UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 8, 2010

 

 

NUCOR CORPORATION

(Exact name of registrant as specified in its charter)

 

 

Delaware

(State or other jurisdiction

of incorporation)

 

1-4119   13-1860817

(Commission

File Number)

 

(IRS Employer

Identification No.)

1915 Rexford Road, Charlotte, North Carolina   28211
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (704) 366-7000

N/A

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

(a) On September 8, 2010, the Board of Directors of Nucor Corporation (the “Corporation”) approved certain amendments to the Corporation’s Bylaws. The amendments were effective immediately upon their approval by the Board. Apart from non-substantive language and conforming changes and other technical and cross-reference edits, the Bylaws were amended in the manner summarized below.

 

   

Article II, Section 2 (Annual Meeting Requirement). This section has been revised to provide that the annual meeting of stockholders may be held on any date in May of each year as shall be designated by the Board of Directors. Formerly, the date for the Corporation’s annual meeting of stockholders was fixed for the second Thursday of May.

 

   

Article II, Section 3 and Article III, Section 1(b) (Advance Notice Period Requirements for Stockholder Proposals and Director Nominations). Each of Article II, Section 3, governing the submission of a stockholder proposal for consideration at a meeting of stockholders, and Article III, Section 1(b), governing stockholder nominations for persons for election to the Board, has been revised to clarify and enhance the advance notice requirements. Specifically, with respect to stockholder proposals and director nominations for consideration at any “annual” meeting of stockholders, these sections have been revised to require that stockholders provide notice of such proposals or nominations to the Corporation “not less than 120 calendar days nor more than 150 calendar days before the first anniversary of the date the corporation began mailing its proxy materials for the preceding year’s annual meeting of stockholders.” With respect to stockholder proposals to be presented at any “special” meeting of stockholders, Article II, Section 3 has been revised to require that stockholders provide notice of such proposals to the Corporation “not earlier than 150 calendar days before the date of the special meeting nor later than the later of 120 calendar days before the date of the special meeting or the tenth day following the day on which public announcement of the date of the special meeting was first made.” Previously, the Corporation’s Bylaws required that notice of stockholder proposals and director nominations for consideration at any stockholder meeting be received by the Corporation “not less than 60 days nor more than 90 days prior to the date of such meeting.”

Each of Article II, Section 3 and Article III, Section 1(b) has also been revised to provide that the notice required to be submitted by a stockholder proposing business for consideration or nominating a candidate for director at a meeting of the Corporation’s stockholders include the following additional information: the name and address of any “Stockholder Associated Person,” as such term is defined in the Corporation’s Bylaws; the class and number of shares owned by any Stockholder Associated Person with respect to the Corporation’s securities; any derivative positions, hedging transactions or any other agreement, arrangement or understanding the proposing stockholder or any Stockholder Associated Person has with respect to the Corporation’s stock; a statement whether either the proposing stockholder or any Stockholder Associated Person will deliver proxy materials to holders of at least the percentage of the Corporation’s voting shares required under applicable law to carry the proposal; and, with respect to any stockholder proposal, a description of any material interest of any Stockholder Associated Person in the proposal.

Article III, Section 1(b) has also been revised to provide that the notice required to be submitted by a stockholder nominating a candidate for election as a director at a meeting of the Corporation’s stockholders include, as to each such nominee, the following additional

 

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information: any derivative positions held or beneficially held by the nominee and a written statement executed by the nominee acknowledging that as a director of the Corporation, the nominee will owe a fiduciary duty under Delaware law with respect to the Corporation and its stockholders.

Article II, Section 3 has been revised to provide that no proposal presented by a stockholder that is not included in the Corporation’s proxy statement shall be considered at any stockholders meeting except in accordance with the provisions of this section of the Corporation’s Bylaws. In addition, this section has been revised to provide that business proposed to be brought by a stockholder may not be brought before the meeting if such stockholder or a Stockholder Associated Person takes any action contrary to the representations made pursuant to the provisions of this section or if the notice of the proposal applicable to such business contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. This section has also been amended to provide that the Chairman of the Board or the other director exercising the Chairman’s powers and duties at a meeting has the authority to determine and declare at the meeting that business was not properly brought before the meeting and that any such business shall not be conducted.

 

   

Article II, Section 4 (Notice of Stockholder Meetings). This section has been revised to cover the notice requirements for both annual and special meetings of stockholders and to reflect the possibility under Delaware law that the Corporation may elect to fix different record dates for purposes of determining those stockholders entitled to notice of a stockholder meeting and those stockholders entitled to vote at such meeting.

 

   

Article II, Section 5 (Stockholder List). This section has been revised to provide for reasonable notice to the Corporation if a stockholder wants to examine the list of stockholders entitled to vote at a meeting during ordinary business hours at the Corporation’s principal place of business. This section has also been revised to provide that if the record date for determining stockholders entitled to vote at the meeting is less than ten days prior to the date of such meeting, the stockholder list will reflect the stockholders entitled to vote as of the tenth day prior to the meeting.

 

   

Article II, Section 7 (Quorum for Stockholder Meetings). This section (which was previously Section 9 of Article II) has been revised to give the Chairman of the Board (in addition to the stockholders entitled to vote at the meeting) the power to adjourn a stockholder meeting if a quorum is not present.

 

   

Article II, Section 9 (Voting Rights of Stockholders). This section (which was previously Section 11 of Article II) has been revised to reflect the possibility under Delaware law that the Corporation may elect to fix different record dates for purposes of determining those stockholders entitled to notice of a stockholder meeting and those stockholders entitled to vote at such meeting.

 

   

Article II, Section 10 (Appointment by Stockholder of Proxy to Vote Shares). This section has been added to update the language for appointment by stockholders of a proxy to vote shares at a stockholder meeting to reflect changes in Delaware law, including flexibility in method of appointment, which was previously restricted to execution of an instrument in writing subscribed by the stockholder.

 

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Article II, Section 11 (Appointment of Inspector(s) of Election). This section has been added to reflect the requirement of Delaware law for appointment of an inspector or inspectors of election that was not previously included in the Corporation’s Bylaws.

 

   

Article III, Section 1(a) (Number, Election and Terms of Directors). This section has been revised regarding the classification of the Board to make the language of the Bylaws consistent with the Corporation’s Certificate of Incorporation which has been recently amended to provide for the phased-in elimination of the classified structure of the Board of Directors. As amended, the Corporation’s Certificate of Incorporation provides for the annual election of all directors beginning with the Corporation’s 2013 annual meeting of stockholders. This section has also been revised to provide that no reduction in the authorized number of directors shall have the effect of removing any director before that director’s term of office expires and that each director shall hold office until such director’s successor is elected and qualified or until such director’s earlier resignation.

 

   

Article III, Section 2 (Filling Vacancies on Board of Directors). This section has been revised regarding the term of office for directors elected to fill vacancies and newly created directorships resulting from any increase in the authorized number of directors to make the language of the Bylaws consistent with the Corporation’s Certificate of Incorporation, as amended to declassify the Board of Directors over a three-year period.

 

   

Article III, Section 8 (Participation in Board or Committee Meetings by Conference Telephone or Other Communications Equipment). This section has been added to reflect the provisions of Delaware law providing that directors may participate in Board or committee meetings by conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and that such participation in a meeting constitutes presence in person at the meeting.

 

   

Article III, Section 9 (First Meeting of Each Newly Elected Board). This section has been revised to provide that the first meeting of each newly elected Board shall be held immediately following the annual meeting of stockholders. The Corporation’s Bylaws previously required stockholders to fix by vote at the annual meeting the time and place for the first meeting of each newly elected Board.

 

   

Article III, Section 11 (Special Meetings of Board of Directors). This section has been revised to give the Secretary the power to call a special meeting of the Board at the request of “a majority of the directors.” Formerly, a special meeting was required to be called on the written request of “two directors.” This section has also been revised to update the manner of giving notice to directors to include personally, by mail, electronic mail, courier or telefax. In addition, this section has been revised to provide that a special meeting of the “independent” directors may by called by the Lead Director in accordance with the same notice procedures.

 

   

Article III, Section 12 (Quorum for Board of Directors Meetings). This section has been revised to provide that at all meetings of the Board of Directors “a majority of the directors” shall constitute a quorum for the transaction of business. Formerly, the Corporation’s Bylaws provided that “the lesser of three directors or a majority of the directors (but not less than one third of the total number of directors nor less than two directors)” constituted a quorum.

 

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Article III, Section 13 (Action by Unanimous Written Consent of Board of Directors or Committee.) This section has been revised to provide that action may be taken by unanimous consent without a meeting if all directors (or committee members) consent thereto in writing or by electronic transmission. Formerly, action by unanimous consent without a meeting could only be taken if a hard copy written consent was signed by each director.

 

   

Article III, Section 14 (Committees of Directors). This section has been revised to allow delegation of powers to a committee in a committee charter approved by the Board of Directors and to require that committees be constituted in accordance with, and have such duties and powers as shall be required by, the Corporate Governance Rules of the New York Stock Exchange.

 

   

Article III, Section 15 (Quorum Requirements for Board Committee Meetings). This section was added to provide that at all meetings of Board committees a quorum shall be at least 50% of the directors comprising any such committee, and that, except as may be otherwise specifically provided by law or by the Corporation’s Certificate of Incorporation, the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of such committee. Formerly, the Corporation’s Bylaws did not specifically address the quorum requirements for Board committees. This section also provides that if a quorum is not present at any committee meeting, the directors present at such meeting may adjourn the meeting until a quorum is present. In addition, this section provides that a meeting of a committee at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors serving on the committee, if any action taken is approved by at least a majority of the required quorum for the committee meeting.

 

   

Article III, Section 17 (Compensation of Directors). This section (which was previously Section 16 of Article III) has been revised to replace the highly specific language that contemplated Board and committee meeting attendance fees with a broad grant of authority to the Board of Directors to fix the compensation of directors.

 

   

Article IV, Section 1 (Notices of Meetings of Stockholders). This section has been revised to provide that notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the Corporation’s records. This section has also been revised to provide that an affidavit of the secretary or other specified persons that the notice has been given constitutes prima facie evidence of the facts stated therein.

 

   

Article IV, Section 2 (Fixing of Record Dates). This section has been added to incorporate the language regarding fixing of record dates that was previously included in Section 5 of Article VI of the Corporation’s Bylaws and to update such language to reflect changes to Delaware law regarding flexible procedures for setting record dates for purposes of determining those stockholders entitled to notice of stockholder meetings, those stockholders entitled to vote at such meetings and those stockholders entitled to receive payment of dividends or other distributions or allotment of any rights.

 

   

Article IV, Section 3 (Waiver of Notice). This section has been added to incorporate the language previously included in Section 2 of Article IV regarding waiver of notice and to allow waiver by electronic transmission as well as by a signed writing and to reflect more

 

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fully the provisions of Delaware law on waiver of notice than previously in the Corporation’s Bylaws.

 

   

Article V, Section 1 (Officers). This section has been revised to reflect the Corporation’s current officer positions, including a Chief Executive Officer, a Chief Financial Officer, one or more presidents, and one or more vice presidents (any one or more of whom may be designated as a “senior” or “executive” vice president). This section has also been revised to give the Board of Directors the authority to appoint one of the presidents or vice presidents as the Chief Operating Officer of the Corporation, and to give the Chief Executive Officer the authority to appoint one or more assistant treasurers and assistant secretaries.

 

   

Article V, Section 2 (Compensation of Officers). This section (which was previously Section 4 of Article V) has been revised to provide that the compensation of the Chief Executive Officer is to be set by the compensation committee of the Board of Directors (as opposed to the Board), as is required by the Corporate Governance Rules of the New York Stock Exchange.

 

   

Article V, Section 3 (Removal or Resignation of Officers). This section (which was previously Section 5 of Article V) has been revised to provide that the removal of any officer shall be without prejudice to the contractual rights of such officer, if any, with the Corporation and that the resignation of any officer shall be without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.

 

   

Article V, Section 4 (Chief Executive Officer). This section has been added to describe more specifically the powers and duties of the Chief Executive Officer.

 

   

Article V, Section 5 (Chief Financial Officer). This section has been added to describe more specifically the powers and duties of the Chief Financial Officer.

