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Delaware
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000-15535
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13-3115216
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||
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
5.03
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Amendments to Articles
of Incorporation or Bylaws; Change in Fiscal
Year.
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·
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Lost stock
certificates. Section 1 of Article I was amended to add a new
subsection (c) to provide that in the case of lost stock certificates, a
new certificate or certificates shall be issued in place of any
certificate or certificates previously issued by the Company that have
been alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock
to be lost, stolen, or destroyed. In such a case, the Company may
require, as a condition precedent to the issuance of a new certificate or
certificates, that the owner of such lost, stolen, or destroyed
certificate or certificates, or his or her legal representative, advertise
the same in such manner as it shall require or provide the Company with a
surety bond in such form and amount as it may direct as indemnity against
any claim that may be made against the Company with respect to the
certificate alleged to have been lost, stolen, or
destroyed.
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·
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Record date for
corporate actions by written consent. Section 4 of Article I was
amended to add a new subsection (c) to provide a procedure for setting the
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting. Pursuant to this
new subsection (c), any person seeking to have the stockholders
authorize or take corporate action by written consent without a meeting
shall, by written notice addressed
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·
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Place of stockholders’
meetings. Subsection (b) of Section 6 of Article I was
amended to conform such subsection to the current provisions of Section
211 of the DGCL as amended by the Technology Amendments to the DGCL which
were adopted by the Delaware legislature and made effective July 1, 2000
(the “DGCL Technology Amendments”). As amended by the DGCL
Technology Amendments, Section 211 of the DGCL allows stockholder meetings
to be held entirely by remote communication, without a venue for physical
attendance, is so determined by the Board of
Directors. Accordingly, subsection (b) of Section 6 of Article
I, as amended, provides that the Board of Directors may, in its sole
discretion, determine that a meeting of stockholders shall not be held at
any place, but may instead be held solely by means of remote communication
as provided under the DGCL.
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·
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Notices. Subsection
(d) of Section 6 of Article I was amended to conform the provisions of
such subsection relating to notice of stockholders’ meetings to the
current provisions of Section 222 of the DGCL as amended by the DGCL
Technology Amendments which requires that such notice specify the means of
remote communications, if any, by which stockholders and proxy holders may
be deemed to be present in person and vote at any such
meeting.
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·
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Waivers of notices of
stockholders’ meetings. Subsection (d) of Section 6 of
Article I was also amended to conform the provisions of such subsection
relating to waivers of notice of stockholders’ meetings to the current
provisions of Section 229 of the DGCL as amended by the DGCL Technology
Amendments which permits stockholders to waive notice of a stockholders’
meeting either by a signed writing or by electronic
transmission.
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·
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Stockholder
list. Subsection (e) of Section 6 of Article I was
amended to conform such subsection to the current provisions of Section
219 of the DGCL as amended by the DGCL Technology Amendments. The DGCL
Technology Amendments to Section 219 eliminated the requirements that a
list of stockholders be available either at a place within the city where
the meeting of stockholders is to be held or at the place of the meeting
for ten (10) days prior to the meeting, and substituted a requirement that
the list
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·
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Conduct of
stockholders’ meetings. Subsection (f) of Section 6 of Article I
was amended to add a new numbered subsection thereunder to provide that
the Board of Directors of the Company shall be entitled to make such rules
or regulations for the conduct of meetings of stockholders as it shall
deem necessary, appropriate or convenient. In addition, such
new subsection provides that, subject to such rules and regulations of the
Board of Directors, if any, the chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and procedures
and take such action as, in the discretion of such chairman, are deemed
necessary, appropriate or convenient for the proper conduct of the
meeting. Such rules, regulations and procedures, whether
adopted by the Board of Directors or prescribed by the chairman of the
meeting, may include, without limitation (A) the establishment of an
agenda for the meeting, (B) restricting admission to the time set for the
commencement of the meeting, (C) limiting attendance at the meeting to
stockholders of record of the Company entitled to vote at the meeting,
their duly authorized proxies or other such persons as the chairman of the
meeting may determine, (D) limiting participation at the meeting on any
matter to stockholders of record of the Company entitled to vote on such
matter, their duly authorized proxies or other such persons as the
chairman of the meeting may determine to recognize and, as a condition to
recognizing any such participant, requiring such participant to provide
the chairman of the meeting with evidence of his or her name and
affiliation, whether her or she is a stockholder or a proxy for a
stockholder, and the class and series and number of shares of each class
and series of capital stock of the Company which are owned beneficially
and/or of record by such stockholder, (E) limiting the time allotted to
questions or comments by participants, (F) determining when the polls
should be opened and closed for voting, (G) taking such actions as are
necessary or appropriate to maintain order, decorum, safety and security
at the meeting, (H) removing any stockholder who refuses to comply with
meeting procedures, rules or guidelines as established by the chairman of
the meeting, (I) recessing or adjourning the meeting to a later date, time
and place announced at the meeting by the chairman, and (J) complying with
any state and local laws and regulations concerning safety and
security.
