UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): February 7, 2013
SeaBright Holdings, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-34204 | 56-2393241 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1501 4th Avenue, Suite 2600
Seattle, Washington 98101
(Address of Principal executive offices, including Zip Code)
206-269-8500
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Introductory Note
On February 7, 2013, pursuant to the Agreement and Plan of Merger, dated as of August 27, 2012 (the “Merger Agreement”), by and among SeaBright Holdings, Inc., a Delaware corporation (the “Company”), Enstar Group Limited, a Bermuda exempted company (“Enstar”), and AML Acquisition, Corp., a Delaware corporation and wholly owned subsidiary of Enstar (“Merger Sub”), Merger Sub merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned subsidiary of Enstar.
Item 2.01. Completion of Acquisition or Disposition of Assets.
The information set forth in Item 5.01 is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On December 21, 2012, Merger Sub entered into a Term Facility Agreement with National Australia Bank Limited and Barclays Bank PLC (the “SeaBright Facility”). The SeaBright Facility provides for a four-year term loan facility pursuant to which, on February 5, 2013 (the “Loan Date”), Merger Sub borrowed $111.0 million to partially fund the consideration to be paid in the Merger. At the effective time of the Merger on February 7, 2013, the Company, as the corporation surviving the Merger, became the borrower under the SeaBright Facility.
As of the effective time of the Merger, the SeaBright Facility became secured by a security interest in all of the assets of the Company, a pledge of the stock of the Company by its sole stockholder, a pledge of the stock of SeaBright Insurance Company, Paladin Managed Care Services, Inc., and PointSure Insurance Services, Inc. (which are wholly-owned subsidiaries of the Company), and a security interest in all of the assets of Paladin Managed Care Services, Inc. and PointSure Insurance Services, Inc.
Interest on amounts borrowed under the SeaBright Facility will be payable at the end of each interest period chosen by the Company or, at the latest, each six months. The interest rate will be LIBOR plus 2.75% for the first 18 months from the Loan Date and will increase to LIBOR plus 3.50% thereafter; the interest rate is subject to increase by an incremental amount tied to certain regulatory costs, if any, that may be incurred by the lenders. The SeaBright Facility imposes various financial and business covenants on the Company, including limitations on mergers and consolidations, acquisitions, indebtedness and guarantees, restrictions as to dispositions of stock and assets (except for certain permitted dispositions), restrictions on dividends, and limitations on liens.
During the existence of any payment default, the interest rate would be increased by 1.0%. During the existence of any event of default (as specified in the SeaBright Facility), the lenders may declare all or a portion of outstanding amounts immediately due and payable, declare all or a portion of borrowed amounts payable upon demand, or proceed against the security. The SeaBright Facility terminates and all amounts borrowed must be repaid on the fourth anniversary of the Loan Date.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
In connection with the consummation of the Merger, on February 7, 2013, the Company notified the New York Stock Exchange (the “NYSE”) that the Merger had been completed and requested that trading of the Company’s common stock, par value $0.01 per share (the “Common Stock”), be suspended prior to market open on February 8, 2013. In addition, the Company requested that the NYSE file with the Securities and Exchange Commission (the “SEC”) an application on Form 25 to delist and deregister the Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on February 7, 2013. The Form 25 will become effective ten days after its filing. After the Form 25 becomes effective, the Company intends to file a Form 15 with the SEC to terminate its reporting obligations under the Exchange Act.
Item 3.03. Material Modification to Rights of Security Holders.
At the effective time of the Merger, each share of Common Stock issued and outstanding immediately prior to the effective time (other than shares held in the Company’s treasury, which were cancelled upon completion of the
Merger) was cancelled and automatically converted into the right to receive $11.11 in cash, without interest (the “Merger Consideration”). In addition, immediately prior to the effective time of the Merger, all remaining forfeiture restrictions applicable to restricted shares of Common Stock expired and the holders thereof became entitled to receive the Merger Consideration with respect to each such share. All outstanding stock options to purchase shares of Common Stock became fully vested immediately prior to the effective time of the Merger and holders thereof became entitled to receive the Merger Consideration less the exercise price per share with respect to each share of Common Stock subject to the option. All outstanding restricted stock units became fully vested immediately prior to the effective time of the Merger and holders thereof became entitled to receive the Merger Consideration with respect to each such unit.
Item 5.01. Changes in Control of the Registrant.
