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Exhibit 3.03
AMENDMENT NUMBER 1 TO THE BYLAWS OF
INTERPORE INTERNATIONAL, INC.
A DELAWARE CORPORATION
ADOPTED BY THE BOARD OF DIRECTORS ON NOVEMBER 15, 1998
Section 2.10 of the Bylaws of this Corporation is added as follows:
"Section 2.10 Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors of
the corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders only (a) pursuant
to the corporation's notice of meeting (or any supplement thereto), (b) by or at
the direction of the Board of Directors or the Chairman of the Board or (c) by
any stockholder of the corporation who was a stockholder of the corporation of
record at the time the notice provided for in this Section 2.10 is delivered to
the Secretary of the corporation, who is entitled to vote at the meeting and
complies with the notice procedures set forth in this Section 2.10.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (a)(1) of
this Section 2.10, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the corporation not later than the close of business on the
seventieth (70th) day nor earlier than the close of business on the ninetieth
(90th) day prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than twenty (20) days before or more than seventy (70) days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the (90th) ninetieth day
prior to such annual meeting and not later than the close of business on the
later of the (70th) seventieth day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such
meeting is first made by the corporation. In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a
new time period for the giving of a stockholder's notice as described above.
Such stockholder's notice shall set forth: (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(and such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made, and in the event that such business includes a proposal to
amend the By-laws of the corporation, the language of the proposed amendment;
and (c) as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (i) the name and address
of such stockholder, as they appear on the corporation's books, and of such
beneficial owner, (ii) the class and number of shares of the corporation which
are owned beneficially and of record by such stockholder and such beneficial
owner, (iii) a representation that the stockholder is a holder of record of
stock of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to propose such business or nomination, and
(iv) a representation whether the stockholder or the beneficial owner, if any,
intends or is part of a group which intends to (a) deliver a proxy statement and
form of proxy to holders of at least the percentage of the corporation's
outstanding Common Stock required to approve or adopt the proposal or elect the
nominee and/or (b) otherwise solicit proxies from stockholders in support of
such proposal or nomination.
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(3) Notwithstanding anything in the second sentence of paragraph (a)(2)
of this Section 2.10 to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the corporation is increased and
there is no public announcement by the corporation naming all of the nominees
for director or specifying the size of the increased Board of Directors at least
eighty (80) days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 2.10 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the tenth (10th) day following the day on which such public
announcement is first made by the corporation.
(c) Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the corporation's notice of meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the corporation's
notice of meeting (a) by or at the direction of the Board of Directors or (b)
provided that the Board of Directors has determined that directors shall be
elected at such meeting, by any stockholder of the corporation who is a
stockholder of record at the time the notice provided for in this Section 2.10
is delivered to the Secretary of the corporation, who shall be entitled to vote
at the meeting and who complies with the notice procedures set forth in this
Section 2.10. In the event the corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case
may be) for election to such position(s) as specified in the corporation's
notice of meeting, if the stockholder's notice required by paragraph (A)(2) of
this Section 2.10 shall be delivered to the Secretary at the principal executive
offices of the corporation not earlier than the close of business on the
ninetieth day prior to such special meeting and not later than the close of
business on the later of the seventieth day prior to such special meeting, or
the tenth (10th) day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period for the giving of a stockholder's notice as described above.
(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.10 shall be eligible to be elected at an
annual or special meeting of stockholders of the corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 2.10. Except as otherwise provided by law, the
Certificate of Incorporation or these By-laws, the chairman of the meeting shall
have the power and duty to (i) 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 2.10 and (ii) if
any proposed nomination or business is not in compliance with this Section 2.10,
including if the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicits or is part of a group which solicits
proxies in support of such stockholder's proposal without the stockholder having
made the representation required by clause (c)(iii) of Section (a)(2) of this
By-law, to declare that such defective nomination shall be disregarded or that
such proposed business shall not be transacted.
(2) For purposes of this Section 2.10, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 2.10,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.10. Nothing in this Section 2.10 shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances."
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