UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
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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:
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Securities registered pursuant to Section 12(b) of the Act:
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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).
Emerging
growth company
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. ☐
Explanatory Note:
As previously reported, on August 7, 2023, Proterra Inc, hereinafter known as Prodigy Investments Holdings, Inc. (the “Company”), and its subsidiary Proterra Operating Company, Inc. (“OpCo” and, collectively, the “Debtors”) filed voluntary petitions under Chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (such court, the “Bankruptcy Court” and such proceedings, the “Chapter 11 Cases”). The Chapter 11 Cases are currently jointly administered under the caption In re Proterra Inc, Case No. 23-11120 (BLS). On March 1, 2024, the Debtors filed the Fifth Amended Joint Chapter 11 Plan of Reorganization for Proterra Inc and its Debtor Affiliate (the “Plan”).
On March 5, 2024, the Bankruptcy Court held a hearing to consider confirmation of the Plan. On March 6, 2024, the Bankruptcy Court entered an order confirming the Plan (the “Confirmation Order”). A copy of the Confirmation Order, with a copy of the Plan as confirmed attached thereto, was filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on March 8, 2024, and is hereby incorporated by reference as Exhibit 2.1 to this Current Report on Form 8-K (this “Form 8-K”). Capitalized terms used but not otherwise defined in this Form 8-K have the meanings given to them in the Plan and Confirmation Order.
On March 13, 2024 (the “Effective Date”), the conditions to the effectiveness of the Plan were satisfied or waived and the Debtors emerged from the Chapter 11 Cases.
Information regarding the assets and liabilities of the Company and its subsidiaries that was filed with the Bankruptcy Court may be found at www.kccllc.net/proterra and is incorporated herein by reference.
Item 1.02 Termination of Material Definitive Agreement.
Equity Interests
On the Effective Date, all of the existing shares of the Company’s common stock outstanding immediately before the Effective Date and all rights attaching or relating thereto were canceled and such equity interests were deemed to have no further force or effect.
Debt Instruments
Holders of First Lien Claims and Second Lien Convertible Notes Claims received the treatment provided for under the Plan with respect to such Claims, as set forth in greater detail below and in the Plan.
Except for the purpose of evidencing a right to a distribution under the Plan or as otherwise provided in the Plan, on the Effective Date, the obligations of the Debtors under the First Lien Documents and the Second Lien Convertible Notes Documents, stock certificates, book entries, and any other certificate, share, note, bond, indenture, purchase right, option, warrant, or other instrument or document, directly or indirectly, evidencing or creating any indebtedness or obligation of or ownership interest in the Debtors giving rise to any claim or interest (except such certificates, notes or other instruments or documents evidencing indebtedness or obligations of, or interests in, the Debtors that are specifically reinstated pursuant to the Plan) were cancelled, and the duties and obligations of all parties thereto were deemed satisfied in full, canceled, released, discharged, and of no force or effect.
Claims Treatment Under the Plan
In accordance with the Plan, holders of claims against and interests in the Debtors received the following treatment:
| · | Other Secured Claims. Each holder of an Other Secured Claim received one of the following alternative treatments: (i) payment in full in cash; (ii) reinstatement of its Allowed Other Secured Claim; (iii) return of the collateral securing such Allowed Other Secured Claim; or (iv) such other treatment so as to render such Holder’s Allowed Other Secured Claim unimpaired pursuant to section 1124 of the Bankruptcy Code. |
| · | Other Priority Claims. Each holder of an Allowed Other Priority Claim received, at the option of the Debtors, and in consultation with the Committee (i) payment in full in cash, or (ii) otherwise receive treatment consistent with the provisions of section 1129(a)(9) of the Bankruptcy Code, payable on the later of (a) the Effective Date and (b) the first Distribution Date that is at least (30) days (or such fewer days as may be agreed by the Distribution Trustee in its sole discretion) after the date such Other Priority Claim is Allowed or, in each case, as soon as reasonably practicable thereafter and, if such payment is not made on the Effective Date, from the Distribution Trust. |
| · | First Lien Claims. Each holder of an Allowed First Lien Claim received cash in an amount equal to such Allowed First Lien Claim. |
| · | Second Lien Convertible Notes Claims. Each holder of a Second Lien Convertible Notes Claim received on account of its claims (after giving effect to certain claim reductions described in the Plan) (i) its Pro Rata allocation of all of the equity of Reorganized Proterra (“New Common Stock”) and (ii) cash in an amount equal to its Allowed Second Lien Convertible Notes Claims after giving effect to certain reductions on account of cure costs, working capital retained by Reorganized Proterra, and costs incurred in connection with establishing Reorganized Proterra as a standalone operating entity, each as set forth in more detail in the Plan. |
| · | General Unsecured Claims. Each holder of an Allowed General Unsecured Claim received its Pro Rata share of the Second Priority Distribution Trust Beneficiaries’ interests in the Distribution Trust. |
| · | Intercompany Claims. All Allowed Intercompany Claim were Reinstated or cancelled, released, and extinguished and without any distribution at the election of the Debtors with the prior written consent of the Second Lien Agent and the Committee (not to be unreasonably withheld or delayed). |
| · | Interests in OpCo. Each holder of an Interest in OpCo had such Interest in OpCo Reinstated. |
| · | Interests in the Company. Each holder of an Interest in the Company, including the Company’s common stock prior to emergence received no recovery or distribution on account of such Interests. Upon emergence, all such pre-emergence Interests in the Company, including the Company’s common stock will be cancelled and of no further force or effect. |
Plan Support Agreement
On the Effective Date, that certain Second Amended and Restated Chapter 11 Plan Support Agreement entered into among the Debtors, the Official Committee of Unsecured Creditors appointed in the Chapter 11 Cases and Anthelion Prodigy Co-Investment LP, Anthelion I Prodigy Holdco LP, and Anthelion PRTA Co-Investment LP was automatically terminated pursuant to its terms.
Item 1.03 Bankruptcy or Receivership.
To the extent applicable, the information set forth in the Explanatory Note of this Form 8-K is hereby incorporated by reference herein.
On March 13, 2024, the Debtors filed a Notice of Occurrence of Effective Date as to the Company (the “Notice of Effective Date”) with the Bankruptcy Court. A copy of the Notice of Effective Date is attached hereto as Exhibit 99.1 and is incorporated herein by reference. The foregoing description is a summary of the material terms of the Notice of Effective Date, does not purport to be complete and is qualified in its entirety by reference to the full text of the Notice of Effective Date filed as Exhibit 99.1 to this Form 8-K.
Distribution Trust
The Plan provides for the creation of the PTRA Distribution Trust (the “Distribution Trust”) for the benefit of the holders of certain Allowed Administrative Claims, Allowed Priority Tax Claims, Allowed Other Secured Claims, and Allowed Other Priority Claims and to holders of Allowed Class 5 General Unsecured Claims (collectively, the “Distribution Trust Beneficiaries”). The Distribution Trust was established to provide for distributions of the Distribution Trust Assets to the Distribution Trust Beneficiaries in accordance with the Plan and the Confirmation Order. The trustee for the Distribution Trust is Steven Balasiano. The trustee is required to oversee and administer the Distribution Trust and distribute the Distribution Trust Assets in accordance with the terms of the Distribution Trust Agreement and the Plan.
On the Effective Date, the Debtors funded the Distribution Trust with cash comprised of cash proceeds of sales of assets and cash on hand as of the Effective Date, in the total amount of approximately $80 million (portions of which amount shall fund reserves to be administered by the Distribution Trust as more fully set forth in the Plan).
Item 3.02 Unregistered Sales of Equity Securities.
On the Effective Date, New Organizational Documents of the Company became effective, authorizing the issuance of shares of common stock, par value $0.0001 per share (the “New Common Stock”), representing 100% of the equity interests in the Company. In accordance with the foregoing, on the Effective Date, the Company, as reorganized on the Effective Date in accordance with the Plan, issued the New Common Stock. The shares of New Common Stock issued pursuant to the Plan were issued in reliance upon the exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”) provided by section 1145 of the Bankruptcy Code.
On the Effective Date, pursuant to the Plan, 1,000,000 shares of New Common Stock were issued pro rata to holders of the Second Lien Convertible Notes Claims in partial exchange for the cancellation of the Second Lien Convertible Notes.