On February 7, 2013, pursuant to the Merger Agreement, Merger Sub merged with and into the Company, with the Company surviving the Merger as a wholly-owned subsidiary of Enstar. At the effective time of the Merger, each share of Common Stock issued and outstanding immediately prior to the effective time (other than shares held in the Company’s treasury, which were cancelled upon completion of the Merger) was cancelled and automatically converted into the right to receive the Merger Consideration.
The aggregate purchase price paid by Enstar for all equity securities of the Company was approximately $252 million. The purchase price was funded in part by the SeaBright Facility.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Pursuant to the Merger Agreement, the directors of Merger Sub became the directors of the Company and the Company’s existing directors ceased to be the directors of the Company as of the effective time of the Merger. As a result, the following individuals became directors of the Company upon consummation of the Merger: Karl J. Wall; Thomas Nichols; Steven Given; and Robert Redpath.
Pursuant to the Merger Agreement, the officers of Merger Sub became the officers of the Company as of the effective time of the Merger. As a result, the following individuals became the officers of the Company upon consummation of the Merger: Karl Wall, President; Robert Redpath, Vice President; Thomas Nichols, Treasurer; Steven Given, Executive Vice President; and Thomas J. Balkan, Secretary.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Pursuant to the Merger Agreement, at the effective time of the Merger, the Company’s Certificate of Incorporation was amended and restated in its entirety to be identical to the Certificate of Incorporation of Merger Sub as in effect immediately prior to the effective time of the Merger (except that the name of the surviving corporation set forth therein is “SeaBright Holdings, Inc.”), and such amended and restated Certificate of Incorporation became the Certificate of Incorporation of the Company.
Pursuant to the Merger Agreement, at the effective time of the Merger, the Bylaws of the Company were amended and restated in their entirety to be identical to the Bylaws of Merger Sub, as in effect immediately prior to the effective time of the Merger, and such amended and restated Bylaws became the Bylaws of the Company.
Copies of the amended and restated Certificate of Incorporation and the amended and restated Bylaws of the Company are attached as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
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Item 9.01. Financial Statements and Exhibits.
| (d) | Exhibits |
| Exhibit |
Description | |
| 3.1 | Amended and Restated Certificate of Incorporation of SeaBright Holdings, Inc. | |
| 3.2 | Amended and Restated Bylaws of SeaBright Holdings, Inc. | |
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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.
| SEABRIGHT HOLDINGS, INC. | ||
| By: | /s/ Thomas Nichols | |
| Name: | Thomas Nichols | |
| Title: | Treasurer | |
Date: February 7, 2013
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EXHIBIT INDEX
| Exhibit |
Description | |
| 3.1 | Amended and Restated Certificate of Incorporation of SeaBright Holdings, Inc. | |
| 3.2 | Amended and Restated Bylaws of SeaBright Holdings, Inc. | |
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Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEABRIGHT HOLDINGS, INC.
a Delaware corporation
FIRST: The name of the Corporation is SeaBright Holdings, Inc. (the “Corporation”).
SECOND: The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the Corporation’s registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law (the “DGCL”).
FOURTH: The total number of shares of stock which the Corporation will have authority to issue is 1,000 shares, par value $0.01 per share, all of which are of one class and are designated as Common Stock.
FIFTH: Unless and except to the extent required by the bylaws of the Corporation, the election of directors of the Corporation need not be by written ballot.
SIXTH:
(a) To the fullest extent permitted by the DGCL as it now exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), no director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages arising from a breach of fiduciary duty owed to the Corporation or its stockholders. Any repeal or modification of the preceding sentence by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
(b) Each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including involvement as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she 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 or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), against all expense, liability and loss (including attorneys’ fees and related disbursements, judgments, fines, excise taxes or penalties under the Employee Retirement Income Security Act of 1974, as amended from time to time (“ERISA”), penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators; provided, however, that, except as provided in subparagraph (c) with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this subparagraph (b) shall be a contract right and shall include the obligation of the Corporation to pay the expenses incurred in defending any such proceeding in advance of its final disposition (an “advance of expenses”); provided, however, that an advance of expenses incurred by an indemnitee shall be made only upon delivery to the Corporation of an undertaking (an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this subparagraph (b) or otherwise. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same or lesser scope and effect as the foregoing indemnification of directors and officers.
