number of Shareholder Nominees submitted by Eligible Shareholders exceeds the Maximum Number of nominees provided for in this Section 10, the highest ranking Shareholder
Nominee who meets the requirements of this Section 10 from each Eligible Shareholder will be selected for inclusion in the Company’s proxy materials until the Maximum Number is reached, going in order of the amount (largest to smallest) of shares
of common stock of the Company each Eligible Shareholder disclosed as owned in its respective Proxy Access Nomination Notice submitted to the Company. If the Maximum Number is not reached after the highest ranking Shareholder Nominee who meets the
requirements of this Section 10 from each Eligible Shareholder has been selected, this process will continue as many times as necessary, following the same order each time, until the Maximum Number is reached. Notwithstanding anything to the
contrary contained in this Section 10, if the Company receives notice pursuant to Article II, Section 9 of these By-Laws that a shareholder intends to nominate for election to the Board at such annual meeting a number of nominees greater than or
equal to a majority of the total number of directors to be elected at such meeting, no Shareholder Nominees will be included in the Company’s proxy materials with respect to such meeting pursuant to this Section 10.
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(d) For purposes of this Section 10, an Eligible Shareholder shall be deemed to “own” only those outstanding shares of common stock of the Company as to which the
shareholder possesses both a. the full voting and investment rights pertaining to the shares and b. the full economic interest in (including the opportunity for profit from and risk of loss on) such shares; provided, that the number of shares
calculated in accordance with clauses (i) and (ii) shall not include any shares i. sold by such shareholder or any of its affiliates in any transaction that has not been settled or closed, ii. borrowed by such shareholder or any of its affiliates
for any purposes or purchased by such shareholder or any of its affiliates pursuant to an agreement to resell or iii. subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by
such shareholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of shares of outstanding common stock of the Company, in any such case which
instrument or agreement has, or is intended to have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such shareholder’s or its affiliates’ full right to vote or direct the voting of any such shares,
and/or (2) hedging, offsetting or altering to any degree any gain or loss realized or realizable from maintaining the full economic ownership of such shares by such shareholder or affiliate. For purposes of this Section 10, a shareholder shall
“own” shares held in the name of a nominee or other intermediary so long as the shareholder retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. A
shareholder’s ownership of shares shall be deemed to continue during any period in which (x) the shareholder has loaned such shares, provided that the shareholder has the power to recall such loaned shares on no more than three (3) business days’
notice or (y) the shareholder has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement which is revocable at any time by the shareholder. The terms “owned,” “owning” and other variations of the word
“own” shall have correlative meanings. Whether outstanding shares of the common stock of the Company are “owned” for these purposes shall be determined by the Board or any committee thereof. For purposes of this Section 10, the term “affiliate”
shall have the meaning ascribed thereto under Rule 12b-2 under the Exchange Act (or any successor provision).
(e) In order to be an Eligible Shareholder and make a nomination pursuant to this Section 10, a shareholder or group of shareholders must have owned the Required Ownership
Percentage (as defined below) of the Company’s outstanding common stock (the “Required Shares”) continuously for the Minimum Holding Period (as defined below) as of both the date the Proxy Access Nomination Notice is delivered to or mailed to and
received by the Secretary in accordance with this Section 10 and the record date for determining the shareholders entitled to vote at the annual meeting and must continue to own the Required Shares through the meeting date. For purposes of this
Section 10, the “Required Ownership Percentage” is 3% or more, and the “Minimum Holding Period” is three (3) years. For purposes of satisfying the Required Ownership Percentage, c. the Required Shares owned by one or more Eligible Shareholders may
be aggregated, provided that the number of Eligible Shareholders whose ownership of shares is aggregated for such purpose shall not exceed twenty (20), and d. a group of funds under common management and investment control shall be treated as one
Eligible Shareholder for this purpose.