As of the Effective Date, 1,000,000 shares of New Common Stock were issued and outstanding, all of which were issued in transactions not involving an underwriter pursuant to and in accordance with an exemption from registration under the Securities Act.
Item 3.03 Material Modifications to Rights of Security Holders.
Except as otherwise provided in the Plan and related documentation, all notes, equity, agreements, instruments, certificates and other documents evidencing any claim against or interest in the Debtors (except such certificates, notes or other instruments or documents evidencing indebtedness or
obligations of, or interests in, the Debtors that are specifically reinstated pursuant to the Plan) were cancelled on the Effective Date and the obligations of the Debtors thereunder or in any way related thereto were released and discharged. The securities cancelled on the Effective Date include all of the Second Lien Convertible Notes and equity interests in the Company. The information set forth in the explanatory note and Items 1.02, 1.03, 3.02, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
Item 5.01 Changes in Control of Registrant.
On the Effective Date, all of the Second Lien Convertible Notes Claims and equity interests in the Company were cancelled. In respect of the cancellation of the Second Lien Convertible Notes Claims and pursuant to the Plan and related documentation, on the Effective Date, any holder of the Second Lien Convertible Notes immediately prior to the Effective Date shall receive a pro rata portion of the New Common Stock such that 100% of the equity of Reorganized Proterra will be held by the prior holders of the Second Lien Convertible Notes. For further information, see Items 1.02, 1.03, 3.02 and 5.02 of this Form 8-K, which are incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Departure of Officers
On the Effective Date, the Debtors’ officers, including Mr. Gareth T. Joyce, Chief Executive Officer and President of the Company, and Mr. Justin Derek Pugh, Acting Chief Financial Officer of the Company, were replaced pursuant to the Plan by the Reorganized Debtors’ new officers, each effective as of March 13, 2024.
Departure of Directors
The Plan provides that the term of the current members of the board of directors of the Company shall have expired on the Effective Date. Each of the Company’s directors, Jan. R. Hauser, Gareth T. Joyce, Michael D. Smith, Mary Louise Krakaeur, Roger M. Nielsen, Jeannine P. Sargent, Brook F. Porter and Constance E. Skidmore ceased to be directors of the Company on the Effective Date.
Appointment of Directors
As of the Effective Date, the board of directors of the Company (the “Board”) consists of the following five directors who were appointed: Vusal Najafov, Ewa Kozicz, Artem Mariychin, Michelle Barone, and Jordan Jaffe. Such appointments were made pursuant to the Plan without any requirement of further action by the stockholders or directors of the Company.
Vusal Najafov
Mr. Najafov is a co-Founder of Anthelion Capital and oversees strategy, investment selection and portfolio construction for the firm. He is currently on the Board of Directors of ecoATM and GreyOrange. Previously Mr. Najafov was a Board Observer for the Company. Mr. Najafov has twenty-two years of experience investing across sectors and asset classes, including significant expertise in energy, transport, and financial services.
Since 2001, Mr. Najafov has managed capital for Enron, Goldman Sachs’ Principal Strategies Group, Highbridge Capital, Millennium, and Indus Capital. He is experienced at developing and building risk and valuation technologies, which he has implemented at previous firms including Goldman Sachs and Highbridge Capital to build investment businesses and manage cross-asset-class portfolios. Mr. Najafov helped to build a credit investment business at Goldman Sachs and headed Capital Structure Opportunities business at Highbridge Capital. He focused on commercializing key macro trends
including oil/commodity super-cycle (2002-2004), financial crisis and recovery (2006-2010), energy infrastructure boom (2012-2013), oil collapse (2014-2015), and solar energy growth (2012-today).
Mr. Najafov holds a BBA with honors in finance from Texas Tech University where he graduated summa cum laude. He also earned an MBA with honors from the Wharton School, the University of Pennsylvania where he majored in statistics, finance and strategic management.
Ewa Kozicz
Ms. Kozicz is a co-Founder of Anthelion Capital and oversees strategy, investment selection and portfolio construction for the firm. She is currently on the Board of Directors of ecoATM and quip. Ms. Kozicz has more than twenty-five years of investment experience across sectors and asset classes, including significant expertise in agriculture, industrials and financial services. Before partnering with Vusal Najafov to develop the Sustainable Investments strategy, Ms. Kozicz held various executive and leadership positions at BlackRock. She joined BlackRock as Head of US Strategy and Corporate Development, helping the firm execute on several acquisitions and joint ventures, as well as helping management develop the firm’s Alternatives business strategy. Ms. Kozicz also led the firm’s efforts to structure, fundraise capital and launch an innovative $1 billion insurance company, ABR Re. Ms. Kozicz managed ABR Re’s investments which span across private credit, equity and real assets.
Prior to joining BlackRock, Ms. Kozicz spent ten years at Goldman Sachs, starting as a financial institutions investment banker before moving to the Goldman Sachs Principal Strategies Group to manage the firm’s capital across various strategies. She has also worked at Caxton Associates as an equity Portfolio Manager. Ms. Kozicz started her career in investment banking at Credit Suisse First Boston in the Financial Institutions Group where she was focused on advising insurance companies.
Ms. Kozicz has an MBA from Columbia Business School and a BA in Economics and Math from Columbia College.
Artem Mariychin
Mr. Mariychin is Managing Director and Head of Data Science for Anthelion Capital. He has over a decade of investment, operational, and data science experience across sectors and asset classes, including significant expertise in technology, energy, and consumer. He is currently a member of the Board of Directors of quip and Bevi. Prior to joining Anthelion, Mr. Mariychin was the founder and CEO of Zodiac, a predictive data analytics company that helped brands improve strategic decision-making and business operations. Zodiac was acquired by Nike, where Mr. Mariychin led Nike’s Consumer Data Science efforts as the company shifted strategic focus towards direct to consumer. Prior to founding Zodiac, Mr. Mariychin was an investor at Goldman Sachs, Highbridge Capital, 3G Capital, and Perry Creek Capital where he focused on identifying investment opportunities arising from industries undergoing structural change, companies facing complex situations, and disruptive technologies. Throughout his career, Mr. Mariychin has combined statistical and quantitative analysis of granular data with deep fundamental research to understand investment opportunities, financial strategy, and business operations.
Mr. Mariychin graduated summa cum laude from the University of Pennsylvania, completing the Roy Vagelos Program in Life Sciences and Management. As part of the dual degree program, he received a BS in Economics from the Wharton School with concentrations in Finance, Statistics, and Operations & Information Management and a BA with Distinction in Biology from the College of Arts & Sciences.
Michelle Barone
Mrs. Barone serves as Chief Operating Officer and Chief Financial Officer for Anthelion Capital. Michelle has over 23 years of experience including 16 years as a COO in the asset management space with a focus of launching and operating new funds within the private and public equity space. Prior to Anthelion, Michelle served as COO for Kinetic Partners. Before that, Michelle was the first COO of Global Atlantic’s (formerly part of Goldman Sachs, acquired by KKR) reinsurance platform and joined to create and manage the
infrastructure of their first fund. Prior to this, Michelle spent 13 years at Goldman Sachs Investment Partners (GSIP, a part of GSAM) as COO where she was responsible for overseeing strategy, new product development, operations, finance, legal, investor relations, HR, and technology. During her time at GSIP she structured, launched and then managed several new investment strategies (PE, VC, event driven, public long/short, liquid alternatives, SPACs).
In addition to her COO responsibilities, Michelle served on private company boards, GSIP’s private investment committee, and served as GSIP’s head of capital markets leading employee tenders for several large private companies. Prior to GSIP, Michelle spent time as a fundamental research analyst at Alphadyne Asset Management and as a fixed income sales-trader at Goldman Sachs.
Ms. Barone holds a BS in Applied Mathematics from Columbia University and serves on the Board of Trustees of the Education Alliance.
Jordan Jaffe
Mr. Jaffe is a Vice President at Anthelion Capital. Mr. Jaffe's responsibilities include the sourcing, valuation, structuring and management of investments across all sustainable sectors. He is currently a member of the Board of Directors of quip and is a Board Observer for Bevi. Previously, Mr. Jaffe worked as an Associate on the Private Equity team at APG Asset Management, where he was responsible for evaluating investment opportunities across numerous sectors and monitoring existing portfolio company performance. Prior to that, Mr. Jaffe was an Investment Banking Analyst in the Financial Sponsors group at Guggenheim Securities, where he assisted private equity funds on a variety of M&A and financing transactions.
