Pursuant to the new voting standard, in the case of uncontested director elections, a director must be elected by a majority of the votes cast with respect to the election of such director. For purposes of this standard, a “majority of the votes cast” means that the number of shares voted “for” a director must exceed the number of shares voted “against” that director and abstentions and broker non-votes are not counted as “votes cast.” In the case of contested elections (where, if as of a date that is 14 days in advance of the date the Company files its definitive proxy statement (12 days in the case of the Company's 2016 Annual Meeting of Stockholders) (regardless of whether or not thereafter revised or supplemented) with the Securities and Exchange Commission, the number of nominees exceeds the number of directors to be elected), the required voting standard to be elected as a director continues to be by the plurality voting standard that was previously in effect under the Company’s by-laws for all director elections (which had applied whether or not such elections were contested) before giving effect to the Second Amended and Restated By-Laws. Under such plurality voting standard, the nominees receiving the most votes “for” their election at a meeting of stockholders at which a quorum is present would be elected to the Board (despite the amount of “against” or “withhold” votes, abstentions or broker non-votes with respect to any nominee).

 

Pursuant to the new director resignation policy, if an incumbent director fails to receive the required majority vote for reelection, the director is required to offer his or her resignation to the Board. The Board may consider any factors they deem relevant (including, but not limited to, recommendations the Board may request from a designated committee) in deciding whether to accept or reject a director’s resignation or whether other action should be taken. Any director tendering such resignation may not participate in the deliberations regarding whether to accept or reject such resignation. Within 90 days from the date the election results are certified, the Company will be required to publicly disclose the Board’s decision and the rationale behind such decision.

 

The Second Amended and Restated By-Laws also contain certain amendments that clarified procedures in the Company’s previously existing by-laws relating to the duty of presiding over meetings of the Board in the absence of the Chairman (stating that the Chief Executive Officer or President of the Company, as applicable, would only preside at such meetings in the absence of the Chairman of the Board (and in the absence of the Chief Executive Officer, in the case of the President) where such officers also happened to be directors).