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(f) Within the time period specified in this Section 10 for delivering the Proxy Access Nomination Notice, in order for a Proxy Access Nomination Notice to be effective, the
Eligible Shareholder submitting the Proxy Access Nomination Notice must provide the following information in writing to the Secretary: (i) one or more written statements from the record holder of the shares (and from each intermediary through which
the shares are or have been held during the Minimum Holding Period) verifying that, as of a date within seven calendar days prior to the date the Proxy Access Nomination Notice is delivered to or mailed to and received by the Secretary, the
Eligible Shareholder owns, and has owned continuously for the Minimum Holding Period, the Required Shares, and the Eligible Shareholder’s agreement to provide, within five business days after the record date for the annual meeting, written
statements from the record holder and intermediaries verifying the Eligible Shareholder’s continuous ownership of the Required Shares through the record date; (ii) a copy of the Schedule 14N that has been filed with the Securities and Exchange
Commission as required by Rule 14a-18 under the Exchange Act; (iii) the information, representations and agreements that are the same as those that would be required to be set forth in a shareholder’s notice of nomination pursuant to Article II,
Section 9(a) of these By-Laws; (iv) the consent of each Shareholder Nominee to being named in the proxy statement as a nominee and to serving as a director if elected; (v) a representation and covenant that the Eligible Shareholder (A) acquired the
Required Shares in the ordinary course of business and not with the intent to change or influence control at the Company, and does not presently have such intent, (B) presently intends to maintain qualifying ownership of the Required Shares through
the date of the annual meeting, (C) has not engaged and will not engage in, and has not and will not be a “participant” in another person’s “solicitation” within the meaning of Rule 14a-1(1) under the Exchange Act in support of the election of any
individual as a director at the annual meeting other than its Shareholder Nominee(s) or a nominee of the Board, (D) will comply with all applicable laws and regulations applicable to the use, if any, of soliciting material, (E) will not distribute
to any shareholder any form of proxy for the annual meeting other than the form distributed by the Company, (F) has not nominated and will not nominate for election to the Board at the annual meeting of the shareholders any person other than the
Shareholder Nominee(s) being nominated pursuant to this Section 10, and (G) will provide facts, statements and other information in all communications with the Company and its shareholders that are or will be true and correct in all material
respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; (vi) a representation as to the Eligible Shareholder’s
intention (subject to any mandatory fund rebalancing required by such shareholder’s preexisting governing instruments or written investment policies) to maintain qualifying ownership of the Required Shares for at least one year following the annual
meeting; (vii) an undertaking that the Eligible Shareholder (A) assumes all liability stemming from any legal or regulatory violation arising out of the Eligible Shareholder’s communications with the shareholders of the Company or out of the
information that the Eligible Shareholder provided to the Company, (B) will indemnify and hold harmless the Company and each of its directors, officers and employees individually against any liability, loss or damages in connection with any
threatened or actual action, suit or proceeding, whether legal, administrative or investigative, against the Company or any of its directors, officers or employees arising out of any nomination submitted by the Eligible Shareholder pursuant to this
Section 10, and (C) will provide to the Company prior to the election of directors such additional information as reasonably requested by the Company with respect thereto.
(g) Within the time period specified in this Section 10 for delivering the Proxy Access Nomination Notice, each Shareholder Nominee must deliver to the Secretary (i) a
written representation and agreement that such person will comply with applicable law and listing standards, all of the Company’s corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines,
and any other policies and guidelines applicable to directors, (ii) at the request of the Company, completed and signed questionnaires required of the Company’s directors and officers and (iii) the representations, agreements and other information
required by Article II, Section 9(a) of these By-Laws.
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(h) In the event that any information or communications provided by the Eligible Shareholder or any Shareholder Nominee to the Company or its shareholders ceases to be true
and correct in all material respects or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Shareholder or Shareholder Nominee, as the case may be,
shall promptly notify the Secretary of any such defect in such previously provided information and of the information that is required to correct any such defect.