 

   

Article V, Section 6 (President(s)). This section has been revised to reflect the addition of the Chief Executive Officer as a corporate officer position and to permit more than one President.

 

   

Article V, Section 7 (Vice President(s)). This section has been revised to give the Chief Executive Officer (in addition to the Board of Directors) the authority to prescribe the duties and powers of the Vice Presidents.

 

   

Article VI, Section 1 (Stock Certificates). This section has been revised to add the Chief Executive Officer and the Chief Financial Officer as officers with the authority to sign stock certificates. This section has also been revised to incorporate the language that was previously included in Section 2 of Article VI of the Corporation’s Bylaws providing that any or all of the signatures on a stock certificate may be a facsimile of the actual signature.

 

   

Article VI, Section 2 (Validity of Facsimile Signatures; Special Designation on Certificates). This section has been revised to delete the requirement that certificates be manually signed by a transfer agent or by a transfer clerk acting on behalf of the Corporation and a registrar, as this is no longer required by Delaware law or the Corporate Governance Rules of the New York Stock Exchange. This section has also

 

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been revised to reflect the requirements of Delaware law regarding describing on the stock certificates issued by the Corporation, the powers, designations, preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

   

Article VII, Section 3 (Annual Statement; Survival of Indemnification Rights). This section has been revised to delete the requirement that the Board of Directors present at a meeting of stockholders a statement of the business and condition of the Corporation. This section has also been revised to expressly provide that the rights to indemnification and advancement of expenses conferred by the Corporation’s Certificate of Incorporation shall continue as to a person who has ceased to be a director, officer, employee or agent of the Corporation, and that any amendment, alteration or repeal of the article in the Corporation’s Certificate of Incorporation providing for such rights shall not adversely affect any right or protection of any person in respect of any act or omission occurring prior to such amendment, alteration or repeal.

 

   

Article VII, Section 6 (Construction of Bylaws). This section was added to provide general rules of construction for interpretation of the Corporation’s Bylaws.

The preceding description is qualified in its entirety by reference to the text of the Corporation’s Amended and Restated Bylaws as adopted and effective as of September 8, 2010. The Amended and Restated Bylaws as adopted and effective as of September 8, 2010, and a copy marked to show changes from the prior Amended and Restated Bylaws, are attached hereto as Exhibits 3.1 and 3.2, respectively.

 

Item 8.01. Other Events.

On September 8, 2010, the Board of Directors of the Corporation approved the restatement of the Corporation’s Certificate of Incorporation (the “Restated Certificate of Incorporation”). The Restated Certificate of Incorporation only restates and integrates and does not further amend the Corporation’s Certificate of Incorporation, as heretofore amended or supplemented.

A copy of the Corporation’s Restated Certificate of Incorporation, as filed with the Delaware Secretary of State on September 9, 2010, is attached hereto as Exhibit 3.3.

The Description of Common Stock of the Corporation set forth in Exhibit 99.1 hereto is filed for the purpose of updating in its entirety the description of the Corporation’s Common Stock contained in or incorporated by reference in the Corporation’s effective registration statements currently on file with the Securities and Exchange Commission.

 

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Item 9.01. Financial Statements and Exhibits.

 

  (d)

Exhibits

 

   3.1

  

Amended and Restated Bylaws of Nucor Corporation

   3.2

  

Bylaws of Nucor Corporation, marked to show amendments effective as of September 8, 2010

   3.3

  

Restated Certificate of Incorporation of Nucor Corporation

   99.1

  

Description of Common Stock of Nucor Corporation

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

   

NUCOR CORPORATION

Date: September 14, 2010

   

By:

 

/s/ James D. Frias

     

James D. Frias

     

Chief Financial Officer, Treasurer and

     

Executive Vice President

 

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EXHIBIT INDEX

 

Exhibit
No.

  

Description

  3.1

  

Amended and Restated Bylaws of Nucor Corporation

  3.2

  

Bylaws of Nucor Corporation, marked to show amendments effective as of September 8, 2010

  3.3

  

Restated Certificate of Incorporation of Nucor Corporation

99.1

  

Description of Common Stock of Nucor Corporation

 

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Amended amd Restated Bylaws of Nucor Corporation

Exhibit 3.1

NUCOR CORPORATION

BYLAWS - September 8, 2010


NUCOR CORPORATION

BYLAWS – September 8, 2010

CONTENTS

 

     PAGE

ARTICLE I – OFFICES

   1

ARTICLE II - MEETINGS OF STOCKHOLDERS

   1

ARTICLE III – DIRECTORS

   8

ARTICLE IV - NOTICES OF STOCKHOLDERS’ MEETINGS, RECORD DATES AND WAIVERS

   16

ARTICLE V - OFFICERS

   18

ARTICLE VI - CERTIFICATES OF STOCK

   23

ARTICLE VII - GENERAL PROVISIONS

   26

ARTICLE VIII - AMENDMENTS TO BYLAWS

   28


ARTICLE I – OFFICES

Section 1. The corporation’s registered office in the State of Delaware shall be in the City of Wilmington, County of New Castle.

Section 2. The corporation may also have offices at such other places, within and without the State of Delaware, as the board of directors may, from time to time, determine, or the business of the corporation may require.

ARTICLE II - MEETINGS OF STOCKHOLDERS

Section 1. All meetings of the stockholders for the election of directors shall be held at such place, within or without the State of Delaware, as may be fixed, from time to time, by the board of directors. Meetings of stockholders for any other purpose may be held at such time or place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a waiver of notice thereof.

Section 2. Annual meetings of stockholders for the election of directors shall be held on such date in May and at such time as shall be designated by the board of directors, or at such other date and time, within thirteen months after the corporation’s last annual meeting of stockholders, as shall be designated by the board of directors. At each annual meeting of stockholders, the stockholders shall by written ballot elect directors by plurality vote and transact


such other business as may be properly brought before the meeting in accordance with Section 3 below.

Section 3. In order to be considered at any annual or special meeting of stockholders, a stockholder’s proposal must be a proper matter for stockholder consideration and must be made pursuant to timely notice in writing to the secretary of the corporation. A stockholder’s proposal shall be deemed a proper matter for stockholder consideration unless, pursuant to Rule 14a-8(i) promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any similar or successor rule or regulation, the corporation would be entitled to omit such proposal from its proxy statement had such proposal been timely submitted to the corporation for consideration at an annual meeting of stockholders in accordance with Rule 14a-8.

Any proposal which is requested by a stockholder to be included in the corporation’s proxy statement must comply with the notice requirements set forth in the rules and regulations for stockholder proposals in solicitation of proxies promulgated by the SEC under the Exchange Act. Notice of any proposal to be presented by a stockholder at any annual meeting of stockholders which is not requested to be included in the corporation’s proxy statement shall be delivered in writing to the secretary of the corporation not less than 120 calendar days nor more than 150 calendar days before the first anniversary of the date the corporation began mailing its proxy materials for the preceding year’s annual meeting of stockholders. Notice of any proposal to be presented by a stockholder at any special meeting of stockholders which is not requested to be included in the corporation’s proxy statement shall be delivered in writing to the secretary of the corporation not earlier than 150 calendar days before the date of the special meeting nor later

 

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than the later of 120 calendar days before the date of the special meeting or the tenth day following the day on which public announcement of the date of the special meeting was first made. Notice of any such proposal to be presented at any stockholders meeting shall include: (i) the text of the proposal to be presented, (ii) a brief written statement of the reasons for such stockholder’s support of the proposal, (iii) the name and address, as they appear on the corporation’s books, of the proposing stockholder and any Stockholder Associated Person (defined below) covered by clauses (iv) and (vi) below, (iv) (A) the class and number of shares of the corporation which are owned of record or beneficially by such stockholder and by any Stockholder Associated Person with respect to the corporation’s securities and (B) any derivative positions held of record or beneficially by the stockholder and any Stockholder Associated Person and 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 has been made, the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such stockholder or any Stockholder Associated Person with respect to the corporation’s securities, (v) a representation that such stockholder is entitled to vote at such meeting and intends to appear in person or by proxy to present the proposal at such meeting, (vi) a detailed description of any material interest of such stockholder or any Stockholder Associated Person in the proposal and (vii) a statement whether either such stockholder or any Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal. The chairman of the meeting shall determine and declare to the meeting whether a proposal was made in

 

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accordance with the foregoing procedure, and if he should determine that it was not so made, he shall so declare to the meeting and such proposal shall be disregarded.

No proposal presented by a stockholder that is not included in the corporation’s proxy statement shall be considered at any annual or special meeting except in accordance with the provisions of this Section 3. In addition, business proposed to be brought by a stockholder may not be brought before the meeting if such stockholder or a Stockholder Associated Person, as applicable, takes any action contrary to the representations made pursuant to the provisions of this Section 3 applicable to such business or if the notice of the proposal applicable to such business contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. The chairman of the board or the other director exercising the chairman’s powers and duties at the meeting shall, if the facts warrant, determine and declare at the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Section 3, and, if the chairman of the board or such other person should so determine, he shall so declare at the meeting that any such business not properly brought before the meeting shall not be conducted.

Nothing in this Section 3 shall be deemed to affect any rights of the corporation’s stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to the rules and regulations promulgated by the SEC under the Exchange Act.

“Stockholder Associated Person” of any stockholder means (A) any person controlling, directly or indirectly, or acting in concert with, such stockholder, (B) any beneficial owner of shares of stock of the corporation 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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Section 4. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given in accordance with Article IV of these bylaws stating the place, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Except as otherwise provided in the Delaware General Corporation Law (“DGCL”), the certificate of incorporation or these bylaws, such notice shall be given not less than 10 nor more than 60 calendar days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting.

Section 5. The corporation shall prepare and make, or have prepared and made, at least 10 calendar days before each meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than 10 calendar days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth calendar day before the meeting date. The stockholder list shall be arranged in alphabetical order, showing the address of and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder upon reasonable notice to the corporation for any purpose germane to the meeting for a period of at least 10 calendar days prior to the meeting during ordinary business hours at the corporation’s principal place of business. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any

 

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stockholder who is present. Such list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.

Section 6. Special meetings of the stockholders for any purpose or purposes may be called by the chairman of the board and shall be called by the chairman of the board or secretary at the request in writing of a majority of the board of directors. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice of the meeting.

Section 7. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by law or by the certificate of incorporation. If, however, such quorum shall not be present or represented by proxy at any meeting of the stockholders, the Chairman of the Board or the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting or as may be required by law, until a quorum shall be present or represented by proxy. At such adjourned meeting at which a quorum shall be present or represented by proxy, any business may be transacted which might have been transacted at the meeting as originally notified.

Section 8. When a quorum is present at any meeting of stockholders, the vote of the holders of a majority of the stock having voting power, present in person or represented by proxy, shall decide any question brought before the meeting, unless the question is one upon

 

6


which, by express provision of law or of the certificate of incorporation or of the bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 9. Each stockholder shall have one vote for each share of stock having voting power, registered in the stockholder’s name on the stock books of the corporation as of the record date for determining the stockholders entitled to vote at the meeting. At all elections of directors, each stockholder of the corporation having voting power shall have the right of cumulative voting as provided in the certificate of incorporation.

Section 10. At any meeting of the stockholders, every stockholder having the right to vote shall be entitled to vote in person, or by proxy appointed (i) by an instrument in writing subscribed by such stockholder or (ii) by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A written proxy may be in the form of a telegram, cablegram, or other means of electronic transmission that sets forth or is submitted with information from which it can be determined that the telegram, cablegram, or other means of electronic transmission was authorized by the person having the right to vote at the meeting.

Section 11. Before any meeting of stockholders, the corporation shall appoint an inspector or inspectors of election to act at the meeting or its adjournment and make a written

 

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report thereof. The inspector or inspectors of election shall have the duties and powers prescribed or authorized, as the case may be, in Section 231 of the DGCL.

ARTICLE III – DIRECTORS

Section 1. (a) The number of directors which shall constitute the whole board of directors shall be not less than three nor more than nine, the precise number to be determined from time to time by resolution of the board of directors. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office shall expire. Directors shall be elected at the annual meeting of stockholders except as provided in Section 2 of this Article III. Directors shall be divided into three classes, each class to be as equal in number as possible, until the 2013 annual meeting of stockholders as set forth in Section C of Article VII of the corporation’s certificate of incorporation. Beginning with the 2013 annual meeting of stockholders, and at each annual meeting of stockholders thereafter, all directors shall be elected for terms expiring at the next annual meeting of stockholders. Each director shall hold office until such director’s successor is elected and qualified or until such director’s earlier resignation.

