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): April 4,
2018
Navient Corporation
(Exact name of registrant as specified in its charter)
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Delaware
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001-36228
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46-4054283
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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123 Justison Street, Wilmington, Delaware
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19801
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
(302) 283-8000
Not Applicable
(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)
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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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))
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this
chapter).
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Emerging
growth company
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act. ☐
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ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR
BYLAWS; CHANGE IN FISCAL YEAR
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On
April 4, 2018, the Board of Directors (the “Board”) of
Navient Corporation (the “Company”) amended and
restated the Company’s Bylaws to implement “proxy
access.” The Second Amended and Restated Bylaws (the
“Amended Bylaws”) became effective on April 4,
2018.
The
proxy access provisions in the Amended Bylaws are set forth in
Article I Section 1.13. These provisions allow for an individual
eligible shareholder or group of up to twenty (20) eligible
shareholders to nominate and include in the Company’s proxy
materials candidates for election to the Board, as long as such
shareholder or the shareholder group, as applicable, continuously
owns 3% or more of the outstanding shares of the Company’s
common stock for at least three (3) years. The maximum number of
proxy access nominees permitted cannot be more than the greater of
two (2) or 20% of the Board (rounded down to the closest whole
number), provided that the shareholder(s) and the nominee(s)
satisfy the requirements further described in Section 1.13 of the
Amended Bylaws.
This process is subject to additional eligibility,
procedural and disclosure requirements set forth in the Amended
Bylaws, including the requirement that proxy access notice must be
delivered to the Company not less than one-hundred twenty (120)
days nor more than one-hundred fifty (150) days before the first
anniversary of the preceding year’s annual meeting for
regularly scheduled annual meetings. Further, Article I Section
1.13 adds certain requirements that all nominees for directors and
nominating shareholder(s) provide certain information,
representations and agreements to the Company in order to be
eligible for election.
The foregoing is only a summary of the proxy
access provisions of the Amended Bylaws and is qualified in its
entirety by reference to the Second Amended and Restated Bylaws,
which are filed as Exhibit 3.1 to this current report on Form 8-K
and incorporated into this Item 5.03 by reference.
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(d) Exhibits
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Exhibit
Number
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Description
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3.1
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Second
Amended and Restated Bylaws of Navient 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.
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NAVIENT CORPORATION
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Date:
April 9, 2018
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By:
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/s/
Mark L. Heleen
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Mark
L. Heleen
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Chief
Legal Officer
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EXHIBIT 3.1
SECOND AMENDED AND RESTATED BYLAWS
OF
NAVIENT CORPORATION
ADOPTED
APRIL 4, 2018
ARTICLE I
1.1 Place of Meetings. All meetings
of stockholders shall be held at such place, if any, as may be
designated from time to time by the Board of Directors (the
“Board”) of Navient
Corporation (the “Corporation”), the
Chairman of the Board, the Chief Executive Officer or the President
or, if not so designated, at the principal office of the
Corporation. The Board may, in its sole discretion, determine that
a meeting shall not be held at any place, but may instead be held
solely by means of remote communication in accordance with
Section 211(a) of the General Corporation Law of the State of
Delaware (the “DGCL”).
1.2 Annual Meeting. The annual
meeting of stockholders for the election of directors and for the
transaction of such other business as may properly be brought
before the meeting shall be held on a date and at a time designated
by the Board, the Chairman of the Board, the Chief Executive
Officer or the President (which date shall not be a legal holiday
in the place, if any, where the meeting is to be held). The Board
may postpone, reschedule or cancel any previously scheduled annual
meeting of stockholders.
1.3 Special Meetings. Special
meetings of stockholders for any purpose or purposes may be called
at any time by the Board, the Chairman of the Board or the Chief
Executive Officer, and shall be called by the Secretary at the
request in writing of the holders of at least one-third (1/3) of
the capital stock of the Corporation issued and outstanding and
entitled to vote at an election of directors. The request of
stockholders shall state the purpose or purposes of the proposed
special meeting and shall include the information required by
Section 1.10 and Section 1.11 of these Bylaws to be included
in a stockholder’s notice to the Corporation with respect to
the stockholder(s) proposing the matters to be considered at such
special meeting. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose or
purposes stated in the notice of meeting, provided, however, that nothing herein
shall prohibit the Board from submitting matters to the
stockholders at any special meeting requested by stockholders who
have complied with the requirements set forth in these Bylaws. The
Board may postpone, reschedule or cancel any previously scheduled
special meeting of stockholders.
1.4 Notice of Meetings. Except as
otherwise provided by law, notice of each meeting of stockholders,
whether annual or special, shall be given not less than ten (10)
nor more than sixty (60) 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. Without limiting the manner by which notice otherwise may
be given to stockholders, any notice shall be effective if given by
a form of electronic transmission consented to (in a manner
consistent with the DGCL) by the stockholder to whom the notice is
given. The notices of all meetings shall state the place, if any,
date and time of the meeting, the means of remote communications,
if any, by which stockholders and proxyholders may be deemed to be
present in person and vote at such meeting, and the record date for
determining the stockholders entitled to vote at the meeting (if
such date is different from the record date for stockholders
entitled to notice of the meeting). The notice of a special meeting
shall state, in addition, the purpose or purposes for which the
meeting is called. If notice is given by mail, such notice shall be
deemed given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder’s
address as it appears on the records of the Corporation. If notice
is given by electronic transmission, such notice shall be deemed
given at the time specified in Section 232 of the
DGCL.
1.5 Voting List. The Secretary
shall prepare, at least ten (10) days before every 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 ten (10)
days before the date of the meeting, the list shall reflect the
stockholders entitled to vote as of the tenth day before the
meeting date), arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, for a period of at least ten (10) days prior to the
meeting: (a) on a reasonably accessible electronic network,
provided that the
information required to gain access to such list is provided with
the notice of the meeting, or (b) during ordinary business
hours, at the principal place of business of the Corporation. If
the meeting is to be held at a place, then the list shall also be
produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is
present. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of
the meeting. Except as otherwise provided by law, the 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.
1.6 Quorum. Except as otherwise
provided by law, the Certificate of Incorporation or these Bylaws,
the holders of a majority in voting power of the shares of the
capital stock of the Corporation issued and outstanding and
entitled to vote at the meeting, present in person, present by
means of remote communication in a manner, if any, authorized by
the Board in its sole discretion, or represented by proxy, shall
constitute a quorum for the transaction of business; provided, however, that where a separate
vote by a class or classes or series of capital stock is required
by law or the Certificate of Incorporation, the holders of a
majority in voting power of the shares of such class or classes or
series of the capital stock of the Corporation issued and
outstanding and entitled to vote on such matter, present in person,
present by means of remote communication in a manner, if any,
authorized by the Board in its sole discretion, or represented by
proxy, shall constitute a quorum entitled to take action with
respect to the vote on such matter. A quorum, once established at a
meeting, shall not be broken by the withdrawal of enough votes to
leave less than a quorum.
1.7 Adjournments. Any meeting of
stockholders, annual or special, may be adjourned from time to time
to any other time and to any other place at which a meeting of
stockholders may be held under these Bylaws by the chairman of the
meeting or by the stockholders present or represented at the
meeting and entitled to vote thereon, although less than a quorum.
If the adjournment is for more than thirty (30) days, a notice of
the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. If after the adjournment a new
record date for determination of stockholders entitled to vote is
fixed for the adjourned meeting, the Board shall fix as the record
date for determining stockholders entitled to notice of such
adjourned meeting the same or an earlier date as that fixed for
determination of stockholders entitled to vote at the adjourned
meeting, and shall give notice of the adjourned meeting to each
stockholder of record as of the record date so fixed for notice of
such adjourned meeting. At the adjourned meeting, the Corporation
may transact any business which might have been transacted at the
original meeting.
1.8 Voting and Proxies. Each
stockholder shall have such number of votes, if any, for each share
of stock entitled to vote and held of record by such stockholder as
may be fixed in the Certificate of Incorporation and a
proportionate vote for each fractional share so held, unless
otherwise provided by law or the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of stockholders
may vote in person (including by means of remote communications, if
any, by which stockholders may be deemed to be present in person
and vote at such meeting) or may authorize another person or
persons to vote for such stockholder by a proxy executed or
transmitted in a manner permitted by applicable law. No such proxy
shall be voted upon after three years from the date of its
execution, unless the proxy expressly provides for a longer
period.