(i) The Company shall not be required to include, pursuant to this Section 10, a Shareholder Nominee in its proxy materials for any meeting of the shareholders (i) for which
the Secretary receives a notice that a shareholder has nominated such Shareholder Nominee for election to the Board pursuant to the advance notice requirements for shareholder nominees for election to the Board set forth in Article II, Section 9 of
these By-Laws, (ii) if the Shareholder Nominee or the Eligible Shareholder that has nominated such Shareholder Nominee has engaged in or is currently engaged in, or has been or is a “participant” in another person’s “solicitation” within the
meaning of Rule 14a-1(1) under the Exchange Act in support of the election of any individual as a director at the annual meeting other than its Shareholder Nominee(s) or a nominee of the Board, (iii) if the Shareholder Nominee is or becomes a party
to any compensatory payment or other financial agreement, arrangement or understanding with any person or entity other than the Company, or is receiving or will receive any such compensation or other payment from any person or entity other than the
Company, in each case in connection with service as a director of the Company, (iv) who is not independent under the listing standards of each principal exchange upon which the common stock of the Company is listed, any applicable rules of the
Securities and Exchange Commission, or any publicly disclosed standards used by the Board in determining and disclosing independence of the Company’s directors, in each case as determined by the Board or any committee thereof, (v) whose election as
a member of the Board would cause the Company to be in violation of these By-Laws, the Certificate of Incorporation, the rules and listing standards of any exchange on which the common stock of the Company is listed and traded, or any applicable
state or federal or other law, rule or regulation, (vi) who is or has been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, (vii) who is a named subject of a pending
criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past 10 years, (viii) who is subject to any order of the type specified in Rule 506(d) of Regulation D
promulgated under the Securities Act, (ix) if such Shareholder Nominee or the applicable Eligible Shareholder shall have provided information to the Company in respect to such nomination that was untrue in any material respect or omitted to state a
material fact necessary in order to make the statement made, in light of the circumstances under which it was made, not misleading, as determined by the Board or any committee thereof, or (x) the Eligible Shareholder or applicable Shareholder
Nominee fails to comply with its obligations pursuant to this Section 10.
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(j) Notwithstanding anything to the contrary set forth herein, the Board or the presiding officer of the annual meeting of shareholders shall declare a nomination by an
Eligible Shareholder to be invalid, and (i) such nomination shall be disregarded and no vote on such Shareholder Nominee shall occur, notwithstanding that proxies in respect of such vote may have been received by the Company, (ii) the Company shall
not be required to include in its proxy statement or on any ballot or form of proxy the disregarded Shareholder Nominee or any successor or replacement nominee proposed by the Eligible Shareholder or by any other Eligible Shareholder, and (iii) the
Company may otherwise communicate to its shareholders, including by amending or supplementing its proxy statement or ballot or form of proxy, that the Shareholder Nominee or any successor or replacement nominee shall not be included as a director
nominee in the proxy statement or on any ballot or form of proxy and shall not be voted on at the annual meeting if: (i) the Shareholder Nominee(s) and/or the applicable Eligible Shareholder shall have breached its or their obligations under this
Section 10 or otherwise failed to satisfy the terms and conditions of this Section 10, as determined by the Board or such presiding officer, (ii) the Eligible Shareholder (or a qualified representative thereof) does not appear at the annual meeting
of shareholders to present any nomination made pursuant to this Section 10, or (iii) the Eligible Shareholder becomes ineligible or withdraws its nomination or a Shareholder Nominee becomes unwilling to serve on the Board, whether before or after
the mailing of the definitive proxy statement.
(k) No person may be a member of more than one group of persons constituting an Eligible Shareholder under this Section 10 of these By-Laws.
(l) Any Shareholder Nominee who is included in the Company’s proxy materials for a particular annual meeting of shareholders but either (i) withdraws from or becomes
ineligible or unavailable for election at the annual meeting or (ii) does not receive the favorable vote of at least 25% of the votes cast in the election of directors at the annual meeting, will be ineligible to be a Shareholder Nominee for the
following two annual meetings. For the avoidance of doubt, this Section 10 shall not prevent any shareholder from nominating any person for election to the Board pursuant to and in accordance with Article II, Section 9 of these By-Laws.
This Section 10 shall be the exclusive method for shareholders to include nominees for election to the Board in the Company’s proxy materials,
other than pursuant to Rule 14a-19 of the Exchange Act.
Section 11.
Action by Written Consent. Subject to the rights of the holders
of any series of preferred stock, all actions required or permitted to be taken by the shareholders of the Company must be effected at a duly called annual or special meeting of the shareholders or may be effected by a consent in writing by the
shareholders as provided by, and subject to the limitations in, Article ELEVENTH of the Certificate of Incorporation. In the event of delivery, in the manner provided in the Certificate of Incorporation and applicable law, to the Company of written
consent(s) to take corporate action in writing without a meeting and any related revocation(s), the Secretary shall designate one or more inspectors to discharge such duties as are required by Article ELEVENTH of the Certificate of Incorporation.
Section 12.
Certain Defined Terms. For purposes of this Article II:
(a) A “Person” shall mean any individual, firm, corporation, limited liability company, partnership, trust or other entity (including any successor thereto).