(c) Any indemnification of a director or officer of the Corporation or advance of expenses under subparagraph (b) shall be made promptly, and in any event within forty-five days (or, in the case of an advance of expenses, twenty days, provided that the director or officer has delivered the undertaking contemplated by subparagraph (b)), upon the written request of the director or officer. If a determination by the Corporation that the director or officer is entitled to indemnification pursuant to this paragraph SIXTH is required, and the Corporation fails to respond within sixty days to a written request for indemnity, the Corporation shall be deemed to have approved the request. If the Corporation denies a written request for indemnification or advance of expenses, in whole or in part, or if payment in full pursuant to such request is not made within forty-five days (or, in the case of an advance of expenses, twenty days, provided that the director or officer has delivered the undertaking contemplated by subparagraph (b)), the right to indemnification or advances as granted by this paragraph SIXTH shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of expenses where the undertaking required pursuant to subparagraph (b), if any, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the DGCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. The procedure for indemnification of
other employees and agents for whom indemnification is provided pursuant to subparagraph (b) shall be the same procedure set forth in this subparagraph (c) for directors or officers, unless otherwise set forth in the action of the Board of Directors providing indemnification for such employee or agent.
(d) The Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee or agent of the Corporation or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss asserted against him or her and incurred by him or her in any such capacity, whether or not the Corporation would have the power to indemnify such person against such expenses, liability or loss under the DGCL.
(e) Any person serving as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture or other enterprise, at least 50% of whose equity interests are owned by the Corporation (a “subsidiary” for this paragraph SIXTH) shall be conclusively presumed to be serving in such capacity at the request of the Corporation.
(f) Persons who after the date of the adoption of this provision become or remain directors or officers of the Corporation or who, while a director or officer of the Corporation, become or remain a director, officer, employee or agent of a subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of expenses and other rights contained in this paragraph SIXTH in entering into or continuing such service. The rights to indemnification and to the advance of expenses conferred in this paragraph SIXTH shall apply to claims made against an indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof.
(g) The rights to indemnification and to the advance of expenses conferred in this paragraph SIXTH shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation or under any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise
(h) For purposes of this paragraph SIXTH, 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 and 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 or other enterprise, shall stand in the same position under this paragraph SIXTH with respect to the resulting or surviving Corporation as he or she would have with respect to such constituent Corporation if its separate existence had continued.
(i) If this paragraph SIXTH or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each person entitled to indemnification under subparagraph (b) as to all expense, liability and
loss (including attorneys’ fees and related disbursements, judgments, fines, ERISA excise taxes and penalties, penalties and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such person and for which indemnification is available to such person pursuant to this paragraph SIXTH to the full extent permitted by any applicable portion of this paragraph SIXTH that shall not have been invalidated and to the full extent permitted by applicable law.
SEVENTH: In furtherance of, and not in limitation of, the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation or adopt new Bylaws without any action on the part of the stockholders, except as specifically otherwise provided therein; provided that any Bylaw adopted or amended by the board of directors and any powers thereby conferred may be amended, altered or repealed by the stockholders.
Exhibit 3.2
AMENDED AND RESTATED BYLAWS OF SEABRIGHT HOLDINGS, INC.
(a Delaware corporation)
ARTICLE 1
OFFICES
1.1 Offices. The Corporation may have offices at such places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
2.1 Place of Meeting. Meetings of the stockholders will be held at such place, within the State of Delaware or elsewhere, as may be fixed from time to time by the Board of Directors. If no place is so fixed for a meeting, it will be held at the Corporation’s then principal executive office.
2.2 Annual Meeting. The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting will be held at such date, time and place, if any, as determined by the Board of Directors and stated in the notice of the meeting.
2.3 Notice of Annual Meetings. Written notice of the annual meeting stating the date, time and place of the meeting must be given to each stockholder entitled to vote at such meeting not less than 10 days nor more than 60 days before the date of the meeting.
2.4 List of Stockholders. The officer who has charge of the stock ledger of the Corporation must prepare, at least 10 days before every meeting of stockholders, a complete list of stockholders entitled to vote at the meeting, 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 will be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place must be so specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list must 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.
2.5 Special Meetings. Special meetings of stockholders for any purpose or purposes may be called by the Board of Directors and may not be called by any other person or persons. The only business that may be transacted at a special meeting will the matters set forth in the notice of such meeting.
2.6 Notice of Special Meetings. Written notice of a special meeting stating the date, time and place of the meeting and the purpose or purposes for which the meeting is called must be given to each stockholder entitled to vote at such meeting not less than 10 days nor more than 60 days before the date of the meeting.