(b) Only persons who are nominated in accordance with the procedures set forth in this Section 1(b) of Article III shall be eligible for election as directors at the annual meeting of stockholders. Nominations of persons for election to the board of directors may be made at a meeting of stockholders (i) by or at the direction of the board of directors, (ii) by any nominating committee of or person appointed by the board of directors, or (iii) by any stockholder of the

 

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corporation who is a stockholder of record at the time of giving of notice provided for in this Section 1(b), who shall be entitled to vote for the election of directors at the meeting and who complies with the notice procedures set forth in this Section 1(b). Nominations made by any stockholder shall be made only pursuant to timely notice in writing to the secretary of the corporation. To be timely, a stockholder’s notice shall be delivered to, or mailed and received at, the principal executive offices of the corporation not less than 120 calendar days nor more than 150 calendar days before the first anniversary of the date the corporation began mailing its proxy statement for the preceding year’s annual meeting of stockholders. Such stockholder’s notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director, (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment of such person, (iii) the class and number of shares of the corporation which are beneficially owned by such person and any derivative positions held or beneficially held by the nominee, (iv) a written statement executed by the nominee acknowledging that as a director of the corporation, the nominee will owe a fiduciary duty under Delaware law with respect to the corporation and its stockholders, and (v) any other information relating to such person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Schedule 14A under the Exchange Act (including without limitation such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); and (b) as to the stockholder giving the notice (i) the name and address, as they appear on the corporation’s books, of such stockholder and any Stockholder Associated Person covered by clause (ii) below and (ii) (A) the number of shares of the corporation which are owned of record or beneficially by such stockholder and by any Stockholder Associated Person with respect to the corporation’s securities and (B) any derivative

 

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positions held of record or beneficially by the stockholder and any Stockholder Associated Person and 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 has been made, the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such stockholder or any Stockholder Associated Person with respect to the corporation’s securities, and (iii) a written statement whether either such stockholder or any Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of the corporation’s voting shares. At the request of the board of directors, any person nominated by the board of directors, or by any nominating committee of or a person appointed by the board of directors, for election as a director shall furnish to the secretary of the corporation that information required to be set forth in a stockholder’s notice of nomination which pertains to the nominee.

The chairman of the board or the other director exercising the chairman’s powers and duties at the meeting shall, if the facts warrant, determine and declare at the meeting that a nomination was not made in accordance with the procedures prescribed by this Section 1(b), and, if he should so determine and declare, such nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 1(b), a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder by the SEC with respect to the matters set forth in this Section 1(b).

Section 2. Vacancies, and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, though less than a quorum, and, until the 2013 annual meeting of stockholders, the directors so

 

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chosen shall hold office until the next election of the class for which such directors shall have been chosen, and until their successors shall be duly elected and qualified, or until death, resignation or removal. Thereafter, the directors so chosen shall hold office until the next annual meeting of stockholders, and until their successors shall be duly elected and qualified, or until death, resignation or removal.

Section 3. The business of the corporation shall be managed by its board of directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by law or by the certificate of incorporation or by these bylaws directed or required to be exercised or done by the stockholders.

Section 4. The board of directors, at its first meeting after each annual meeting of stockholders, shall elect a chairman of the board and one or more vice chairmen of the board from among the directors. The chairman of the board and any vice chairman of the board may be either a director who is an executive officer of the corporation or a director who is not employed by the corporation and the board shall designate at the time of election whether the chairman and any vice chairman shall serve in an executive or non-executive capacity. The compensation of the chairman of the board and any vice chairman shall be fixed by the board of directors.

Section 5. The chairman and any vice chairman of the board of directors shall hold office until their respective successors shall be duly chosen and qualified, or until death, resignation or removal. The chairman and any vice chairman of the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors.

 

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THE CHAIRMAN OF THE BOARD

Section 6. The chairman of the board shall, when present, preside at all meetings of the stockholders and of the board of directors, and, subject to the power and authority of the board of directors, shall see that all orders and resolutions of the board of directors are carried into effect. The chairman of the board shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.

THE VICE CHAIRMAN OF THE BOARD

Section 7. The vice chairman of the board, or if there be more than one, the vice chairmen of the board, in the order determined by the board of directors, shall, in the absence or disability of the chairman of the board, perform the duties and exercise the powers of the chairman of the board, and shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.

MEETINGS OF THE BOARD OF DIRECTORS

Section 8. The board of directors of the corporation may hold meetings, both regular and special, within or without the State of Delaware. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or other communications equipment by means

 

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of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

Section 9. The first meeting of each newly elected board of directors shall be held immediately following the annual meeting of stockholders, and no notice of such first meeting shall be necessary to the newly elected directors in order legally to constitute such first meeting, provided a quorum shall be present.

Section 10. Regular meetings of the board of directors may be held without notice at such time and at such place as shall, from time to time, be determined by the board of directors.

Section 11. Special meetings of the board of directors for any purpose or purposes may be called at any time by the chairman of the board, or by the Secretary at the request of a majority of the directors, on two calendar day’s notice to each director, either personally, by mail, electronic mail, courier or telefax directed to each director at that director’s address, telephone number, telefax number or electronic mail address, as the case may be, as given to the secretary of the corporation by such director, at such times and places as the chairman of the board or the Secretary shall designate.

Whenever there shall be a Lead Director appointed as provided for in the Corporate Governance Principles adopted by the board of directors, special meetings of the directors who are “independent” directors under the Corporate Governance Standards of the New York Stock Exchange may be called by the Lead Director for any purpose or purposes at any time in

 

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accordance with the notice procedures set forth in this Section 11 for calling special meetings of the board of directors.

Section 12. At all meetings of the board of directors, a majority of the directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by law or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 13. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting, if all members of the board of directors or of such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board of directors or of such committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

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COMMITTEES OF DIRECTORS

Section 14. The board of directors may, by resolution passed by a majority of the whole board of directors, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution or in a committee charter approved by the board of directors and as allowed by law, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors and shall, to the extent required by the Corporate Governance Rules of the New York Stock Exchange, be constituted in accordance with, and have such duties and powers as shall be required by such Corporate Governance Rules.

Section 15. At all meetings of any committee of the board of directors, at least 50% of the directors comprising any such committee shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of such committee, except as may be otherwise specifically provided by law or by the certificate of incorporation. If a quorum shall not be present at any meeting of any committee of the board of directors, the directors present thereat may adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present. A meeting of a committee at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors serving on the committee, if any action taken is approved by at least a majority of the required quorum for the committee meeting.

 

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Section 16. Each committee shall keep regular minutes of its meetings and report the same to the board of directors, when requested or required.

COMPENSATION OF DIRECTORS

Section 17. Unless otherwise restricted by the certificate of incorporation or these bylaws, the board of directors shall have the authority to fix the compensation of directors, including but not limited to additional compensation for directors who serve as committee chairs or as Lead Director. The directors shall be reimbursed for their expenses, if any, in connection with their attendance at each meeting of the board of directors or committee thereof.

ARTICLE IV – NOTICES OF STOCKHOLDERS’ MEETINGS, RECORD DATES AND WAIVER

Section 1. Notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the corporation’s records. An affidavit of the secretary or an assistant secretary of the corporation or of the transfer agent or other agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

Section 2. In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the

 

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record date is adopted by the board of directors and which record date shall not be more than 60 nor less than 10 calendar days before the date of such meeting. If the board of directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the board of directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.

If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the provisions of Section 213 of the DGCL and this Section 2 at the adjourned meeting.

In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall

 

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not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 calendar days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

Section 3. Whenever notice is required to be given to stockholders, directors or other persons under any provision of the DGCL, the certificate of incorporation or these bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders or the board of directors, as the case may be, need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the certificate of incorporation or these bylaws.

ARTICLE V – OFFICERS

Section 1. The officers of the corporation shall be elected by the board of directors and shall consist of a chief executive officer (CEO), a Chief Financial Officer (CFO), one or more presidents, one or more vice presidents (any one or more of whom may be designated by the board of directors as a “senior” or “executive” vice president), a treasurer, a secretary and

 

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such other officers as may be appointed from time to time by the board of directors. Two or more offices may be held by the same person. The Board of Directors may in its discretion designate one of the presidents or one of the vice presidents as the Chief Operating Officer (COO) of the corporation. The CEO may appoint, one or more assistant treasurers and assistant secretaries as the CEO deems necessary or appropriate.

Section 2. The compensation of the CEO shall be fixed by a compensation committee of the board of directors constituted in accordance with the Corporate Governance Rules of the New York Stock Exchange. The compensation of the CFO, the president(s), the vice president(s), the treasurer and the secretary shall be fixed by the board of directors upon the recommendation of such compensation committee.

Section 3. The officers of the corporation shall hold office until their successors shall be duly chosen and qualified, or until death, resignation or removal. Any officer elected by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any officer may resign at any time by giving written notice to the corporation. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.

 

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THE CHIEF EXECUTIVE OFFICER (CEO)

Section 4. Subject to the provisions of these bylaws and to the direction of the Board of Directors, the CEO of the corporation shall have the responsibility for the general management and control of the business and affairs of the corporation and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to the CEO by the board of directors. Together with the CFO, the CEO shall (A) be responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) for the corporation and (B) sign the certifications required to be included as exhibits to the corporation’s periodic and annual reports to the SEC pursuant to Exchange Act Rule 13a-14.

The CEO shall have power to sign all stock certificates, contracts and other instruments of the corporation that are authorized and shall have general supervision and direction of all of the duties, employees and agents of the corporation. If the CEO is not also serving as the chairman of the board of directors, the CEO shall in the absence or disability of both the chairman of the board and any vice chairman of the board, perform the duties of the chairman of the board.

CHIEF FINANCIAL OFFICER (CFO)

Section 5. The CFO of the corporation shall have the responsibility for maintaining the financial records of the corporation and shall render from time to time an account of the

 

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results of operation and financial condition of the corporation. Together with the CEO, the CFO shall (A) be responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) for the corporation and (B) sign the certifications required to be included as exhibits to the corporation’s periodic and annual reports to the SEC pursuant to Exchange Act Rule 13a-14. The CFO shall also perform such other duties as the board of directors may from time to time prescribe.

THE PRESIDENTS

Section 6. The president, or if there be more than one, the presidents, in the order determined by the board of directors, shall, in the absence or disability of the CEO, perform the duties and exercise the powers of the CEO, and shall have such powers and duties as the board of directors may, from time to time, prescribe.

THE VICE PRESIDENTS

Section 7. The vice president, or if there be more than one, the vice presidents, in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president, and shall perform such other duties and have such other powers as the board of directors or the CEO may, from time to time, prescribe.

 

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THE TREASURER

Section 8. The treasurer shall have custody of the corporation’s funds and securities, and shall keep, or have kept, accounts of receipts and disbursements in books and records of the corporation, and shall deposit, or have deposited, moneys and securities in the name and to the credit of the corporation in appropriate depositories. The treasurer shall disburse, or have disbursed, the funds of the corporation for appropriate corporate purposes and with appropriate documentation, and shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.

THE ASSISTANT TREASURERS

Section 9. The assistant treasurer, or if there be more than one, the assistant treasurers, in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer, and shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.

THE SECRETARY

Section 10. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders, and shall record the proceedings of all meetings of the board of directors and all meetings of the stockholders, and shall perform like duties for the committees of

 

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the board of directors, when required or requested. The secretary shall give, or cause to be given, notice of all special meetings of the board of directors and all meetings of the stockholders, and shall perform such other duties and have such other powers as the board of directors may, from to time, prescribe. The secretary shall keep, or have kept, in custody the seal of the corporation and affix, or have affixed, the same to any instrument requiring it and, when so affixed, it shall be attested by the secretary’s signature.

THE ASSISTANT SECRETARIES

Section 11. The assistant secretary, or if there be more than one, the assistant secretaries, in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary, and shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.

