Exhibit 3.5
2.2 Election; Resignation; Vacancies.
(a) Term. At each annual meeting of stockholders, each nominee
elected by the stockholders to serve as a director shall hold
office for a term commencing on the date of the annual
meeting, or such later date as shall be determined by the
board of directors, and ending on the next annual meeting of
stockholders, or until his successor is elected and qualified
or until such director's earlier resignation or removal.
(b) Majority Voting. Except as provided in paragraph (c) below,
each nominee shall be elected a director by the vote of the
majority of the votes cast with respect to that director's
election at any meeting for the election of directors at which
a quorum is present. For purposes of this bylaw, a majority of
votes cast means that the number of votes "for" a director
must exceed 50% of the votes cast with respect to that
director. Votes "against" will count as a vote cast with
respect to that director, but "abstentions" will not count as
a vote cast with respect to that director.
(c) Contested Elections. If the number of nominees for any
election of directors nominated (i) by the Board of Directors
or (ii) any stockholder, or (iii) a combination of nominees by
the Board of Directors and any stockholder, exceeds the number
of directors to be elected, the nominees receiving a plurality
of the votes cast by holders of shares entitled to vote in the
election at a meeting at which a quorum is present will be
elected.
(d) Resignation and Replacement of Unsuccessful Incumbents.
(i) In order for any incumbent director to become a nominee of the
board for further service on the board, such person must
submit an irrevocable resignation, contingent (i) on that
person not receiving more than 50% of the votes cast, and (ii)
acceptance of that resignation by the Board in accordance with
policies and procedures adopted by the board for such
purposes.
(ii) resignation that becomes effective if and when the director
fails to receive a specified vote for re-election as a
director shall provide that it is irrevocable.
(iii) The Board of Directors, acting on the recommendation of the
Directors and Corporate Governance Committee, shall within 90
days of receiving the certified vote pertaining to such
election, determine whether to accept the resignation of the
unsuccessful incumbent. Absent a determination by the Board of
Directors that a compelling reason exists for concluding that
it is in the best interests of the Corporation for an
unsuccessful incumbent to remain as a Director, no such person
shall be elected by the Board to serve as a director, and the
Board shall accept that persons resignation.
(iv) If the Board determines to accept the resignation of an
unsuccessful incumbent, the Directors and Corporate Governance
Committee will promptly recommend a candidate to the Board of
Directors to fill the office formerly held by the unsuccessful
incumbent.
(v) The Board of Directors shall promptly consider and act upon
the Directors and Corporate Governance Committee's
recommendation. The Committee, in making this recommendation
and the Board, in acting on such recommendation, may consider
any factors or other information that they determine
appropriate and relevant.
(vi) The Directors and Corporate Governance Committee and the
Board of Directors shall take the actions required under
this paragraph (d) without the participation of any
unsuccessful incumbent except that:
a. If every member of the Directors and Corporate Governance
Committee is an unsuccessful incumbent, the Independent
Directors who are not unsuccessful incumbents shall name a
committee comprised of some or all of the Independent
Directors to make recommendations under this subsection to
the Board; and
b. If the number of Independent Directors who are not
unsuccessful incumbents is three or fewer, all directors
may participate in the decisions under this paragraph (d).
(e) Acceptance of A Director's Resignation. If the Board of
Directors accepts the resignation of a director who is not
an unsuccessful incumbent pursuant to this Bylaw, or if a
nominee for director who is not an incumbent director does
not receive more than 50% of the votes cast, then the
Board of Directors may fill the resulting vacancy pursuant
to the provisions of paragraph (g) of this Section, or may
decrease the size of the Board of Directors pursuant to
the provisions of section 2.1 (Responsibility and Number)
of these Bylaws.
(f) Resignation. Any director may resign at any time upon
notice given in writing or by electronic transmission to
the chairman of the board and the presiding director. A
resignation is effective when the resignation is delivered
unless the resignation specifies (a) a later effective
date or (b) an effective date determined upon the
happening of an event or events (including but not limited
to a failure to receive more than 50% of the votes cast in
an election and the Board's acceptance of the
resignation).
(g) Filling A Vacancy. Any vacancy occurring in the board for
any cause may be filled by a majority of the remaining
members of the board, although such majority is less than
a quorum. Each director so elected shall hold office until
the expiration of the term of the other directors or until
his successor is elected and qualified, or until the
earlier of his resignation or removal.