1.9 Action at Meeting. When a
quorum is present at any meeting, any matter other than the
election of directors to be voted upon by the stockholders at such
meeting shall be decided by the vote of the holders of shares of
stock having a majority in voting power of the votes cast by the
holders of all of the shares of stock present or represented at the
meeting and voting affirmatively or negatively on such matter (or
if there are two or more classes or series of stock entitled to
vote as separate classes, then in the case of each such class or
series, the holders of a majority in voting power of the shares of
stock of that class or series present or represented at the meeting
and voting affirmatively or negatively on such matter), except when
a different vote is required by applicable law, regulation
applicable to the Corporation or its securities, the rules or
regulations of any stock exchange applicable to the Corporation,
the Certificate of Incorporation or these Bylaws. Other than
directors who may be elected by the holders of shares of any series
of Preferred Stock or pursuant to any resolution or resolutions
providing for the issuance of such Preferred Stock adopted by the
Board, each director shall be elected by the vote of a majority of
the votes cast with respect to that director’s election at
any meeting for the election of directors at which a quorum is
present; provided
that if, as of the date that is ten (10) days in advance of the
date the Corporation files its definitive proxy statement
(regardless of whether or not thereafter revised or supplemented)
with the Securities and Exchange Commission for a meeting at which
directors are to be elected, the number of nominees exceeds the
number of directors to be elected, the directors shall be elected
by the vote of a plurality of the votes cast. For purposes of the
foregoing sentence of this Section 1.9, a majority of votes
cast shall mean that the number of votes cast “for” a
director’s election exceeds the number of votes cast
“against” that director’s election (with
“abstentions” and “broker nonvotes” not
counted as votes cast either “for” or
“against” any director’s election). Voting at
meetings of stockholders need not be by written
ballot.
(a) Except for
(1) any directors entitled to be elected by the holders of
Preferred Stock, (2) any directors elected in accordance with
Section 2.8 hereof by the Board to fill a vacancy or
newly-created directorship or (3) as otherwise required by
applicable law or stock exchange regulation, at any meeting of
stockholders, only persons who are nominated in accordance with the
procedures in this Section 1.10 or Section 1.13 shall be
eligible for election as directors. Nomination for election to the
Board at a meeting of stockholders may be made (i) by or at
the direction of the Board (or any committee thereof), (ii) by
any stockholder of the Corporation who (x) timely complies
with the notice procedures in Section 1.10(b), (y) is a
stockholder of record on the date of the giving of such notice and
on the record date for the determination of stockholders entitled
to vote at such meeting and (z) is entitled to vote at such
meeting; or (iii) as provided in Section 1.13 (nominations under
which shall be governed by the provisions of such
Section).
(b) To be timely, a
stockholder’s notice must be received in writing by the
Secretary at the principal executive offices of the Corporation as
follows: (i) in the case of an election of directors at an
annual meeting of stockholders, not less than ninety (90) days nor
more than one hundred and twenty (120) days prior to the first
anniversary of the preceding year’s annual meeting;
provided,
however, that
(x) in the case of the annual meeting of stockholders of the
Corporation to be held in 2015 or (y) in the event that the
date of the annual meeting in any other year is advanced by more
than twenty (20) days, or delayed by more than sixty (60) days,
from the first anniversary of the preceding year’s annual
meeting, a stockholder’s notice must be so received not
earlier than the one hundred and twentieth (120th) day prior to
such annual meeting and not later than the close of business on the
later of (A) the ninetieth (90th) day prior to such annual
meeting and (B) the tenth (10th) day following the day on
which notice of the date of such annual meeting was mailed or
public disclosure of the date of such annual meeting was made,
whichever first occurs; or (ii) in the case of an election of
directors at a special meeting of stockholders, not earlier than
the one hundred and twentieth (120th) day prior to such special
meeting and not later than the close of business on the later of
(x) the ninetieth (90th) day prior to such special meeting and
(y) the tenth (10th) day following the day on which notice of
the date of such special meeting was mailed or public disclosure of
the date of such special meeting was made, whichever first occurs;
provided,
however that
(x) at a special meeting of stockholders called by the Board,
the Chairman of the Board or the Chief Executive Officer, the
Board, the Chairman of the Board or the Chief Executive Officer
shall have determined, in accordance with Section 1.3, that
directors shall be elected at such special meeting and provided further that the
nomination made by the stockholder is for one of the director
positions that the Board, the Chairman of the Board or the Chief
Executive Officer, as the case may be, has determined will be
filled at such special meeting, and (y) at a special meeting
of stockholders called by the Secretary upon the request of a
stockholder(s) who has complied with Section 1.3, such
stockholder(s) shall have determined, in accordance with
Section 1.3, that directors shall be elected at such special
meeting and provided further that the
nomination made by the stockholder is for one of the director
positions that the requesting stockholder(s) has determined will be
filled at such special meeting. In no event shall the adjournment
or postponement of a meeting (or the public disclosure thereof)
commence a new time period (or extend any time period) for the
giving of a stockholder’s notice.
The
stockholder’s notice to the Secretary shall set forth:
(A) as to each proposed nominee (1) such person’s
name, age, business address and, if known, residence address,
(2) such person’s principal occupation or employment,
(3) the class and series and number of shares of stock of the
Corporation that are, directly or indirectly, owned, beneficially
or of record, by such person, (4) a description of all direct
and indirect compensation and other material monetary agreements,
arrangements and understandings during the past three years, and
any other material relationships, between or among (x) the
stockholder, the beneficial owner, if any, on whose behalf the
nomination is being made and the respective affiliates and
associates of, or others acting in concert with, such stockholder
and such beneficial owner, on the one hand, and (y) each
proposed nominee, and his or her respective affiliates and
associates, or others acting in concert with such nominee(s), on
the other hand, including all information that would be required to
be disclosed pursuant to Item 404 of Regulation S-K if the
stockholder making the nomination and any beneficial owner on whose
behalf the nomination is made or any affiliate or associate thereof
or person acting in concert therewith were the
“registrant” for purposes of such Item and the proposed
nominee were a director or executive officer of such registrant,
and (5) any other information concerning such person that must be
disclosed as to nominees in proxy solicitations pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”); and (B) as to the
stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination is being made (1) the name and
address of such stockholder, as they appear on the
Corporation’s books, and of such beneficial owner,
(2) the class and series and number of shares of stock of the
Corporation that are, directly or indirectly, owned, beneficially
or of record, by such stockholder and such beneficial owner,
(3) a description of any agreement, arrangement or
understanding between or among such stockholder and/or such
beneficial owner and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s)
are being made or who may participate in the solicitation of
proxies in favor of electing such nominee(s), (4) a
description of any agreement, arrangement or understanding
(including any derivative or short positions, swaps, profit
interests, options, warrants, convertible securities, stock
appreciation or similar rights, hedging transactions, and borrowed
or loaned shares) that has been entered into by, or on behalf of,
such stockholder or such beneficial owner, the effect or intent of
which is to mitigate loss to, manage risk or benefit of share price
changes for, or increase or decrease the voting power of, such
stockholder or such beneficial owner with respect to shares of
stock of the Corporation, (5) any other information relating
to such stockholder and such beneficial owner that would be
required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for
the election of directors in a contested election pursuant to
Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder, (6) a representation that such
stockholder intends to appear in person or by proxy at the meeting
to nominate the person(s) named in its notice and (7) a
representation whether such stockholder and/or such beneficial
owner intends or is part of a group which intends (x) to
deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Corporation’s outstanding capital
stock reasonably believed by such stockholder or such beneficial
owner to be sufficient to elect the nominee and/or
(y) otherwise to solicit proxies or votes from stockholders in
support of such nomination. Not later than ten (10) days after the
record date for determining stockholders entitled to notice of the
meeting, the information required by Items (A)(1)-(5) and
(B)(1)-(5) of the prior sentence shall be supplemented by the
stockholder giving the notice to provide updated information as of
such record date. In addition, to be effective, the
stockholder’s notice must be accompanied by the written
consent of the proposed nominee to serve as a director if elected.
The Corporation may require any proposed nominee to furnish such
other information as the Corporation may reasonably require to
determine the eligibility of such proposed nominee to serve as a
director of the Corporation or whether such nominee would be
independent under applicable Securities and Exchange Commission and
stock exchange rules and the Corporation’s publicly disclosed
corporate governance guidelines. A stockholder shall not have
complied with this Section 1.10(b) if the stockholder (or
beneficial owner, if any, on whose behalf the nomination is made)
solicits or does not solicit, as the case may be, proxies or votes
in support of such stockholder’s nominee in contravention of
the representations with respect thereto required by this
Section 1.10.
(c) The chairman of any
meeting shall have the power and duty to determine whether a
nomination was made in accordance with the provisions of this
Section 1.10 (including whether the stockholder or beneficial
owner, if any, on whose behalf the nomination is made solicited (or
is part of a group which solicited) or did not so solicit, as the
case may be, proxies or votes in support of such
stockholder’s nominee in compliance with the representations
with respect thereto required by this Section 1.10), and if
the chairman should determine that a nomination was not made in
accordance with the provisions of this Section 1.10, the
chairman shall so declare to the meeting and such nomination shall
not be brought before the meeting.
(d) Except as otherwise
required by law, nothing in this Section 1.10 shall obligate
the Corporation or the Board to include in any proxy statement or
other stockholder communication distributed on behalf of the
Corporation or the Board information with respect to any nominee
for director submitted by a stockholder.
(e) Notwithstanding the
foregoing provisions of this Section 1.10, unless otherwise
required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the meeting to present a
nomination, such nomination shall not be brought before the
meeting, notwithstanding that proxies in respect of such nominee
may have been received by the Corporation. For purposes of this
Section 1.10, to be considered a “qualified
representative of the stockholder”, a person must be a duly
authorized officer, manager or partner of such stockholder or must
be authorized by a writing executed by such stockholder or an
electronic transmission delivered by such stockholder to act for
such stockholder as proxy at the meeting of stockholders and such
person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at
the meeting of stockholders.