Mr. Jaffe holds a BS in Economics from the Wharton School and a BS in Nursing from the School of Nursing at the University of Pennsylvania.
There are no other arrangements or understandings between the directors of the Board and any other persons pursuant to which he or she was appointed as a member of the Board. None of the directors of the Board have any family relationship with any director or executive officer of the Company. There is no relationship between any director of the Board and the Company that would require disclosure pursuant to Item 404(a) of Regulation S-K.
Appointment of Officers
As of the Effective Date, Ewa Kozicz was appointed as President, Secretary, and Treasurer. Such appointment was made pursuant to the Plan without any requirement of further action by the stockholders or directors of the Company.
Ewa Kozicz
Ms. Kozicz will serve as President, Secretary, and Treasurer of the Company. Ms. Kozicz’s professional qualifications and experience are described above.
None of the executive officers listed above have any family relationship with any director or executive officer of the Company. There have been no transactions in which the Company has participated and in which the officers listed above had a direct or indirect material interest that would be required to be disclosed under Item 404(a) of Regulation S-K.
Termination of the Equity Incentive Plans
As of the Effective Date, in connection with emergence and cancellation of all of the existing shares of the Company’s common stock described under Items 1.02 and 3.03, all outstanding equity-based awards under the Proterra Inc 2021 Equity Incentive Plan (the “Equity Incentive Plan”), the Proterra Inc 2021 Employee Stock Purchase Plan (the “ESPP”) and the Proterra Inc 2010 Equity Incentive Plan (the “2010 Plan”, and, collectively with the Equity Incentive Plan, the ESPP and the 2010 Plan,
the “Equity Plans”) were automatically cancelled without consideration and the Equity Plans are of no further force and effect with respect to any equity-based awards thereunder.
As of the Effective Date, securities were no longer offered under the Equity Plans.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On the Effective Date, pursuant to the terms of the Plan, the Company filed the Amended and Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”) with the office of the Secretary of State of Delaware. Also on the Effective Date, and pursuant to the terms of the Plan, the Company adopted the Amended and Restated Bylaws of the Company (the “Bylaws”).
A description of the material changes from the Company’s prior certificate of incorporation (the “Prior Certificate”) and bylaws (the “Prior Bylaws”) is set forth below. Additionally, the General Corporation Law of the State of Delaware (the “DGCL”) may contain provisions that affect the capital stock of the Company.
The material differences between the Certificate of Incorporation and the Prior Certificate include the following:
| · | The Certificate of Incorporation provides that the authorized share capital of the Company is 1,000,000 shares of New Common Stock. The Prior Certificate provide that authorized share capital of the Company was 510,000,000 shares, consisting of 500,000,000 shares of common stock and 10,000,000 shares of preferred stock. |
| · | The Certificate of Incorporation prohibits the Company from issuing non-voting equity securities to the extent provided by Section 1123(a)(6) of the Bankruptcy Code, provided that such restriction (i) only applies to the extent required under Section 1123(a)(6) of the Bankruptcy Code, (ii) only for so long as Section 1123 of the Bankruptcy Code is in effect and applicable to the Company and (iii) may be amended or eliminated in accordance with applicable law as from time to time may be in effect. The Prior Certificate did not contain a comparable provision. |
| · | The Certificate of Incorporation has additional indemnification provisions and advancement of expenses provisions for directors and officers of the Company. |
| · | The Certificate of Incorporation provides that the Company, to the maximum extent permitted under applicable law, renounces any interest or expectancy in business opportunities presented to (i) Majority Holder (as defined in the Certificate of Incorporation) and its affiliates and (ii) non-employee directors of the Company and their affiliates (including with respect to any non-employee director who serves as an officer of the Company, in both his or her director and officer capacities) except such opportunities that are specifically presented to any such Major Holder or director for the Company’s benefit in such Major Holder’s or director’s capacity as a stockholder or director of the Company, and acknowledges the rights of such individuals to compete with the Company and have and make investments in and relationships with competing businesses. The Prior Certificate did not contain a comparable provision. |
The material differences between the Bylaws and the Prior Bylaws include the following:
| · | Removal of provisions related to nominations or other business to be brought before an annual meeting by stockholders in the Bylaws. |
| · | The affirmative vote of at least 80% of the voting power of all of the then outstanding shares of capital stock of the Company will be required to amend the Bylaws. Prior Bylaws provided that the affirmative vote of at least two-thirds of the voting power of all of the then-outstanding shares of the capital stock of the Company was required to amend the Prior Bylaws. |
The foregoing descriptions of the Certificate of Incorporation and the Bylaws do not purport to be complete and are qualified in their entirety by reference to the full texts of the Certificate of Incorporation and the Bylaws, which are attached as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K, respectively, and incorporated by reference herein.
Item 8.01 Other Events.
Deregistration of Securities and Suspension of SEC Reporting Obligations
In conjunction with its emergence from Chapter 11 Cases, the Company filed a post-effective amendments to each of its Registration Statements on Form S-8 with the Securities and Exchange Commission (the “SEC”) on March 1, 2024.
On the Effective Date, the Company filed a Form 15 with the SEC deregistering the Company’s common stock pursuant to Rule 12g-4(a)(1) under the Exchange Act. Upon filing the Form 15, the Company’s obligations to file certain reports and forms with the SEC, including Forms 10-K, 10-Q and 8-K, were immediately suspended. The Company intends to immediately cease filing any further periodic or current reports under the Exchange Act.
Cautionary Note to Holders of the Common Stock
As a result of the Plan becoming effective, all of the Company’s equity interests, consisting of outstanding shares of common stock of the Company and related rights to receive or purchase shares of common stock, were cancelled on the Effective Date without consideration and have no value.
No shares of New Common Stock will be reserved for future issuance in respect of claims and interests filed and allowed under the Plan or pursuant to the exercise of any rights, options or other obligations of the Company to issue its common stock.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
| Exhibit | Description | |
| 2.1 | ||
|
3.1 |
Amended and Restated Certificate of Incorporation of the Company. | |
| 3.2 | Amended and Restated Bylaws of the Company. | |
| 99.1 | Notice of Occurrence of Effective Date as to the Company. | |
| 104 | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document. |
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.
Date: March 13, 2024
| PROTERRA INC | ||||
| By: | /s/ Ewa Kosicz | |||
| Name: | Ewa Kosicz |
|||
| Title: | President, Secretary, Treasurer |
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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
PROTERRA INC
Proterra Inc, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY THAT:
1. The name of the Corporation is Proterra Inc and that the Corporation was originally incorporated pursuant to the General Corporation Law of the State of Delaware on June 11, 2021 under the name ArcLight Clean Transition Corp.
2. This Amended and Restated Certificate of Incorporation, which both restates and amends the provisions of the Certificate of Incorporation was duly approved and authorized in accordance with Sections 242, 245 and 303(a), (b) and (c) of the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”), by an order of the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) entered on March 6, 2024, confirming the Fifth Amended Joint Chapter 11 Plan of Reorganization of Proterra Inc and its Debtor Affiliate, March 1, 2024 (including all exhibits thereto and as amended, modified and supplemented from time to time, the “Plan”) filed in the cases commenced under title 11 of the United States Code, 11 U.S.C. §§ 101 -1532, jointly administered as Case No. 23-11120 pending before the Bankruptcy Court).
3. The Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety so as to read as follows:
FIRST: The name of the corporation (which is hereinafter referred to as the “Corporation”) is Prodigy Investments Holdings, Inc.
SECOND: The address of the Corporation’s registered office in the State of Delaware is 850 New Burton Road, Suite 201, Dover, Kent County, Delaware 19904. The name of the Corporation’s registered agent at such address is Cogency Global Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of capital stock which the Corporation shall have the authority to issue is 1,000,000 shares of common stock with a par value of $0.0001 per share.
FIFTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation (the “Board”) is expressly authorized to make, alter or repeal the Bylaws of the Corporation, subject to any specific limitation on such power contained in any Bylaws adopted by the stockholders. Elections of directors need not be by written ballot unless the Bylaws of the Corporation so provide.
