Exhibit 3.8
AMENDMENTS TO BY-LAWS OF RESPIRONICS, INC.
(Adopted by Board of Directors on November 18, 1998)
1. AMENDMENT TO ARTICLE I TO ADD NEW SECTIONS 1.09, 1.10 AND 1.11. Article
I of the By-Laws is hereby amended by adding new Sections 1.09, 1.10 and 1.11
thereto, such Sections to read as set forth in Exhibit A attached hereto.
2. AMENDMENT TO ARTICLE II, SECTION 2.01. Section 2.01 of Article II of the
By-Laws is hereby amended by deleting the first sentence thereof and replacing
it with the following:
"Unless otherwise provided in the Certificate of Incorporation of
the Corporation, the number of directors which shall constitute
the full Board of Directors shall be determined by resolution of
the Board of Directors."
Exhibit A -- "Advance Notice" Bylaws
Section 1.09. Nomination of Directors. Only persons who are nominated in
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accordance with the procedures set forth in this Section 1.09 shall be eligible
for election as directors of the Corporation.
(a) Nominations of persons for election to the Board of Directors of the
Corporation (the "Board") may be made at any annual meeting of stockholders by
or at the direction of the Board or by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who was a
stockholder of record at the time of giving of notice provided for in this
Section 1.09(a) and who complies with the notice procedures set forth in this
Section 1.09(a). Any such nomination by a stockholder shall be made pursuant to
timely notice in writing to the Secretary of the Corporation.
(1) To be timely notice for an annual meeting, a stockholder's notice
shall be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation not less than 90
calendar days before the anniversary date of the Corporation's
proxy statement released to stockholders in connection with the
previous year's annual meeting and, if none, its most recent
previous annual meeting; provided, however, that in the event
that the date of the annual meeting at which such business is to
be presented has been changed by more than 30 days from the date
of the most recent previous annual meeting, a stockholder's
notice shall be considered timely if so received by the
Corporation (i) on or before the later of (x) 120 calendar days
before the date of the annual meeting at which such business is
to be presented or (y) 30 days following the first public
announcement by the Corporation of the date of such annual
meeting and (ii) in any event not later than 15 calendar days
prior to the scheduled mailing date of the Corporation's proxy
materials for such annual meeting. In no event shall the public
announcement of an adjournment of an annual meeting commence a
new time period for the giving of a shareholder's notice as
described above.
(2) Notwithstanding anything in the previous paragraph to the
contrary, in the event that the number of directors to be elected
to the Board is increased and there is not public announcement
naming all of the nominees for director or specifying the size of
the increased Board made by the Corporation at least 100 days
prior to the anniversary date of the Corporation's proxy
statement released to stockholders in connection with the
previous year's annual meeting, a stockholder's notice required
by this Section 1.09(a) 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 of the
Corporation at the principal executive offices of the Corporation
not later than the close of business on the 10th day following
the day on which such public announcement is first made by the
Corporation.
(3) Such stockholder's notice shall set forth in writing (i) as to
each person whom the stockholder proposes to nominate for
election or re-election as a
director (A) the name, age, business address and residence of
such person, (B) the principal occupation or employment of such
person, (C) the number of shares of stock of the Corporation that
are beneficially owned by such person, (D) a description of all
arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to
be made by the stockholder; (E) such other information regarding
each nominee proposed by such stockholder as would be required to
be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission, had the nominee
been nominated by the Board; and (F) the consent of each nominee
to serve as a director of the Corporation if so elected; and (ii)
as to the stockholder giving the notice and the beneficial
owners, if any, on whose behalf the nomination is made (A) the
name and address of each such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (B) the
class and number of shares of the Corporation which are owned
beneficially and of record by each such stockholder and such
beneficial owner.
(b) Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be elected pursuant to
the Corporation's notice of meeting (i) by or at the direction of the Board or
(ii) provided that the Board has determined that one or more directors shall be
elected at such special meeting, by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this
Section 1.09(b), who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 1.09(b).
(1) To be timely notice for a special meeting, a stockholder's notice
must be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation not later than the
close of business on the later of the 90th day prior to such
special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and
of the nominee(s) proposed by the Board of Directors to be
elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a
new time period for the giving of a stockholder's notice as
described above
(c) At the request of the Board, any person nominated by the Board for
election as a director shall furnish to the Secretary of the Corporation that
information pertaining to the nominee which is required to be set forth in a
stockholder's notice of nomination. The Chairman of the Board, or in his or her
absence the Chief Executive Officer, the President, any Vice President or the
Secretary, shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed by
these Bylaws, and in that event the defective nomination shall be disregarded.
Section 1.10. Transaction of Business. To be properly brought before an
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annual meeting of stockholders, business must be (a) specified in the notice of
meeting (or any
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supplement thereto) given by or at the direction of the Board, (b) otherwise
brought before the meeting by or at the direction of the Board, or (c) otherwise
properly brought before the meeting by a stockholder of the Corporation who was
a stockholder of record at the time of giving of notice provided for in this
Section 1.10, who is entitled to vote at the meeting and who complied with the
notice procedures set forth in this Section 1.10. For business to be properly
brought before an annual meeting by a stockholder, if such business is any
matter other than the nomination of candidates for the election of directors of
the Corporation, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation as provided in this Section 1.10.
(1) To be timely, a stockholder's notice shall be delivered in
accordance with the procedures in Section 1.09(a)(1) applicable
to a stockholder's nomination of directors at an annual meeting.
(2) Such stockholder's notice shall set forth in writing as to each
matter the stockholder proposes to bring before the annual
meeting (i) as to the matter the stockholder proposes, (A) a
brief description of the business desired to be brought before
the annual meeting, the reasons for conducting such business at
the annual meeting, and any material interest in such business of
such stockholder and the beneficial owners, if any, on whose
behalf the proposal is made and (B) such other information
regarding such proposal by such stockholder as would be included
in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the proposal been made by
the Corporation; and (ii) as to the stockholder giving the notice
and the beneficial owners, if any, on whose behalf the proposal
is made, (A) the name and address of such stockholder, as they
appear on the Corporation's books, and of each such beneficial
owner and (B) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder
and each such beneficial owner.
(3) Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 1.10.
Notwithstanding anything in these Bylaws to the contrary, the
Chairman of the Board, or in his or her absence the Chief
Executive Officer, the President, any Vice President or the
Secretary, shall, if the facts warrant, determine and declare to
the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 1.10,
and in that event the business shall not be transacted. In no
event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a
stockholder's notice as described above
Notwithstanding anything in these Bylaws to the contrary, 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.
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Section 1.11. General Provisions Relating to Sections 1.09 and 1.10.
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(a) For purposes of Sections 1.09 and Section 1.10 of this Article I,
"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 Securities Exchange Act of
1934, as amended (the "Exchange Act").
(b) In addition to the provisions of Sections 1.09 and 1.10 of this Article
I, a stockholder also shall comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in Sections 1.09 and 1.10 of this Agreement
shall be deemed to affect any rights of stockholders to request inclusion of
proposals in the corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
(c) The provisions of Sections 1.09 and 1.10 of this Article shall govern
and control and take precedence over any other provision of these Bylaws to the
contrary with respect to all matters covered by such Section 1.09 and 1.10,
including without limitation the procedures described in the first sentence of
Section 1.06 of this Article I.
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