(f) For purposes of
this Section 1.10, “public disclosure” shall
include disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service
or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act.
(g) Notwithstanding the
foregoing provisions of this Section 1.10, a stockholder shall
also comply with all applicable requirements of the Exchange Act
and the rules and regulations promulgated thereunder with respect
to the matters set forth in this Section 1.10; provided, however, that any references in
these Bylaws to the Exchange Act or the rules and regulations
promulgated thereunder are not intended to and shall not limit any
requirements applicable to nominations to be considered pursuant to
this Section 1.10 (including paragraph (a)(ii) hereof), and
compliance with paragraph (a)(ii) of this Section 1.10 shall
be the exclusive means for a stockholder to make nominations.
Nothing in this Section 1.10 shall be deemed to affect any
rights of the holders of any series of Preferred Stock to elect
directors pursuant to any applicable provisions of the Certificate
of Incorporation.
(a) At any annual
meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be
(1) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board,
(2) otherwise properly brought before the meeting by or at the
direction of the Board (or any committee thereof), or
(3) properly brought before the annual meeting by a
stockholder. For business to be properly brought before an annual
meeting by a stockholder, (i) if such business relates to the
nomination of a person for election as a director of the
Corporation, the procedures in Section 1.10 must be complied
with and (ii) if such business relates to any other matter,
the business must constitute a proper matter under Delaware law for
stockholder action and the stockholder must (x) have given
timely notice thereof in writing to the Secretary in accordance
with the procedures in Section 1.11(b), (y) be a
stockholder of record on the date of the giving of such notice and
on the record date for the determination of stockholders entitled
to vote at such annual meeting and (z) be entitled to vote at
such annual meeting.
(b) To be timely, a
stockholder’s notice must be received in writing by the
Secretary at the principal executive offices of the Corporation not
less than ninety (90) days nor more than one hundred and twenty
(120) days prior to the first anniversary of the preceding
year’s annual meeting; provided, however, that (x) in the
case of the annual meeting of stockholders of the Corporation to be
held in 2015 or (y) in the event that the date of the annual
meeting in any other year is advanced by more than twenty (20)
days, or delayed by more than sixty (60) days, from the first
anniversary of the preceding year’s annual meeting, a
stockholder’s notice must be so received not earlier than the
one hundred and twentieth (120th) day prior to such annual meeting
and not later than the close of business on the later of
(A) the ninetieth (90th) day prior to such annual meeting and
(B) the tenth (10th) day following the day on which notice of
the date of such annual meeting was mailed or public disclosure of
the date of such annual meeting was made, whichever first occurs.
In no event shall the adjournment or postponement of an annual
meeting (or the public disclosure thereof) commence a new time
period (or extend any time period) for the giving of a
stockholder’s notice.
The
stockholder’s notice to the Secretary shall set forth:
(A) as to each matter the stockholder proposes to bring before
the annual meeting (1) a brief description of the business
desired to be brought before the annual meeting, (2) the text
of the proposal (including the exact text of any resolutions
proposed for consideration and, in the event that such business
includes a proposal to amend the Bylaws, the exact text of the
proposed amendment), and (3) the reasons for conducting such
business at the annual meeting, and (B) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf
the proposal is being made (1) the name and address of such
stockholder, as they appear on the Corporation’s books, and
of such beneficial owner, (2) the class and series and number
of shares of stock of the Corporation that are, directly or
indirectly, owned, beneficially or of record, by such stockholder
and such beneficial owner, (3) a description of any material
interest of such stockholder or such beneficial owner and the
respective affiliates and associates of, or others acting in
concert with, such stockholder or such beneficial owner in such
business, (4) a description of any agreement, arrangement or
understanding between or among such stockholder and/or such
beneficial owner and any other person or persons (including their
names) in connection with the proposal of such business or who may
participate in the solicitation of proxies in favor of such
proposal, (5) a description of any agreement, arrangement or
understanding (including any derivative or short positions, swaps,
profit interests, options, warrants, convertible securities, stock
appreciation or similar rights, hedging transactions, and borrowed
or loaned shares) that has been entered into by, or on behalf of,
such stockholder or such beneficial owner, the effect or intent of
which is to mitigate loss to, manage risk or benefit of share price
changes for, or increase or decrease the voting power of, such
stockholder or such beneficial owner with respect to shares of
stock of the Corporation, (6) any other information relating
to such stockholder and such beneficial owner that would be
required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for
the business proposed pursuant to Section 14 of the Exchange
Act and the rules and regulations promulgated thereunder,
(7) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business
before the meeting and (8) a representation whether such
stockholder and/or such beneficial owner intends or is part of a
group which intends (x) to deliver a proxy statement and/or
form of proxy to holders of at least the percentage of the
Corporation’s outstanding capital stock required to approve
or adopt the proposal and/or (y) otherwise to solicit proxies
or votes from stockholders in support of such proposal. Not later
than ten (10) days after the record date for determining
stockholders entitled to notice of the meeting, the information
required by Items (A)(3) and (B)(1)-(6) of the prior sentence shall
be supplemented by the stockholder giving the notice to provide
updated information as of such record date. Notwithstanding
anything in these Bylaws to the contrary, no business shall be
conducted at any annual meeting of stockholders except in
accordance with the procedures in this Section 1.11;
provided that any
stockholder proposal which complies with Rule 14a-8 of the proxy
rules (or any successor provision) promulgated under the Exchange
Act and is to be included in the Corporation’s proxy
statement for an annual meeting of stockholders shall be deemed to
comply with the notice requirements of this Section 1.11. A
stockholder shall not have complied with this Section 1.11(b)
if the stockholder (or beneficial owner, if any, on whose behalf
the proposal is made) solicits or does not solicit, as the case may
be, proxies or votes in support of such stockholder’s
proposal in contravention of the representations with respect
thereto required by this Section 1.11.
(c) The chairman of any
annual meeting shall have the power and duty to determine whether
business was properly brought before the annual meeting in
accordance with the provisions of this Section 1.11 (including
whether the stockholder or beneficial owner, if any, on whose
behalf the proposal is made solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies or
votes in support of such stockholder’s proposal in compliance
with the representation with respect thereto required by this
Section 1.11), and if the chairman should determine that
business was not properly brought before the annual meeting in
accordance with the provisions of this Section 1.11, the
chairman shall so declare to the meeting and such business shall
not be brought before the annual meeting.
(d) Except as otherwise
required by law, nothing in this Section 1.11 shall obligate
the Corporation or the Board to include in any proxy statement or
other stockholder communication distributed on behalf of the
Corporation or the Board information with respect to any proposal
submitted by a stockholder.
(e) Notwithstanding the
foregoing provisions of this Section 1.11, unless otherwise
required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the annual meeting to
present business, such business shall not be considered,
notwithstanding that proxies in respect of such business may have
been received by the Corporation.
(f) For purposes of
this Section 1.11, the terms “qualified representative
of the stockholder” and “public disclosure” shall
have the same meaning as in Section 1.10.
(g) Notwithstanding the
foregoing provisions of this Section 1.11, a stockholder shall
also comply with all applicable requirements of the Exchange Act
and the rules and regulations promulgated thereunder with respect
to the matters set forth in this Section 1.11; provided, however, that any references in
these Bylaws to the Exchange Act or the rules and regulations
promulgated thereunder are not intended to and shall not limit any
requirements applicable to proposals as to any business to be
considered pursuant to this Section 1.11 (including paragraph
(a)(3) hereof), and compliance with paragraph (a)(3) of this
Section 1.11 shall be the exclusive means for a stockholder to
submit business (other than, as provided in the penultimate
sentence of (b), business other than nominations brought properly
under and in compliance with Rule 14a-8 of the Exchange Act, as may
be amended from time to time). Nothing in this Section 1.11
shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation’s proxy statement
pursuant to applicable rules and regulations promulgated under the
Exchange Act, or pursuant to Section 1.13.
(a) Meetings of
stockholders shall be presided over by the Chairman of the Board,
if any, or in the Chairman’s absence by the Vice Chairman of
the Board, if any, or in the Vice Chairman’s absence by the
Chief Executive Officer, or in the Chief Executive Officer’s
absence, by the President, or in the President’s absence by a
Vice President, or in the absence of all of the foregoing persons
by a chairman designated by the Board. The Secretary shall act as
secretary of the meeting, but in the Secretary’s absence the
chairman of the meeting may appoint any person to act as secretary
of the meeting.
(b) The Board may adopt
by resolution such rules, regulations and procedures for the
conduct of any meeting of stockholders of the Corporation as it
shall deem appropriate including, without limitation, such
guidelines and procedures as it may deem appropriate regarding the
participation by means of remote communication of stockholders and
proxyholders not physically present at a meeting. Except to the
extent inconsistent with such rules, regulations and procedures as
adopted by the Board, the chairman of any meeting of stockholders
shall have the right and authority to convene and (for any or no
reason) to recess and/or adjourn the meeting, to prescribe such
rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board or prescribed by the chairman of the
meeting, may include, without limitation, the following:
(i) the establishment of an agenda or order of business for
the meeting; (ii) rules and procedures for maintaining order
at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the
meeting to stockholders of record of the Corporation, their duly
authorized and constituted proxies or such other persons as shall
be determined; (iv) restrictions on entry to the meeting after
the time fixed for the commencement thereof; and
(v) limitations on the time allotted to questions or comments
by participants. Unless and to the extent determined by the Board
or the chairman of the meeting, meetings of stockholders shall not
be required to be held in accordance with the rules of
parliamentary procedure.