SIXTH: No director or officer of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except for liability (a) of a director or officer for any breach of the director’s or officer’s duty of loyalty to the Corporation or its stockholders, (b) of a director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) of a director under Section 174 of the General Corporation Law of Delaware, (d) of a director or officer for any transaction from which the director or officer derived an improper personal benefit or (e) of an officer in any action by or in the right of the Corporation. If the General Corporation Law of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware, as so amended. Any repeal or modification of this Article Sixth by the stockholders of the Corporation shall not adversely affect any right or protection of a director or officer of the Corporation existing at the time of such repeal or modification. For purposes of this Article Sixth, “officer” shall have the meaning provided in Section 102(b)(7) of the General Corporation Law of Delaware, as it presently exists or may hereafter be amended from time to time.
SEVENTH: Each person who is or was a director or officer of the Corporation, and each person who serves or served at the request of the Corporation as a director or officer of another enterprise, shall be indemnified by the Corporation in accordance with, and to the fullest extent authorized by, the General Corporation Law of Delaware as it may be in effect from time to time.
EIGHTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this reservation.
NINTH: Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the General Corporation Law of Delaware or the Certificate of Incorporation or bylaws of the Corporation or (d) any action asserting a
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claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.
TENTH:
1. Right to Indemnification and Advancement. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter, a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer or trustee of another corporation or of any other Person or enterprise, including, without limitation, service with respect to employee benefit plans, whether the basis of such Proceeding is alleged action or inaction in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of Delaware, as the same exists as of the date hereof or as 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 said law permitted the Corporation to provide both prior to such amendment and as of the date hereof), against all expense, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, excise taxes of the Employee Retirement Income Security Act of 1974 or penalties and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer or trustee and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 2 of this Article Tenth, the Corporation shall indemnify any such person seeking indemnification in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or part thereof) was authorized by the Board. The right to indemnification conferred in this Article Tenth shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in connection with any such Proceeding in advance of its final disposition; provided, however, that, if the General Corporation Law of Delaware requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a Proceeding shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article Tenth or otherwise. The Corporation may, by action of the Board, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors, officers and trustees.
2. Right of Claimant to Bring Suit. If a claim under Section 1 of this Article Tenth is not paid in full by the Corporation within thirty days after written notice thereof has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall also be entitled to be paid the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred
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in connection with any Proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation, and as to any such other action as to which it shall not be a defense) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of Delaware for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including, without limitation, the Board, 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 under the General Corporation Law of Delaware, nor an actual determination by the Corporation (including, without limitation, the Board, 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.
3. Indemnitor of First Resort. The Corporation acknowledges that the directors designated by the Majority Holder (as defined below) (collectively, the “Fund Directors” and each, a “Fund Director”) have certain rights to indemnification, advancement of expenses and/or insurance provided by their employers and certain of their Affiliates (collectively, the “Fund Indemnitors”). To the extent the Corporation has an indemnity obligation hereunder, the Corporation shall (a) act as the indemnitor of first resort (i.e., its obligations to the Fund Directors are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such directors are secondary), (b) be required to advance the full amount of expenses incurred by the Fund Directors and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent not prohibited by (and not merely to the extent affirmatively permitted by) applicable law and as required by the terms of this Certificate of Incorporation of the Corporation (or any other agreement between the Corporation and a Fund Director), without regard to any rights a Fund Director may have against the Fund Indemnitors and (c) irrevocably waive, relinquish and release the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. No advancement or payment by the Fund Indemnitors on behalf of a Fund Director with respect to any claim for which such director has sought indemnification from the Corporation shall affect the foregoing. The Corporation shall promptly reimburse upon demand the Fund Indemnitors making any advancement or payment on behalf of a Fund Director with respect to any such claim, and, to the extent not fully reimbursed by the Corporation, the Fund Indemnitors shall have a right of contribution and/or to be subrogated to the extent of such advancement or payment to all of the rights of recovery of such director against the Corporation.
4. Non-Exclusivity of Rights. The rights to indemnification and the payment of expenses incurred in connection with a Proceeding in advance of its final disposition conferred in this Article Tenth shall not be (and they shall not be deemed to be) exclusive of any other right which any person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
5. Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, trustee, employee or agent of the Corporation
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or another corporation, or of a partnership, joint venture, trust or other enterprise against any expense, liability or loss (as such terms are used in this Article Tenth), whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of Delaware.
6. Impairment of Existing Rights. Any repeal or modification of this Article Tenth shall not impair or otherwise affect any rights, or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts.
7. Construction and Presumption. This Article Tenth shall be liberally construed in favor of indemnification and the payment of expenses incurred in connection with a Proceeding in advance of its final disposition. There shall be a rebuttable presumption that a claimant under this Article Tenth is entitled to such indemnification and the Corporation shall bear the burden of proving by a preponderance of the evidence that such claimant is not so entitled to indemnification.
8. Confidentiality. Any finding that a person asserting a claim for indemnification pursuant to this Article Tenth is not entitled to such indemnification, and any non-public information which may support such finding, shall be held in confidence to the extent permitted by law and shall not be disclosed to any third party.
9. Severability. If any provision or provisions of this Article Tenth shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article Tenth (including, without limitation, each portion of any paragraph of this Article Tenth containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of this Article Tenth (including, without limitation, each such portion of any paragraph of this Article Tenth containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to require the Corporation to indemnify and advance expenses.
ELEVENTH:
1. In recognition and anticipation that (a) certain directors, principals, members, officers, associated funds, employees and/or other representatives of the Majority Holder may serve as directors, officers or agents of the Corporation, (b) the Majority Holder may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, and (c) members of the Board who are not employees of the Corporation (“Non-Employee Directors”) and their respective Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, the
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provisions of this Article Eleventh are set forth to regulate and define the conduct of certain affairs of the Corporation with respect to certain classes or categories of business opportunities as they may involve any of the Majority Holder or the Non-Employee Directors and the powers, rights, duties and liabilities of the Corporation and its directors, officers and stockholders in connection therewith.
2. None of (a) the Majority Holder or (b) any Non-Employee Director (including, with respect to any Non-Employee Director who serves as an officer of the Corporation, in both his or her director and officer capacities) or his or her Affiliates (the Persons identified in clauses (a) and (b) above being referred to, collectively, as “Identified Persons” and, individually, as an “Identified Person”) shall, to the fullest extent permitted by law, have any duty to refrain from directly or indirectly (1) engaging in the same or similar business activities or lines of business in which the Corporation or any of its Affiliates now engages or proposes to engage or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the fullest extent permitted by law, no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the fullest extent permitted by law, the Corporation hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Identified Person and the Corporation or any of its Affiliates, except as provided in Section 4 of this Article Eleventh. Subject to said Section 4 of this Article Eleventh, in the event that any Identified Person acquires knowledge of a potential transaction or other matter or business opportunity which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by law, have no fiduciary duty or other duty (contractual or otherwise) to communicate, present or offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty or other duty (contractual or otherwise) as a stockholder, director or officer of the Corporation solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, offers or directs such corporate opportunity to another Person, or does not present such corporate opportunity to the Corporation or any of its Affiliates.
3. The Corporation and its Affiliates do not have any rights in or to the business ventures of any Identified Person, or the income or profits derived therefrom, and the Corporation agrees that each of the Identified Persons may do business with any potential or actual customer, client or supplier of the Corporation or may employ or otherwise engage any officer or employee of the Corporation.
4. The Corporation does not renounce its interest in any corporate opportunity offered to any Non-Employee Director (including any Non-Employee Director who serves as an officer of this Corporation) if such opportunity is expressly offered to such person in writing solely in his or her capacity as a director or officer of the Corporation, and the provisions of Section 2 of this Article Eleventh shall not apply to any such corporate opportunity.
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5. In addition to and notwithstanding the foregoing provisions of this Article Eleventh, a corporate opportunity shall not be deemed to be a potential corporate opportunity for the Corporation if it is a business opportunity that (a) the Corporation is neither financially or legally able, nor contractually permitted to undertake, (b) from its nature, is not in the line of the Corporation’s business or is of no practical advantage to the Corporation or (c) is one in which the Corporation has no interest or reasonable expectancy.