2.7 Quorum; Voting. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, will constitute a quorum at all meetings of stockholders for the transaction of business, except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum is not present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, will have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally notified. If the adjournment is for more than 30 days or, if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting must be given to each stockholder of record entitled to vote at the meeting. When a quorum is present at any meeting, except for elections of directors, which will be decided by plurality vote, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy will decide any question brought before such meeting, unless the question is one upon which by express provision of statute or of the Certificate of Incorporation, a different vote is required, in which case such express provision will govern and control the decision of such question. Unless otherwise provided in the Certificate of Incorporation, each stockholder will at every meeting of stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no shares may be voted pursuant to a proxy more than three years after the date of the proxy unless the proxy provides for a longer period.
2.8 Action Without a Meeting. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and must be delivered to the Corporation by delivery to its registered office in the State, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a Corporation’s registered office must be by hand or by certified or registered mail, return receipt requested. Every written consent must bear the date of signature of each stockholder who signs the consent and no written consent will be effective to take the corporate action referred to therein unless, within sixty days after the earliest dated consent delivered in the manner required by this Section to the Corporation, written consents signed by a sufficient number of stockholders to take action are delivered in the manner required by this Section to the Corporation. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent must be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to the Corporation.
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ARTICLE 3
DIRECTORS
3.1 Number and Term of Office. The number of directors of the Corporation will be such number as may be designated from time to time by resolution of the Board of Directors and initially will be four. The directors must be elected at the annual meeting of stockholders, except as provided in Section 3.2 hereof. Each director elected will hold office for a term of one year and will serve until his successor is elected and qualified or until his earlier death, resignation or removal. Directors need not be stockholders.
3.2 Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen will hold office until the next annual election and until their successors are duly elected and qualified, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10 percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office.
3.3 Resignations. Any director may resign at any time by giving written notice to the Board of Directors, the Chairman of the Board, if there is one, the President, or the Secretary. Such resignation will take effect at the time of receipt thereof or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation will not be necessary to make it effective.
3.4 Direction of Management. The business of the Corporation will be managed under the direction of its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.
3.5 Place of Meetings. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware.
3.6 Annual Meeting. Immediately after each annual election of directors, the Board of Directors shall meet for the purpose of organization, election of officers, and the transaction of other business, at the place where such election of directors was held or, if notice of such meeting is given, at the place specified in such notice. Notice of such meeting need not be given. In the absence of a quorum at said meeting, the same may be held at any other time and place which must be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as may be specified in a written waiver signed by the directors, if any, not attending and participating in the meeting.
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3.7 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and place as may from time to time be determined by the Board.
3.8 Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, if there is one, or the President on two days’ notice to each director, either personally (including telephone), or in the manner specified in Section 4.1. Special meetings must be called by the Chairman of the Board, if there is one, or the President or the Secretary in like manner and on like notice on the written request of two directors.
3.9 Quorum; Voting. At all meetings of the Board, a majority of the directors will constitute a quorum for the transaction of business; and at all meetings of any committee of the Board, a majority of the members of such committee will constitute a quorum for the transaction of business. The act of a majority of the directors present at any meeting of the Board of Directors or any committee thereof at which there is a quorum present will be the act of the Board of Directors or such committee, as the case may be, except as may be otherwise specifically provided by statute or by the Certificate of Incorporation. If a quorum is not present at any meeting of the Board of Directors or committee thereof, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
3.10 Action Without a Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the Board or committee.
3.11 Participation in Meetings. One or more directors may participate in any meeting of the Board or committee thereof by means of conference telephone or similar communications equipment by which all persons participating can hear each other.
3.12 Committees of Directors. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. 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. Any such committee, to the extent provided in the resolution of the Board of Directors or in these Bylaws, will have and may exercise all of the powers and authority of the Board of Directors and may authorize the seal of the Corporation to be affixed to all papers that may require it, but no such committee may have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to stockholders for approval or (ii) adopting, amending or repealing any bylaw of the Corporation. Such committee or committees may have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee must keep regular minutes of its meetings and report the same to the Board of Directors when requested.
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3.13 Compensation of Directors. Each director will be entitled to receive such compensation, if any, as may from time to time be fixed by the Board of Directors. Members of special or standing committees may be allowed like compensation for attending committee meetings. Directors may also be reimbursed by the Corporation for all reasonable expenses incurred in traveling to and from the place of each meeting of the Board or of any such committee or otherwise incurred in the performance of their duties as directors. No payment referred to herein may preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
ARTICLE 4
NOTICES
4.1 Notices. Whenever, under the provisions of law or of the Certificate of Incorporation or of these Bylaws, notice is required to be given to any director or stockholder, such requirement may not be construed to necessitate personal notice. Such notice may in every instance be effectively given by telephone, mail addressed to such director or stockholder, at his address as it appears on the records of the Corporation, facsimile, e-mail or by other means of electronic transmission.