(c) The chairman of the
meeting shall announce at the meeting when the polls for each
matter to be voted upon at the meeting will be opened and closed.
After the polls close, no ballots, proxies or votes or any
revocations or changes thereto may be accepted.
(d) In advance of any
meeting of stockholders, the Board, the Chairman of the Board, the
Chief Executive Officer or the President shall appoint one or more
inspectors of election to act at the meeting and make a written
report thereof. One or more other persons may be designated as
alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate is present, ready and willing to act at a
meeting of stockholders, the chairman of the meeting shall appoint
one or more inspectors to act at the meeting. Unless otherwise
required by law, inspectors may be officers, employees or agents of
the Corporation. Each inspector, before entering upon the discharge
of such inspector’s duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict
impartiality and according to the best of such inspector’s
ability. The inspector shall have the duties prescribed by law and,
when the vote is completed, shall make a certificate of the result
of the vote taken and of such other facts as may be required by
law. Every vote taken by ballots shall be counted by a duly
appointed inspector or duly appointed inspectors.
(a) Inclusion of Nominee in Proxy
Statement. Subject to the provisions of this Section 1.13,
if expressly requested in the relevant Nomination Notice (as
defined below), the Corporation shall include in its proxy
statement for any annual meeting of stockholders:
(i) the name of any
person nominated for election (the “Nominee”) to the Board,
which shall also be included on the Corporation’s form of
proxy and ballot for the relevant annual meeting, by any Eligible
Holder (as defined below) or group of up to twenty (20) Eligible
Holders that has (individually and collectively, in the case of a
group) satisfied, as determined by the Board or its designee,
acting in good faith, all applicable conditions and complied with
all applicable procedures set forth in this Section 1.13 (such
Eligible Holder or group of Eligible Holders being a
“Nominating
Stockholder”);
(ii) disclosure
about the Nominee and the Nominating Stockholder required under
rules promulgated by the Securities and Exchange Commission or any
other applicable law, rule or regulation to be included in the
proxy statement; and
(iii) any
statement included by the Nominating Stockholder in the Nomination
Notice for inclusion in the proxy statement in support of the
Nominee’s election to the Board (subject, without limitation,
to Section 1.13(e)(ii)), if such statement does not exceed five
hundred (500) words.
Notwithstanding
anything herein to the contrary, the Corporation may solicit
stockholders against any Nominee and include in its proxy statement
for any annual meeting any other information that the Corporation
or the Board determines, in their discretion, to include in the
proxy statement relating to the nomination of the Nominee,
including without limitation any statement in opposition to the
nomination and any of the information provided pursuant to this
Section 1.13.
(b) Maximum Number of
Nominees.
(i) The Corporation
shall not be required to include in the proxy statement for an
annual meeting more Nominees than that number of directors
constituting twenty percent (20%) of the total number of directors
of the Corporation on the last day on which a Nomination Notice may
be submitted pursuant to Section 1.13(d) (the “Final Nomination Date”),
rounded down to the nearest whole number, but not less than two
(the “Maximum
Number”). The Maximum Number for a particular annual
meeting shall be reduced by (A) Nominees nominated by a Nominating
Stockholder for that annual meeting whose nomination is
subsequently withdrawn after the Nominating Stockholder is notified
by the Corporation that the Nominees will be included in the
Corporation’s proxy statement and proxy card for the annual
meeting, (B) Nominees nominated by a Nominating Stockholder for
such annual meeting pursuant to this Section 1.13 that the Board
itself decides to nominate for election at such annual meeting and
(C) the number of directors in office as of the Final Nomination
Date who had been Nominees nominated by a Nominating Stockholder
with respect to any of the preceding two annual meetings (including
any Nominee who had been counted at any such annual meeting
pursuant to the immediately preceding clause (B)) and whose
reelection at the upcoming annual meeting is being recommended by
the Board. If one or more vacancies for any reason occurs on the
Board after the Final Nomination Date but before the date of the
annual meeting and the Board resolves to reduce the size of the
Board in connection with the occurrence of the vacancy or
vacancies, then the Maximum Number shall be calculated based on the
number of directors in office as so reduced.
(ii) Any
Nominating Holder submitting more than one Nominee pursuant to this
Section 1.13 for an annual meeting shall rank such Nominees based
on the order in which the Nominating Holder desires such Nominees
to be selected for inclusion in the Corporation’s proxy
statement for such annual meeting if the number of Nominees
pursuant to this Section 1.13 exceeds the Maximum Number. If the
number of Nominees pursuant to this Section 1.13 for any annual
meeting exceeds the Maximum Number, then the highest-ranking
Nominee who meets the requirements of this Section 1.13 from each
Nominating Holder will be selected for inclusion in the
Corporation’s proxy statement until the Maximum Number is
reached, going in order of the amount (largest to smallest) of the
shares of common stock of the Corporation disclosed as owned in
each Nominating Stockholder’s Nomination Notice.
(iii) If,
after the Final Nomination Date, (A) the Corporation is notified,
or the Board or its designee, acting in good faith, determines that
a Nominating Stockholder has failed to satisfy or to continue to
satisfy the eligibility requirements described in Section 1.13(c),
any of the representations and warranties made in the Nomination
Notice cease to be true and accurate in all material respects (or
omit a material fact necessary to make the statements therein not
misleading) or any material violation or breach occurs of the
obligations, agreements, representations or warranties of the
Nominating Stockholder or the Nominee under this Section 1.13, (B)
a Nominating Stockholder or any qualified representative thereof
does not appear at the annual meeting to present any nomination
submitted pursuant to this Section 1.13, or the Nominating
Stockholder withdraws its nomination, or (C) a Nominee becomes
ineligible for inclusion in the Corporation’s proxy statement
pursuant to this Section 1.13 or dies, becomes disabled or is
otherwise disqualified from being nominated for election or serving
as a director of the Corporation or is unwilling or unable to serve
as a director of the Corporation, in each case as determined by the
Board or its designee, acting in good faith, whether before or
after the Corporation’s definitive proxy statement for such
annual meeting is made available to stockholders, then the
nomination of the Nominating Stockholder or such Nominee, as the
case may be, shall be disregarded and no vote on such Nominee will
occur (notwithstanding that proxies in respect of such vote may
have been received by the Corporation), the Nominating Stockholder
may not cure in any way any defect preventing the nomination of the
Nominee, and the Corporation (1) may omit from its proxy statement
and any ballot or form of proxy the disregarded Nominee and any
information concerning such Nominee (including a Nominating
Stockholder’s statement in support) or any successor or
replacement nominee proposed by the Nominating Stockholder or by
any other Nominating Stockholder and (2) may otherwise communicate
to its stockholders, including without limitation by amending or
supplementing its proxy statement or ballot or form of proxy, that
the Nominee will not be included as a Nominee in the proxy
statement or on any ballot or form of proxy and will not be voted
on at the annual meeting.
(c) Eligibility of Nominating
Stockholder.
(i) An
“Eligible
Holder” is a person who has either (A) been a record
holder of the shares of the Corporation’s common stock used
to satisfy the eligibility requirements in this Section 1.13(c)
continuously for the three-year period specified in Section
1.13(c)(ii) or (B) provides to the Secretary of the Corporation,
within the time period referred to in Section 1.13(d), evidence of
continuous ownership of such shares for such three-year period from
one or more securities intermediaries in a form and in substance
that the Board or its designee, acting in good faith, determines
would be deemed acceptable for purposes of a stockholder proposal
under Rule 14a-8(b)(2) under the Exchange Act (or any successor
rule).
(ii) An
Eligible Holder or group of up to twenty (20) Eligible Holders may
submit a nomination in accordance with this Section 1.13 only if
the person or group (in the aggregate) has continuously owned at
least the Minimum Number (as defined below) of shares of the
Corporation’s common stock throughout the three-year period
preceding and including the date of submission of the Nomination
Notice and continues to own at least the Minimum Number through the
date of the annual meeting. A group of funds under common
management and investment control shall be treated as one Eligible
Holder for purposes of such limitation if such Eligible Holder
shall provide together with the Nomination Notice documentation
reasonably satisfactory to the Corporation that demonstrates that
the funds are under common management and investment control. For
the avoidance of doubt, in the event of a nomination by a group of
Eligible Holders, any and all requirements and obligations
applicable to an individual Eligible Holder that are set forth in
this Section 1.13, including the minimum holding period, shall
apply to each member of such group; provided, however, that the
Minimum Number shall apply to the ownership of the group in the
aggregate, and a breach of any obligation, agreement,
representation or warranty under this Section 1.13 by any member of
a group shall be deemed a breach by the Nominating Stockholder. If
any stockholder withdraws from a group of Eligible Holders at any
time prior to the annual meeting, then the group of Eligible
Stockholders shall only be deemed to own the shares held by the
remaining members of the group and if, as a result of such
withdrawal, the Nominating Stockholder no longer owns the Minimum
Number of shares of the Corporation’s common stock, then the
nomination shall be disregarded as provided in Section
1.13(b)(iii).