ARTICLE VI – CERTIFICATES OF STOCK

Section 1. The shares of stock of the corporation shall be represented by a certificate, unless and until the Board of Directors of the corporation adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any such resolution providing for uncertificated shares, every holder of stock in the corporation theretofore represented by certificates and, upon request, every holder of uncertificated shares, shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman of the board or a vice

 

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chairman of the board, the president (or CEO) or any vice president, and the treasurer (or CFO) or an assistant treasurer or the secretary or an assistant secretary of the corporation, representing the number of shares owned by the stockholder in the corporation and registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed, or whose facsimile signature has been placed upon, a certificate has ceased to be such officer, transfer agent or registrar of the corporation, whether because of death, resignation or otherwise, before such certificate has been delivered by the corporation, such certificate may be issued and delivered by the corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

Section 2. If the corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights will be set forth in full or summarized on the face or back of the certificate that the corporation will issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation will issue to represent such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

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Section 3. The corporation may issue, or have issued, a new certificate or certificates of stock in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the owner of the certificate or certificates of stock alleged to have been lost, stolen or destroyed, or by the owner’s legal representative. When authorizing such issue of a new certificate or certificates, the corporation may, in its discretion and as a condition precedent to the issuance thereof, require that the owner of such allegedly lost, stolen or destroyed certificate or certificates, or the owner’s legal representative, give to the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation with respect to the certificate or certificates alleged to have been lost, stolen or destroyed.

TRANSFERS OF STOCK CERTIFICATES AND UNCERTIFICATED SHARES

Section 4. Transfers of stock of the corporation shall be made on the books of the corporation in the manner prescribed by applicable law and these bylaws. In the case of certificated shares of stock, transfers shall be made only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and only upon the surrender to the corporation, or to the transfer agent of the corporation, of a validly outstanding certificate therefor, properly endorsed for transfer or accompanied by proper evidence of succession, assignment or authority to transfer, and payment of all necessary transfer taxes; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the corporation shall determine to waive such requirement. In the case of uncertificated shares of stock, transfers shall be made upon receipt of

 

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proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the corporation shall be marked “cancelled,” with the date of cancellation, by the Secretary or Assistant Secretary of the corporation or the corporation’s transfer agent. No transfer of stock shall be valid as against the corporation for any purpose until it shall have been entered in the stock records of the corporation or the corporation’s transfer agent.

ARTICLE VII – GENERAL PROVISIONS

DIVIDENDS

Section 1. Dividends upon the capital stock of the corporation, subject to the provisions, if any, of the certificate of incorporation may be declared by the board of directors at any regular or special meeting of the board of directors, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions, if any, of the certificate of incorporation. Before payment of any dividend, there may be set aside, out of any funds of the corporation available for dividends, such sum or sums as the board of directors, from time to time, in their absolute discretion, believe appropriate.

 

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REGISTERED STOCKHOLDERS

Section 2. The corporation shall be entitled to recognize the exclusive right of a person registered on the corporation’s stock books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on the corporation’s stock books as the owner of shares, and shall not be bound to recognize any equitable or other claim to, or interest in, such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.

SURVIVAL OF INDEMNIFICATION RIGHTS

Section 3. The rights to indemnification and advancement of expenses conferred by Article VIII of the certificate of incorporation of the corporation shall continue as to a person who has ceased to be a director, officer, employee or agent of the corporation and shall inure to the benefit of the heirs, executors and administrators of such a person. Any amendment, alteration or repeal of Article VIII of the certificate of incorporation shall not adversely affect any right or protection thereunder of any person in respect of any act or omission occurring prior to such amendment, alteration or repeal.

FISCAL YEAR

Section 4. The fiscal year of the corporation shall be the calendar year, unless otherwise fixed by resolution of the board of directors.

 

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SEAL

Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its incorporation and the state in which incorporated. The seal may be used by causing it, or a facsimile thereof, to be impressed or affixed or in another manner reproduced.

CONSTRUCTION OF BYLAWS

Section 6. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the DGCL shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both an entity and a natural person.

ARTICLE VIII - AMENDMENTS TO BYLAWS

Section 1. These bylaws may be amended, altered, or repealed as follows: (a) at any regular or special meeting of the board of directors, but only if notice of such amendment, alteration, or repeal is contained in the notice of such special meeting, or (b) at any annual meeting of stockholders by the affirmative vote of the holders of at least seventy percent (70%) of each class of stock outstanding and entitled to vote at any meeting of stockholders, or (c) at any special meeting of stockholders, by the affirmative vote of at least seventy percent (70%) of

 

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each class of stock outstanding and entitled to vote at any meeting of stockholders if notice of such amendment, alteration or repeal is contained in the notice of such special meeting.

 

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Bylaws of Nucor Corporation, marked to show amendments effective as of Sept. 8,

Exhibit 3.2

NUCOR CORPORATION

BYLAWS - December 20, 2007September 8, 2010


NUCOR CORPORATION

BYLAWS – December 20, 2007September 8, 2010

CONTENTS

 

      PAGE

ARTICLE I – OFFICES

   1

ARTICLE II - MEETINGS OF STOCKHOLDERS

   1

ARTICLE III – DIRECTORS

   58

ARTICLE IV – NOTICES OF STOCKHOLDERS’ MEETINGS, RECORD DATES AND WAIVERS

   1216

ARTICLE V - OFFICERS

   1318

ARTICLE VI - CERTIFICATES OF STOCK

   1623

ARTICLE VII - GENERAL PROVISIONS

   2026

ARTICLE VIII - AMENDMENTS TO BYLAWS

   2128


ARTICLE I – OFFICES

Section 1. The corporation’s registered office in the State of Delaware shall be in the City of Wilmington, County of New Castle.

Section 2. The corporation may also have offices at such other places, within and without the State of Delaware, as the board of directors may, from time to time, determine, or the business of the corporation may require.

ARTICLE II - MEETINGS OF STOCKHOLDERS

Section 1. All meetings of the stockholders for the election of directors shall be held at such place, within or without the State of Delaware, as may be fixed, from time to time, by the board of directors. Meetings of stockholders for any other purpose may be held at such time or place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.

Section 2. Annual meetings of stockholders for the election of directors shall be held on the second Thursday of May if not a legal holiday, and if a legal holiday, then on the next succeeding business day,such date in May and at such time as shall be designated by the board of directors, or at such other date and time, within thirteen months after the corporation’s last annual meeting of stockholders, as shall be designated by the board of directors. At each annual meeting of stockholders, the stockholders shall by written ballot elect directors by plurality vote,


by ballot, a board of directors, and transact such other business as may be properly brought before the meeting. in accordance with Section 3 below.

Section 3. In order to be considered at any annual or special meeting of stockholders, a stockholder’s proposal must be a proper matter for stockholder consideration and must be made pursuant to timely notice in writing to the secretary of the corporation. A stockholder’s proposal shall be deemed a proper matter for stockholder consideration unless, pursuant to Rule 14a-8(ci) promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any similar or successor rule or regulation, the corporation would be entitled to omit such proposal from its proxy statement had such proposal been timely submitted to the corporation for consideration at an annual meeting of shareholdersstockholders in accordance with Rule 14a-8.

Any proposal which is requested by a shareholderstockholder to be included in the corporation’s proxy statement must comply with the notice requirements set forth in the rules and regulations for stockholder proposals in solicitation of proxies promulgated by the Securities and Exchange CommissionSEC under the Exchange Act. Notice of any proposal to be presented by a stockholder at any special or annual meeting of stockholders which is not requested to be included in the corporation’s proxy statement shall be delivered in writing to the secretary of the corporation not less than sixty (60) days nor more than ninety (90) days prior to the date of such meeting; provided, however, that if the date of such meeting is first publicly announced or disclosed (in a public filing or otherwise) less than seventy (70) days prior to the date of such meeting, such prior notice shall be given not more than ten (10) days after such date is first so announced or disclosed.120 calendar days nor more than 150 calendar days before the first


anniversary of the date the corporation began mailing its proxy materials for the preceding year’s annual meeting of stockholders. Notice of any proposal to be presented by a stockholder at any special meeting of stockholders which is not requested to be included in the corporation’s proxy statement shall be delivered in writing to the secretary of the corporation not earlier than 150 calendar days before the date of the special meeting nor later than the later of 120 calendar days before the date of the special meeting or the tenth day following the day on which public announcement of the date of the special meeting was first made. Notice of any such proposal to be presented at any stockholders meeting shall include: (i) the text of the proposal to be presented, (ii) a brief written statement of the reasons for such stockholder’s support of the proposal, (iii) the name and address of record, as they appear on the corporation’s books, of the proposing stockholder, (iv and any Stockholder Associated Person (defined below) covered by clauses (iv) and (vi) below, (iv) (A) the class and number of shares of the corporation beneficially owned by such stockholderwhich are owned of record or beneficially by such stockholder and by any Stockholder Associated Person with respect to the corporation’s securities and (B) any derivative positions held of record or beneficially by the stockholder and any Stockholder Associated Person and 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 has been made, the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such stockholder or any Stockholder Associated Person with respect to the corporation’s securities, (v) a representation that such stockholder is entitled to vote at such meeting and intends to appear in person or by proxy to present the proposal at such meeting, and (vi) a detailed description of any material interest of such stockholder inor any


Stockholder Associated Person in the proposal and (vii) a statement whether either such stockholder or any Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal. The chairman of the meeting shall determine and declare to the meeting whether a proposal was made in accordance with the foregoing procedure, and if he should determine that it was not so made, he shall so declare to the meeting and such proposal shall be disregarded.

No proposal presented by a stockholder that is not included in the corporation’s proxy statement shall be considered at any annual or special meeting except in accordance with the provisions of this Section 3. In addition, business proposed to be brought by a stockholder may not be brought before the meeting if such stockholder or a Stockholder Associated Person, as applicable, takes any action contrary to the representations made pursuant to the provisions of this Section 3 applicable to such business or if the notice of the proposal applicable to such business contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. The chairman of the board or the other director exercising the chairman’s powers and duties at the meeting shall, if the facts warrant, determine and declare at the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Section 3, and, if the chairman of the board or such other person should so determine, he shall so declare at the meeting that any such business not properly brought before the meeting shall not be conducted.

Nothing in this Section 3 shall be deemed to affect any rights of the corporation’s stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to


the rules and regulations promulgated by the Securities and Exchange CommissionSEC under the Exchange Act.

“Stockholder Associated Person” of any stockholder means (A) any person controlling, directly or indirectly, or acting in concert with, such stockholder, (B) any beneficial owner of shares of stock of the corporation owned of record or beneficially by such stockholder and (C) any person controlling, controlled by or under common control with such Stockholder Associated Person.

Section 4. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given in accordance with Article IV of these bylaws stating the place, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Except as may be otherwise provided by law, written notice of each annual meeting of stockholders shall be given to each stockholder entitled to vote,in the Delaware General Corporation Law (“DGCL”), the certificate of incorporation or these bylaws, such notice shall be given not less than ten10 nor more than sixty60 calendar days before the date of the meeting. to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting.


Section 5. The corporation shall prepare and make, or have prepared and made, at least ten10 calendar days before each meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting,; provided, however, if the record date for determining the stockholders entitled to vote is less than 10 calendar days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth calendar day before the meeting date. The stockholder list shall be arranged in alphabetical order, showing the address of and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, during ordinary business hours, upon reasonable notice to the corporation for any purpose germane to the meeting for a period of at least ten10 calendar days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where the meeting is to be held. Such list shall during ordinary business hours at the corporation’s principal place of business. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and subject to the inspection of any stockholder who may be present.may be examined by any stockholder who is present. Such list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.

Section 6. Special meetings of the stockholders for any purpose or purposes may be called by the chairman of the board and shall be called by the chairman of the board or secretary at the request in writing of a majority of the board of directors. Such request shall state the purpose or purposes of the proposed meeting.


Section 7. Except as may be otherwise provided by law, written notice of a special meeting of stockholders, stating the time, place and purposes thereof, shall be given to each stockholder entitled to vote thereat, not less than ten nor more than sixty days before the date of the meeting.Section 8. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice of the meeting.

