AMENDMENT NO. 1 TO BOARD REPRESENTATION AGREEMENT
Exhibit 3.4
AMENDMENT NO. 1 TO BOARD REPRESENTATION AGREEMENT
AMENDMENT dated as of June 1, 2001 to the Board Representation Agreement dated as of November 6, 1996 (the “Board Representation Agreement”) among Xxxxxx Micro Inc., a Delaware corporation (“Micro”), and each person listed on the signature pages thereof.
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Board Representation Agreement to reflect amendments to Micro’s certificate of incorporation and bylaws;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to Section 2.1. Section 2.1 of the Board Representation Agreement is hereby deleted and replaced with the following text:
| “Section 2.1 Number of Directors; Term; Quorum; Vote. The bylaws of Micro shall provide for a Board consisting of at least eight and no more than ten members. The term of directors may be set by the vote of a majority of the entire Board of Directors, and if required by applicable law, approval of Micro’s stockholders, to be either: |
| (a) | one year, commencing immediately following the annual meeting of stockholders at which such director is to be elected and ending at such time after the next annual meeting of stockholders as his or her successor is elected and qualified or upon such director’s death, or earlier resignation or removal in accordance with this Agreement or applicable law; or | ||
| (b) | staggered, where the Board shall be divided into three (3) classes, as nearly equal in number as possible, and directors chosen at the 2001 annual meeting of Micro’s stockholders will serve one, two or three years, depending on the class of which they are serving as a member. In each case, at the time of the next election of a class, directors of that class will serve terms ending at such time after the annual meeting held three years after such election as his or her successor is elected and qualified or upon such director’s death, or earlier resignation or removal in accordance with this Agreement or applicable law. |
| Except as otherwise provided herein, the bylaws of Micro shall provide that the vote of a majority of the entire Board of Directors shall be required for all actions of the Board.” |
SECTION 2. Amendment to Section 2.2(a). Section 2.2 (a) (iii) of the Board Representation Agreement is hereby deleted and replaced with the following text:
| “ (iii) | Four (in the case of a Board consisting of eight directors), five (in the case of a Board consisting of nine directors) or six (in the case of a Board consisting of ten directors) individuals, as the case may be from time to time, who shall be Independent (the “Independent Directors”).” |
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SECTION 3. Amendment to Section 2.2(b). Section 2.2 (b) of the Board Representation Agreement is hereby deleted and replaced with the following text:
| “(b) | Addition of Ninth or Tenth Director. After the election and qualification of the directors set forth in this Section 2.2 above, the Board may expand to nine or ten directors by the affirmative vote of a majority of such eight or nine directors, as the case may be. Such ninth and tenth directors shall have the qualifications of being nominated by a majority of the Nominating Committee and shall be Independent. After the initial qualification and election of such ninth and tenth directors as set forth in this Section 2.2(b), any vacancy created by the death, resignation or removal of such director shall be filled pursuant to Section 2.3 below.” |
SECTION 4. Amendment to Section 2.4. Section 2.4(a)(i) of the Board Representation Agreement is hereby deleted and replaced with the following text:
| “i. | Nominating Committee. The Nominating Committee shall consist of three directors, one of whom shall be a Family Director and one of whom shall be a Management Director. The third Committee member shall be a Family Director if requested by a majority of the Family Directors and otherwise shall be an Independent Director.” |
SECTION 5. Amendment to Section 2.4. Section 2.4(a)(iii) of the Board Representation Agreement is hereby deleted and replaced with the following text:
| “iii. | Human Resources Committee. The Human Resources Committee shall consist of three directors, one of whom shall be a Family Director, and two of whom shall be Independent Directors. The Human Resources Committee shall establish the compensation of all executive officers of the Corporation and shall administer all stock option, purchase and equity incentive plans.” |
SECTION 6. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of laws rules of such state.