4.2 Waiver of Notice. Whenever, under the provisions of law or of the Certificate of Incorporation or of these Bylaws, notice is required to be given, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time of the event for which notice is to be given, will be deemed equivalent thereto. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE 5
OFFICERS
5.1 Number. The officers of the Corporation will be a President, a Secretary and a Treasurer, and may also include a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers, and such other officers as may be elected by the Board of Directors. Any number of offices may be held by the same person.
5.2 Election and Term of Office. The officers of the Corporation shall be elected by the Board of Directors. Officers will hold office at the pleasure of the Board.
5.3 Removal. Any officer may be removed at any time by the Board of Directors. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors.
5.4 Chairman of the Board. The Chairman of the Board, if there is one, shall preside at all meetings of the Board of Directors and shall perform such other duties, if any, as may be specified by the Board from time to time.
5.5 President. The President will be the chief executive officer of the Corporation and have overall responsibility for the management of the business and operations of the Corporation and shall see that all orders and resolutions of the Board are carried into effect. In the absence of the Chairman of the Board, he shall preside over meetings of the Board of Directors. In general, he shall perform all duties incident to the office of President and such other duties as from time to time may be assigned to him by the Board.
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5.6 Vice Presidents. The Vice Presidents shall perform such duties and have such authority as may be specified in these Bylaws or by the Board of Directors or the President. In the absence or disability of the President, the Vice Presidents, in order of seniority established by the Board of Directors or the President, shall perform the duties and exercise the powers of the President.
5.7 Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings of the meetings of stockholders and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors and shall perform such other duties as may be prescribed by the Board of Directors or the President. He shall have custody of the corporate seal of the Corporation and he, or an Assistant Secretary, shall have authority to affix the same to any instrument and, when so affixed, it may be attested by his signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.
5.8 Assistant Secretaries. The Assistant Secretary or Secretaries shall, in the absence or disability of the Secretary, perform the duties and exercise the authority of the Secretary and shall perform such other duties and have such other authority as the Board of Directors or the President may from time to time prescribe.
5.9 Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors or the President or the Chief Financial Officer, taking proper vouchers for such disbursements, and shall render to the Board of Directors, when the Board so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation.
5.10 Assistant Treasurers. The Assistant Treasurer or Treasurers shall, in the absence or disability of the Treasurer, perform the duties and exercise the authority of the Treasurer and shall perform such other duties and have such other authority as the Board of Directors may from time to time prescribe.
ARTICLE 6
CERTIFICATES OF STOCK
6.1 Stock Certificates. Every holder of stock in the Corporation will be entitled to have a certificate in the form prescribed by the Board of Directors signed on behalf of the Corporation by the Chairman of the Board or the President or a Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, representing the number of shares owned by him in the Corporation. Any or all signatures on the
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certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.
6.2 Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it may require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
6.3 Transfers of Stock. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it will be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
6.4 Fixing Record Date. The Board of Directors of the Corporation may fix a record date for the purpose of determining the stockholders entitled to notice of, or to vote at, any meeting of stockholders or any adjournment thereof, or to consent to corporate action in writing without a meeting, or to receive payment of any dividend or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action. Such record date may not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and such record date may not be (i) in the case of such a meeting of stockholders, more than 60 nor less than 10 days before the date of the meeting of stockholders, (ii) in the case of consents in writing without a meeting, more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors, or (iii) in other cases, more than 60 days prior to the payment or allotment or change, conversion or exchange or other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders will apply to any adjournment of the meeting unless the Board of Directors fixes a new record date for the adjourned meeting.
6.5 Registered Stockholders. The Corporation is entitled to recognize the exclusive right of a person registered on its books as the owner of stock to receive dividends and to vote as such owner, is entitled to hold liable for calls and assessments a person registered on its books as the owner of stock, and is not bound to recognize any equitable or other claim to, or interest in, such stock on the part of any other person, whether or not it has express or other notice thereof, except as otherwise provided by the laws of Delaware.
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ARTICLE 7
AMENDMENTS
7.1 Amendments. These Bylaws may be altered, amended or repealed, and new Bylaws may be adopted, by the stockholders or by the Board of Directors at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of stockholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such special meeting.
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