Section 9.7. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by law or by the certificate of incorporation. If, however, such quorum shall not be present or represented by proxy at any meeting of the stockholders, the Chairman of the Board or the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting or as may be required by law, until a quorum shall be present or represented by proxy. At such adjourned meeting at which a quorum shall be present or represented by proxy, any business may be transacted which might have been transacted at the meeting as originally notified.

Section 10.8. When a quorum is present at any meeting of stockholders, the vote of the holders of a majority of the stock having voting power, present in person or represented by proxy, shall decide any question brought before the meeting, unless the question is one upon which, by express provision of law or of the certificate of incorporation or of the bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 11. At any meeting of the stockholders, every stockholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than three years prior to the meeting,


unless said instrument provides for a longer period. 9. Each stockholder shall have one vote for each share of stock having voting power, registered in the stockholder’s name on the stock books of the corporation as of the record date for determining the stockholders entitled to vote at the meeting. At all elections of directors, each stockholder of the corporation having voting power shall have the right of cumulative voting as provided in the certificate of incorporation.

Section 10. At any meeting of the stockholders, every stockholder having the right to vote shall be entitled to vote in person, or by proxy appointed (i) by an instrument in writing subscribed by such stockholder or (ii) by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A written proxy may be in the form of a telegram, cablegram, or other means of electronic transmission that sets forth or is submitted with information from which it can be determined that the telegram, cablegram, or other means of electronic transmission was authorized by the person having the right to vote at the meeting.

Section 11. Before any meeting of stockholders, the corporation shall appoint an inspector or inspectors of election to act at the meeting or its adjournment and make a written report thereof. The inspector or inspectors of election shall have the duties and powers prescribed or authorized, as the case may be, in Section 231 of the DGCL.


ARTICLE III — DIRECTORS

Section 1. (a) The number of directors which shall constitute the whole board of directors shall be not less than three nor more than nine, the precise number to be determined from time to time by resolution of the board of directors. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office shall expire. Directors shall be elected at the annual meeting of stockholders except as provided in Section 2 of this Article III. Directors shall be divided into three classes, each class to be as equal in number as possible. At, until the 2013 annual meeting of stockholders as set forth in Section C of Article VII of the corporation’s certificate of incorporation. Beginning with the 2013 annual meeting of stockholders, and at each annual meeting of stockholders, thereafter, all directors shall be elected for a three-year term, to succeed the class of directors whose term expires in that year.terms expiring at the next annual meeting of stockholders. Each director shall hold office until such director’s successor is elected and qualified or until such director’s earlier resignation.

(b) Only persons who are nominated in accordance with the procedures set forth in this Section 1(b) of Article III shall be eligible for election as directors at the annual meeting of stockholders. Nominations of persons for election to the board of directors may be made at a meeting of stockholders (i) by or at the direction of the board of directors, (ii) by any nominating committee of or person appointed by the board of directors, or (iii) by any stockholder of the corporation who is a stockholder of record at the time of giving of notice provided for in this Section 1(b), who shall be entitled to vote for the election of directors at the meeting and who complies with the notice procedures set forth in this Section 1.1(b). Nominations made by any


stockholder shall be made only pursuant to timely notice in writing to the secretary of the corporation. To be timely, a stockholder’s notice mustshall be delivered to, or mailed and received at, the principal executive offices of the corporation not less than sixty (60) days nor more than ninety (90) days prior to the meeting; provided, however, that in the event that less than seventy (70) days’ notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the tenth (10th ) day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made.120 calendar days nor more than 150 calendar days before the first anniversary of the date the corporation began mailing its proxy statement for the preceding year’s annual meeting of stockholders. Such stockholder’s notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director, (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment of such person, (iii) the class and number of shares of the corporation which are beneficially owned by such person and (ivany derivative positions held or beneficially held by the nominee, (iv) a written statement executed by the nominee acknowledging that as a director of the corporation, the nominee will owe a fiduciary duty under Delaware law with respect to the corporation and its stockholders, and (v) any other information relating to such person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Schedule 14A under the Securities Exchange Act of 1934, as amended (including without limitation such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); and (b) as to the stockholder giving the notice (i) the name and address, as they appear on the corporation’s books, of such stockholder and (ii) the class andany Stockholder Associated Person covered by


clause (ii) below and (ii) (A) the number of shares of the corporation which are beneficially owned by such stockholderowned of record or beneficially by such stockholder and by any Stockholder Associated Person with respect to the corporation’s securities and (B) any derivative positions held of record or beneficially by the stockholder and any Stockholder Associated Person and 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 has been made, the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such stockholder or any Stockholder Associated Person with respect to the corporation’s securities, and (iii) a written statement whether either such stockholder or any Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of the corporation’s voting shares. At the request of the board of directors, any person nominated by the board of directors, or by any nominating committee of or a person appointed by the board of directors, for election as a director shall furnish to the secretary of the corporation that information required to be set forth in a stockholder’s notice of nomination which pertains to the nominee. Commencing with the annual meeting of stockholders in 2002, no person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth in this Section 1.

The chairman of the board or the other director exercising the chairman’s powers and duties at the meeting shall, if the facts warrant, determine and declare toat the meeting whetherthat a nomination was not made in accordance with the procedures prescribed by the bylawsthis Section 1(b), and, if he should so determine that it was not so made, he shall soand declare to the meeting and, such nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 1(b), a stockholder shall also comply with all applicable requirements


of the Exchange Act and the rules and regulations promulgated thereunder by the SEC with respect to the matters set forth in this Section 1(b).

Section 2. Vacancies, and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, though less than a quorum, and, until the 2013 annual meeting of stockholders, the directors so chosen shall hold office until the next election of the class for which such directors shall have been chosen, and until their successors shall be duly elected and qualified, or until death, resignation or removal. Thereafter, the directors so chosen shall hold office until the next annual meeting of stockholders, and until their successors shall be duly elected and qualified, or until death, resignation or removal.

Section 3. The business of the corporation shall be managed by its board of directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by law or by the certificate of incorporation or by these bylaws directed or required to be exercised or done by the stockholders.

Section 4. The board of directors, at its first meeting after each annual meeting of stockholders, shall elect a chairman of the board and one or more vice chairmen of the board from among the directors. The chairman of the board and any vice chairman of the board may be either a director who is an executive officer of the corporation or a director who is not employed by the corporation and the board shall designate at the time of election whether the chairman and


any vice chairman shall serve in an executive or non-executive capacity. The compensation of the chairman of the board and any vice chairman shall be fixed by the board of directors.

Section 5. The chairman and any vice chairman of the board of directors shall hold office until their respective successors shall be duly chosen and qualified, or until death, resignation or removal. The chairman and any vice chairman of the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors.

THE CHAIRMAN OF THE BOARD

Section 6. The chairman of the board shall, when present, preside at all meetings of the stockholders and of the board of directors, and, subject to the power and authority of the board of directors, shall see that all orders and resolutions of the board of directors are carried into effect. The chairman of the board shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.

THE VICE CHAIRMAN OF THE BOARD

Section 7. The vice chairman of the board, or if there be more than one, the vice chairmen of the board, in the order determined by the board of directors, shall, in the absence or disability of the chairman of the board, perform the duties and exercise the powers of the chairman of the board, and shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.


MEETINGS OF THE BOARD OF DIRECTORS

Section 8. The board of directors of the corporation may hold meetings, both regular and special, within or without the State of Delaware. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

Section 9. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders atimmediately following the annual meeting of stockholders, and no notice of such first meeting shall be necessary to the newly elected directors in order legally to constitute such first meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such first meeting is not held at the time and place so fixed by the stockholders, such first meeting may be held at the time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver or waivers signed by all of the directors.

Section 10. Regular meetings of the board of directors may be held without notice at such time and at such place as shall, from time to time, be determined by the board of directors.


Section 11. Special meetings of the board of directors for any purpose or purposes may be called at any time by the chairman of the board on two days’, or by the Secretary at the request of a majority of the directors, on two calendar day’s notice to each director, either personally or, by mail, electronic mail, courier or by telegram or by telefax. Special meetings shall be called bytelefax directed to each director at that director’s address, telephone number, telefax number or electronic mail address, as the case may be, as given to the secretary of the corporation by such director, at such times and places as the chairman of the board or secretary in like manner and on like notice on the written request of two directors.the Secretary shall designate.

Whenever there shall be a Lead Director appointed as provided for in the Corporate Governance Principles adopted by the board of directors, special meetings of the directors who are “independent” directors under the Corporate Governance Standards of the New York Stock Exchange may be called by the Lead Director for any purpose or purposes at any time in accordance with the notice procedures set forth in this Section 11 for calling special meetings of the board of directors.

Section 12. At all meetings of the board of directors, the lesser of three directors or a majority of the directors (but not less than one-third of the total number of directors nor less than two directors) shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by law or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the


directors present thereat may adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 13. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting, if a written consent thereto is signed by all members of the board of directors or of such committee, as the case may be, and such written consent isconsent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board of directors or of such committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

COMMITTEES OF DIRECTORS

Section 14. The board of directors may, by resolution passed by a majority of the whole board of directors, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution or in a committee charter approved by the board of directors and as allowed by law, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors and shall, to the extent required by the Corporate Governance Rules of the New York Stock Exchange, be


constituted in accordance with, and have such duties and powers as shall be required by such Corporate Governance Rules.

Section 15. At all meetings of any committee of the board of directors, at least 50% of the directors comprising any such committee shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of such committee, except as may be otherwise specifically provided by law or by the certificate of incorporation. If a quorum shall not be present at any meeting of any committee of the board of directors, the directors present thereat may adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present. A meeting of a committee at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors serving on the committee, if any action taken is approved by at least a majority of the required quorum for the committee meeting.

Section 16. Each committee shall keep regular minutes of its meetings and report the same to the board of directors, when requested or required.

COMPENSATION OF DIRECTORS

Section 16. The directors shall be paid17. Unless otherwise restricted by the certificate of incorporation or these bylaws, the board of directors shall have the authority to fix the compensation of directors, including but not limited to additional compensation for directors who serve as committee chairs or as Lead Director. The directors shall be reimbursed for their


expenses, if any, in connection with their attendance at each meeting of the board of directors. Directors may also be paid a fixed amount for attendance at each meeting of the board of directors, or a stated amount per year or per quarter or per month, or both. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Directors who are members of committees may, in addition, be paid a fixed amount for attending each committee meeting. or committee thereof.

ARTICLE IV—NOTICES NOTICES OF STOCKHOLDERS’ MEETINGS, RECORD DATES AND WAIVER

Section 1. Notices to directors and stockholders shall be in writing and delivered personally or sent to the directors or stockholders at their addresses appearing on the records of the corporation. Notice shall be deemed to be given at the time when the same shall be sent. Notice to directors may be sent by mail, telegram, telefax, electronic or other communication.

Section 1. Notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the corporation’s records. An affidavit of the secretary or an assistant secretary of the corporation or of the transfer agent or other agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

Section 2. In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the


record date is adopted by the board of directors and which record date shall not be more than 60 nor less than 10 calendar days before the date of such meeting. If the board of directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the board of directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.

If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the provisions of Section 213 of the DGCL and this Section 2 at the adjourned meeting.

In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 calendar days prior to such action. If no record date is


fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

Section 2. 3. Whenever any notice is required to be given under the provisions of law or ofto stockholders, directors or other persons under any provision of the DGCL, the certificate of incorporation or of these bylaws, a written waiver thereof in writing, signed by the person or persons entitled to saidentitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated thereinof the event for which notice is to be given, shall be deemed equivalent thereto.to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders or the board of directors, as the case may be, need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the certificate of incorporation or these bylaws.

ARTICLE V — OFFICERS

Section 1. The executive officers of the corporation shall be elected by the board of directors and shall be a president, one or more vice presidents, a treasurer and a secretary. The board of directors may also elect, or any of the executive officersconsist of a chief executive officer (CEO), a Chief Financial Officer (CFO), one or more presidents, one or more vice presidents (any one or more of whom may be designated by the board of directors as a “senior”


or “executive” vice president), a treasurer, a secretary and such other officers as may be appointed from time to time by the board of directors. Two or more offices may be held by the same person. The Board of Directors may in its discretion designate one of the presidents or one of the vice presidents as the Chief Operating Officer (COO) of the corporation. The CEO may appoint, one or more assistant treasurers and assistant secretaries. Two or more offices may be held by the same person. as the CEO deems necessary or appropriate.

Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall elect a president, one or more vice presidents, a treasurer and a secretary, none of whom need be a member of the board of directors.

Section 3. The board of directors may elect such other officers as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined, from time to time, by the board of directors.

Section 4.2. The compensation of the president, the vice presidentsCEO shall be fixed by a compensation committee of the board of directors constituted in accordance with the Corporate Governance Rules of the New York Stock Exchange. The compensation of the CFO, the president(s), the vice president(s), the treasurer and the secretary shall be fixed by the board of directors. upon the recommendation of such compensation committee.

Section 5.3. The officers of the corporation shall hold office until their successors shall be duly chosen and qualified, or until death, resignation or removal. Any officer elected by the


board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any officer may resign at any time by giving written notice to the corporation. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.

THE CHIEF EXECUTIVE OFFICER (CEO)

Section 4. Subject to the provisions of these bylaws and to the direction of the Board of Directors, the CEO of the corporation shall have the responsibility for the general management and control of the business and affairs of the corporation and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to the CEO by the board of directors. Together with the CFO, the CEO shall (A) be responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) for the corporation and (B) sign the certifications required to be included as exhibits to the corporation’s periodic and annual reports to the SEC pursuant to Exchange Act Rule 13a-14.

The CEO shall have power to sign all stock certificates, contracts and other instruments of the corporation that are authorized and shall have general supervision and direction of all of the duties, employees and agents of the corporation. If the CEO is not also serving as the


chairman of the board of directors, the CEO shall in the absence or disability of both the chairman of the board and any vice chairman of the board, perform the duties of the chairman of the board.

CHIEF FINANCIAL OFFICER (CFO)

Section 5. The CFO of the corporation shall have the responsibility for maintaining the financial records of the corporation and shall render from time to time an account of the results of operation and financial condition of the corporation. Together with the CEO, the CFO shall (A) be responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) for the corporation and (B) sign the certifications required to be included as exhibits to the corporation’s periodic and annual reports to the SEC pursuant to Exchange Act Rule 13a-14. The CFO shall also perform such other duties as the board of directors may from time to time prescribe.

THE PRESIDENTPRESIDENTS

Section 6. The president, or if there be more than one, the presidents, in the order determined by the board of directors, shall, in the absence or disability of both the chairman of the board and the vice chairmen of the boardthe CEO, perform the duties and exercise the powers of the chairman of the boardCEO, and shall perform such other duties and have such other powers and duties as the board of directors may, from time to time, prescribe.


THE VICE PRESIDENTS

Section 7. The vice president, or if there be more than one, the vice presidents, in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president, and shall perform such other duties and have such other powers as the board of directors or the CEO may, from time to time, prescribe.

THE TREASURER

Section 8. The treasurer shall have custody of the corporation’s funds and securities, and shall keep, or have kept, accounts of receipts and disbursements in books and records of the corporation, and shall deposit, or have deposited, moneys and securities in the name and to the credit of the corporation in appropriate depositories. The treasurer shall disburse, or have disbursed, the funds of the corporation for appropriate corporate purposes and with appropriate documentation, and shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.

THE ASSISTANT TREASURERS

Section 9. The assistant treasurer, or if there be more than one, the assistant treasurers, in the order determined by the board of directors, shall, in the absence or disability of


the treasurer, perform the duties and exercise the powers of the treasurer, and shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.

THE SECRETARY

Section 10. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders, and shall record the proceedings of all meetings of the board of directors and all meetings of the stockholders, and shall perform like duties for the committees of the board of directors, when required or requested. The secretary shall give, or cause to be given, notice of all special meetings of the board of directors and all meetings of the stockholders, and shall perform such other duties and have such other powers as the board of directors may, from to time, prescribe. The secretary shall keep, or have kept, in custody the seal of the corporation and affix, or have affixed, the same to any instrument requiring it and, when so affixed, it shall be attested by the secretary’s signature.

THE ASSISTANT SECRETARIES

Section 11. The assistant secretary, or if there be more than one, the assistant secretaries, in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary, and shall perform such other duties and have such other powers as the board of directors may, from time to time, prescribe.


ARTICLE VI — CERTIFICATES OF STOCK

Section 1. The shares of stock of the corporation shall be represented by a certificate, unless and until the Board of Directors of the corporation adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any such resolution providing for uncertificated shares, every holder of stock in the corporation theretofore represented by certificates and, upon request, every holder of uncertificated shares, shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman of the board or a vice chairman of the board, or the president (or CEO) or any vice president, and the treasurer (or CFO) or an assistant treasurer or the secretary or an assistant secretary of the corporation, certifyingrepresenting the number of shares owned by the stockholder in the corporation.Section 2. Where a certificate of stock is signed (1) by a transfer agent or (2) by a transfer clerk acting on behalf of the corporation and a registrar, the signature of any such chairman of the board, vice chairman of the board, president, vice president, treasurer, assistant treasurer, secretary or assistant secretary may be and registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or officersregistrar who havehas signed, or whose facsimile signature or signatures havehas been used on, any suchplaced upon, a certificate or certificates shall ceasehas ceased to be such officer, transfer agent or officersregistrar of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates havehas been delivered by the corporation, such certificate or certificates may be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures have been used thereon, had not ceased to be such officer or officers of the corporation.by the


corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

LOST, STOLEN, OR DESTROYED CERTIFICATES OF STOCK

Section 2. If the corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights will be set forth in full or summarized on the face or back of the certificate that the corporation will issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation will issue to represent such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

Section 3. The corporation may issue, or have issued, a new certificate or certificates of stock in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the owner of the certificate or certificates of stock alleged to have been lost, stolen or destroyed, or by the owner’s legal representative. When authorizing such issue of a new certificate or certificates, the corporation may, in its discretion and as a condition precedent to the issuance thereof, require


that the owner of such allegedly lost, stolen or destroyed certificate or certificates, or the owner’s legal representative, give to the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation with respect to the certificate or certificates alleged to have been lost, stolen or destroyed.

TRANSFERS OF STOCK CERTIFICATES AND UNCERTIFICATED SHARES

Section 4. Transfers of stock of the corporation shall be made on the books of the corporation in the manner prescribed by applicable law and these bylaws. In the case of certificated shares of stock, transfers shall be made only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and only upon the surrender to the corporation, or to the transfer agent of the corporation, of a validly outstanding certificate therefor, properly endorsed for transfer or accompanied by proper evidence of succession, assignment or authority to transfer, and payment of all necessary transfer taxes; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the corporation shall determine to waive such requirement. In the case of uncertificated shares of stock, transfers shall be made upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the corporation shall be marked “cancelled,” with the date of cancellation, by the Secretary or Assistant Secretary of the corporation or the corporation’s transfer agent. No transfer of stock


shall be valid as against the corporation for any purpose until it shall have been entered in the stock records of the corporation or the corporation’s transfer agent.

FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD

ARTICLE VII – GENERAL PROVISIONS

DIVIDENDS

Section 1. Dividends upon the capital stock of the corporation, subject to the provisions, if any, of the certificate of incorporation may be declared by the board of directors at any regular or special meeting of the board of directors, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions, if any, of the certificate of incorporation. Before payment of any dividend, there may be set aside, out of any funds of the corporation available for dividends, such sum or sums as the board of directors, from time to time, in their absolute discretion, believe appropriate.

Section 5. The board of directors may, by resolution, fix a record date for determining stockholders entitled to notice of, or to vote at, any meeting of stockholders, or any adjournment thereof, which record date shall not precede the date of such resolution and which record date shall not be more than sixty nor less than ten days before the date of such meeting of stockholders. The board of directors may, by resolution, fix a record date for determining stockholders entitled to consent to corporate action in writing without a meeting of stockholders,


which record date shall not precede the date of such resolution and which record date shall not be more than ten days after the date of such resolution. The board of directors may, by resolution, fix a record date for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or stockholders entitled to exercise any rights in respect to any change, conversion or exchange of stock or for the purpose of any other lawful action, which record date shall not precede the date of such resolution and which record date shall not be more than sixty days prior to such action.

REGISTERED STOCKHOLDERS

Section 6.2. The corporation shall be entitled to recognize the exclusive right of a person registered on the corporation’s stock books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on the corporation’s stock books as the owner of shares, and shall not be bound to recognize any equitable or other claim to, or interest in, such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.

ARTICLE VII—GENERAL PROVISIONS

DIVIDENDS

Section 1. Dividends upon the capital stock of the corporation, subject to the provisions, if any, of the certificate of incorporation may be declared by the board of directors at


any regular or special meeting of the board of directors, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions, if any, of the certificate of incorporation.

Section 2. Before payment of any dividend, there may be set aside, out of any funds of the corporation available for dividends, such sum or sums as the board of directors, from time to time, in their absolute discretion, believe appropriate.

SURVIVAL OF INDEMNIFICATION RIGHTS

ANNUAL STATEMENT

Section 3. The rights to indemnification and advancement of expenses conferred by Article VIII of the certificate of incorporation of the corporation shall continue as to a person who has ceased to be a director, officer, employee or agent of the corporation and shall inure to the benefit of the heirs, executors and administrators of such a person. Any amendment, alteration or repeal of Article VIII of the certificate of incorporation shall not adversely affect any right or protection thereunder of any person in respect of any act or omission occurring prior to such amendment, alteration or repeal.

Section 3. The board of directors shall present at each annual meeting of stockholders, and at any special meeting of the stockholders when called for by vote of the stockholders, a statement of the business and condition of the corporation.


FISCAL YEAR

Section 4. The fiscal year of the corporation shall be the calendar year, unless otherwise fixed by resolution of the board of directors.

SEAL

Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its incorporation and the state in which incorporated. The seal may be used by causing it, or a facsimile thereof, to be impressed or affixed or in another manner reproduced.

CONSTRUCTION OF BYLAWS

Section 6. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the DGCL shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both an entity and a natural person.

ARTICLE VIII - AMENDMENTS TO BYLAWS

Section 1. These bylaws may be amended, altered, or repealed as follows: (a) at any regular or special meeting of the board of directors, but only if notice of such amendment,


alteration, or repeal is contained in the notice of such special meeting, or (b) at any annual meeting of stockholders by the affirmative vote of the holders of at least seventy percent (70%) of each class of stock outstanding and entitled to vote at any meeting of stockholders, or (c) at any special meeting of stockholders, by the affirmative vote of at least seventy percent (70%) of each class of stock outstanding and entitled to vote at any meeting of stockholders if notice of such amendment, alteration or repeal is contained in the notice of such special meeting.

Restated Certificate of Incorporation of Nucor Corporation

Exhibit 3.3

RESTATED CERTIFICATE OF INCORPORATION

OF

NUCOR CORPORATION

NUCOR CORPORATION was incorporated under the name NUCLEAR CORPORATION OF AMERICA, and its original certificate of incorporation was filed with the Secretary of State of the State of Delaware on March 28, 1958. This Restated Certificate of Incorporation has been duly adopted by the board of directors of this corporation pursuant to Section 245 of the General Corporation Law of the State of Delaware. This Restated Certificate of Incorporation only restates and integrates and does not further amend the corporation’s certificate of incorporation and other certificates and instruments filed with the Secretary of State of the State of Delaware pursuant to Section 104 of the General Corporation Law of the State of Delaware, and there is no discrepancy between the provisions of such certificate of incorporation, certificates and instruments and this Restated Certificate of Incorporation. The text of the Certificate of Incorporation as amended or supplemented heretofore is hereby restated without further amendments or changes to read as herein set forth in full:

ARTICLE I

NAME

The name of the corporation is NUCOR CORPORATION.

ARTICLE II

REGISTERED OFFICE AND AGENT

The corporation’s registered office in the State of Delaware is located at 1209 Orange Street, in the City of Wilmington, County of New Castle. The name and address of the corporation’s registered agent is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.