SECTION 7. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
| XXXXXX MICRO INC. | ||
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| By: | /s/ Xxxxx X. Xxxxxxxx, Xx. | |
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Name: Xxxxx X. Xxxxxxxx, Xx. Title: Senior Vice President, Secretary & General Counsel |
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| XXXXXX X. XXXXXX | ||
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| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | ||
| XXXXX X. XXXXXX, XX | ||
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| By: | /s/ Xxxxx X. Xxxxxx, XX | |
| Name: Xxxxx X. Xxxxxx, XX | ||
| XXXX X. XXXXXX | ||
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| By: | /s/ Xxxx X. Xxxxxx | |
| Name: Xxxx X. Xxxxxx | ||
| XXXXX X. XXXXXX | ||
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| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | ||
| XXXXX X. XXXXXX XXXXXX | ||
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| By: | /s/ Xxxxx X. Xxxxxx Xxxxxx | |
| Name: Xxxxx X. Xxxxxx Xxxxxx | ||
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| QTIP MARITAL TRUST CREATED UNDER THE E. XXXXXXX XXXXXX REVOCABLE TRUST AGREEMENT DATED JANUARY 4, 1995 | ||
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| By: | XXXXXX X. XXXXXX, XXXXX X. XXXXXX, XX, XXXX X. XXXXXX, XXXXX X. XXXXXX AND XXXXX X. XXXXXX XXXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X. Xxxxxx Title: Co-Trustee |
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| By: | /s/ Xxxxx X. Xxxxxx, XX | |
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Name: Xxxxx X. Xxxxxx, XX Title: Co-Trustee |
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| By: | /s/ Xxxx X. Xxxxxx | |
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Name: Xxxx X. Xxxxxx Title: Co-Trustee |
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name: Xxxxx X. Xxxxxx Title: Co-Trustee |
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| By: | /s/ Xxxxx X. Xxxxxx Xxxxxx | |
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Name: Xxxxx X. Xxxxxx Xxxxxx Title: Co-Trustee |
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| E. XXXXXXX XXXXXX 1995 CHARITABLE REMAINDER 5% UNITRUST |
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| By: | XXXXXX X. XXXXXX, as Trustee | |
| By: | /s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X. Xxxxxx Title: Trustee |
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| XXXXXX AND XXXXXXX XXXXXX FOUNDATION | ||
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| By: | XXXXX X. XXXXXX, XX, XXXX X. XXXXXX, XXXXX X. XXXXXX, AND XXXXX X. XXXXXX XXXXXX, as Co-Trustees | |
| By: | /s/ Xxxxx X. Xxxxxx | |
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Name: Xxxxx X. Xxxxxx, XX Title: Co-Trustee |
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| By: | /s/ Xxxx X. Xxxxxx | |
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Name: Xxxx X. Xxxxxx Title: Co-Trustee |
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name: Xxxxx X. Xxxxxx Title: Co-Trustee |
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| By: | /s/ Xxxxx X. Xxxxxx Xxxxxx | |
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Name: Xxxxx X. Xxxxxx Xxxxxx Title: Co-Trustee |
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| E. XXXXXXX XXXXXX 1994 CHARITABLE LEAD ANNUITY TRUST |
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| By: | XXXXX X. XXXXXX, XX, XXXX X. XXXXXX, XXXXX X. XXXXXX, AND XXXXX X. XXXXXX XXXXXX, as Co-Trustees |
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name: Xxxxx X. Xxxxxx, XX Title: Co-Trustee |
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| By: | /s/ Xxxx X. Xxxxxx | |
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Name: Xxxx X. Xxxxxx Title: Co-Trustee |
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name: Xxxxx X. Xxxxxx Title: Co-Trustee |
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| By: | /s/ Xxxxx X. Xxxxxx Xxxxxx | |
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Name: Xxxxx X. Xxxxxx Xxxxxx Title: Co-Trustee |
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| TRUST FOR XXXXX XXXXX XXXXXX, XX, UNDER AGREEMENT WITH E. XXXXXXX XXXXXX DATED OCTOBER 27, 1967 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXX X. XXXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X. Xxxxxx Title: Co-Trustee |
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| TRUST FOR XXXXX XXXXX XXXXXX, XX, UNDER AGREEMENT WITH E. XXXXXXX XXXXXX DATED JUNE 14, 1968 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXX X. XXXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X. Xxxxxx Title: Co-Trustee |
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| TRUST FOR XXXXX XXXXX XXXXXX, XX, UNDER AGREEMENT WITH XXXXXXXX X. XXXXXX DATED DECEMBER 22, 1975 | ||
