Section
5 – Corporate Governance and Management
Item 5.03 Amendments to
Articles of Incorporation or Bylaws; Change in Fiscal Year.
At its
regular meeting held on May 7, 2008 and pursuant to proper notice, the Board of
Directors of Unit Corporation (the "Company") approved an amendment to the
Bylaws of the Company which will require that a stockholder proposing to
nominate persons for election to the board of directors or proposing other
business at a stockholder meeting provide information on any hedging positions
of that stockholder. Under these changes, the proposing stockholder
must provide details on whether and the extent to which it has entered into any
hedging or other transactions having the effect or intent of mitigating loss or
managing the risk of stock price changes or increasing its voting
power. The amendment also specifies required documentation needed for
anyone seeking to transact business at a stockholder meeting as a qualified
representative of a stockholder. Lastly, the amendment eliminates the
advance notice requirement for Bylaw changes occurring at meetings of the Board
of Directors.
Specifically,
two Articles of the Company's Bylaws were amended: Article I,
Stockholders' Meetings, Section 10, Notice of Stockholder Business and
Nominations, sub-paragraphs (a)(2), (b), and (c); and Article VII,
Amendments. Those Articles were changed to read as follows (added
language is shown underlined in the paragraphs below and deleted language
is shown as strike-through text):
ARTICLE
I
STOCKHOLDERS'
MEETINGS
Section
10. Notice of Stockholder
Business and Nominations.
(a)
Annual Meetings of
Stockholders.
(1) Nominations
of persons for election to the Board of Directors of the corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders only (i) pursuant to the corporation's notice of
meeting (or any supplement thereto), (ii) by or at the direction of the Board of
Directors or (iii) by any stockholder of the corporation who was a stockholder
of record of the corporation at the time the notice provided for in this Section
10 is delivered to the Secretary of the corporation, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this
Section 10.
(2) For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section 10,
the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation and any such proposed business other than the
nominations of persons for election to the Board of Directors must constitute a
proper matter for stockholder action. To be timely, a stockholder's notice shall
be delivered to the Secretary at
the principal executive offices of the corporation not later than the
close of business on the ninetieth day nor earlier than the close of business on
the one hundred twentieth day prior to the first anniversary of the preceding
year's annual meeting (provided, however, that in the event that the date of the
annual meeting is more than thirty days before or more than seventy days after
such anniversary date, notice by the stockholder must be so delivered not
earlier than the close of business on the one hundred twentieth day prior to
such annual meeting and not later than the close of business on the later of the
ninetieth day prior to such annual meeting or the tenth day following the day on
which public announcement of the date of such meeting is first made by the
corporation). In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth: (A) as to each person whom the stockholder
proposes to nominate for election as a director (i) all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to and in accordance with Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and (ii) such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected; (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the text of the proposal or
business (including the text of any resolutions proposed for consideration and
in the event that such business includes a proposal to amend the By-laws of the
corporation, the language of the proposed amendment), the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (C) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the corporation's books, and of
such beneficial owner, (ii) the class and number of shares of capital stock of
the corporation which are owned beneficially and of record by such stockholder
and such beneficial owner, (iii) whether and the extent to which any hedging
or other transaction or series of transactions has been entered into by or on
behalf of, or any other agreement, arrangement or understanding (including any
short positions or any borrowing or lending of shares of stock) has been made,
the effect or intent of which is to mitigate loss to or manage risk of stock
price changes for, or to increase the voting power of, such stockholder or any
such beneficial owner with respect to any share of stock of the corporation,
(iv) a representation that the stockholder is a holder of record of stock
of the corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to propose such business or nomination, and
(ivv) a representation
whether
the stockholder or the beneficial owner, if any, 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 corporation's outstanding capital stock
required to approve or adopt the proposal or elect the nominee and/or (B)
otherwise to solicit proxies from stockholders in support of such proposal or
nomination. The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the corporation of his or her
intention to present a proposal at an annual meeting in compliance with Rule
14a-8 (or any successor thereof) promulgated under the Exchange Act and such
stockholder's proposal has been included in a proxy statement that has been
prepared by the corporation to solicit proxies for such annual
meeting. The corporation may require any proposed nominee to furnish
such other information as it may reasonably require to determine the eligibility
of such proposed nominee to serve as a director of the corporation.
