UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
May 24, 2017
MAGELLAN HEALTH, INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE |
1-6639 |
58-1076937 |
(State or Other Jurisdiction |
(Commission File |
(IRS Employer |
of Incorporation) |
Number) |
Identification No.) |
4800 N. SCOTTSDALE RD, SUITE 4400 |
|
SCOTTSDALE, ARIZONA |
85251 |
(Address of Principal Executive Offices) |
(Zip Code) |
Registrant’s telephone number, including area code: (602) 572-6050
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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. ◻
Item 5.03 Amendment of Articles of Incorporations or Bylaws; Change in Fiscal Year.
As disclosed in Item 5.07 below, on May 24, 2017, the shareholders of Magellan Health, Inc. (the “Company”) approved amendments to the Company’s amended and restated certificate of incorporation (as approved by shareholders, the “Second Amended and Restated Certificate of Incorporation”) in order to declassify the Company’s board of directors and provide that directors shall be elected for one-year terms after a transition period. The amendments also remove a number of obsolete provisions relating primarily to a class of capital stock that is no longer outstanding or issuable. The Second Amended and Restated Certificate of Incorporation was previously approved by the board of directors, subject to shareholder approval, and became effective upon filing with the Delaware Secretary of State on May 25, 2017.
On May 24, 2017, the board of directors amended and restated the Company’s bylaws (as amended and restated, the “Bylaws”), effective upon the filing of the Second Amended and Restated Certificate of Incorporation with the Delaware Secretary of State. The amendments consist of conforming changes to reflect the declassification of the board of directors and the removal of obsolete provisions relating to a class of capital stock no longer outstanding or issuable.
Copies of the Second Amended and Restated Certificate of Incorporation and the Bylaws are filed as Exhibit 3.1 and Exhibit 3.2, respectively, to this Current Report on Form 8-K and are incorporated by reference herein. The foregoing descriptions of the Second Amended and Restated Certificate of Incorporation and the Bylaws do not purport to be complete and are qualified in their entirety by reference to the full text of the Second Amended and Restated Certificate of Incorporation and the Bylaws.
Item 5.07 Submission of Matters to a Vote of Security Holders.
The annual meeting of shareholders of the Company (the “Meeting”) was held on May 24, 2017, in connection with which proxies were solicited pursuant to Regulation 14A under the Securities Exchange Act of 1934. At the close of business on March 31, 2017, the record date for the Meeting, 23,717,121 shares of the Company’s common stock were issued, outstanding and entitled to vote. At the Meeting, 22,066,924 shares of the Company’s common stock were represented in person or by proxy. Four proposals were scheduled and noted to be acted upon at the Meeting: (i) to elect four directors to serve until the 2020 annual meeting (“Proposal Number One”); (ii) to approve, in an advisory vote, the compensation of the Company’s named executive officers (“Proposal Number Two”); (iii) to approve the Company’s Second Amended and Restated Certificate of Incorporation to declassify the Company’s board of directors and to delete obsolete provisions (“Proposal Number Three”), and (iv) to ratify the appointment of Ernst & Young LLP as the Company’s independent accountants for fiscal year 2017 (“Proposal Number Four”).
At the Meeting, four directors, William J. McBride, Perry G. Fine, M.D., John O. Agwunobi, M.D., and G. Scott MacKenzie, were nominated for election to serve three year terms until the Company’s 2020 annual meeting, or until the election and qualification of their successors were elected. The vote with respect to each such nominee was as follows:
Nominee |
|
For |
|
Withheld |
|
Broker Non-Votes |
William J. McBride |
|
20,835,243 |
|
79,640 |
|
1,152,041 |
Perry G. Fine, M.D. |
|
20,856,715 |
|
58,168 |
|
1,152,041 |
John O. Agwunobi, M.D. |
|
20,882,804 |
|
32,079 |
|
1,152,041 |
G. Scott MacKenzie |
|
20,881,313 |
|
33,570 |
|
1,152,041 |
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Other directors whose terms of office continued after the Meeting are: Barry M. Smith, Michael S. Diament, Mary F. Sammons, Eran Broshy and Kay Coles James.
Proposal Number Two was adopted with 20,550,327 shares voted for, 353,614 shares voted against, 10,942 shares abstaining and 1,152,041 broker non-votes.
Proposal Number Three was adopted with 20,904,908 shares voted for, 6,386 shares voted against, 3,589 shares abstaining and 1,152,041 broker non-votes.
Proposal Number Four was adopted with 21,986,240 shares voted for, 79,157 shares voted against and 1,527 shares abstaining.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
Exhibit Number |
|
Description |
||
3.1 |
Second Amended and Restated Certificate of Incorporation of the Company, as amended and restated on May 25, 2017. |
|||
3.2 |
Bylaws of the Company as amended and restated on May 24, 2017. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
MAGELLAN HEALTH, INC.