(iii) The
“Minimum
Number” of shares of the Corporation’s common
stock means 3% of the number of outstanding shares of the
Corporation’s common stock as of the most recent date for
which such amount is given in any filing by the Corporation with
the Securities and Exchange Commission prior to the submission of
the Nomination Notice.
(iv) For
purposes of this Section 1.13, an Eligible Holder
“owns” only those outstanding shares of common stock of
the Corporation as to which the Eligible Holder possesses both: (A)
the full voting and investment rights pertaining to such shares;
and (B) the full economic interest in (including the opportunity
for profit and risk of loss on) such shares; provided that the
number of shares calculated in accordance with clauses (A) and (B)
shall not include any shares (1) sold by such Eligible Holder or
any of its affiliates in any transaction that has not been settled
or closed, (2) borrowed by such Eligible Holder or any of its
affiliates for any purpose or purchased by such Eligible Holder or
any of its affiliates pursuant to an agreement to resell or (3)
subject to any option, warrant, forward contract, swap, contract of
sale, other derivative or similar instrument or agreement entered
into by such Eligible Holder or any of its affiliates, whether any
such instrument or agreement is to be settled with shares or with
cash based on the notional amount or value of outstanding shares of
common stock of the Corporation, in any such case which instrument
or agreement has, or is intended to have, the purpose or effect of
(x) reducing in any manner, to any extent or at any time in the
future, such Eligible Holder’s or any of its
affiliates’ full right to vote or direct the voting of any
such shares and/or (y) hedging, offsetting, or altering to any
degree gain or loss arising from maintaining the full economic
ownership of such shares by such Eligible Holder or any of its
affiliates. An Eligible Holder “owns” shares held in
the name of a nominee or other intermediary so long as the Eligible
Holder retains the right to instruct how the shares are voted with
respect to the election of directors and possesses the full
economic interest in the shares. An Eligible Holder’s
ownership of shares shall be deemed to continue during any period
in which the Eligible Holder has delegated any voting power by
means of a proxy, power of attorney or other similar instrument or
arrangement that is revocable at any time by the Eligible Holder.
An Eligible Holder’s ownership of shares shall be deemed to
continue during any period in which the Eligible Holder has loaned
such shares provided that the Eligible Holder has the power to
recall such loaned shares on five business days’ notice,
recalls such loaned shares upon being notified by the Corporation
that any of the Eligible Holder’s Nominees will be included
in the Corporation’s proxy statement and proxy card for the
annual meeting (subject to the provisions of this Section 1.13) and
holds such shares through the date of the annual meeting. The terms
“owned,” “owning,” “ownership”
and other variations of the word “own” shall have
correlative meanings. Whether outstanding shares of the Corporation
are “owned” for these purposes shall be determined by
the Board. For purposes of this Section 1.13, the term
“affiliate” or “affiliates” shall have the
meaning ascribed thereto under the General Rules and Regulations
under the Exchange Act.
(v) No person shall be
permitted to be in more than one group constituting a Nominating
Stockholder, and if any person appears as a member of more than one
group, then it shall be deemed to be a member of the group that has
the largest amount of shares of common stock of the Corporation
disclosed as owned in the Nomination Notice.
(d) Nomination Notice. To nominate
a Nominee for purposes of this Section 1.13, the Nominating
Stockholder must have given timely notice thereof in writing to the
Secretary. To be timely, a Nominating Stockholder’s notice
shall be received by the Secretary at the principal offices of the
Corporation not less than one hundred twenty (120) days nor more
than one hundred fifty (150) days prior to the first annual
anniversary of the date set forth in the Corporation’s proxy
statement for the immediately preceding annual meeting as the date
on which the Corporation first made available to its stockholders
definitive proxy materials for the immediately preceding annual
meeting; provided, however, that if the date for which the annual
meeting is called is more than thirty (30) days before or more than
thirty days after the first annual anniversary of the immediately
preceding annual meeting, then notice by the Nominating Stockholder
to be timely must be received by the Secretary by the later of the
close of business on the date that is one hundred eighty (180) days
prior to the date of such annual meeting or the tenth
(10th) day
following the day on which public announcement of such annual
meeting is first made. In no event shall any adjournment or
postponement of any annual meeting or the announcement thereof
commence a new time period for the giving of a Nomination Notice.
To be in proper form, a Nominating Stockholder’s notice to
the Secretary for purposes of this Section 1.13 shall include all
of the following information and documents (collectively, the
“Nomination
Notice”):
(i) A Schedule 14N (or
any successor form) relating to the Nominee, completed and filed
with the Securities and Exchange Commission by the Nominating
Stockholder as applicable, in accordance with the rules of the
Commission;
(ii) A
written notice of the nomination of such Nominee that includes the
following additional information, agreements, representations and
warranties by the Nominating Stockholder (including each group
member):
(A) the information and
representations that would be required to be set forth in a
stockholder’s notice of a nomination for the election of
directors pursuant to Section 1.10;
(B) the details of any
relationship that existed within the past three years and that
would have been described pursuant to Item 6(e) of Schedule 14N (or
any successor item) if it existed on the date of submission of the
Schedule 14N;
(C) a representation
and warranty that the shares of common stock of the Corporation
owned by the Nominating Stockholder were acquired in the ordinary
course of business and not with the intent or objective to
influence or change control of the Corporation and are not being
held with the purpose or effect of changing control of the
Corporation or to gain a number of seats on the Board that exceeds
the maximum number of nominees that stockholders may nominate
pursuant to this Section 1.13;
(D) a representation
and warranty that the Nominating Stockholder satisfies the
eligibility requirements set forth in Section 1.13(c) and has
provided evidence of ownership to the extent required by Section
1.13(c)(i);
(E) a representation
and warranty that the Nominating Stockholder will continue to
satisfy the eligibility requirements described in Section 1.13(c)
through the date of the annual meeting;
(F) a representation
and warranty that the Nominating Stockholder has not nominated and
will not nominate for election to the Board at the annual meeting
any person other than the Nominees it is nominating pursuant to
this Section 1.13;
(G) a representation
and warranty that the Nominating Stockholder will not engage in,
and will not be a “participant” in another
person’s, “solicitation” within the meaning of
Rule 14a-1(l) (without reference to the exception in Section
14a-1(l)(2)(iv)) (or any successor rules) with respect to the
annual meeting, other than with respect to its Nominees or any
nominees of the Board;
(H) a representation
and warranty that the Nominating Stockholder will not use any proxy
card other than the Corporation’s proxy card in soliciting
stockholders in connection with the election of a Nominee at the
annual meeting;
(I) a representation
and warranty that the Nominee’s nomination for election to
the Board or, if elected, Board membership would not violate
applicable state or federal law or the rules of any stock exchange
on which the Corporation’s securities are
traded;
(J) a representation
and warranty that the Nominee (1) qualifies as independent under
the rules of any stock exchange on which the Corporation’s
securities are traded, (2) meets the audit committee and
compensation committee independence requirements under the rules of
any stock exchange on which the Corporation’s securities are
traded, (3) is a “non-employee director” for the
purposes of Rule 16b-3 under the Exchange Act (or any successor
rule), (4) is an “outside director” for the purposes of
Section 162(m) of the Internal Revenue Code (or any successor
provision), and (5) is not and has not been subject to any event
specified in Rule 506(d)(1) of Regulation D (or any successor rule)
under the Securities Act of 1933 or Item 401(f) of Regulation S-K
(or any successor rule) under the Exchange Act, without reference
to whether the event is material to an evaluation of the ability or
integrity of the Nominee;
(K) details of any
position of the Nominee as an officer or director of any competitor
of the Corporation (that is, any entity whose principal business is
servicing student loans), within the three years preceding the
submission of the Nomination Notice;
(L) if desired, a
statement for inclusion in the proxy statement in support of the
Nominee’s election to the Board, provided that such statement
shall not exceed 500 words and shall fully comply with Section 14
of the Exchange Act and the rules and regulations thereunder,
including Rule 14a-9; and
(M) in the case of a
nomination by a group, the designation by all group members of one
group member for purposes of receiving communications, notices and
inquiries from the Corporation and that is authorized to act on
behalf of all group members with respect to matters relating to the
nomination, including withdrawal of the nomination;
(iii) An
executed agreement, in a form deemed satisfactory by the Board or
its designee, acting in good faith, pursuant to which the
Nominating Stockholder (including each group member)
agrees:
(A) to comply with all
applicable laws, rules and regulations in connection with the
nomination, solicitation and election;
(B) to file any written
solicitation or other written communication with the
Corporation’s stockholders relating to one or more of the
Corporation’s directors or director nominees or any Nominee
with the Securities and Exchange Commission, regardless of whether
any such filing is required under rule or regulation or whether any
exemption from filing is available for such materials under any
rule or regulation;
(C) to assume all
liability (jointly and severally by all group members in the case
of a nomination by a group) stemming from any action, suit or
proceeding concerning any actual or alleged legal or regulatory
violation arising out of any communication by the Nominating
Stockholder, its affiliates and associates or their respective
agents and representatives with the Corporation, its stockholders
or any other person in connection with the nomination or election
of directors, including without limitation the Nomination Notice,
or out of the facts, statements or other information that the
Nominating Stockholder or its Nominees provided to the Corporation
in connection with the inclusion of such Nominees in the
Corporation’s proxy statement;
(D) to indemnify and
hold harmless (jointly with all other group members, in the case of
a group member) the Corporation and each of its directors, officers
and employees individually against any liability, loss, damages,
expenses or other costs (including attorneys’ fees) incurred
in connection with any threatened or pending action, suit or
proceeding, whether legal, administrative or investigative, against
the Corporation or any of its directors, officers or employees
arising out of or relating to any nomination submitted by the
Nominating Stockholder pursuant to this Section 1.13 or a failure
or alleged failure of the Nominating Stockholder to comply with, or
any breach or alleged breach of, its obligations, agreements or
representations under this Section 1.13; and
(E) in the event that
any information included in the Nomination Notice, or any other
communication by the Nominating Stockholder (including with respect
to any group member) with the Corporation, its stockholders or any
other person in connection with the nomination or election ceases
to be true and accurate in all material respects or omits a
material fact necessary to make the statements made not misleading
or that the Nominating Stockholder (including any group member) has
failed to continue to satisfy the eligibility requirements
described in Section 1.13(c), to promptly (and in any event within
forty-eight (48) hours of discovering such misstatement, omission
or failure) notify the Corporation and any other recipient of such
communication of the misstatement or omission in such previously
provided information and of the information that is required to
correct the misstatement or omission and/or notify the Corporation
of the failure to continue to satisfy the eligibility requirements
described in Section 1.13(c), as the case may be;
(iv) An
executed agreement, in a form deemed satisfactory by the Board or
its designee, acting in good faith, by the Nominee:
(A) to make such other
acknowledgments, enter into such agreements and provide such other
information as the Board requires of all directors, including
promptly completing the Corporation’s director
questionnaire;
(B) that the Nominee
has read and agrees, if elected as a director of the Corporation,
to adhere to the Board Governance Guidelines for the Corporation
and its Code of Business Conduct, as well as any other Corporation
policies and guidelines applicable to directors; and
(C) that the Nominee is
not and will not become a party to (1) any compensatory, payment,
reimbursement, indemnification or other financial agreement,
arrangement or understanding with any person or entity in
connection with service or action as a director of the Corporation
that has not been disclosed to the Corporation, (2) any agreement,
arrangement or understanding with any person or entity as to how
the Nominee would vote or act on any issue or question as a
director (a “Voting
Commitment”) that has not been disclosed to the
Corporation or (3) any Voting Commitment that could limit or
interfere with the Nominee’s ability to comply, if elected as
a director of the Corporation, with his or her fiduciary duties
under applicable law.