6. The Corporation shall not, without the prior written consent of the Majority Holder, amend, modify or revoke the provisions set forth in this Article Eleventh or any of the related definitions in Article Thirteenth at any time the Majority Holder holds any stock. Each stockholder of the Corporation hereby agrees to take all actions necessary or desirable to effect the foregoing sentence, including voting for or consenting to, or voting against or refusing to consent to, amendments to the Certificate of Incorporation (whether effected by merger, consolidation or otherwise) in order to give effect to the immediately preceding sentence. If any provision or provisions of this Article Eleventh or any of the related definitions in Article Thirteenth shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article Eleventh or any of the related definitions in Article Thirteenth (including, without limitation, each portion of any paragraph of this Article Eleventh or any of the related definitions in Article Thirteenth containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of this Article Eleventh or any of the related definitions in Article Thirteenth (including, without limitation, each such portion of any paragraph of this Article Eleventh or any of the related definitions in Article Thirteenth containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law. This Article Eleventh or any of the related definitions in Article Thirteenth shall not limit any protections or defenses available to, or indemnification or advancement rights of, any director or officer of the Corporation under this Certificate of Incorporation, the bylaws of the Corporation, applicable law, any agreement or otherwise. This Article Eleventh or any of the related definitions in Article Thirteenth supersedes any conflicting corporate policies (including, without limitation, any procedures required under any corporate policy).
7. To the fullest extent permitted by law, any Person purchasing or otherwise acquiring any interest in any shares of capital stock of the corporation shall be deemed to have notice of and to have consented to the provisions of this Article Eleventh or any of the related definitions in Article Thirteenth.
TWELFTH: The Corporation shall not issue any class of non-voting equity securities unless and solely to the extent permitted by Section 1123(a)(6) of title 11 of the United States Code (the “Bankruptcy Code”) as in effect on the date of filing of this Certificate of Incorporation with the Secretary of State of the State of Delaware; provided, however, that this Article Twelfth (a) will have no further force and effect beyond that required under Section 1123(a)(6) of the Bankruptcy Code, (b) will have such force and effect, if any, only for so long as Section 1123(a)(6) of the Bankruptcy Code is in effect and applicable to the Corporation and
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(c) in all events may be amended or eliminated from time to time in accordance with applicable law.
THIRTEENTH: As used in this Certificate of Incorporation, the following terms shall have the following meaning:
1. “Affiliate” of any particular Person means any other Person, directly or indirectly, controlling, controlled by, or under common control with, such particular Person. For the purposes of this definition, “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
2. “Majority Holder” means Anthelion Capital Partners LLC and its Affiliates (other than the Corporation and the Subsidiaries of the Corporation, if any) and their successors and assigns.
3. “Person” means an individual, corporation, limited liability company or partnership, association, joint stock company, trust, joint venture, unincorporated organization, the United States of America or any other nation, any state or other political subdivision thereof or any entity exercising executive, legislative, judicial, regulatory or administrative functions of government, or other entity of any nature, including, without limitation, any pension, profit sharing or other benefit plan or trust.
4. “Subsidiary” means: (a) any Person of which the Corporation owns, directly or indirectly, securities having a majority of the voting power in electing the board of directors directly or through one or more subsidiaries (or, in the case of a partnership, limited liability company or other similar entity, securities conveying, directly or indirectly, a majority of the economic interests in such partnership or entity), or (b) any other Person of which the Corporation or any Subsidiary serves as general partner or managing member. The term Subsidiary shall include all Subsidiaries of such Subsidiary.
* * *
[Signature Page Follows]
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by a duly authorized officer of the Corporation, this 13th day of March 2024.
| /s/ Ewa Kozicz | |||
Name: Title: |
Ewa Kozicz President, Secretary, and Treasurer |
||
[Signature Page to A&R Certificate of Incorporation of
Proterra Inc]
EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
PRODIGY INVESTMENTS HOLDINGS, INC.
(hereinafter called the “Corporation”)
Article I
MEETINGS OF STOCKHOLDERS
Section 1.1. Place of Meetings. Meetings of the stockholders of the Corporation for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors of the Corporation (the “Board”). The Board may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communications as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware, as amended (the “DGCL”).
Section 1.2. Annual Meetings. The annual meeting of stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly be brought before the meeting in accordance with these amended and restated bylaws of the Corporation (as amended from time to time in accordance with the provisions hereof, these “Bylaws”) shall be held on such date and at such time as shall be designated from time to time by the Board. The Chairperson of the Board, the Chief Executive Officer or the Board may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board.
Section 1.3. Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation (including the terms of any certificate of designation with respect to any series of preferred stock), as amended and restated from time to time (the “Certificate of Incorporation”), special meetings of the stockholders of the Corporation, for any purpose or purposes, may be called only by the Chairperson of the Board, the Chief Executive Officer or the Board or a majority of stockholders. If any person(s) other than the Board calls a special meeting, the request shall (a) be in writing, (b) specify the general nature of the business proposed to be transacted and (c) be delivered personally or sent by registered mail, return receipt requested, or by facsimile transmission to the Chairperson of the Board, Chief Executive Officer (or, in the absence of a Chief Executive Officer, the President) or Secretary. The officer of the Company receiving the request shall cause notice to be promptly given to the stockholders entitled to vote at such meeting, in accordance with these bylaws, that a meeting will be held at the place, if any, and hour determined by the Board, which shall not be fewer than 30 nor more than 120 days after the date of receipt of the request. At a special meeting of stockholders, only such business shall be conducted as shall be specified in the notice of meeting. The Board may postpone, reschedule or cancel any special meeting of stockholders previously called by any of them.
Section 1.4. Notice. Whenever stockholders of the Corporation are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which
shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by law or the Certificate of Incorporation, written notice of any meeting shall be given either personally, by mail or by electronic transmission (if permitted under the circumstances by the DGCL) 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 stockholders entitled to notice of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at the stockholder’s address as it appears on the stock transfer books of the Corporation. If notice is given by means of electronic transmission, such notice shall be deemed to be given at the times provided in the DGCL. Any stockholder may waive notice of any meeting before or after the meeting. The attendance of a stockholder at any meeting shall constitute a waiver of notice at such meeting, except where the stockholder attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of stockholders need be specified in any waiver of notice unless so required by law.
Section 1.5. Adjournments. Any meeting of stockholders of the Corporation may be adjourned or recessed from time to time to reconvene at the same or some other place, if any, by holders of a majority of the voting power of the Corporation’s capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, though less than a quorum, or by any officer entitled to preside at or to act as secretary of such meeting, and notice need not be given of any such adjourned or recessed meeting (including an adjournment taken to address a technical failure to convene or continue a meeting using remote communication) if the time and place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned or recessed meeting, are (a) announced at the meeting at which the adjournment or recess is taken, (b) displayed during the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxy holders to participate in the meeting by means of remote communication or (c) set forth in the notice of meeting given in accordance with these Bylaws. At the adjourned or recessed meeting, the Corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, notice of the adjourned meeting in accordance with the requirements of Section 1.4 of these Bylaws 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.
Section 1.6. Quorum. Unless otherwise required by applicable law or the Certificate of Incorporation, the holders of a majority of the voting power of the Corporation’s capital stock
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issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at a meeting of stockholders. Where a separate vote by a class or classes or series is required, a majority of the voting power of the shares of such class or classes or series present in person or represented by proxy shall constitute a quorum entitled to take action with respect to such vote. If a quorum shall not be present or represented at any meeting of stockholders, the chairperson of the meeting, any officer entitled to preside at or to act as secretary of such meeting or the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section 1.5 of these Bylaws, until a quorum shall be present or represented. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum.
Section 1.7. Voting.
(a) Matters Other Than Election of Directors. Any matter brought before any meeting of stockholders of the Corporation, other than the election of directors, shall be decided by the affirmative vote of the holders of a majority of the voting power of the Corporation’s capital stock present in person or represented by proxy at the meeting and entitled to vote on such matter, voting as a single class, unless the matter is one upon which, by express provision of law, the Certificate of Incorporation or these Bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such matter. Except as provided in the Certificate of Incorporation, every stockholder having the right to vote shall have one vote for each share of stock having voting power registered in such stockholder’s name on the books of the Corporation. Such votes may be cast in person or by proxy as provided in Section 1.10 of these Bylaws. The Board, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in such officer’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.
(b) Election of Directors. Except as provided in Section 2.8 of these Bylaws, election of directors at all meetings of the stockholders at which directors are to be elected shall be by a plurality of the votes cast.
Section 1.8. Voting of Stock of Certain Holders. Shares of stock of the Corporation standing in the name of a deceased person, a minor, an incompetent or a debtor in a case under Title 11, United States Code, and entitled to vote may be voted by an administrator, executor, guardian, conservator, debtor-in-possession or trustee, as the case may be, either in person or by proxy, without transfer of such shares into the name of the official or other person so voting. A stockholder whose shares of stock of the Corporation are pledged shall be entitled to vote such shares, unless on the transfer records of the Corporation such stockholder has expressly empowered the pledgee to vote such shares, in which case only the pledgee, or the pledgee’s proxy, may vote such shares.