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| By: | SUNTRUST BANK, ATLANTA, as Trustee | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| THE XXXXX X. XXXXXX IRREVOCABLE TRUST DATED JULY 9, 1992 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| TRUST FOR THE BENEFIT OF XXXXX X. XXXXXX ESTABLISHED BY XXXXXX X. XXXXXX UNDER AN AGREEMENT OF TRUST ORIGINALLY DATED APRIL 30, 1982, AS AMENDED | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX, AS CO-TRUSTEES | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| TRUST FOR XXXX XXXXXX XXXXXX, UNDER AGREEMENT WITH E. XXXXXXX XXXXXX DATED OCTOBER 27, 1967 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXX X. XXXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X. Xxxxxx Title: Co-Trustee |
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| TRUST FOR XXXX XXXXXX XXXXXX, UNDER AGREEMENT WITH E. XXXXXXX XXXXXX DATED JUNE 14, 1968 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXX X. XXXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X. Xxxxxx Title: Co-Trustee |
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| TRUST FOR XXXX XXXXXX XXXXXX, UNDER AGREEMENT WITH XXXXXXXX X. XXXXXX DATED DECEMBER 22, 1975 | ||
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| By: | SUNTRUST BANK, ATLANTA, as Trustee | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| THE XXXX X. XXXXXX IRREVOCABLE TRUST DATED JULY 9, 1992 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| TRUST FOR THE BENEFIT OF XXXX X. XXXXXX ESTABLISHED BY XXXXXX X. XXXXXX UNDER AN AGREEMENT OF TRUST ORIGINALLY DATED APRIL 30, 1982, AS AMENDED | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| THE XXXX AND XXXXXXXXX XXXXXX FAMILY 1996 GENERATION SKIPPING TRUST |
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| By: | XXXXXXX X. XXXXX, as Trustee | |
| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx Title: Trustee |
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| TRUST FOR XXXXX X. XXXXXX, UNDER AGREEMENT WITH E. XXXXXXX XXXXXX DATED OCTOBER 27, 1967 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXX X. XXXXXX, as Co-Trustees |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X. Xxxxxx Title: Co-Trustee |
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| TRUST FOR XXXXX X. XXXXXX, UNDER AGREEMENT WITH E. XXXXXXX XXXXXX DATED JUNE 14, 1968 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXX X. XXXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X. Xxxxxx Title: Co-Trustee |
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| TRUST FOR XXXXX X. XXXXXX, UNDER AGREEMENT WITH XXXXXXXX X. XXXXXX DATED DECEMBER 22, 1975 | ||
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| By: | SUNTRUST BANK, ATLANTA, as Trustee | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| THE XXXXX X. XXXXXX IRREVOCABLE TRUST DATED JULY 9, 1992 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| TRUST FOR THE BENEFIT OF XXXXX X. XXXXXX ESTABLISHED BY XXXXXX X. XXXXXX UNDER AN AGREEMENT OF TRUST ORIGINALLY DATED APRIL 30, 1982, AS AMENDED | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX, as Co-Trustees | |
| By: | /s/ | Xxxxxx X. Xxxxxx, Xx. | |
| Name: | Xxxxxx X. Xxxxxx, Xx. | ||
| Title: | First Vice President | ||
| By: | /s/ | Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | ||
| Title: | Co-Trustee | ||
| THE XXXXX AND XXXXX XXXXXX FAMILY 1996 GENERATION SKIPPING TRUST |
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| By: | XXXX X. XXXXXXXX, as Trustee | |
| By: | /s/ | Xxxx X. Xxxxxxxx | |
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| Name: | Xxxx X. Xxxxxxxx | ||
| Title: | Trustee | ||
| TRUST FOR XXXXX XXXXXXX XXXXXX, UNDER AGREEMENT WITH E. XXXXXXX XXXXXX DATED OCTOBER 27, 1967 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXX X. XXXXXX, as Co-Trustees | |
| By: | /s/ | Xxxxxx X. Xxxxxx, Xx. | |
| Name: | Xxxxxx X. Xxxxxx, Xx. | ||
| Title: | First Vice President | ||
| By: | /s/ | Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | ||
| Title: | Co-Trustee | ||
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| TRUST FOR XXXXX XXXXXXX XXXXXX, UNDER AGREEMENT WITH E. XXXXXXX XXXXXX DATED JUNE 14, 1968 | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXX X. XXXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X. Xxxxxx Title: Co-Trustee |
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| TRUST FOR XXXXX XXXXXXX XXXXXX, UNDER AGREEMENT WITH XXXXXXXX X. XXXXXX DATED DECEMBER 22, 1975 | ||
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| By: | SUNTRUST BANK, ATLANTA, as Trustee | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| THE XXXXX XXXXXX XXXXXX IRREVOCABLE TRUST DATED JULY 9, 1992 |
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| TRUST FOR THE BENEFIT OF XXXXX X. XXXXXX ESTABLISHED BY XXXXXX X. XXXXXX UNDER AN AGREEMENT OF TRUST ORIGINALLY DATED APRIL 30, 1982, AS AMENDED | ||
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX, as Co-Trustees | |
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
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Name: Xxxxxx X. Xxxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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