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(b) A “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 Company with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(c) To be considered a “qualified representative” of a shareholder, a person must be a duly authorized officer, manager or partner of such shareholder or authorized by a
writing executed by such shareholder or an electronic transmission delivered by such shareholder to act for such shareholder as proxy at the meeting of shareholders and such person must produce such writing or electronic transmission, or a reliable
reproduction of the writing or electronic transmission, at the meeting of shareholders.
ARTICLE III
BOARD OF DIRECTORS AND COMMITTEES
BOARD OF DIRECTORS AND COMMITTEES
Section 1.
Powers. Subject to the provisions of the NYBCL, and to any
limitations in the Certificate of Incorporation or these By-Laws relating to action required to be approved by the shareholders, the business of the Company shall be managed under the direction of the Board.
Section 2.
Number and Terms of Directors. Until changed in the manner
hereinafter set forth, the number of directors of the Company shall be eleven, unless otherwise determined by the Board in its sole discretion, provided that the number of directors on the Board shall not be fewer than three directors. The number
of directors of the Company may be increased or decreased solely by amendment of these By-Laws adopted by the shareholders or the Board. No decrease in the number of directors shall shorten the term of any incumbent director. Each director shall be
elected for a term expiring at the next annual meeting of shareholders and until such director’s successor shall have been elected and qualified, except in the case of the director’s prior death, resignation, retirement, disqualification or removal
from office.
Section 3.
Vacancies. Unless otherwise provided in the Certificate of
Incorporation, these By-Laws or by law, any vacancy on the Board shall be filled by an affirmative vote of a majority of the directors then in office, even if less than a quorum, or by a sole remaining director.
Any directors chosen pursuant to this Section 3 shall hold office until the next meeting of shareholders at which the election
of directors is in the regular order of business and until such director’s successor has been elected and qualified.
Section 4.
Meetings of the Board.
(a) Regular meetings of the Board shall be held at such times as may from time to time be fixed by the Board, and notice of such meetings need not be given. All such
meetings shall be held at any place, including by means of remote communications, as shall be determined by the Board. In the absence of such designation, such meetings shall be held at the principal office of the Company.
(b) Special meetings of the Board may be called by the Board, the Chairman of the Board, the President or the Chief Executive Officer at any time, and shall be called by the
Secretary of the Company when requested to do so by written notice signed by a majority of the Board. Notice of the place, date and hour of each special meeting of the Board shall be provided to each director personally, by mail or telephone, or
electronically. If mailed, the notice shall be addressed to the director at such director’s last known address as it appears on the records of the Secretary of the Company and mailed not less than three days before the date of the meeting. If
delivered personally, electronically or by telephone, the notice shall be given not less than eight hours before the time of the meeting. An affidavit of the person giving notice stating that notice has been given as herein required, and the manner
in which given, shall be filed with the Secretary of the Company and shall, in the absence of fraud, be prima facie evidence of the facts therein stated. A notice of special meeting need not state the purpose of such meeting and, unless otherwise
indicated in the notice thereof, any and all business may be transacted at a special meeting. Any director may waive notice of any special meeting in writing or by electronic communication. 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.
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Section 5.
Annual Meeting of Directors. A stated meeting of the Board, to
be known as its annual meeting, shall be held each year on the day of the conclusion of the annual shareholders’ meeting (or at such other time as the Board shall determine) and, at such meeting, the officers of the Company for the ensuing year
shall be elected. If a quorum of the directors is not present on such date, the meeting shall be adjourned to some convenient day.
Section 6.
Quorum; Voting. One-third (1/3) of the Entire Board, but not
less than three, shall constitute a quorum for the transaction of business, but if at any meeting of the Board there shall be less than a quorum present, a majority of the directors present may adjourn the meeting from time to time without notice
other than announcement at the meeting, until a quorum shall have been obtained, when any business may be transacted which might have been transacted at the meeting as first convened had there been a quorum. The acts of a majority of the directors
present at any meeting at which there is a quorum shall, unless otherwise provided by law, by the Certificate of Incorporation or by the By-Laws, be the acts of the Board. For purposes of these By-Laws, the “Entire Board” means the total number of
directors which the Company would have if there were no vacancies.
Section 7.