Section 1.9. Treasury Stock. Shares of stock of the Corporation belonging to the Corporation, or to another corporation a majority of the shares entitled to vote in the election of directors of which are held by the Corporation, shall not be voted at any meeting of stockholders of the Corporation and shall not be counted in the total number of outstanding shares for the purpose of determining whether a quorum is present. Nothing in this Section 1.9 shall limit the
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right of the Corporation to vote shares of stock of the Corporation held by it in a fiduciary capacity.
Section 1.10. Proxies. Each stockholder entitled to vote at a meeting of stockholders of the Corporation may authorize another person or persons to act for such stockholder by proxy filed with the Secretary before or at the time of the meeting. No such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period.
Section 1.11. Consent of Stockholders in Lieu of Meeting. Any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of the 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, shall be 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 shall be delivered to the Corporation by delivery to its registered office in Delaware, 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.
Section 1.12. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make or have prepared and made, at least ten (10) days before every meeting of stockholders of the Corporation, a complete list of the stockholders entitled to vote at the meeting (provided, however, that if the record date for determining the stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth (10th) 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. Nothing contained in this Section 1.12 shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. 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 ending on the day before the meeting date: (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. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation.
Section 1.13. Record Date. In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders of the Corporation 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 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
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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, but 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 with the foregoing provisions of this Section 1.13 at the adjourned meeting.
Section 1.14. Organization and Conduct of Meetings. The Chairperson of the Board shall act as chairperson of meetings of stockholders of the Corporation (the “Chairperson of the Meeting”). The Board may designate any other director or officer of the Corporation to act as Chairperson of the Meeting in the absence of the Chairperson of the Board, and the Board may further provide for determining who shall act as Chairperson of the Meeting in the absence of the Chairperson of the Board and such designee. If the Chairperson of the Board is absent and the Board has not designated a replacement for Chairperson of the Meeting, the Vice Chairperson of the Board, if any, or in the absence of the foregoing person, the Chief Executive Officer, if any, or in the absence of the foregoing person, a Vice President of the Company, if any, or in the absence of the foregoing person, the Secretary, or in the absence of the foregoing person, a chairperson chosen at such meeting by the holders of a majority of the shares present or represented at such meeting, shall serve as the Chairperson of the Meeting. The Board may adopt by resolution such rules and regulations for the conduct of any meeting of stockholders as it shall deem appropriate. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairperson of the meeting, may include the following: (a) the establishment of an agenda or order of business for the meeting; (b) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (c) rules and procedures for maintaining order at the meeting and the safety of those present; (d) 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 the chairperson of the meeting shall determine; (v) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or comments by participants. Except to the extent inconsistent with the rules and regulations as adopted by the Board, the Chairperson of the Meeting shall have the right and authority to convene and (for any or no reason) to recess or adjourn the meeting to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such Chairperson of the Meeting, are appropriate for the proper conduct of the meeting. Except to the extent determined by the Board or the Chairperson of the Meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The Secretary, or in the Secretary’s absence an Assistant Secretary, shall act as secretary of the meeting of stockholders, but if neither the Secretary nor an Assistant Secretary is present, the Chairperson of the Meeting shall appoint any person present to act as secretary of the meeting.
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Article II
DIRECTORS
Section 2.1. Number; Term. The Board shall consist of one or more members. Unless the Certificate of Incorporation fixes the number of directors, the number of directors shall be fixed, from time to time, exclusively by the Board, subject to any limitations in any stockholder agreement or the rights of the holders of preferred stock with respect to the election of directors, if any. Each director shall hold office until a successor is duly elected and qualified or until the director’s death, resignation, disqualification or removal.
Section 2.2. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation required to be exercised or done by the stockholders.
Section 2.3. Meetings. The Board may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board may be held without notice at such time and at such place as may from time to time be determined by the Board. Special meetings of the Board may be called by the Chairperson of the Board (if there be one), the Chief Executive Officer or the Board and shall be held at such place, on such date and at such time as he, she or it shall specify.
Section 2.4. Notice. Notice of any meeting of the Board stating the place, date and time of the meeting shall be given to each director by mail posted not less than five (5) days before the date of the meeting, by nationally recognized overnight courier deposited not less than two (2) days before the date of the meeting or by email, facsimile or other means of electronic communication delivered or sent not less than twenty-four (24) hours before the date and time of the meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. If mailed or sent by overnight courier, such notice shall be deemed to be given at the time when it is deposited in the United States mail with first class postage prepaid or deposited with the overnight courier. Notice by facsimile or other electronic transmission shall be deemed given when the notice is transmitted. Any director may waive notice of any meeting before or after the meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where the director attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in any notice or waiver of notice of such meeting unless so required by law.
Section 2.5. Chairperson of the Board. The Chairperson of the Board shall be chosen from among the directors and may be the Chief Executive Officer. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the Chairperson of the Board shall preside at all meetings of stockholders and of the Board. The Chairperson of the Board shall have such other powers and duties as may from time to time be assigned by the Board.
Section 2.6. Organization. At each meeting of the Board, the Chairperson of the Board, or, in the Chairperson’s absence, a director chosen by a majority of the directors present, shall act as chairperson. The Secretary shall act as secretary at each meeting of the Board. In case the Secretary shall be absent from any meeting of the Board, an assistant secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary
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and all assistant secretaries, the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 2.7. Resignations and Removals of Directors. Any director of the Corporation may resign at any time, by giving notice in writing or by electronic transmission to the Chairperson of the Board, the Chief Executive Officer or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the occurrence of some other event, and, unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective. Subject to any limitations in any stockholder agreement or the rights of holders of any series of preferred stock with respect to the election of directors, a director may be removed from office by the stockholders of the Corporation in accordance with the provisions of the DGCL.
Section 2.8. Newly Created Directorships and Vacancies. Any newly created directorships and any vacancies on the Board may be filled by the affirmative votes of a majority of the remaining members of the Board, although less than a quorum. A director so elected shall hold office until the earlier of the expiration of the term of the director whom he or she has replaced, the proper election and qualification of a successor or that director’s death, resignation, disqualification or removal.
Section 2.9. Quorum. At all meetings of the Board, a majority of directors constituting the Board shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present.
Section 2.10. Actions of the Board by Written 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 the members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission are filed with the minutes of proceedings of the Board or committee.
Section 2.11. Telephonic Meetings. Members of the Board, or any committee thereof, may participate in a meeting of the Board or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 2.11 shall constitute presence in person at such meeting.
Section 2.12. Committees. The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation and, to the extent permitted by law, to have and exercise such authority as may be provided for in the resolutions creating such committee, as such resolutions may be amended from time to time. 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 any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of an alternate member to replace the absent or disqualified member, the member or members thereof 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
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the meeting in the place of any absent or disqualified member. Each committee shall keep regular minutes and report to the Board when required. A majority of any committee may determine its action and fix the time and place of its meetings, unless the Board shall otherwise provide. The Board shall have the power at any time to fill vacancies in, to change the membership of or to dissolve any such committee.
Section 2.13. Compensation. The Board shall have the authority to fix the compensation of directors. The directors shall be paid their reasonable expenses, if any, of attendance at each meeting of the Board or any committee thereof and may be paid a fixed sum for attendance at each such meeting and an annual retainer or salary for service as director or committee member, payable in cash or securities. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Directors who are full-time employees of the Corporation shall not receive any compensation for their service as director.
Section 2.14. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of the Corporation’s directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof that authorizes the contract or transaction, or solely because any such director’s or officer’s vote is counted for such purpose if: (i) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (ii) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board or of a committee that authorizes the contract or transaction.
Article III
OFFICERS
Section 3.1. General. The officers of the Corporation shall be chosen by the Board and shall be a Chief Executive Officer (or, alternatively, a President), a Secretary and a Treasurer. The Board, in its discretion, may also choose a Chairperson of the Board (who must be a director), a Vice Chairperson of the Board (who must be a director), a President, a Chief Financial Officer, one or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers as the Board from time to time may deem appropriate. Any two or more offices may be held by the same person. The officers of the Corporation need not be stockholders of the Corporation nor, except in the
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case of the Chairperson of the Board or the Vice Chairperson of the Board, directors of the Corporation.