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·
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Proxy
representation. Subsection (g) of Section 6 of Article I was
amended to conform such subsection to the current provisions of Section
212(b) of the DGCL as amended by the DGCL Technology Amendments. The DGCL
Technology Amendments to Section 212(b) specifically authorizes the
creation of a proxy relationship by telegram, cablegram or other means of
electronic transmission provided that the telegram, cablegram or other
means
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·
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Inspectors of
election. Subsection (h) of Section 6 of Article I was
amended to provide that the person or persons appointed or designated, if
any, to serve as the inspector or inspectors of election at a meeting of
stockholders shall: (A) determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence
of a quorum, and the authenticity, validity, and effect of proxies; (B)
receive votes, ballots or consents; (C) hear and determine all challenges
and questions in any way arising in connection with the right to vote; (D)
on request of the person presiding at the meeting, make a report in
writing of any challenge, question, or matter determined by him or them
and execute a certificate of any fact found by him or them; (E) retain for
a reasonable period a record of the disposition of any challenges made to
any determination by the inspectors; (F) count and tabulate all votes,
ballots or consents; (G) determine when the polls shall close; (H) certify
their determination of the number of shares of capital stock of the
Company represented at the meeting and their count of all votes, ballots
or consents; and (I) do any other acts that may be necessary or proper to
conduct the election or vote with fairness to all
stockholders.
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·
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Advance notice of
stockholder proposals to be brought before a annual meeting of
stockholders. Section 6 of Article I was amended to add
a new subsection (k) to require stockholders intending to bring a proposal
before the annual meeting of stockholders to first provide the Company
with a timely and proper advance notice of such stockholder proposal in
accordance with the requirements of Section 6(k). Pursuant to
Section 6(k), for business to be properly brought before an annual meeting
by a stockholder, such business must be a proper subject for stockholder
action under the DGCL and such stockholder (i) must be a stockholder of
record on the date of the giving of the notice and on the record date for
the determination of stockholders entitled to vote at such annual meeting,
(ii) must be entitled to vote at such annual meeting, (iii) must comply
with the notice procedures set forth in Section 6(k), and (iv) must give
timely notice thereof in proper written form to the Secretary of the
Company.