Date: May 25, 2017 |
By: |
/s/ Jonathan N. Rubin |
|
|
|
Name: |
Jonathan N. Rubin |
|
|
Title: |
Chief Financial Officer |
|
|
|
|
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Exhibit Index
Exhibit Number |
|
Description |
||
3.1 |
Second Amended and Restated Certificate of Incorporation of the Company, as amended and restated on May 25, 2017. |
|||
3.2 |
Bylaws of the Company as amended and restated on May 24, 2017. |
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Exhibit 3.1
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MAGELLAN HEALTH, INC.
1. The name of the Corporation is Magellan Health, Inc. (the "Corporation"). The name under which the Corporation was originally incorporated was Charter Medical Corporation. The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on August 11, 1969 (the "Original Certificate of Incorporation"). The Corporation filed an Amended and Restated Certificate of Incorporation on January 5, 2004 to amend and restate the Original Certificate of Incorporation, as amended, which was duly adopted in accordance with Sections 242, 245 and 303 of the General Corporation Law of the State of Delaware (the “DGCL”), to put into effect and carry out a plan of reorganization. The Corporation filed a Certificate of Ownership and Merger with the Secretary of State of the State of Delaware on June 4, 2014 to change the Corporation’s name from Magellan Health Services, Inc. to Magellan Health, Inc. pursuant to Section 253(b) of the DGCL.
2. This Second Amended and Restated Certificate of Incorporation, which restates, integrates, and further amends the certificate of incorporation of the Corporation as heretofore amended and restated, has been adopted by the Corporation in accordance with Sections 242 and 245 of the DGCL and has been adopted by the requisite vote of the stockholders of the Corporation.
3. The date of filing of this Second Amended and Restated Certificate of Incorporation is May 25, 2017.
4. The text of the certificate of incorporation of the Corporation as amended and restated by this Second Amended and Restated Certificate of Incorporation reads in its entirety as follows:
ARTICLE FIRST: Name. The name of the Corporation is Magellan Health, Inc.
ARTICLE SECOND: Registered Office. The location and post office address of its registered office in this State is Corporation Service Company, 2711 Centerville Road, County of New Castle, Wilmington, Delaware 19808.
ARTICLE THIRD: Purposes. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL, as from time to time amended.
ARTICLE FOURTH: Duration. The term of its existence is perpetual.
ARTICLE FIFTH: Authorized Stock.
Part A: Authorized Number of Shares. The total number of shares of capital stock that the Corporation shall have the authority to issue is 110,000,000 shares, consisting of: (i) 100,000,000 shares of Common Stock, par value $.01 per share (the "Common Stock") and (ii) 10,000,000 shares of Preferred Stock, par value $.01 per share (the "Preferred Stock").
Part B: Powers, Privileges and Rights of the Common Stock. All shares of Common Stock will be identical in all respects and will entitle the holders thereof to the same powers, privileges and rights, except as otherwise provided by law or any other provision of the Corporation's certificate of incorporation from time to time in effect.
Section 1. Voting Powers. Except as otherwise provided by law, by Part C of this article or by any other provision of the Corporation's certificate of incorporation from time to time in effect, the holders of shares of Common Stock shall have the sole power to vote on all matters on which stockholders of the Corporation may vote (or to consent in lieu of a vote at a meeting) and if any holders of any other class or series of capital stock of the Corporation are entitled to vote together with the holders of Common Stock, such holders shall vote together with the holders of the Common Stock as though a single class.
(a) Holders of Common Stock shall have one vote per share on all matters on which such holders are entitled to vote.
(b) With respect to the election of directors of the Corporation by the stockholders, all directors of the Corporation shall be elected by vote of the holders of the Common Stock, except as otherwise provided in the resolution or resolutions fixing and determining the powers, privileges and rights of a series of Preferred Stock in effect as provided by Part C of Article Fifth hereof with respect to a director as to whose election the holders of such series of Preferred Stock are entitled to vote. Except as otherwise provided in the resolution or resolutions fixing and determining the powers, privileges and rights of a series of Preferred Stock in effect as provided by Part C of Article Fifth with respect to a director as to whose election the holders of such series of Preferred Stock are entitled to vote, in any election of directors of the Corporation by the stockholders, the individual receiving the highest number of votes in favor of his or her election from
the stockholders entitled to vote thereon shall be elected.
