10A-2A-10.22. Bylaw Provisions Relating to the Election of Directors.
(a) Unless the certificate of incorporation (i) specifically prohibits the adoption of a bylaw pursuant to this section, (ii) alters the vote specified in Section 10A-2A-7.28(a), or (iii) provides for cumulative voting, a corporation may elect in its bylaws to be governed in the election of directors as follows:
(1) each vote entitled to be cast may be voted for or against up to that number of candidates that is equal to the number of directors to be elected, or a stockholder may indicate an abstention, but without cumulating the votes;
(2) to be elected, a nominee shall have received a plurality of the votes cast by holders of stock entitled to vote in the election at a meeting at which a quorum is present, provided that a nominee who is elected but receives more votes against than for election shall serve as a director for a term that shall terminate on the date that is the earlier of (i) 90 days from the date on which the voting results are determined pursuant to Section 10A-2A-7.29(b)(5) or (ii) the date on which an individual is selected by the board of directors to fill the office held by that director, which selection shall be deemed to constitute the filling of a vacancy by the board of directors to which Section 10A-2A-8.10 applies. Subject to subsection (a)(3), a nominee who is elected but receives more votes against than for election shall not serve as a director beyond the 90-day period referenced above; and
(3) the board of directors may select any qualified individual to fill the office held by a director who received more votes against than for election.
(b) Subsection (a) does not apply to an election of directors by a voting group if (i) at the expiration of the time fixed under a provision requiring advance notification of director candidates, or (ii) absent that provision, at a time fixed by the board of directors which is not more than 14 days before notice is given of the meeting at which the election is to occur, there are more candidates for election by the voting group than the number of directors to be elected, one or more of whom are properly proposed by stockholders. An individual shall not be considered a candidate for purposes of this subsection if the board of directors determines before the notice of meeting is given that the individual’s candidacy does not create a bona fide election contest.
(c) A bylaw electing to be governed by this section may be repealed:
(1) if originally adopted by the stockholders, only by the stockholders, unless the bylaw otherwise provides;
(2) if adopted by the board of directors, by the board of directors or the stockholders.
(Act 2019-94, §1.)