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·
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To
be timely, a stockholder's notice of his or her intention to bring a
proposal before the annual meeting of stockholders must be delivered to,
or mailed and received by, the Secretary at the principal executive
offices of the Company not earlier than the one hundred fiftieth (150th)
calendar day, and not later than the close of business on the one hundred
twentieth (120th) calendar day, prior to the first anniversary of the
immediately preceding year's annual meeting of stockholders; provided,
however, that in the event that no annual meeting was held in the previous
year or the annual
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·
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In
addition to being timely, the stockholder's notice must be in proper
written form and contain the information called for by new Section 6(k)
including, but not limited to (i) a brief description of the business
desired to be brought before the annual meeting, including the text of the
proposal or business and the text of any resolutions proposed for
consideration, (ii) the reasons for conducting such business at the annual
meeting, (iii) the name and record address, as they appear on the Company
stock ledger, of such stockholder and the name and address of any
Stockholder Associated Person (as defined below), (iv) the class and
series and number of shares of each class and series of capital stock of
the Company which are owned beneficially and/or of record by such
stockholder and/or any Stockholder Associated Person, and the date or
dates such shares were acquired and the investment intent of such
acquisition (which information shall be supplemented not later than ten
(10) calendar days after the record date for the meeting to disclose such
ownership as of the record date), (v) a description of all arrangements or
understandings between such stockholder and/or any Stockholder Associated
Person, and any other person or persons (naming such person or persons) in
connection with the proposal of such business by such stockholder, (vi)
any material interest of such stockholder and/or any Stockholder
Associated Person in such business, individually or in the aggregate,
including any anticipated benefit to the stockholder or any Stockholder
Associated Person therefrom, (vii) a representation from the stockholder
as to whether the stockholder or any Stockholder Associated Person intends
or is part of a group which intends (A) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the
Company’s outstanding capital stock required to approve or adopt the
proposal and/or (B) otherwise to solicit proxies in support of such
proposal, (viii) a representation that such stockholder is a holder of
record of stock of the Company entitled to vote at such meeting, that such
stockholder intends to vote such stock at such meeting, and that such
stockholder intends to appear in person or by proxy at the annual meeting
to bring such business before the meeting, (ix) whether and the extent to
which any hedging transaction has
been
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·
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For
purposes of the Bylaws, Stockholder Associated Person of any stockholder
is defined as (a) any person controlling, directly or indirectly, or
acting in concert with, such stockholder, (b) any beneficial owner of
shares of stock of the Company owned of record or beneficially by such
stockholder, and (c) any person controlling, controlled by or under common
control with such Stockholder Associated
Person.
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·
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Advance notice of
stockholder nominations to made at an annual meeting of
stockholders. Section 6 of Article I was amended to add
a new subsection (l) to require stockholders intending to nominate
candidates for election to the Board of Directors at an annual meeting of
stockholders to first provide the Company with a timely and proper notice
of such nomination in accordance with the requirements of Section
6(l). Pursuant to Section 6(l), nominations of candidates for
the election of directors at an annual meeting of stockholders may be made
by any stockholder of the Company (a) who is a stockholder of record on
the date of the giving of the notice of nomination, on the record date for
the determination of the stockholders entitled to vote at such annual
meeting and at the time of the annual meeting of stockholders, (b) who is
entitled to vote at the meeting for the election of directors, and (c) who
complies with the notice procedures set forth in Section
6(l). In addition to any other applicable requirements, for a
nomination to be made by a
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·
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To
be timely, a stockholder's notice of his or her intention to make a
nomination of a candidate for election to the Company’s Board of Directors
at an annual meeting of stockholders must be delivered to, or mailed and
received by, the Secretary at the principal executive offices of the
Company not earlier than the one hundred fiftieth (150th) calendar day,
and not later than the close of business on the one hundred twentieth
(120th) calendar day, prior to the first anniversary of the immediately
preceding year's annual meeting of stockholders; provided, however, that
in the event that no annual meeting was held in the previous year or the
annual meeting is called for a date that is more than thirty (30) calendar
days earlier or more than sixty (60) calendar days later than such
anniversary date, notice by the stockholder in order to be timely must be
so delivered or received not later than the tenth (10th)
calendar day following the earlier of (i) the day on which public
disclosure of the date of such annual meeting is first made, and (ii) the
receipt by such stockholder of actual notice of the date of such annual
meeting.
