If any nominee for director in an uncontested election is not elected and the nominee is an incumbent director, that director shall promptly tender his or her resignation to the Board of Directors, subject to acceptance by the Board of Directors. The Nominating and Corporate Governance Committee of the Board of Directors (or such other duly constituted committee of the Board of Directors then-authorized to make a recommendation, “Nominating and Governance Committee”) will make a recommendation to the Board of Directors as to whether to accept or reject the tendered resignation, or whether other action should be taken. The Board of Directors will act on the tendered resignation, taking into account the Nominating and Governance Committee’s recommendation, and publicly disclose (by a press release, a filing with the Securities and Exchange Commission or other broadly disseminated means of communication) its decision regarding the tendered resignation and the rationale behind the decision within 90 days from the date of the certification of the election results. The Nominating and Governance Committee, in making its recommendation, and the Board of Directors, in making its decision, may each consider any factors or other information that they consider appropriate and relevant. The director who tenders his or her resignation will not participate in the recommendation of the Nominating and Governance Committee or the decision of the Board of Directors with respect to his or her resignation.
If a director’s resignation is accepted by the Board of Directors pursuant to this Section 5.02, or if a nominee for director is not elected and the nominee is not an incumbent director, then the Board of Directors may fill the resulting vacancy pursuant to the provisions of Section 5.01 or may decrease the size of the Board of Directors in accordance with applicable law.
Notwithstanding anything to the contrary contained in these Articles of Incorporation (including in this Article V), the affirmative vote of the holders of a majority of the combined voting power of the then outstanding shares of the Corporation entitled to vote generally in the election of directors and present at a meeting of shareholders, voting together as a single class, shall be required to alter, amend, or adopt any provision inconsistent with or to repeal Section 5.02 of this Article V.”
B. After giving effect to the renumbering of the former Section 5.02 pursuant to the amendment described above, the newly renumbered Section 5.03 of the Articles shall deleted and replaced in its entirety with the following:
“5.03.Removal. Any director may be removed from office as a director (1) by the affirmative vote of the holders of a majority of the combined voting power of the then outstanding shares of the Corporation entitled to vote generally in the election of directors and present at a meeting of shareholders, voting together as a single class, and only for cause, or (2) by a majority of the directors then in office, with or without cause.”
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