Committees. The Board, by resolution adopted by a majority of
the Entire Board, may designate from among its members an executive committee and other committees, each consisting of one or more directors. The resolution designating any such committee shall fix its powers and authority. Any such committee may
have all or any of the authority of the Board to the extent provided in the resolution designating such committee subject to applicable law and listing standards, and except that no such committee shall have authority as to the following matters:
(a) the submission to shareholders of any action or matter (other than the election or removal of directors) expressly requested by the NYBCL to be submitted to shareholders
for approval;
(b) the filling of vacancies in the Board or in any committee of the Board;
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(c) the fixing of compensation of the directors for serving on the Board or any committee of the Board;
(d) the amendment or repeal of the By-Laws, or the adoption of new By-Laws; and
(e) the amendment or repeal of any resolution of the Board which by its terms shall not be so amendable or repealable.
The Board may designate one or more directors as alternate members of any such committee, who may replace any absent or
disqualified member or members at any meeting of such committee. An alternate member may count toward a quorum and vote only if a member for whom such person is an alternate is absent or disqualified.
Each such committee and the members thereof shall serve at the pleasure of the Board; and the Board may at any time fill
vacancies in, change the membership of, or dissolve any such committee, subject to applicable law and listing standards.
An act or authorization of an act by any such committee within the authority of the committee provided for in the resolution
designating such committee shall be as effective for all purposes as the act or authorization of Board. One-third (1/3) of the members of any such committee, but not less than two, shall constitute a quorum for the transaction of business. Any such
committee may act by a majority of its members at a meeting at which there is a quorum.
Section 8.
Action by Unanimous Written Consent. Any action required or
permitted to be taken by the Board or any committee thereof may be taken without a meeting if all members of the Board or the committee consent in writing to the adoption of a resolution authorizing the action. The resolution and the written
consents thereto by the members of the Board or committee shall be filed with the minutes of the proceedings of the Board or committee. The written consent of a Board or committee member may be made electronically, where such consent is submitted
via electronic mail, text or other secured platform for electronic communications, along with information from which it can be reasonably determined that the transmission was authorized by such member.
Section 9.
Chairman of the Board. The Chairman of the Board shall preside
at all meetings of directors, and shall perform such other and further duties as may from time to time be required of him or her by the Board. If the Chairman of the Board is not present at a meeting of the Board, another director chosen by the
Board shall preside.
Section 10.
Compensation. Each director of the Company who is not a salaried
officer or employee of the Company may receive a reasonable compensation for such director’s services as a director as determined by the Board.
Section 11.
Resignation and Removal.
(a) Any director may resign at any time upon notice given in writing or by electronic transmission to the Chairman of the Board. Such resignation shall take effect at the
time specified in such notice or, if the time be not specified, upon receipt thereof by the Chairman of the Board.
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(b) In an uncontested election, any nominee for director who duly holds office as a director under these By-Laws and does not receive an affirmative vote of a majority of
the votes cast in favor of or against such nominee shall promptly tender his or her resignation after such election. The independent directors of the Board, giving due consideration to the best interests of the Company and its shareholders, shall
evaluate the relevant facts and circumstances, and shall make a decision, within 30 days after the election, on whether to accept the tendered resignation. Any director who tenders a resignation pursuant to this provision shall not participate in
the Board’s decision. The Board will promptly disclose publicly its decision and, if applicable, the reasons for rejecting the tendered resignation.
(c) Unless otherwise restricted by law, the Certificate of Incorporation or these By-Laws, any director may be removed from office as a director, but only for cause, by the
holders of a majority of the votes of outstanding shares of stock of the Company entitled to vote at an election of directors or by a majority of the Entire Board.
Section 12.
Meetings by Telephonic Participation. Any one or more members of
the Board or any committee thereof may participate in a meeting of the Board or such committee by means of a telephone conference or similar electronic communications equipment allowing all persons participating in the meeting to hear each other at
the same time. Participation by such means shall constitute presence in person at a meeting.
ARTICLE IV
OFFICERS
OFFICERS
Section 1.
Officers and Qualifications. The officers of the Company may
consist of a Chief Executive Officer, Chief Financial Officer, President, one or more Vice Presidents, any one or more of whom may be designated a Senior or Executive Vice President, a Secretary, a Treasurer and such other officers as the Board may
determine. Any two offices may be held by the same person. Unless otherwise provided in these By-Laws, in the absence or disability of any officer of the Company, the Board or the Chief Executive Officer may, during such period, delegate such
officer’s powers and duties to any other officer or to any director and the person to whom such powers and duties are delegated shall, for the time being, hold such office.
Section 2.