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·
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To
be in proper written form, a stockholder's notice of nomination to the
Secretary shall set forth in writing as to each person whom the
stockholder proposes to nominate for election or reelection as a director
(a) the name, age, business address and residence address of the person,
(b) the principal occupation and employment of the person, (c) the class
and series and number of shares of each class and series of capital stock
of the Company which are owned beneficially or of record by the person
(which information shall be supplemented not later than ten (10) calendar
days after the record date for the meeting to disclose such ownership as
of the record date), (d) the person’s executed written consent to being
named in the proxy statement, if any, as a nominee and to serving as a
director if elected, (e) any other information relating to the person that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for
election of directors, or is otherwise required, pursuant to Section 14 of
the Exchange Act (or pursuant to any law or statute replacing such
section), and the rules and regulations promulgated thereunder, (f) a
representation from the stockholder as to whether the stockholder or any
Stockholder Associated Person intends or is part of a group which intends
(1) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Company’s outstanding capital stock required
to elect the person proposed as a nominee and/or (2) otherwise
to
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·
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To
be in proper written form, a stockholder's notice of nomination to the
Secretary shall also set forth in writing as to the stockholder giving the
notice (a) the name and record address of such stockholder, as they appear
on the Company's stock ledger, and the name and address of any Stockholder
Associated Person, (b) the class and series and number of shares of each
class and series of capital stock of the Company which are owned
beneficially and/or of record by such stockholder and/or any Stockholder
Associated Person, and the date or dates such shares were acquired and the
investment intent of such acquisition (which information shall be
supplemented not later than ten (10) calendar days after the record date
for the meeting to disclose such ownership as of the record date), (c) a
description of all arrangements or understandings between such stockholder
and/or any Stockholder Associated Person and each proposed nominee and any
other person or persons (naming such person or persons) pursuant to which
the nomination(s) are to be made by such stockholder, (d) any material
interest of such stockholder and/or any Stockholder Associated Person in
the election of such proposed nominee, individually or in the aggregate,
including any anticipated benefit to the stockholder or any Stockholder
Associated Person therefrom, (e) a representation that such stockholder is
a holder of record of stock of the Company entitled to vote at such
meeting and that such stockholder intends to appear in person or by proxy
at the meeting to nominate the person or persons named in its notice, (f)
whether and the extent to which any hedging transaction has been engaged
in by or on behalf of such stockholder or any Stockholder Associated
Person with respect to any shares of stock of the Company, without regard
to whether such transaction is required to be reported on a Schedule 13d
in accordance with the Exchange Act, (g) whether and the extent to which
any agreement, arrangement or understanding has been made, the effect or
intent of which is to increase or decrease the voting power of such
stockholder or such Stockholder Associated Person with respect to any
shares of the capital stock of the Company, without regard to whether such
transaction is required to be reported on a Schedule 13d in accordance
with the Exchange Act, and (h) any other information relating to such
stockholder, in his or her capacity as a proponent of a stockholder
nomination, or any Stockholder Associated Person that would be required to
be disclosed in a proxy statement or other filings required to be
made
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·
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Advance notice of
stockholder nominations to made at a special meeting of
stockholders. Section 6 of Article I was amended to add
a new subsection (m) to require stockholders intending to nominate
candidates for election to the Board of Directors at a special meeting of
stockholders to first provide the Company with a timely and proper notice
of such nomination in accordance with the requirements of Section
6(m). Pursuant to Section 6(m), provided that the Board of
Directors has determined that directors shall be elected at such special
meeting, a stockholder may nominate candidates for election to the Board
of Directors at such special meeting if such stockholder (a) is a
stockholder of record at the time of giving of notice provided for in
Section 6(m), (b) is a stockholder of record on the record date for the
determination of the stockholders entitled to vote at such special
meeting, (c) is a stockholder of record at the time of such special
meeting, and (d) complies with the notice procedures set forth in Section
6(m), including the delivery of a timely and proper notice of
nomination.
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·
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To
be timely, the stockholder’s notice of nomination with respect to a
special meeting must be delivered to the Secretary of the Company at the
principal executive office of the Company not later than the close of
business on the tenth (10th)
calendar day following the earlier of the day that the stockholder first
received actual notice of the date of the special meeting and the nominees
proposed by the Board of Directors to be elected at such meeting and the
day on which such public disclosure is first made by the
Company.