Section 3.2. Election; Term. The Board shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board, and each officer of the Corporation shall hold office until such officer’s successor is elected and qualified, or until such officer’s earlier death, resignation or removal. Any officer may be removed at any time by the Board. Any officer may resign upon notice given in writing or electronic transmission to the Chief Executive Officer (or, if none, the President) or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the occurrence of some other event. Any vacancy occurring in any office of the Corporation shall be filled in the manner prescribed in this Article III.
Section 3.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer (or, if none, the President) or any other officer authorized to do so by the Board, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority. The Board may, by resolution, from time to time confer like powers upon any other person or persons.
Section 3.4. Chief Executive Officer. The Chief Executive Officer shall, subject to the control of the Board, have general supervision over the business of the Corporation and shall direct the affairs and policies of the Corporation. The Chief Executive Officer shall also perform such other duties and may exercise such other powers as may from time to time be assigned to such officer by these Bylaws or by the Board.
Section 3.5. President. The President (if any) shall act in a general executive capacity and shall assist the Chief Executive Officer in the administration and operation of the Corporation’s business and general supervision of its policies and affairs. The President shall, in the absence of or because of the inability to act of the Chief Executive Officer or if there be none, perform all duties of the Chief Executive Officer.
Section 3.6. Executive Vice Presidents, Senior Vice Presidents and Vice Presidents. The Executive Vice Presidents (if any), Senior Vice Presidents (if any) and such other Vice Presidents as shall have been chosen by the Board shall have such powers and shall perform such duties as shall be assigned to them by the Board.
Section 3.7. Secretary. The Secretary shall give the requisite notice of meetings of stockholders and directors and shall record the proceedings of such meetings and, besides the Secretary’s powers and duties prescribed by law, shall have such other powers and perform such other duties as shall at any time be assigned to such officer by the Board.
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Section 3.8. Treasurer. The Treasurer shall have charge of the funds and securities of the Corporation and shall have such other powers and perform such other duties as shall at any time be assigned to such officer by the Board.
Section 3.9. Assistant Secretaries. Assistant Secretaries (if any) shall assist the Secretary in the discharge of the Secretary’s duties, shall have such powers and perform such other duties as shall at any time be assigned to them by the Board and, in the absence or disability of the Secretary, shall perform the duties of the Secretary’s office, subject to the control of the Board.
Section 3.10. Assistant Treasurers. Assistant Treasurers (if any) shall assist the Treasurer in the discharge of the Treasurer’s duties, shall have such powers and perform such other duties as shall at any time be assigned to them by the Board and, in the absence or disability of the Treasurer, shall perform the duties of the Treasurer’s office, subject to the control of the Board.
Section 3.8. Other Officers. Such other officers as the Board may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board. The Board may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.
Article IV
STOCK
Section 4.1. Stock Certificates. Unless otherwise provided by resolution of the Board, each class or series of shares of the Corporation’s capital stock shall be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form. The name of the holder of record of the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the books of the Corporation. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Company. Every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of, the Company by any two authorized officers of the Company representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. Uncertificated shares shall be transferable only on the books of the Corporation by the holder thereof in person or by attorney upon presentment of proper evidence of succession, assignation or authority to transfer in accordance with the customary procedures for transferring shares in uncertificated form.
Section 4.2. Record Date. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date,
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which record date shall not precede the date upon which the resolution fixing the record date is adopted and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be the close of business on the day on which the Board adopts the resolution relating thereto.
Section 4.3. Dividends. Subject to applicable law and the Certificate of Incorporation, dividends upon the shares of capital stock of the Corporation may be declared by the Board at any regular or special meeting of the Board. Dividends may be paid in cash, in property, or in shares of the Corporation’s capital stock, unless otherwise provided by applicable law or the Certificate of Incorporation.
Section 4.4. Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law.
Article V
MISCELLANEOUS
Section 5.1. Contracts. The Board may authorize any officer or officers or any agent or agents to enter into any contract or execute and deliver any instrument or other document in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
Section 5.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board may from time to time designate.
Section 5.3. Fiscal Year. The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the Board. Unless otherwise fixed by the Board, the fiscal year of the Corporation shall be the calendar year.
Section 5.4. Corporate Seal. The Company may adopt a corporate seal, which shall be in such form as may be approved from time to time by the Board. The Company may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
Section 5.5. Offices. The Corporation shall maintain a registered office inside the State of Delaware and may also have other offices outside or inside the State of Delaware. The books of the Corporation may be kept (subject to any applicable law) outside the State of Delaware at the principal executive offices of the Corporation or at such other place or places as may be designated from time to time by the Board.
Section 5.6. Conflict with Certificate of Incorporation. These Bylaws are adopted subject to the Certificate of Incorporation. Whenever these Bylaws may conflict with the
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Certificate of Incorporation, such conflict shall be resolved in favor of the Certificate of Incorporation.
Section 5.7. Execution in Counterpart and by Electronic Means. Subject to the DGCL, signatures on any notice, resolution, requisition, statement or other document required or permitted to be executed for the purposes of the DGCL may be obtained by means of facsimile or other electronic means or by execution of several documents of like form, each of which is executed by one or more persons, and such documents, when duly executed by all persons required or permitted, as the case may be, to do so, shall be deemed to constitute one document for the purposes of the DGCL.
Section 5.8. Waiver of Notice. Whenever any notice is required to be given to any stockholder or director of the Corporation under the provisions of the DGCL or these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders or any regular or special meeting of the Board or committee thereof need be specified in any waiver of notice of such meeting unless so required by law.
Section 5.9. Forum for Certain Actions.
(a) Forum. Unless a majority of the Board, acting on behalf of the Corporation, consents in writing to the selection of an alternative forum (which consent may be given at any time, including during the pendency of litigation), the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, another state court located within the State of Delaware or, if no court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any of its directors, officers or other employees arising pursuant to any provision of the DGCL, the Certificate of Incorporation or these Bylaws (in each case, as may be amended from time to time), (iv) any action asserting a claim against the Corporation or any of its directors, officers or other employees governed by the internal affairs doctrine of the State of Delaware or (v) any other action asserting an “internal corporate claim,” as defined in Section 115 of the DGCL, in all cases subject to the court’s having personal jurisdiction over all indispensable parties named as defendants.
(b) Personal Jurisdiction. If any action the subject matter of which is within the scope of subparagraph (a) of this Section 5.9 is filed in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce subparagraph (a) of this Section 5.9 (an “Enforcement Action”) and (ii) having service of process made upon such stockholder in any such Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
(c) Enforceability. If any provision of this Section 5.9 shall be held to be invalid, illegal or unenforceable as applied to any person, entity or circumstance for any reason
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whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provision in any other circumstance and of the remaining provisions of this Section 5.8, and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.
Section 5.10. Notice to Stockholders Sharing an Address.
Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Company under any provision of the DGCL, the certificate of incorporation or these bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. Any such consent shall be revocable by the stockholder by written notice to the Company. Any stockholder who fails to object in writing to the Company, within 60 days of having been given written notice by the Company of its intention to send the single notice permitted under this Section 5.10, shall be deemed to have consented to receiving such single written notice. This Section 5.10 shall not apply to Section 164, Section 296, Section 311, Section 312 or Section 324 of the DGCL.
Section 5.11. Notice to Person with Whom Communication is Unlawful.
Whenever notice is required to be given, under the DGCL, the certificate of incorporation or these bylaws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Company is such as to require the filing of a certificate under the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
Section 5.12. Ratification. Any transaction, questioned in any lawsuit on the ground of lack of authority, defective or irregular execution, adverse interest of director, officer or stockholder, non disclosure, miscomputation, or the application of improper principles or practices of accounting, may be ratified before or after judgment, by the Board or by the stockholders, and if so ratified shall have the same force and effect as if the questioned transaction had been originally duly authorized. Such ratification shall be binding upon the Corporation and its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.
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Article VI
AMENDMENTS
These Bylaws may be adopted, amended, altered or repealed by the Board or by the stockholders of the Corporation by the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class; provided, however, that, in the case of any adoption, amendment, alteration or repeal of these Bylaws by the stockholders of the Corporation, notwithstanding any other provision of these Bylaws, and in addition to any other vote that may be required by law or the terms of any series of preferred stock, the affirmative vote of the holders of at least eighty percent (80%) of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, repeal or adopt any provision inconsistent with Sections 1.3, 1.7(b), 1.11, 2.1 or 2.8 or this Article VI.