Election, Term and Compensation. All officers of the Company
shall be elected annually by the Board at its annual meeting. Each such individual shall hold office until the next annual meeting of the Board and until his or her successor has been elected and qualified but any such individual may be removed at
any time, with or without cause, by the affirmative vote of a majority of the members of the Board then in office. The Board shall determine or oversee the determination of the compensation to be paid to the officers.
Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board for the unexpired portion of the term.
Section 4.
Chief Executive Officer. The Chief Executive Officer shall have
general charge, supervision and control of the business and affairs of the Company, and of the officers and employees of the Company; all subject to such limitations as the Board may from time to time prescribe.
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Section 5.
President. The President shall, unless otherwise provided by
resolution of the Board, have general responsibility for the management and control of the operations of one or more divisions of the Company, subject to such limitations as the Board may from time to time prescribe. The President shall perform
such other and further duties as may from time to time be required of such person by the Chief Executive Officer or the Board.
Section 6.
Other Officers. Subject to such limitations as the Board may
from time to time prescribe, all of the other officers of the Company shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as from time to time may be conferred by the Chief
Executive Officer or the Board.
ARTICLE V
CAPITAL STOCK
CAPITAL STOCK
Section 1.
Certificates for Shares. The interest of each shareholder shall
either be uncertificated or evidenced by a certificate or certificates for shares of stock of the Company in such form as the Board may from time to time prescribe. The issuance of shares in uncertificated form shall not affect shares represented
by a certificate until such certificate is surrendered to the Company. The certificates of stock shall be signed by the Chairman of the Board, President or a Vice President and the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, and may be sealed with the seal of the Company, and shall be countersigned and registered in such manner, if any, as the Board may by resolution prescribe. The signatures of the officers upon a certificate and the seal of the
Company upon such certificate may be facsimiles. In case any officer who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer before such certificate is issued, it may be issued by the Company
with the same effect as if such person were such officer at the date of issue.
Section 2.
Transfer of Shares. Certificated or uncertificated shares of
stock of the Company shall be transferred on the books of the Company upon authorization by the registered holder thereof or such holder’s duly authorized attorney, upon surrender and cancellation of certificates for a like number of shares with
duly executed power to transfer endorsed thereon or attached thereto, or upon proper assignment in the case of uncertificated shares; provided, however, that the Company shall be entitled to recognize and enforce any lawful restriction on transfer.
Section 3.
Lost or Destroyed Stock Certificates. No certificate for shares
of stock or uncertificated shares of the Company shall be issued in place of any certificate alleged to have been lost, stolen or destroyed, except upon production of such evidence of the loss, theft or destruction, and upon indemnification of the
Company and its agents to such extent in such manner as the Board may from time to time prescribe.
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ARTICLE VI
CHECKS, NOTES, ETC.
CHECKS, NOTES, ETC.
All checks and drafts on the Company’s bank accounts and all bills of exchange and promissory notes, and all acceptances,
obligations and other instruments for payment of money shall be signed by such officer or officers, employee or employees, or agent or agents as shall be designated from time to time either by (a) the Board or (b) by any officer or officers
specifically authorized by the Board to make such designations. The signatures of any or all of such signatories may be facsimile signatures and printed, engraved, stamped or otherwise placed upon any such instrument or writing.
ARTICLE VII
FISCAL YEAR
FISCAL YEAR
The fiscal year of the Company shall commence with the first day of January and end with the last day of December in each year.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
The Board shall provide a suitable seal, containing the name of the Company.
ARTICLE IX
INDEMNIFICATION
INDEMNIFICATION
Section 1.
Rights to Indemnification and Advancement of Expenses. The
Company shall indemnify and advance expenses to any present or future director or officer from and against any and all liabilities and expenses to the broadest and maximum extent permitted by the NYBCL as the same presently exists or to the greater
extent permitted by any amendment hereafter adopted.
Section 2.
Employees and Agents. The Company may, to the extent authorized
from time to time by the Board and stated in Company policy, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Company on such terms and conditions as shall be determined by the Board.
Section 3.
Resolutions; Agreements. The Company is hereby authorized to
extend rights to indemnification and to the advancement of expenses to any person to whom the Company is permitted by applicable law to provide indemnification or the advancement of expenses by resolution of the shareholders, resolution of the
Board, or by an agreement.
Section 4.