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·
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To
be in proper written form, a stockholder's notice of nomination with
respect to a special meeting shall set forth in writing as to each person
whom the stockholder proposes to nominate for election or reelection as a
director (a) the name, age, business address and residence address of the
person, (b) the principal occupation and employment of the person, (c) the
class and series and number of shares of each class and series of capital
stock of the Company which are owned beneficially or of record by the
person (which information shall be supplemented not later than ten (10)
calendar days after the record date for the meeting to disclose such
ownership as of the record date), (d) the person’s executed written
consent to being named in the proxy statement, if any, as a nominee and to
serving as a director if elected, (e) any other information relating to
the person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of
proxies for election of directors, or is otherwise required, pursuant to
Section 14 of the Exchange Act
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·
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To
be in proper written form, a stockholder's notice of nomination with
respect to a special meeting shall also set forth in writing as to the
stockholder giving the notice (a) the name and record address of such
stockholder, as they appear on the Company's stock ledger, and the name
and address of any Stockholder Associated Person, (b) the class and series
and number of shares of each class and series of capital stock of the
Company which are owned beneficially and/or of record by such stockholder
and/or any Stockholder Associated Person, and the date or dates such
shares were acquired and the investment intent of such acquisition (which
information shall be supplemented not later than ten (10) calendar days
after the record date for the meeting to disclose such ownership as of the
record date), (c) a description of all arrangements or understandings
between such stockholder and/or any Stockholder Associated Person and each
proposed nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination(s) are to be made by such
stockholder, (d) any material interest of such stockholder and/or any
Stockholder Associated Person in the election of such proposed nominee,
individually or in the aggregate, including any anticipated benefit to the
stockholder or any Stockholder Associated Person therefrom, (e) a
representation that such stockholder is a holder of record of stock of the
Company entitled to vote at such meeting and that such stockholder intends
to appear in person or by proxy at the meeting to nominate the person or
persons named in its notice, (f) whether and the extent to which any
hedging transaction has been engaged in by or on behalf of such
stockholder or any Stockholder Associated Person with respect to any
shares of stock of the Company, without regard to whether such transaction
is required to be reported on a Schedule 13d in accordance with the
Exchange Act, (g) whether and the extent to which any agreement,
arrangement or understanding has been made, the effect or intent of which
is to increase or decrease the
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·
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Consent of
stockholders in lieu of meetings. Section 7 of Article I
was amended to add a new subsection (c) to conform Section 7 to the
current provisions of Section 228(f) of the DGCL as amended by the DGCL
Technology Amendments which permits electronically transmitted
consents.
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·
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Qualifications of
directors. Section 2 of Article II was amended to
provide that a director of the Company must be ay least twenty-one (21)
years of age.
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·
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Number of
directors. Section 2 of Article II was amended to provide that the
Board of Directors shall consist of not less than five (5) nor more than
seven (7) members, the exact number of which shall be fixed from time to
time by action of the Board of
Directors.
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·
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Notice of meetings of
directors. Subsection (d) of Section 4 of Article II was amended to
permit notice of special meetings of directors to be given orally, in
writing, by telephone, facsimile, telegraph, telex, electronic mail or any
form of electronic transmission
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·
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Waiver of notice of
meetings of directors. Subsection (d) of Section 4 of Article II
was also amended to permit directors to waive notice of a special meeting
of directors either in a signed writing or by electronic
transmission.
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·
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Action by directors
without a meeting. Section 8 of Article II was amended
to conform such section to the current provisions of Section 141(f) of the
DGCL as amended by the DGCL Technology Amendments which permits actions by
written consent to be taken by electronic
transmission.
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·
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Resignations of
directors. Article II was amended to add a new Section 9
with respect to director resignations and the effective time of such
resignations. The new Section 9 also implements the DGCL
Technology Amendments to Section 141(b) of the DGCL which provides that a
director may submit his or her resignation by electronic
transmission.