Part C: Preferred Stock. Shares of Preferred Stock may be issued from time to time in one or more series, each such series having such powers, preferences and rights, and the qualifications, limitations or restrictions thereof, as are stated and expressed in the resolution or resolutions providing for the issuance of such series adopted by the Board of Directors of the Corporation as hereinafter provided. Authority is hereby granted to the Board of Directors of the Corporation to issue from time to time shares of the Preferred Stock in one or more series, each such series to include such number of shares and to have such powers, preferences and rights as are stated and expressed in a resolution or resolutions adopted by the Board of Directors of the Corporation and filed as required by the DGCL before such issuance and determining and fixing such voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, optional or other special rights of such series of Preferred Stock, and the qualifications, limitations or restrictions thereof (including without limitation, dividend rights, special voting rights or powers, conversion rights, redemption privileges and liquidation preferences), as shall in the discretion of the Board of Directors of the Corporation be stated and expressed in such resolutions, all to the full extent now or hereafter permitted by the DGCL. Any shares of Preferred Stock which may be redeemed, repurchased or otherwise acquired by the Corporation may be reissued except as otherwise provided by law.
Part D: Uncertificated Shares. Any or all classes and series of stock of the Corporation, or any part thereof, may be represented by uncertificated stock to the extent permitted by the DGCL. The rights and obligations of the holders of stock represented by certificates and the rights and obligations of the holders of uncertificated stock of the same class and series shall be identical.
ARTICLE SIXTH: Management of the Corporation's Business and Affairs
Part A: The Board of Directors. The business and affairs of the Corporation shall be managed by or under the authority of the Board of Directors of the Corporation, which shall be constituted and act in accordance with law and the provisions of the certificate of incorporation and bylaws of the Corporation.
Section 1. Number of Members and Allocation to Classes. The number of members of the Board of Directors shall be as provided by the Bylaws. Prior to the 2018 annual meeting of stockholders, the Board of Directors shall be and is divided into three classes, designated as Class 1, Class 2 and Class 3. Each director elected prior to the 2018 annual meeting of stockholders shall serve the full three-year term to which such director was elected. Following the expiration of the terms of (a) the Class 2 directors at the 2018 annual meeting of stockholders, (b) the Class 3 directors at the 2019 annual meeting of stockholders and (c) the Class 1 directors at the 2020 annual meeting of stockholders, the directors whose terms expire at each such meeting shall be elected for a term of one year, expiring at the earlier of (i) the succeeding annual meeting of stockholders or (ii) the election and qualification of such director’s successor or upon his or her death, incapacity, resignation or removal; provided, however, that any director elected exclusively by the holders of one or more series of Preferred Stock shall have such term of office as shall be provided in the resolution or resolutions fixing and determining the designation, powers, preferences and rights of such series of Preferred Stock in effect as provided by Part C of Article Fifth hereof. Each director selected as a successor to a director in office shall have the remaining term of office of the director he or she succeeded, except that, if such successor director is elected at an annual meeting of stockholders at which the term of the director succeeded by such successor director expired, such term shall extend until the succeeding annual meeting of stockholders.
Section 2. Selection and Removal of Directors. Whenever a director is to be elected by the stockholders, such director shall be elected by the vote of the stockholders otherwise provided by law and the certificate of incorporation and bylaws of the Corporation. Election of directors need not be by ballot. Except as otherwise provided in the resolution or resolutions fixing and determining the powers, privileges and rights of a series of Preferred Stock in effect as provided by Part C of Article Fifth hereof with respect to the vote of the holders of such series on the removal of a director as to whose election the holders of such series were entitled to vote, any director may be removed from office with or without Cause (as hereinafter defined) by the affirmative vote of the holders of Common Stock entitled to cast a majority of the votes which all holders of Common Stock are entitled to cast at the meeting held to vote on removal of such director (or by such written consent in lieu of a meeting of holders of Common Stock as provided for such action by law and the certificate of incorporation and bylaws of the Corporation). For purposes hereof, "Cause" for the removal of a director shall mean conviction of a felony, any act of dishonesty in respect of the Corporation or a breach of fiduciary duty to the Corporation.
Part B: Director Liability. A director of the Corporation shall not be personally liable either to the Corporation or to any stockholder for monetary damages for breach of fiduciary duty as a director, except (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, or (ii) for acts or omissions which are not in good faith or which involve intentional misconduct or knowing violation of the law, or (iii) for any matter in respect of which such director shall be liable under Section 174 of the DGCL or any amendment thereto or successor provision thereto, or (iv) for any transaction from which the director shall have derived an improper personal benefit. Neither amendment nor repeal of this part nor the adoption of any provision of the certificate of incorporation of the Corporation inconsistent with this part shall eliminate or reduce the effect of this part in respect of any matter occurring, or any cause of action, suit or claim that, but for this part, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
Part C: Indemnification of Directors, Officers, Employees and Agents. To the fullest extent permitted by law from time to time in effect, the
Corporation shall indemnify persons who serve as its directors or officers and shall advance to them expenses incurred in defending or responding to claims, actions, investigations, inquiries and other proceedings and may, by provisions in its bylaws, by contract and by any other means permitted by law, establish reasonable procedures for the making of such indemnification and advancement of expenses and may further obligate itself to provide indemnification or to advance expenses to such persons and may purchase insurance with respect to liabilities imposed on its directors and officers and set apart funds to provide for the payment thereof. Neither amendment nor repeal of this part nor the adoption of any provision of the certificate of incorporation of the Corporation inconsistent with this part shall eliminate or reduce the effect of this part in respect of any matter occurring, or any cause of action, suit or claim that, but for this part, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
ARTICLE SEVENTH: By-Laws: In furtherance and not in limitation of the powers conferred by law and subject to any limitations contained in the certificate of incorporation of the Corporation, the by-laws of the Corporation may be adopted, amended or repealed by a majority of the Board of Directors, but any by-laws adopted by the Board of Directors may be amended or repealed by the stockholders entitled to vote thereon;
ARTICLE EIGHTH: Amendment of the Certificate of Incorporation.