Nonexclusivity. The rights to indemnification and advancement of
expenses conferred by this Article IX shall not be deemed exclusive of any other rights of indemnification or advancement of expenses that any person may have or hereafter acquire under any statute or which the Company may confer by means of the
Certificate of Incorporation, these By-Laws, a resolution of shareholders or directors, or an agreement providing for indemnification or advancement of expenses or otherwise.
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Section 5.
Insurance. The Company may maintain insurance, at its expense,
and to the fullest extent authorized by the NYBCL, to protect itself and any director, officer, employee or agent of the Company or any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise against any liabilities, expenses or losses, whether or not the Company would have the power to indemnify such person against such liabilities, expenses or losses under the NYBCL.
ARTICLE X
ADOPTION, AMENDMENT OR REPEAL OF BY-LAWS
ADOPTION, AMENDMENT OR REPEAL OF BY-LAWS
Subject to any provisions of the Certificate of Incorporation of the Company requiring a greater proportion of votes, By-Laws of
the Company may be adopted, amended or repealed at any meeting of shareholders at which a quorum is present by vote of the holders of a majority of the shares voted thereon. Notice of the proposed change shall be given in the notice of such meeting.
The Board may, by vote of two-thirds (2/3) of the Entire Board, adopt, amend or repeal By-Laws of the Company and may amend or repeal these By-Laws.
ARTICLE XI
DISPUTE RESOLUTION
DISPUTE RESOLUTION
Unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s shareholders, (iii) any
action asserting a claim arising pursuant to any provision of the NYBCL or the Certificate of Incorporation or By-Laws (as either may be amended from time to time), or (iv) any action asserting a claim governed by the internal affairs doctrine shall
be the Supreme Court in the City of New York or the District Court in Dallas, Texas (or, if the Supreme Court or District Court do not have jurisdiction, the federal district court for the Southern District of New York or the Northern District of
Texas). Failure to enforce the foregoing provisions would cause the Company irreparable harm, and the Company shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions.
Unless the Company consents in writing to the selection of an alternative forum, the federal district court for the Southern
District of New York or the Northern District of Texas (or if such court does not have jurisdiction over such action, any other federal district court of the United States) shall be the sole and exclusive forum for the resolution of any complaint
asserting a cause of action arising under the Securities Act against any person in connection with any offering of the Company’s securities, including, without limitation and for the avoidance of doubt, any auditor, underwriter, expert, control
person, or other defendant.
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Any person or entity purchasing or otherwise acquiring any interest in shares of the Company shall be deemed to have notice of
and consented to the provisions of this Article.
ARTICLE XII
SUBJECT TO LAW AND CERTIFICATE OF INCORPORATION
SUBJECT TO LAW AND CERTIFICATE OF INCORPORATION
All powers, duties and responsibilities provided for in these By-Laws, whether or not explicitly so qualified, are qualified by
the Certificate of Incorporation and applicable law.
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CERTIFICATION
I, Susan Hudson, hereby certify that the foregoing, comprising 24 pages, is a true, correct and complete copy of the Amended and
Restated By-Laws of Flowserve Corporation adopted by its Board of Directors effective April 12, 2023.
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By:
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/s/ Susan Hudson
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Susan Hudson
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Senior Vice President, Chief Legal Officer and Corporate Secretary
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| Exhibit 99.1 |
Flowserve Appoints Thomas Okray to Board of Directors
DALLAS--(BUSINESS WIRE)--April 12, 2023--Flowserve Corporation (NYSE:FLS), a leading provider of flow control products and services for the global infrastructure markets, announced today that its board of directors has elected Thomas Okray as a member of its board of directors and audit committee, effective April 12, 2023.
“We are very pleased to have Tom become part of Flowserve’s board,” said Scott Rowe, Flowserve president and chief executive officer. “His extensive global experience across diverse industries will bring meaningful insights and value to Flowserve.”
Mr. Okray currently serves as the chief financial officer and executive vice president at Eaton Corporation, a multinational intelligent power management company. His experience includes serving as CFO for Grainger and Advance Auto Parts, and serving in finance leadership roles for operational, customer fulfillment and product development divisions at General Motors and Amazon.
“The board was impressed by the breadth of Tom’s experience,” said David Roberts, chairman of the Flowserve board of directors. “We believe his roles at companies known for business innovation and new product development will be critically important as Flowserve evolves its focus on our 3D strategy and the flow control needs of the future.”