ARTICLE III

PURPOSES AND POWERS

A. The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware.

B. Without limiting in any manner the scope and generality of the foregoing, it is hereby provided that the corporation’s purposes and powers shall include the following:

1. To engage in business in the atomic energy and nuclear industry and chemical industry, including the business of developing and applying atomic energy and chemical products and equipment for commercial use and for research; to engage in business in the electronics industry; and as such to manufacture, produce, secure, receive, procure, make, hold, purchase or otherwise acquire, sell, convey, lease, rent or otherwise dispose of both at retail and wholesale,


and generally deal in, articles in such industry and all other articles of merchandise of a kindred nature.

2. To manufacture, buy, sell, deal in and deal with steel or iron or both and all like or kindred products; to mine, manufacture, prepare for market, market and sell the same and any articles or products in the manufacture or composition of which metal is a factor, including the acquisition by purchase, mining, manufacture or otherwise of all materials, supplies and other articles necessary or convenient for use in connection with and in carrying on the business herein mentioned, or any part thereof.

3. To do a general manufacturing business and to buy, sell and deal in at wholesale and retail, all kinds of manufactured and unmanufactured products; to purchase, hold, sell, improve and lease real estate, and to mortgage and encumber the same, and to erect, manage, care for and maintain, extend and alter buildings thereon; to finance the resale of any of the products manufactured by it or any transactions entered into by the corporation; to purchase, form, organize and own subsidiary corporations and the stock thereof, and to guarantee the obligations and contracts of such subsidiary corporations.

4. To manufacture, purchase or otherwise acquire, invest in, own, mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade, deal in and deal with goods, wares and merchandise and personal property of every class and description.

5. To acquire and pay for in cash, stock or bonds of this corporation or otherwise, the good will, rights, assets and property, and to undertake or assume the whole or any part of the obligations or liabilities of any person, firm, association or corporation.

6. To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent of the United States or any foreign country, patent rights, licenses and privileges, inventions, improvements and processes, copyrights, trademarks and trade names, relating to or useful in connection with any business of this corporation.

7. To acquire by purchase, subscription or otherwise, and to receive, hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or otherwise dispose of or deal in and with any of the shares of the capital stock, or any voting trust certificates in respect of the shares of capital stock, scrip, warrants, rights, bonds, debentures, notes, trust receipts, and other securities, obligations, choses in action and evidences of indebtedness or interest issued or created by any corporation, joint stock companies, syndicates, associations, firms, trusts or persons, public or private, or by the government of the United States of America, or by any foreign government, or by any state, territory, province, municipality or other political subdivision or by any governmental agency, and as owner thereof to possess and exercise all the rights, powers and privileges of ownership, including the right to execute consents and vote thereon, and to do any and all acts and things necessary or advisable for the preservation, protection improvement and enhancement in value thereof.

8. To borrow or raise moneys for any of the purposes of the corporation and, from time to time without limit as to amount, to draw, make, accept, endorse, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or non-negotiable instruments and evidences of indebtedness, and to secure the payment of any thereof and of the interest thereon by mortgage upon or pledge, conveyance or assignment in trust of the whole or any part of the property of the corporation, whether at the time owned or

 

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thereafter acquired, and to sell, pledge or otherwise dispose of such bonds or other obligations of the corporation for its corporate purposes.

9. To purchase, receive, take by grant, gift, devise, bequest or otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with real or personal property, or any interest therein, whatever situated, and to sell, convey, lease, exchange, transfer or otherwise dispose of, or mortgage or pledge, all or any of the corporation’s property and assets, or any interest therein, wherever situated.

10. In general, to possess and exercise all the powers and privileges granted by the General Corporation Law of Delaware or by any other law of Delaware or by this Certificate of Incorporation together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the corporation.

C. The business and purposes specified in the foregoing clauses shall, except where otherwise expressed, be in nowise limited or restricted by reference to, or inference from, the terms of any clause in this Certificate of Incorporation, but the business and purposes specified in each of the foregoing clauses of this Article shall be regarded as independent business and purposes.

ARTICLE IV

STOCK

A. The total number of shares of Common Stock which the corporation shall have the authority to issue is eight hundred million (800,000,000), and the par value of each share is forty cents ($0.40), amounting in the aggregate to three hundred twenty million dollars ($320,000,000). The total number of shares of Preferred Stock which the corporation shall have authority to issue is two hundred fifty thousand (250,000), and the par value of each share is four dollars ($4.00), amounting in the aggregate to one million dollars ($1,000,000).

B. Unless otherwise determined by the board of directors, no holders of any shares of stock of the corporation, or of any rights, options or privileges to purchase shares of the stock of the corporation, or of any bonds, debentures, certificates of indebtedness or other securities, convertible into or exchangeable for shares of stock of the corporation, shall be entitled as of right to purchase or to subscribe for or receive any unissued or reacquired shares of stock of the corporation at any time authorized or any rights, options or privileges to purchase unissued or reacquired shares of stock of the corporation, or to purchase or subscribe for or receive any bonds, debentures, certificates of indebtedness, or other securities convertible into or exchangeable for shares of the stock of the corporation, but any unissued or reacquired shares of stock, rights, options, privileges, bonds, debentures, certificates of indebtedness, or other securities, may be issued or reissued and disposed of by the board of directors to such persons as the board of directors may in its sole discretion determine without offering any thereof to holders of shares, rights, options, privileges, bonds, debentures, certificates of indebtedness, or other securities of the corporation.

C. The board of directors is hereby expressly authorized to issue the shares of Preferred Stock in series and to fix from time to time before issuance the number of shares to be included in each series and the designation, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, of all shares of each series. The authority of the board of

 

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directors with respect to each series shall include, without limitation, the determination of any or all of the following matters:

1. The number of shares constituting such series and the designation thereof to distinguish shares of such series from the shares of all other series;

2. The annual dividend rate on the shares of such series and whether such dividends shall be cumulative, and, if cumulative, the date from which dividends shall accumulate;

3. The redemption price or prices for shares of such series, if redeemable, and the terms and conditions of such redemption;

4. The preference, if any, of shares of such series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the corporation;

5. The voting rights, if any, of shares of such series in addition to the voting rights prescribed by law and the terms of exercise of such voting rights;

6. The right, if any, of shares of such series to be converted into shares of any other series or class and the terms and conditions of such conversion; and

7. Any preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, of such series.

The shares of each series may vary from the shares of any other series as to any matters, including the foregoing.

ARTICLE V

TERM OF EXISTENCE

The corporation is to have perpetual existence.

ARTICLE VI

MANAGEMENT OF BUSINESS AND CONDUCT OF AFFAIRS

A. The management of the business and the conduct of the affairs of the corporation shall be vested in the board of directors of the corporation.

B. The board of directors shall have power, without assent or vote of the stockholders: to make, alter, amend, change, add to or repeal the by-laws of the corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends.

C. The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the

 

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purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be valid and as binding upon the corporation and upon all stockholders as though it had been approved or ratified by every stockholder of the corporation, whether or not the contract or act would otherwise be open to question for any reason.

D. In addition to the powers herein or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this Certificate, and to any by-laws from time to time made by the stockholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made.

ARTICLE VII

DIRECTORS

A. The number of directors of the corporation shall be such as from time to time shall be fixed by, or in the manner provided in, the by-laws. Election of directors need not be by ballot unless the by-laws so provide.

B. At all elections of directors of the corporation at which a stockholder is entitled to vote, each such stockholder shall be entitled to as many votes as shall equal the number of votes which (except for this provision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock, multiplied by the number of directors to be elected, and he may cast all of such votes for a single director or may distribute them among the number to be voted for, as he may see fit.

C. Until the 2013 annual meeting of stockholders, the directors of the corporation shall continue to be classified and divided into three classes, each class to be as equal in number as possible. Each director who is serving as a director immediately following the 2010 annual meeting of stockholders, or is thereafter elected a director, shall hold office until the expiration of the term for which he or she has previously been elected, and until his or her successor shall be duly elected and qualified, or until death, resignation or removal. At the 2011 annual meeting of stockholders, the successors of the class of directors whose terms expire at that meeting shall be elected for a two-year term expiring at the 2013 annual meeting of stockholders. At the 2012 annual meeting of stockholders, the successors of the class of directors whose terms expire at that meeting shall be elected for a one-year term expiring at the 2013 annual meeting of stockholders. At the 2013 annual meeting of stockholders, and at each annual meeting of stockholders thereafter, all directors shall be elected for terms expiring at the next annual meeting of stockholders.

D. After the 2013 annual meeting of stockholders, subject to the rights of the holders of shares of any series of Preferred Stock, no special meeting of stockholders of the corporation may be called by or on behalf of the stockholders of the corporation for a purpose of voting to remove one or more directors without cause, and stockholders may not act by written consent in lieu of a meeting to remove one or more directors without cause.

 

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ARTICLE VIII

INDEMNIFICATION

A. The corporation shall indemnify 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 (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

B. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper.

C. To the extent that a director, officer, employee or agent has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraph A or B of this Article, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

D. Any indemnification under paragraph A and B of this Article (unless ordered by a court) shall be made by the corporation only upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standards of conduct set forth in said paragraph A or B. Such determination shall be made (1) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. If such determination is adverse to the director, officer, employee or agent, such person may contest such determination and if a court should finally decide that indemnification is proper in the circumstances (which decision shall bind the corporation) or if such contest is settled before such final decision, then the director, officer, employee or agent shall be indemnified in addition to that provided under paragraph A

 

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and B of this Article, against expenses (including attorneys’ fees) actually and reasonably incurred by him in contesting such determination.

E. Expenses incurred by any person who may have a right of indemnification under this Article in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as authorized by the board of directors upon receipt of an undertaking by or on behalf of such person, to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the corporation pursuant to this Article.

F. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which any person may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to be benefit of the heirs, executors and administrators of such a person.

G. The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article or of Section 145 of the General Corporation Law of the State of Delaware.

H. The corporation shall, to the fullest extent permitted by applicable law from time to time in effect, indemnify any and all persons whom it shall have power to indemnify under said law from and against any and all of the expenses, liabilities and other matters referred to in or covered by said law.

ARTICLE IX

SPECIAL VOTING REQUIREMENTS

A. If any Other Entity is the Beneficial Owner of more than ten per cent (10%) of the outstanding Voting Shares of the corporation, then the affirmative vote or written consent of the holders of four-fifths (4/5) of the outstanding Voting Shares shall be required for the following: (i) the adoption of any agreement, plan or arrangement for the merger or consolidation of the corporation or any Subsidiary with any such Other Entity, or (ii) any sale, lease, exchange, mortgage, pledge or other disposition, either directly or indirectly, in one transaction or a series of related transactions, of more than ten per cent (10%) of the Assets of the corporation or any Subsidiary to any such Other Entity, or (iii) the issuance or transfer by the corporation, either directly or indirectly, in one transaction or a series of related transactions, of a number of Voting Shares (including as such, Voting Shares which may be issued or transferred upon the conversion or redemption of any other securities of the corporation) of the corporation greater than ten per cent (10%) of the number of outstanding Voting Shares of the corporation immediately prior thereto in exchange for the securities or assets of any such Other Entity. Such affirmative vote or written consent shall be in addition to the vote or consent of the holders of the stock of the corporation otherwise required by law, this Certificate of Incorporation or any agreement or contract to which the corporation is a party.

B. As used in this Article, the following terms shall have the meanings set forth below:

 

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“Other Entity” means any person, firm, corporation or other entity acting individually, or any persons, firms, corporations or other entities, or any combination thereof, acting in concert, or any one or more of such persons, firms, corporations or other entities acting in concert; provided, however, that “Other Entity” shall not mean a Subsidiary of the corporation whose certificate of incorporation contains provisions substantially similar to the provisions of this Article IX and Article XI of this Certificate of Incorporation; and provided further that “Other Entity” shall not include any director, officer or employee of the corporation unless such individual is also an Affiliate or Associate of any such other person, firm, corporation or other entity.

“Beneficial Owner” of stock means a person, or an Affiliate or Associate of such person, who directly or indirectly controls the voting of such stock (other than solely through control of proxies solicited by the corporation’s management), or who has any option, warrant, conversion or other rights to acquire such stock.

“Voting Shares” means the shares of stock of the corporation entitled to vote in the elections of directors, considered for the purpose of this Article as one class.

“Assets” means the gross fair market value of all assets of the corporation or any Subsidiary.

“Subsidiary” means any entity in which the corporation owns, directly, or indirectly, more than fifty per cent (50%) of the voting securities.