The
information and documents required by this Section 1.13(d) shall be
(i) provided with respect to and executed by each group member in
the case of information applicable to group members and (ii)
provided with respect to the persons specified in Instruction 1 to
Items 6(c) and (d) of Schedule 14N (or any successor item) in the
case of a Nominating Stockholder or group member that is an entity.
The Nomination Notice shall be deemed submitted on the date on
which all the information and documents referred to in this Section
1.13(d) (other than such information and documents contemplated to
be provided after the date the Nomination Notice is provided) have
been delivered to or, if sent by mail, received by the Secretary of
the Corporation.
(e) Exceptions.
(i) Notwithstanding
anything to the contrary contained in this Section 1.13, the
Corporation may omit from its proxy statement and any ballot or
form of proxy any Nominee and any information concerning such
Nominee (including a Nominating Stockholder’s statement in
support), and no vote on such Nominee will occur (notwithstanding
that proxies in respect of such vote may have been received by the
Corporation), and the Nominating Stockholder may not, after the
Final Nomination Date, cure in any way any defect preventing the
nomination of the Nominee, if:
(A) the Corporation
receives a notice pursuant to Section 1.10 (b) that the Nominating
Stockholder intends to nominate a person for election to the Board
at the annual meeting (other than in compliance with this Section
1.13), or has or is engaged in, or has been or is a be a
“participant” in another person’s,
“solicitation” within the meaning of Rule 14a-1(l)
(without reference to the exception in Section 14a-1(l)(2)(iv)) (or
any successor rules) with respect to the annual meeting, other than
with respect to its Nominees or any nominees of the
Board;
(B) the Board or its
designee, acting in good faith, determines that such
Nominee’s nomination or election to the Board would result in
the Corporation violating or failing to be in compliance with these
Bylaws, the Corporation’s Certificate of Incorporation or any
applicable law, rule or regulation to which the Corporation is
subject, including any rules or regulations of any stock exchange
on which the Corporation’s securities are
traded;
(C) the Nominee was
nominated for election to the Board pursuant to this Section 1.13
at one of the Corporation’s two preceding annual meetings and
withdrew or became ineligible or unavailable for election at any
such annual meeting; or
(D) the Nominee has
been, within the past three years, an officer or director of a
competitor, as defined for purposes of Section 8 of the Clayton
Antitrust Act of 1914, as amended.
(ii) Notwithstanding
anything to the contrary contained in this Section 1.13, the
Corporation may omit from its proxy statement, or may supplement or
correct, any information, including all or any portion of the
statement in support of the Nominee included in the Nomination
Notice, if the Board or its designee, acting in good faith,
determines that:
(A) such information is
not true in all material respects or omits a material statement
necessary to make the statements made not misleading;
(B) such information
directly or indirectly impugns the character, integrity or personal
reputation of, or directly or indirectly makes charges concerning
improper, illegal or immoral conduct or associations, without
factual foundation, with respect to, any person; or
(C) the inclusion of
such information in the proxy statement would otherwise violate
Securities and Exchange Commission rules or any other applicable
law, rule or regulation.
ARTICLE II
2.1 General Powers. The business
and affairs of the Corporation shall be managed by or under the
direction of a Board, who may exercise all of the powers of the
Corporation except as otherwise provided by law or the Certificate
of Incorporation.
2.2 Number, Election and
Qualification. Subject to the rights of holders of any
series of Preferred Stock to elect directors, the number of
directors of the Corporation shall be fixed from time to time by
resolution of the Board. Election of directors need not be by
written ballot. Directors need not be stockholders of the
Corporation.
2.3 Chairman of the Board; Vice Chairman
of the Board. The Board may appoint from its members a
Chairman of the Board and a Vice Chairman of the Board, neither of
whom need be an employee or officer of the Corporation. If the
Board appoints a Chairman of the Board, such Chairman shall perform
such duties and possess such powers as are assigned by the Board
and, if the Chairman of the Board is also designated as the
Corporation’s Chief Executive Officer, shall have the powers
and duties of the Chief Executive Officer prescribed in
Section 3.7 of these Bylaws. If the Board appoints a Vice
Chairman of the Board, such Vice Chairman shall perform such duties
and possess such powers as are assigned by the Board. Unless
otherwise provided by the Board, the Chairman of the Board or, in
the Chairman’s absence, the Vice Chairman of the Board, if
any, shall preside at all meetings of the Board.
2.4 Term of Office. Subject to the
rights of holders of any series of Preferred Stock to elect
directors, each director shall serve until the next annual meeting
of stockholders and until the election and qualification of his or
her successor, subject to his or her earlier death,
disqualification, resignation or removal.
2.5 Quorum. The greater of
(a) a majority of the directors at any time in office and
(b) one-third of the number of directors fixed by the Board
pursuant to Section 2.2 of these Bylaws shall constitute a
quorum of the Board. If at any meeting of the Board there shall be
less than a quorum, a majority of the directors present may adjourn
the meeting from time to time without further notice other than
announcement at the meeting, until a quorum shall be
present.
2.6 Action at Meeting. Every act or
decision done or made by a majority of the directors present at a
meeting duly held at which a quorum is present shall be regarded as
the act of the Board, unless a greater number is required by law or
by the Certificate of Incorporation.
2.7 Removal. Subject to the rights
of holders of any series of Preferred Stock, directors of the
Corporation may be removed only as expressly provided in the
Certificate of Incorporation.
2.8 Vacancies. Subject to the
rights of holders of any series of Preferred Stock, any newly
created directorship that results from an increase in the number of
directors or any vacancy on the Board that results from the death,
disability, resignation, disqualification or removal of any
director or from any other cause shall be filled solely by the
affirmative vote of a majority of the total number of directors
then in office, even if less than a quorum, or by a sole remaining
director and shall not be filled by the stockholders. Any director
elected to fill a vacancy not resulting from an increase in the
number of directors shall hold office for the remaining term of his
or her predecessor.
2.9 Resignation. Any director may
resign by delivering a resignation in writing or by electronic
transmission to the Corporation at its principal office or to the
Chairman of the Board, the Chief Executive Officer, the President
or the Secretary. Such resignation shall be effective upon delivery
unless it is specified to be effective at some later time or upon
the happening of some later event.
2.10 Regular Meetings. Regular
meetings of the Board may be held without notice at such time and
place as shall be determined from time to time by the Board;
provided that any director who is absent when such a determination
is made shall be given notice of the determination prior to such
regular meeting. A regular meeting of the Board may be held without
notice immediately after and at the same place as the annual
meeting of stockholders.
