EXHIBIT 4.3
AMENDMENTS TO THE BY-LAWS
OF NETWORK COMPUTING DEVICES, INC.
Section 2.2 of Article II of the Corporation's By-Laws shall be amended
and restated to read in its entirety as follows:
SECTION 2.2 ANNUAL MEETINGS. The annual meetings of shareholders
shall be held on such day and at such hour as shall be fixed by the
Board of Directors. At such meeting, the shareholders shall elect
Directors and shall transact such other business as may properly be
brought before the meeting.
To be properly brought before the annual meeting, business must be
either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of
the Board of Directors, or (c) otherwise properly brought before the
meeting by a shareholder of record. In addition to any other applicable
requirements, for business to be properly brought before the annual
meeting by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
shareholder's notice must be delivered by a nationally recognized
courier service or mailed by first class United States mail, postage or
delivery charges prepaid, and received at the principal executive
offices of the corporation, addressed to the attention of the Secretary
of the corporation, not less than 60 days nor more than 90 days prior to
the scheduled date of the meeting (regardless of any postponements,
deferrals or adjournments of that meeting to a later date); provided,
however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the scheduled meeting is given or made
to shareholders, notice by the shareholder to be timely must be so
received not later than the earlier of (a) the close of business on the
10th day following the day on which such notice of the date of the
scheduled annual meeting was mailed or such public disclosure was made,
whichever first occurs, and (b) two days prior to the date of the
scheduled meeting. A shareholder's notice to the Secretary shall set
forth as to each matter the shareholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of the
shareholder proposing such business, (iii) the class, series and number
of shares of the corporation that are owned beneficially by the
shareholder, and (iv) any material interest of the shareholder in such
business. Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at the annual meeting except in accordance
with the procedures set forth in this Section; provided, however, that
nothing in this Section shall be deemed to preclude discussion by any
shareholder of any business properly brought before the annual meeting.
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The Chairman of the Board of the corporation (or such other person
presiding at the meeting in accordance with these By-Laws) 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, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before
the meeting shall not be transacted.
Section 3.3 of Article III of the Corporation's By-Laws shall be amended
and restated to read in its entirety as follows:
SECTION 3.3 ELECTION AND TERM OF OFFICE. The Directors shall be
elected at each annual meeting of shareholders, but if any such annual
meeting is not held, or the Directors are not elected thereat, the
Directors may be elected at any special meeting of the shareholders held
for that purpose. All Directors shall hold office until the expiration
of the term for which elected and until their respective successors are
elected, except in the case of the death, resignation or removal of any
Director. A Director need not be a shareholder.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as Directors. Nominations of
persons for election to the Board of Directors at the annual meeting, by
or at the direction of the Board of Directors, may be made by any
nominating committee or person appointed by the Board of Directors;
nominations may also be made by any shareholder of record of the
corporation entitled to vote for the election of Directors at the
meeting who complies with the notice procedures set forth in this
Section. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the corporation. To be timely, a
shareholder's notice shall be delivered by a nationally recognized
courier service or mailed by first class United States mail, postage or
delivery charges prepaid, and received at the principal executive
offices of the corporation addressed to the attention of the Secretary
of the corporation not less than 60 days nor more than 90 days prior to
the scheduled date of the meeting (regardless of any postponements,
deferrals or adjournments of that meeting to a later date); provided,
however, that, in the case of an annual meeting and in the event that
less than 70 days' notice or prior public disclosure of the date of the
scheduled meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the earlier
of (a) the close of business on the 10th day following the day on which
such notice of the date of the scheduled meeting was mailed or such
public disclosure was made, whichever first occurs, and (b) two days
prior to the date of the scheduled meeting. Such shareholder's notice
to the Secretary shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a
Director, (i) the name, age, business address and residence address of
the person, (ii) the principal occupation or employment of the person,
(iii) the class, series and number of shares of capital stock of the
corporation that are owned beneficially by the person, (iv) a statement
as to the person's citizenship, and (v) any other information relating
to the person that is required to be disclosed in solicitations for
proxies for election of Directors pursuant to Section 14 of
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the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder; and (b) as to the shareholder giving
the notice, (i) the name and record address of the shareholder and (ii)
the class, series and number of shares of capital stock of the
corporation that are owned beneficially by the shareholder. The
corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as Director
of the corporation. No person shall be eligible for election as a
Director of the corporation unless nominated in accordance with the
procedures set forth herein.
In connection with any annual meeting, the Chairman of the Board of
Directors (or such other person presiding at such meeting in accordance
with these By-Laws) shall, if the facts warrant, determine and declare
to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
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