Mr. Okray earned a Bachelor of Science in chemical engineering from Michigan State University and an MBA from the Booth School of Business at the University of Chicago.
“I am excited to join the Flowserve board of directors and work with the company’s talented executive leadership team,” said Mr. Okray. “I look forward to bringing my experience and expertise into the boardroom to advance Flowserve’s strategic focus as it looks to serves customers in both conventional and emerging industries.”
About Flowserve: Flowserve Corp. is one of the world’s leading providers of fluid motion and control products and services. Operating in more than 55 countries, the company produces engineered and industrial pumps, seals and valves as well as a range of related flow management services. More information about Flowserve can be obtained by visiting the company’s website at www.flowserve.com.
Safe Harbor Statement: This news release includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, which are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, as amended. Words or phrases such as, “may,” “should,” “expects,” “could,” “intends,” “plans,” “anticipates,” “estimates,” “believes,” “forecasts,” “predicts” or other similar expressions are intended to identify forward-looking statements, which include, without limitation, earnings forecasts, statements relating to our business strategy and statements of expectations, beliefs, future plans and strategies and anticipated developments concerning our industry, business, operations and financial performance and condition.
The forward-looking statements included in this news release are based on our current expectations, projections, estimates and assumptions. These statements are only predictions, not guarantees. Such forward-looking statements are subject to numerous risks and uncertainties that are difficult to predict. These risks and uncertainties may cause actual results to differ materially from what is forecast in such forward-looking statements, and include, without limitation, the following: the impact of the global outbreak of COVID-19 on our business and operations; a portion of our bookings may not lead to completed sales, and our ability to convert bookings into revenues at acceptable profit margins; changes in global economic conditions and the potential for unexpected cancellations or delays of customer orders in our reported backlog; our dependence on our customers’ ability to make required capital investment and maintenance expenditures; if we are not able to successfully execute and realize the expected financial benefits from our strategic transformation and realignment initiatives, our business could be adversely affected; risks associated with cost overruns on fixed-fee projects and in taking customer orders for large complex custom engineered products; the substantial dependence of our sales on the success of the oil and gas, chemical, power generation and water management industries; the adverse impact of volatile raw materials prices on our products and operating margins; economic, political and other risks associated with our international operations, including military actions, trade embargoes, epidemics or pandemics or changes to tariffs or trade agreements that could affect customer markets, particularly North African, Russian and Middle Eastern markets and global oil and gas producers, and non-compliance with U.S. export/re-export control, foreign corrupt practice laws, economic sanctions and import laws and regulations; increased aging and slower collection of receivables, particularly in Latin America and other emerging markets; our exposure to fluctuations in foreign currency exchange rates, including in hyperinflationary countries such as Venezuela and Argentina; our furnishing of products and services to nuclear power plant facilities and other critical processes; potential adverse consequences resulting from litigation to which we are a party, such as litigation involving asbestos-containing material claims; expectations regarding acquisitions and the integration of acquired businesses; our relative geographical profitability and its impact on our utilization of deferred tax assets, including foreign tax credits; the potential adverse impact of an impairment in the carrying value of goodwill or other intangible assets; our dependence upon third-party suppliers whose failure to perform timely could adversely affect our business operations; the highly competitive nature of the markets in which we operate; environmental compliance costs and liabilities; potential work stoppages and other labor matters; access to public and private sources of debt financing; our inability to protect our intellectual property in the U.S., as well as in foreign countries; obligations under our defined benefit pension plans; our internal control over financial reporting may not prevent or detect misstatements because of its inherent limitations, including the possibility of human error, the circumvention or overriding of controls, or fraud; the recording of increased deferred tax asset valuation allowances in the future or the impact of tax law changes on such deferred tax assets could affect our operating results; our information technology infrastructure could be subject to service interruptions, data corruption, cyber-based attacks or network security breaches, which could disrupt our business operations and result in the loss of critical and confidential information; ineffective internal controls could impact the accuracy and timely reporting of our business and financial results; and other factors described from time to time in our filings with the Securities and Exchange Commission.
All forward-looking statements included in this news release are based on information available to us on the date hereof, and we assume no obligation to update any forward-looking statement.
Contacts
Flowserve Contacts
Investor Contacts:
Jay Roueche, Vice President, Investor Relations & Treasurer, 972-443-6560
Mike Mullin, Director, Investor Relations, 214-697-8568