2.11 Special Meetings. Special
meetings of the Board may be held at any time and place designated
in a call by the Chairman of the Board, the Chief Executive
Officer, the President, two or more directors, or by one director
in the event that there is only a single director in
office.
2.12 Notice of Special Meetings.
Notice of the date, place and time of any special meeting of the
Board shall be given to each director by the Secretary or by the
officer or one of the directors calling the meeting. Notice shall
be duly given to each director (a) in person or by telephone
at least twenty-four (24) hours in advance of the meeting,
(b) by sending written notice by reputable overnight courier,
telecopy, facsimile or other means of electronic transmission, or
delivering written notice by hand, to such director’s last
known business, home or means of electronic transmission address at
least forty-eight (48) hours in advance of the meeting, or
(c) by sending written notice by first-class mail to such
director’s last known business or home address at least
seventy-two (72) hours in advance of the meeting. A notice or
waiver of notice of a meeting of the Board need not specify the
purposes of the meeting.
2.13 Meetings by Conference Communications
Equipment. Directors may participate in meetings of the
Board or any committee thereof by means of conference telephone or
other communications equipment by means of which all persons
participating in the meeting can hear each other, and participation
by such means shall constitute presence in person at such
meeting.
2.14 Action by Consent. Any action
required or permitted to be taken at any meeting of the Board or of
any committee thereof may be taken without a meeting, if all
members of the Board or committee, as the case may be, consent to
the action 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 or committee
thereof. 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.
2.15 Committees. The Board may
designate one or more committees, each committee to consist of one
or more of the directors of the Corporation with such lawfully
delegable powers and duties as the Board thereby confers, to serve
at the pleasure of the Board. The Board may designate one or more
directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members of the committee present at any meeting and not
disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the
Board to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in
the resolution of the Board and subject to the provisions of law,
shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Each such committee
shall keep minutes and make such reports as the Board may from time
to time request. Except as the Board may otherwise determine, any
committee may make rules for the conduct of its business, but
unless otherwise provided by the directors or in such rules, its
business shall be conducted as nearly as possible in the same
manner as is provided in these Bylaws for the Board. Except as
otherwise provided in the Certificate of Incorporation, these
Bylaws, or the resolution of the Board designating the committee, a
committee may create one or more subcommittees, each subcommittee
to consist of one or more members of the committee, and delegate to
a subcommittee any or all of the powers and authority of the
committee.
2.16 Compensation of Directors.
Directors may be paid such compensation for their services and such
reimbursement for expenses of attendance at meetings as the Board
may from time to time determine. No such payment shall preclude any
director from serving the Corporation or any of its parent or
subsidiary entities in any other capacity and receiving
compensation for such service.
ARTICLE III
3.1 Titles. The officers of the
Corporation shall consist of a Chief Executive Officer, a
President, a Secretary, a Treasurer and such other officers with
such other titles as the Board shall determine, including one or
more Vice Presidents, Assistant Treasurers and Assistant
Secretaries. The Board may appoint such other officers as it may
deem appropriate.
3.2 Election. The Chief Executive
Officer, President, Treasurer and Secretary shall be elected
annually by the Board at its first meeting following the annual
meeting of stockholders. Other officers may be appointed by the
Board at such meeting or at any other meeting.
3.3 Qualification. No officer need
be a stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure. Except as otherwise
provided by law, by the Certificate of Incorporation or by these
Bylaws, each officer shall hold office until such officer’s
successor is duly elected and qualified, unless a different term is
specified in the resolution electing or appointing such officer, or
until such officer’s earlier death, resignation,
disqualification or removal.
3.5 Resignation. Any officer may
resign by delivering a written resignation to the Corporation at
its principal office or to the Chief Executive Officer, the
President or the Secretary. Such resignation shall be effective
upon receipt unless it is specified to be effective at some later
time or upon the happening of some later event.
3.6 Vacancies. The Board may fill
any vacancy occurring in any office for any reason and may, in its
discretion, leave unfilled, for such period as it may determine,
any offices. Each such successor shall hold office for the
unexpired term of such officer’s predecessor and until a
successor is duly elected and qualified, or until such
officer’s earlier death, resignation, disqualification or
removal.
3.7 President; Chief Executive
Officer. Unless the Board has designated another person as
the Corporation’s Chief Executive Officer, the President
shall be the Chief Executive Officer of the Corporation. The Chief
Executive Officer shall have general charge and supervision of the
business of the Corporation subject to the direction of the Board,
and shall perform all duties and have all powers that are commonly
incident to the office of chief executive or that are delegated to
such officer by the Board. The President shall perform such other
duties and shall have such other powers as the Board or the Chief
Executive Officer (if the President is not the Chief Executive
Officer) may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Chief Executive Officer
or the President (if the President is not the Chief Executive
Officer), the Vice President (or if there shall be more than one,
the Vice Presidents in the order determined by the Board) shall
perform the duties of the Chief Executive Officer and when so
performing such duties shall have all the powers of and be subject
to all the restrictions upon the Chief Executive
Officer.
3.8 Vice Presidents. Each Vice
President shall perform such duties and possess such powers as the
Board or the Chief Executive Officer may from time to time
prescribe. The Board may assign to any Vice President the title of
Executive Vice President, Senior Vice President or any other title
selected by the Board.
3.9 Secretary and Assistant
Secretaries. The Secretary shall perform such duties and
shall have such powers as the Board or the Chief Executive Officer
may from time to time prescribe. In addition, the Secretary shall
perform such duties and have such powers as are incident to the
office of the secretary, including without limitation the duty and
power to give notices of all meetings of stockholders and special
meetings of the Board, to attend all meetings of stockholders and
the Board and keep a record of the proceedings, to maintain a stock
ledger and prepare lists of stockholders and their addresses as
required, to be custodian of corporate records and the corporate
seal and to affix and attest to the same on documents.
Any
Assistant Secretary shall perform such duties and possess such
powers as the Board, the Chief Executive Officer or the Secretary
may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Secretary, the Assistant
Secretary (or if there shall be more than one, the Assistant
Secretaries in the order determined by the Board) shall perform the
duties and exercise the powers of the Secretary.
In the
absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the chairman of the meeting shall
designate a temporary secretary to keep a record of the
meeting.
3.10 Treasurer and Assistant
Treasurers. The Treasurer shall perform such duties and
shall have such powers as may from time to time be assigned by the
Board or the Chief Executive Officer. In addition, the Treasurer
shall perform such duties and have such powers as are incident to
the office of treasurer, including without limitation the duty and
power to keep and be responsible for all funds and securities of
the Corporation, to deposit funds of the Corporation in
depositories selected in accordance with these Bylaws, to disburse
such funds as ordered by the Board, to make proper accounts of such
funds, and to render as required by the Board statements of all
such transactions and of the financial condition of the
Corporation.
The
Assistant Treasurers shall perform such duties and possess such
powers as the Board, the Chief Executive Officer or the Treasurer
may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Treasurer, the Assistant
Treasurer (or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board) shall perform the
duties and exercise the powers of the Treasurer.
3.11 Salaries. Officers of the
Corporation shall be entitled to such salaries, compensation or
reimbursement as shall be fixed or allowed from time to time by the
Board.
3.12 Delegation of Authority. The
Board may from time to time delegate the powers or duties of any
officer to any other officer or agent, notwithstanding any
provision hereof.
ARTICLE IV
4.1 Issuance of Stock. Subject to
the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock of
the Corporation or the whole or any part of any shares of the
authorized capital stock of the Corporation held in the
Corporation’s treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board in such manner, for such
lawful consideration and on such terms as the Board may
determine.
4.2 Stock Certificates; Uncertificated
Shares. The shares of the Corporation shall be represented
by certificates, provided that the Board may
provide by resolution or resolutions that some or all of any or all
classes or series of the Corporation’s stock shall be
uncertificated shares. Every holder of stock of the Corporation
represented by certificates shall be entitled to have a
certificate, in such form as may be prescribed by law and by the
Board, representing the number of shares held by such holder
registered in certificate form. Each such certificate shall be
signed in a manner that complies with Section 158 of the
DGCL.
Each
certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of
Incorporation, these Bylaws, applicable securities laws or any
agreement among any number of stockholders or among such holders
and the Corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction or
a statement of the existence of such restriction.
If the
Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers,
designations, preferences and 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 shall be set forth in full or summarized on the face
or back of each certificate representing shares of such class or
series of stock, provided that in lieu of the
foregoing requirements there may be set forth on the face or back
of each certificate representing shares of such class or series of
stock a statement that the Corporation will furnish without charge
to each stockholder who so requests the powers, designations,
preferences and 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.
Within
a reasonable time after the issuance or transfer of uncertificated
shares, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set
forth or stated on certificates pursuant to Sections 151, 156,
202(a) or 218(a) of the DGCL or, with respect to Section 151
of DGCL, a statement that the Corporation will furnish without
charge to each stockholder who so requests the powers,
designations, preferences and 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.
4.3 Transfers. Shares of stock of
the Corporation shall be transferable in the manner prescribed by
law, the Certificate of Incorporation and in these Bylaws.