“Affiliate” and “Associate” shall have the same meanings as provided in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934 as in effect on January 1, 1974.

C. The interpretation, construction and application of any provision of this Article, and the determination of any facts, in connection with the application of this Article to a transaction or proposed transaction, shall be made by a majority of directors of the corporation not representing or being an Affiliate or Associate of any Other Entity which is the Beneficial Owner of more than ten per cent (10%) of the outstanding Voting Shares of the corporation, and such interpretation, construction, application or determination, when made in good faith, shall be conclusive and binding for all purposes.

ARTICLE X

COMPROMISES AND ARRANGEMENTS

Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them, and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the state of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholders thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such matter as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of

 

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this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequences of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

ARTICLE XI

AMENDMENTS

The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power; provided that no amendment to this Certificate of Incorporation shall amend, alter, change or repeal any of the provisions of Article V, Article VII, Article IX, or this Article XI, unless the amendment effecting such amendment, alteration, change or repeal shall receive the affirmative vote or consent of the holders of shares of all classes of stock of this corporation possessing four-fifths (4/5) of the voting rights in elections of directors, considered for the purpose of this Article as one class.

ARTICLE XII

SERIES A JUNIOR PARTICIPATING PREFERRED STOCK

Section 1. Designation, Par Value and Amount. The shares of such series shall be designated as “Series A Preferred Stock” (hereinafter referred to as “Series A Preferred Stock”), the shares of such series shall be with par value of $4.00 per share, and the number of shares constituting such series shall be 200,000.

Section 2. Dividends and Distributions.

(A) Subject to the prior and superior rights of the holders of any shares of any series of Preferred Stock ranking prior and superior to the shares of Series A Preferred Stock with respect to dividends, the holders of shares of Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of assets legally available for the purpose, quarterly dividends payable in cash on the first business day of March, June, September and December in each year (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision for adjustment hereinafter set forth, 5000 (subject to adjustment) times the aggregate per share amount of all cash dividends, and 5000 (subject to adjustment) times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock, par value $.40 per share, of the corporation (the “Common Stock”) or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred Stock.

 

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(B) The corporation shall declare a dividend or distribution on the Series A Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.

(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than days prior to the date fixed for the payment thereof.

Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights:

(A) Except as provided in paragraph C of this Section 3 and subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 5000 votes (subject to adjustment) on all matters submitted to a vote of the stockholders of the corporation.

(B) Except as otherwise provided herein or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the corporation.

Section 4. Certain Restrictions.

(A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the corporation shall not:

(i) declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock;

(ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and all

 

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such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; or

(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock, provided that the corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Preferred Stock.

(B) The corporation shall not permit any subsidiary of the corporation to purchase or otherwise acquire for consideration any shares of stock of the corporation unless the corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.

Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired by the corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, in any other Certificate of Amendment creating a series of Preferred Stock or as otherwise required by law.

Section 6. Liquidation, Dissolution or Winding Up.

(A) Subject to the prior and superior rights of holders of any shares of any series of Preferred Stock ranking prior and superior to the shares of Series A Preferred Stock with respect to rights upon liquidation, dissolution or winding up (voluntary or otherwise), no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received $500.00 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment (the “Series A Liquidation Preference”). Following the payment of the full amount of the Series A Liquidation Preference, no additional distributions shall be made to the holders of shares of Series A Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the “Capital Adjustment”) equal to the quotient obtained by dividing (i) the Series A Liquidation Preference by (ii) 5,000 (the “Adjustment Number”). Following the payment of the full amount of the Series A Liquidation Preference and the Capital Adjustment in respect of all outstanding shares of Series A Preferred Stock and Common Stock, respectively, holders of Series A Preferred Stock and holders of Common Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock and Common Stock, on a per share basis, respectively.

(B) In the event, however, that there are not sufficient assets available to permit payment in full of the Series A Liquidation Preference and the liquidation preferences of all other series of preferred stock, if any, which rank on a parity with the Series A Preferred Stock, then such remaining assets shall be distributed ratably to the holders of Series A Preferred Stock and the holders of such parity shares in proportion to their respective liquidation preferences. In the event, however, that there are not sufficient assets available to permit payment in full of the Capital Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock. Neither merger, consolidation, etc. shall be deemed to be a liquidation, dissolution or winding up for purposes of this Section 6.

 

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(C) In the event the corporation shall (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.

Section 7. Consolidation, Merger, etc. In case the corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series A Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 5,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the corporation shall at any time (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that are outstanding immediately prior to such event.

Section 8. No Redemption. The shares of Series A Preferred Stock shall not be redeemable.

Section 9. Ranking. The Series A Preferred Stock shall rank junior to all other series of the corporation’s Preferred Stock as to the payment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise.

Section 10. Amendment. The Certificate of Incorporation of the corporation shall not be further amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of a majority or more of the outstanding shares of Series A Preferred Stock, voting separately as a class.

Signed on the 8th day of September, 2010.

 

NUCOR CORPORATION

/s/ A. Rae Eagle

  By:         A. Rae Eagle

  Title:      General Manager and

                 Corporate Secretary

 

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Description of Common Stock of Nucor Corporation

Exhibit 99.1

DESCRIPTION OF OUR COMMON STOCK

General.

As of July 3, 2010, our authorized capital stock consists of 800,000,000 shares of common stock, par value $0.40 per share, and 250,000 shares of preferred stock, par value $4.00 per share, 200,000 shares of which have been designated as Series A Junior Participating Preferred Stock. As of July 3, 2010, 315,560,705 shares of common stock were issued and outstanding (not including treasury shares) and none of our preferred stock was issued and outstanding.

The following description of our common stock and provisions of our Restated Certificate of Incorporation, as amended (the “Restated Certificate of Incorporation”) and By-laws are only summaries and we encourage you to review complete copies of our Restated Certificate of Incorporation and By-laws, which we have previously filed with the SEC.

The holders of our common stock are entitled to have dividends declared in cash, property, or other securities out of any of our net profits or net assets legally available therefor as and when declared by our board of directors. This dividend right is subject to any preferential dividend rights we may grant to the persons who hold preferred stock, if any. In the event of the liquidation or dissolution of our business, the holders of common stock will be entitled to receive ratably the balance of net assets available for distribution after payment of any liquidation or distribution preference payable with respect to any then outstanding shares of our preferred stock. Each share of common stock is entitled to one vote with respect to matters brought before the stockholders, except for the election of any directors with respect to which stockholders have cumulative voting rights.

Our common stock is traded on the New York Stock Exchange under the symbol “NUE.”

Delaware Anti-Takeover Law and Certain Restated Certificate of Incorporation and By-Law Provisions.

The provisions of Delaware law, our Restated Certificate of Incorporation and By-Laws may have the effect of delaying, deferring or discouraging another person from acquiring control of our company, including takeover attempts that might result in a premium over the market price for the shares of common stock.

Delaware Law

We are subject to the provisions of Section 203 of the Delaware General Corporation Law regulating corporate takeovers. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the time that the person became an interested stockholder, unless:


 

before the person became an “interested stockholder,” the board of directors of the corporation approved the transaction in which the “interested stockholder” became an “interested stockholder” or approved the business combination;

 

 

upon consummation of the transaction that resulted in the stockholder becoming an “interested stockholder,” the “interested stockholder” owned at least 85% of the voting stock of the corporation that was outstanding at the time the transaction commenced. For purposes of determining the number of shares outstanding, shares owned by directors who are also officers of the corporation and shares owned by employee stock plans, in specified instances, are excluded; or

 

 

at or after the time the person became an “interested stockholder,” the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the “interested stockholder.”

A “business combination” is defined generally to include mergers or consolidations between a Delaware corporation and an “interested stockholder,” transactions with an “interested stockholder” involving the assets or stock of the corporation or any majority-owned subsidiary, transactions which increase an “interested stockholder’s” percentage ownership of stock of the corporation or any majority-owned subsidiary, and receipt of various financial benefits from the corporation or any majority-owned subsidiary. In general, an “interested stockholder” is defined as any person or entity that is the beneficial owner of at least 15% of a corporation’s outstanding voting stock or is an affiliate or associate of the corporation and was the beneficial owner of 15% or more of the outstanding voting stock of the corporation at any time within the prior three years.

A Delaware corporation may opt out of this provision with an express provision in its original certificate of incorporation or an express provision in its certificate of incorporation or by-laws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. However, we have not opted out of this provision. The statute could prohibit or delay mergers or other takeover or change-in-control attempts and, accordingly, may discourage attempts to acquire us.

Restated Certificate of Incorporation and By-Law Provisions

Our Restated Certificate of Incorporation and By-Laws provide:

 

 

a staggered board of directors until the 2013 annual meeting of stockholders, after which time all directors will be elected on an annual basis;

 

 

advance notice requirements for stockholder proposals and nominations;

 

 

limitations on the ability of stockholders to amend, alter or repeal the By-laws;

 

 

enhanced voting requirements for certain business combinations and transactions involving


 

greater than 10% stockholders; and

 

 

the authority of our board of directors to issue, without stockholder approval, preferred stock with such terms as our board of directors may determine.

Limitations of Liability and Indemnification of Directors and Officers

Article VIII of our Restated Certificate of Incorporation and Section 145 of the Delaware General Corporation Law generally provide that any person who serves or has served as our director, officer, employee or agent, or in such capacity at our request of another corporation, partnership, joint venture, trust or other enterprise, will be indemnified by us to the fullest extent permitted by law against (i) expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was acting in such capacity 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 corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful and (ii) expenses (including attorneys’ fees) actually and reasonable incurred by such person in connection with the defense or settlement of any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was acting in such capacity 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 corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of such person’s duty to the corporation.

Our Restated Certificate of Incorporation and Section 145 of the Delaware General Corporation Law also state that indemnification provisions described above are not exclusive of any other rights to indemnification or advancement of expenses to which any person may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise. We may pay expenses incurred by our directors and officers in defending a civil or criminal action, suit or proceeding for which such persons may have a right of indemnification prior to the final disposition of such action, suit or proceeding if we receive an undertaking by or on behalf of such person to repay all amounts advanced unless such person is entitled to be indemnified by us as described above.

Section 102(b)(7) of the Delaware General Corporation Law provides that a corporation may eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for willful or negligent conduct in paying dividends or repurchasing stock out of other than lawfully available funds or (iv) for any transaction from which the director derived an improper personal benefit. No such provision


shall eliminate or limit the liability of a director for any action or omission occurring prior to the date when such provision becomes effective.

We maintain insurance for the benefit of directors and officers insuring them against liabilities under the Securities Act and claims that are made against them by reason of any wrongful act (as defined) committed in their capacity as directors or officers.

Rights Plan.

In 2001, our board of directors adopted a Stockholder Rights Plan (“Plan”) in which one right (“Right”) was distributed as a dividend for each Nucor common share outstanding. The Plan was amended in 2006 to adjust the purchase price of the Rights for stock splits effected since adoption of the Plan. Each Right entitles Nucor common stockholders to purchase, under certain conditions, one five-thousandth of a share of newly authorized Series A Junior Participating Preferred Stock (“Preferred Stock”). One five-thousandth of a share of Preferred Stock is intended to be the economic equivalent of one share of our common stock. Until the occurrence of certain events, the Rights are represented by and traded in tandem with our common stock. Rights will be exercisable only if a person or group acquires beneficial ownership of fifteen percent (15%) or more of our outstanding common shares or commences a tender or exchange offer, upon the consummation of which such person or group would beneficially own fifteen percent (15%) or more of our outstanding common shares. Upon such an event, the Rights enable dilution of the acquiring person’s or group’s interest by providing that other holders of our common stock may purchase, at an exercise price of $150, our common stock, or in the discretion of the board of directors, Preferred Stock, having double the value of such exercise price. We will be entitled to redeem the Rights at $0.001 per Right under certain circumstances set forth in the Plan. The Rights themselves have no voting power and will expire on March 8, 2011, unless earlier exercised, redeemed or exchanged. Each one five-thousandth of a share of Preferred Stock has the same voting rights as one share of our common stock, and each share of Preferred Stock has 5,000 times the voting power of one share of our common stock.

Transfer Agent and Registrar.

The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, New York, New York.