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·
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Removal of
directors. Section 5 of Article II was amended to
provide that any or all of the directors may be removed from office at any
time but only for cause and only by either (i) the affirmative vote of the
holders of sixty six and two-thirds percent (66.67%) of the voting power
of all of the shares of the Company entitled to vote for the election of
directors at any annual or special meeting of the stockholders, provided
that notice of the proposed removal is included in the notice of the
meeting at which such action takes place, or (ii) the affirmative vote of
sixty six and two-thirds percent (66.67%) of the Board of Directors at any
regular or special meeting of the Board of Directors provided that notice
of the proposed removal is included in the notice of the meeting at which
such action takes place and such notice is not given less than two (2)
business days prior to the meeting.
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·
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Vacancies on the Board
of Directors. Section 10 of Article II was amended to
provide that, subject to the rights of the holders of any series of
preferred stock then outstanding, any vacancies on the Board of Directors
resulting from death, resignation, removal or other cause shall only be
filled by the Board, and not by the stockholders, by the affirmative vote
of a majority of the remaining directors then in office, even though less
than a quorum of the Board, or by a sole remaining director, and newly
created directorships resulting from any increase in the number of
directors, shall only be filled by the Board, or if not so filled, by the
stockholders at the next annual meeting thereof or at a special meeting
called for that purpose.
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·
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Vote required for
future amendments to the Bylaws. Article VI was amended to increase
the requisite vote needed to amend the Bylaws, whether the Bylaws are
being amended by the Board of Directors or the Company’s
stockholders. If the Bylaws are being amended by the
stockholders, they may only be amended, altered, rescinded or repealed by
the affirmative vote of the holders of not less than sixty six and
two-thirds percent (66.67%) of the voting power of all of the shares of
the Company entitled to vote at any annual or special meeting of the
stockholders, provided that notice of such proposed amendment, alteration,
rescission or repeal is included in the notice of the meeting at which
such action takes place, which shall also include, without limitation, the
text of any such proposed amendment or alteration and/or any resolution
calling therefor for any rescission or repeal. If the
Bylaws are being amended by the Board of Directors, they can only be
amended, altered, rescinded or repealed by the affirmative vote of not
less than a two-thirds majority of the Board of Directors at any regular
or special meeting of the Board of Directors provided that notice of such
proposed alteration, amendment, rescission or repeal to be made is
included in the notice of the meeting at which such action takes place,
which shall also include, without limitation, the text of any such
proposed amendment or alteration and/or any resolution calling therefor
for any rescission or repeal.
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·
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Indemnification of
directors and officers. A new Article VII was added to
the Bylaws to provide that the Company shall provide indemnification, in
among other situations, to any person who was or is a party or is
threatened to be made a party to, or is involved in or called as a
witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by
reason of the fact that such person is or was a director or officer of the
Company, or is or was a director or officer of the Company serving at the
request of the Company on as a director or officer, employee or agent
of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was
unlawful.
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·
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Advancement of
expenses. The newly-added Article VII also provides that
the Company shall advance to any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director
or officer of the Company, or is or was serving at the request of the
Company as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, prior to the final disposition
of the proceeding, promptly following request therefor, all expenses
incurred by any director or officer in connection with such proceeding
upon receipt of an undertaking by or on behalf of such person to repay
said amounts if it should be determined ultimately that such person is not
entitled to be indemnified by the Company pursuant to Article VII of the
Bylaws or otherwise.
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(d)
|
The
following have been filed as exhibits to this Form
8-K:
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3.1
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Lakeland
Industries, Inc. Amended and Restated By-Laws, as amended and restated on
June 18, 2008.
|
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LAKELAND
INDUSTRIES, INC.
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|||
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Date:
August 7, 2008
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By:
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/s/ Christopher J.
Ryan
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Name:
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Christopher
J. Ryan
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Title:
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President
and Chief Executive Officer
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Exhibit
Number |
Description
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|
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3.1
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Lakeland
Industries, Inc. Amended and Restated By-Laws as amended and restated on
June 18, 2008.
|