* * *
Adopted as of: March 13, 2024
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EXHIBIT 99.1
IN THE UNITED STATES BANKRUPTCY
COURT
FOR THE DISTRICT OF DELAWARE
| ) | ||
| In re: | ) | Chapter 11 |
| ) | ||
| PROTERRA INC, et al.,1 | ) | Case No. 23-11120 (BLS) |
| ) | ||
| Debtors. | ) | (Jointly Administered) |
| ) |
|
NOTICE OF (I) ENTRY OF CONFIRMATION ORDER, (II) OCCURRENCE OF
EFFECTIVE DATE, AND (III) FINAL DEADLINES FOR FILING CERTAIN CLAIMS
PLEASE TAKE NOTICE that on March 6, 2024, the United States Bankruptcy Court for the District of Delaware (the “Court”) confirmed the Fifth Amended Joint Chapter 11 Plan of Reorganization for Proterra Inc and Its Debtor Affiliate (with all supplements and exhibits thereto, as it has been and may be amended, altered, modified, revised, or supplemented from time to time, the “Plan”), which is attached as Exhibit A to the Findings of Fact, Conclusions of Law, and Order Confirming the Fifth Amended Joint Chapter 11 Plan of Reorganization of Proterra Inc and Its Debtor Affiliate Docket No. 1180 (the “Confirmation Order”).2
PLEASE TAKE FURTHER NOTICE that on March 13, 2024, the Effective Date of the Plan occurred. All conditions precedent to the Effective Date set forth in Article VIII.A of the Plan have been satisfied or waived in accordance with the Plan and the Confirmation Order.
PLEASE TAKE FURTHER NOTICE that in accordance with the Plan, requests for payment of Administrative Claims that accrued before the Effective Date (other than Professional Compensation Claims, Claims arising out of Statutory Fees, Health Insurance Claims, Claims of Ordinary Course Professionals pursuant to the Ordinary Course Professionals Order, and KEIP Claims, the Holders of which shall not be required to file requests for payment in connection therewith) must be Filed with the clerk of the Court and served on the Distribution Trustee pursuant to the procedures specified in the Confirmation Order no later than April 12, 2024 (i.e., the first Business Day that is thirty (30) days following the Effective Date) (the “Administrative Claims Bar Date”); provided that nothing herein shall be deemed to extend the deadline for filing requests for payment of 503(b)(9) Claims, which is the General Bar Date (as defined in the Plan). Any Holder of an Administrative Claim that is required to, but does not, file and serve a request for payment of such Administrative Claim by the applicable Bar Date shall be deemed to
| 1 | The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification number, are as follows: Proterra Inc (9565); and Proterra Operating Company, Inc. (8459). The location of the Debtors’ service address is: 504 Pennsylvania Avenue PO Box 2205 Greer, South Carolina 29652. | |
| 2 | Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Confirmation Order or the Plan, as applicable. |
have waived such Administrative Claim and be forever barred from receiving payment on account thereof.
PLEASE TAKE FURTHER NOTICE THAT, except as set forth in the Confirmation Order, pursuant to Article V.A of the Plan, all Executory Contracts that do not fall into categories (a), (b), or (c) as set forth therein, are deemed rejected as of the Effective Date. Proofs of Claim with respect to Claims arising from the rejection of Executory Contracts or Unexpired Leases pursuant to the Plan, if any, must be Filed with the clerk of the Court and served upon the Debtors or Reorganized Debtors, as applicable, and the Distribution Trustee, by April 12, 2024 (i.e., thirty (30) calendar days following the Effective Date). Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not Filed within the time required by Article V.C of the Plan is subject to disallowance under 11 U.S.C. § 502(b)(9), and once disallowed will be forever barred from assertion against any of the Debtors, the Estates, the property of the Debtors or the Distribution Trust, and the Distribution Trustee.
PLEASE TAKE FURTHER NOTICE that, in accordance with the Confirmation Order, all final requests for payment of Professional Compensation Claims shall be Filed no later than April 29, 2024 (i.e., forty-five (45) calendar days following the Effective Date).3
PLEASE TAKE FURTHER NOTICE that the release, exculpation, and injunction provisions set forth in, among others, Articles IX.B, IX.C, IX.D, and IX.E of the Plan, are immediately effective as of the Effective Date and binding on all Persons and Entities to the extent set forth therein.
PLEASE TAKE FURTHER NOTICE that the Plan, the Plan Documents, and the Confirmation Order are immediately effective and enforceable and deemed binding upon the Debtors, the Reorganized Debtors, all Entities that are parties to or are subject to the settlements, compromises, releases, discharges, and injunctions described in the Plan and the Confirmation Order, each Entity acquiring property under the Plan or the Confirmation Order, any and all non-Debtor parties to Executory Contracts and Unexpired Leases with the Debtors, any Holder of a Claim or Interest, and each of their respective heirs, executors, administrators, successors, and assigns, whether or not: (a) the Claim or Interest is Impaired under the Plan; (b) such Holder has accepted or rejected the Plan; (c) such Holder has failed to vote to accept or reject the Plan; (d) such Holder is entitled to a distribution under the Plan; (e) such Holder will receive or retain any property or interests in property under the Plan; or (f) such Holder has filed a Proof of Claim in the Chapter 11 Cases.
PLEASE TAKE FURTHER NOTICE that copies of Confirmation Order, the Plan, the Plan Supplement, and related documents can be viewed and/or obtained by: (a) accessing the Court’s website at https://ecf.deb.uscourts.gov/, or (b) from the Debtors’ Claims Agent, KCC, at https://www.kccllc.net/proterra or by calling (888) 251-3076 (USA or Canada) or (310) 751-2617 (International). Note that a PACER password is needed to access documents on the Court’s website.
| 3 | See Bankruptcy Rule 9006(a). |
Please take further notice that your rights may be affected. You should read the Plan and the Confirmation Order carefully and discuss it with your attorney, if you have one. If you do not have an attorney, you may wish to consult with one.
IF YOU HAVE ANY QUESTIONS ABOUT THIS NOTICE, PLEASE CONTACT KURTZMAN CARSON CONSULTANTS LLC BY CALLING (888) 251-3076 (USA AND CANADA) OR (310) 751-2617 (INTERNATIONAL). YOU MAY ACCESS DOCUMENTS AND CASE INFORMATION AT: https://www.kccllc.net/proterra |
| Dated: | March 13, 2024 | Respectfully submitted, |
||
| Wilmington, Delaware | ||||
YOUNG CONAWAY STARGATT & TAYLOR, LLP |
||||
| /s/ Andrew L. Magaziner | ||||
Pauline K. Morgan (No. 3650) Andrew L. Magaziner (No. 5426) Shella Borovinskaya (No. 6758) Rodney Square 1000 North King Street Wilmington, Delaware 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 |
||||
| Email: | pmorgan@ycst.com | |||
| amagaziner@ycst.com | ||||
| sborovinskaya@ycst.com | ||||
| - and - | ||||
PAUL, WEISS, RIFKIND, Paul M. Basta (admitted pro hac vice) Robert A. Britton (admitted pro hac vice) Michael J. Colarossi (admitted pro hac vice) 1285 Avenue of the Americas New York, New York 10019 |
||||
| Tel: (212) 373-3000 | ||||
| Fax: (212) 757-3990 | ||||
| Email: | pbasta@paulweiss.com | |||
| rbritton@paulweiss.com | ||||
| mcolarossi@paulweiss.com | ||||
Counsel to the Debtors and Debtors in Possession |
||||
Cover |
Mar. 13, 2024 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Mar. 13, 2024 |
| Current Fiscal Year End Date | --12-31 |
| Entity File Number | 001-39546 |
| Entity Registrant Name | Proterra Inc |
| Entity Central Index Key | 0001820630 |
| Entity Tax Identification Number | 90-2099565 |
| Entity Incorporation, State or Country Code | DE |
| Entity Address, Address Line One | 504 Pennsylvania Avenue |
| Entity Address, Address Line Two | PO Box 2205 |
| Entity Address, City or Town | Greer |
| Entity Address, State or Province | SC |
| Entity Address, Postal Zip Code | 29652 |
| City Area Code | 303 |
| Local Phone Number | 689-8855 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Entity Emerging Growth Company | false |
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