(3) Notwithstanding
anything in the second sentence of paragraph (a)(2) of this Section 10 to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the corporation at an annual meeting is increased and there is
no public announcement by the corporation naming the nominees for the additional
directorships at least one hundred days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this Section
10 shall also be considered timely, but only with respect to nominees for the
additional directorships, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the tenth day following the day on which such public announcement is
first made by the corporation.
(b)
Special Meetings of
Stockholders. 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. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the corporation's notice of meeting (1)
by or at the direction of the Board of Directors or any committee thereof
or (2) provided that the Board of Directors has determined that directors
shall be elected at such meeting, by any stockholder of the corporation who is a
stockholder of record at the time the notice provided for in this Section 10 is
delivered to the Secretary of the corporation, who is entitled to vote at the
meeting and upon such election and who complies with the notice procedures set
forth in this Section 10. In the event the corporation calls a special meeting
of stockholders for the purpose of electing one or more directors to the Board
of Directors, any such stockholder entitled to vote in such election of
directors may nominate a person or persons (as the case may be) for election to
such position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this Section 10 shall be
delivered to the Secretary
at the
principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth day prior to such special meeting and not
later than the close of business on the later of the ninetieth day prior to such
special meeting or the tenth day following the day on which public announcement
is first made of the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting. In no event shall the
public announcement of an adjournment or postponement of a special meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above.
(c)
General.
(1) Only
such persons who are nominated in accordance with the procedures set forth in
this Section 10 shall be eligible to be elected at an annual or special meeting
of stockholders of the corporation to serve as directors and only such business
shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this Section
10. Except as otherwise provided by law, the chairman of the meeting shall have
the power and duty (A) to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 10 (including
whether the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicited (or is part of a group which solicited)
or did not so solicit, as the case may be, proxies in support of such
stockholder's nominee or proposal in compliance with such stockholder's
representation as required by clause (a)(2)(C)(ivv) of this Section
10) and (B) if any proposed nomination or business was not made or proposed in
compliance with this Section 10, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 10, if the stockholder
(or a qualified representative of the stockholder) does not appear at the annual
or special meeting of stockholders of the corporation to present a nomination or
business, such nomination shall be disregarded and such proposed business shall
not be transacted, notwithstanding that proxies in respect of such vote may have
been received by the corporation. For purposes of this Section
10, to be considered a qualified representative of the stockholder, a person
must be a duly authorized officer, manager or partner of such stockholder or
must be authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.
(2) For
purposes of this Section 10, "public announcement" shall include 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 Exchange Act.
(3) Notwithstanding
the foregoing provisions of this Section 10, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 10.
Nothing in this Section 10 shall be deemed to affect any rights (A) of
stockholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (B) of the holders of
any series of Preferred Stock to elect directors pursuant to any applicable
provisions of the certificate of incorporation.
****
ARTICLE
VII
AMENDMENTS
These
By-laws may be altered, amended, or repealed by the affirmative vote of the
holders of a majority of the outstanding stock at any annual meeting, or at any
special meeting if notice of the proposed amendment be contained in the notice
of said special meeting, or by the affirmative vote of a majority of the full
Board of Directors at any regular or special meeting, provided notice of said
proposed amendment be contained in the notice of the
meeting.
The
Bylaws of the Company (as amended and restated May 7, 2008) are attached to this
Form 8-K as Exhibit 3.2.
Section
9 - Financial Statements and Exhibits.
Item 9.01 Financial
Statements and Exhibits.
(d) Exhibits.
3.2 Bylaws
of Unit Corporation (as amended and restated May 7, 2008)