Transfers of shares of stock of the Corporation shall be made only
on the books of the Corporation or by transfer agents designated to
transfer shares of stock of the Corporation. Subject to applicable
law, shares of stock represented by certificates shall be
transferred only on the books of the Corporation by the surrender
to the Corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a
written assignment or power of attorney properly executed, and with
such proof of authority or the authenticity of signature as the
Corporation or its transfer agent may reasonably require. Except as
may be otherwise required by law, by the Certificate of
Incorporation or by these Bylaws, the Corporation shall be entitled
to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of
dividends and the right to vote with respect to such stock,
regardless of any transfer, pledge or other disposition of such
stock until the shares have been transferred on the books of the
Corporation in accordance with the requirements of these
Bylaws.
4.4 Lost, Stolen or Destroyed
Certificates. The Corporation may issue a new certificate or
uncertificated shares in place of any previously issued certificate
alleged to have been lost, stolen or destroyed, upon such terms and
conditions as the Board may prescribe, including the presentation
of reasonable evidence of such loss, theft or destruction and the
giving of such indemnity and posting of such bond as the Board may
require for the protection of the Corporation or any transfer agent
or registrar.
4.5 Record Date. In order that the
Corporation may determine the stockholders entitled to notice of
any meeting of stockholders or any adjournment thereof, the Board
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, and which record date shall, unless otherwise required by
law, not be more than sixty (60) nor less than ten (10) days before
the date of such meeting. If the Board 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 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, the record
date for determining stockholders entitled to notice of or 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 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
herewith 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 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 may fix a record
date, which shall not be more than sixty (60) days prior to such
action. If no such 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 adopts the resolution
relating thereto
4.6 Regulations. The issue and
registration of shares of stock of the Corporation shall be
governed by such other regulations as the Board may
establish.
ARTICLE V
5.1 Fiscal Year. Except as from
time to time otherwise designated by the Board, the fiscal year of
the Corporation shall begin on the first day of January of each
year and end on the last day of December in each year.
5.3 Waiver of Notice. Whenever
notice is required to be given by law, by the Certificate of
Incorporation or by 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, at or after the
time of the event for which notice is to be given, shall be deemed
equivalent to notice required to be given to such person. Neither
the business nor the purpose of any meeting need be specified in
any such waiver. 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.
5.4 Voting of Securities. Except as
the Board may otherwise designate, the Chief Executive Officer, the
President or the Treasurer may waive notice, vote, consent, or
appoint any person or persons to waive notice, vote or consent, on
behalf of the Corporation, and act as, or appoint any person or
persons to act as, proxy or attorney-in-fact for this Corporation
(with or without power of substitution) with respect to, the
securities of any other entity which may be held by this
Corporation.
5.5 Evidence of Authority. A
certificate by the Secretary, or an Assistant Secretary, or a
temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the
Corporation shall as to all persons who rely on the certificate in
good faith be conclusive evidence of such action.
5.6 Certificate of Incorporation.
All references in these Bylaws to the Certificate of Incorporation
shall be deemed to refer to the Certificate of Incorporation of the
Corporation, as amended and/or restated and in effect from time to
time.
5.7 Severability. Any determination
that any provision of these Bylaws is for any reason inapplicable,
illegal or ineffective shall not affect or invalidate any other
provision of these Bylaws.
5.8 Pronouns. All pronouns used in
these Bylaws shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the person or
persons may require.
5.9 Electronic Transmission. For
purposes of these Bylaws, “electronic transmission”
means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be
retained, retrieved, and reviewed by a recipient thereof, and that
may be directly reproduced in paper form by such a recipient
through an automated process.
ARTICLE VI
These
Bylaws may be altered, amended or repealed, in whole or in part, or
new Bylaws may be adopted by the Board or by the stockholders as
expressly provided in the Certificate of
Incorporation.
ARTICLE VII
7.1 Power to Indemnify in Actions, Suits
or Proceedings other than Those by or in the Right of the
Corporation. Subject to Section 7.3, 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 such person is or was a
director or officer of the Corporation, or, while a director or
officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding 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. 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 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 reasonable cause to
believe that such person’s conduct was unlawful.
7.2 Power to Indemnify in Actions, Suits
or Proceedings by or in the Right of the Corporation.
Subject to Section 7.3, 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 such person is or was a director or officer
of the Corporation, or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as
a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection with
the defense or settlement of such action or suit 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;
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 to the Corporation unless and only to the
extent that the Court of Chancery 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 the Court of Chancery or such
other court shall deem proper.
7.3 Authorization of
Indemnification. Any indemnification under this
Article VII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is
proper in the circumstances because such person has met the
applicable standard of conduct set forth in Section 7.1 or
Section 7.2, as the case may be. Such determination shall be
made, with respect to a person who is a director or officer at the
time of such determination, (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or (ii) by a committee of such
directors designated by a majority vote of such directors, even
though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by independent legal
counsel in a written opinion or (iv) by the stockholders. Such
determination shall be made, with respect to former directors and
officers, by any person or persons having the authority to act on
the matter on behalf of the Corporation. To the extent, however,
that a present or former director or officer of the Corporation has
been successful on the merits or otherwise in defense of any
action, suit or proceeding set forth in Section 7.1 or
Section 7.2 or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred
by such person in connection therewith, without the necessity of
authorization in the specific case.
7.4 Good Faith Defined. For
purposes of any determination under Section 7.3, a person
shall be deemed to have 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, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe
such person’s conduct was unlawful, if such person’s
action is based on good faith reliance on the records or books of
account of the Corporation or another enterprise, or on information
supplied to such person by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice
of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or
another enterprise by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by
the Corporation or another enterprise. The term “another
enterprise” as used in this Section 7.4 shall mean any
other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is
or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 7.4
shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 7.1 or
7.2, as the case may be.
7.5 Right of Claimant to Bring
Suit. Notwithstanding any contrary determination in the
specific case under Section 7.3, and notwithstanding the
absence of any determination thereunder, if a claim under Sections
7.1 or 7.2 of the Article VII is not paid in full by the
Corporation within (i) ninety (90) days after a written claim
for indemnification has been received by the Corporation, or
(ii) thirty (30) days after a written claim for an advancement
of expenses has been received by the Corporation, the claimant may
at any time thereafter (but not before) bring suit against the
Corporation in the Court of Chancery in the State of Delaware to
recover the unpaid amount of the claim, together with interest
thereon, or to obtain advancement of expenses, as applicable. It
shall be a defense to any such action brought to enforce a right to
indemnification (but not in an action brought to enforce a right to
an advancement of expenses) that the claimant has not met the
standards of conduct which make it permissible under the DGCL (or
other applicable law) for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither a contrary determination in
the specific case under Section 7.3 nor the absence of any
determination thereunder shall be a defense to such application or
create a presumption that the claimant has not met any applicable
standard of conduct. If successful, in whole or in part, the
claimant shall also be entitled to be paid the expense of
prosecuting such claim, including reasonable attorneys’ fees
incurred in connection therewith, to the fullest extent permitted
by applicable law.
7.6 Expenses Payable in Advance.
Expenses, including without limitation attorneys’ fees,
incurred by a current or former director or officer in defending
any civil, criminal, administrative or investigative action, suit
or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such current or former
director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by
the Corporation as authorized in this
Article VII.
7.7 Nonexclusivity of Indemnification and
Advancement of Expenses. The rights to indemnification and
advancement of expenses provided by or granted pursuant to this
Article VII shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses
may be entitled under the Certificate of Incorporation, any
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person’s official
capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that, subject to
Section 7.11, indemnification of the persons specified in
Sections 7.1 and 7.2 shall be made to the fullest extent
permitted by law. The provisions of this Article VII shall not
be deemed to preclude the indemnification of any person who is not
specified in Section 7.1 or 7.2 but whom the Corporation has
the power or obligation to indemnify under the provisions of the
DGCL, or otherwise.
7.8 Insurance. 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 a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such
person’s status as such, whether or not the Corporation would
have the power or the obligation to indemnify such person against
such liability under the provisions of this
Article VII.
7.9 Certain Definitions. For
purposes of this Article VII, references to “the
Corporation” shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents
so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, shall
stand in the same position under the provisions of this
Article VII with respect to the resulting or surviving
corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
For purposes of this Article VII, references to
“fines” shall include any excise taxes assessed on a
person with respect of any employee benefit plan; and references to
“serving at the request of the Corporation” shall
include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this
Article VII.
7.10 Survival of Indemnification and
Advancement of Expenses. The indemnification and advancement
of expenses provided by, or granted pursuant to, this
Article VII shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.
7.11 Limitation on Indemnification.
Notwithstanding anything contained in this Article VII to the
contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 7.5), the
Corporation shall not be obligated to indemnify any director,
officer, employee or agent in connection with an action, suit
proceeding (or part thereof) initiated by such person unless such
action, suit or proceeding (or part thereof) was authorized by the
Board.
7.12 Contract Rights. The
obligations of the Corporation under this Article VII to
indemnify, and advance expenses to, a person who is or was a
director or officer of the Corporation shall be considered a
contract between the Corporation and such person, and no
modification or repeal of any provision of this Article VII
shall affect, to the detriment of such person, such obligations of
the Corporation in connection with a claim based on any act or
failure to act occurring before such modification or
repeal.
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