(a) The certificate of incorporation of the Corporation may be amended, modified or repealed and new provisions adopted as permitted by law and this Amended and Restated Certificate of Incorporation, including the affirmative vote of any class or series of capital stock of the Corporation, voting as though a separate class, required by law for any amendment which adversely affects the powers, privileges or rights of such class or series of stock as provided hereby.
(b) Any powers, privileges or rights granted pursuant hereto are subject to alteration, amendment or repeal as provided herein.
ARTICLE NINTH: DGCL Section 203. The Corporation elects not to be governed by Section 203 of the DGCL.
ARTICLE TENTH Effective Time. This Second Amended and Restated Certificate of Incorporation shall become effective, in accordance with the DGCL, upon filing with the office of the Secretary of State of the State of Delaware (the date of such effectiveness, the "Effective Date").
IN WITNESS WHEREOF, the undersigned, a duly authorized officer of the Corporation, has duly executed this Amended and Restated Certificate of Incorporation on this 25th day of May, 2017.
|
|
/s/ Daniel N. Gregoire |
|
|
Name: Daniel N. Gregoire |
Exhibit 3.2
BYLAWS
of
MAGELLAN HEALTH, INC.
(A Delaware corporation)
As adopted on January 5, 2004, as amended through May 24, 2017
Table of Contents
ARTICLE I Certain Definitions; Principal Office; Notices to the Corporation |
1 | |
SECTION 1. |
Certain Definitions |
1 |
SECTION 2. |
Principal Office; Notices to the Corporation |
2 |
ARTICLE II Stockholders’ Meetings |
2 | |
SECTION 1. |
Annual Meetings of Stockholders |
2 |
SECTION 2. |
Special Meetings of Stockholders |
2 |
SECTION 3. |
Place and Notice of Meetings of Stockholders |
2 |
SECTION 4. |
Nominations by Stockholders of Candidates for Election as Directors |
2 |
SECTION 5. |
Advance Notice of Other Matters to be Presented by Stockholders |
3 |
SECTION 6. |
Quorum for Stockholder Meetings |
3 |
SECTION 7. |
Votes Per Share |
3 |
SECTION 8. |
Proxies |
3 |
SECTION 9. |
Required Votes for Stockholder Action |
3 |
SECTION 10. |
Ballots; Judges of Election |
3 |
SECTION 11. |
Action Without a Meeting |
4 |
ARTICLE III The Board of Directors |
4 | |
SECTION 1. |
Authority of the Board of Directors |
4 |
SECTION 2. |
Number Of Directors and Selection Thereof |
4 |
SECTION 3. |
Independent Directors |
4 |
SECTION 4. |
Vacancies |
4 |
SECTION 5. |
Annual Organizational Meeting of the Board |
4 |
SECTION 6. |
Other Meetings of the Board |
4 |
SECTION 7. |
Quorum |
5 |
SECTION 8. |
Telephonic Participation |
5 |
SECTION 9. |
Chairman and Vice Chairman of the Board |
5 |
SECTION 10. |
Lead Director |
5 |
SECTION 11. |
Committees of the Board |
5 |
SECTION 12. |
Director Compensation |
6 |
ARTICLE IV Officers |
6 | |
SECTION 1. |
Officers Generally |
6 |
SECTION 2. |
Chief Executive Officer |
7 |
SECTION 3. |
President |
7 |
SECTION 4. |
Vice Presidents; |
7 |
SECTION 5. |
Chief Financial Officer; Controller |
7 |
SECTION 6. |
Treasurer |
7 |
SECTION 7. |
General Counsel |
7 |
SECTION 8. |
Secretary |
7 |
SECTION 9. |
Assistant Treasurers; Assistant Secretaries |
7 |
SECTION 10. |
Bonded Officers and Employees |
7 |
ARTICLE V Indemnification of Directors, Officers, Employees and Agents |
8 | |
SECTION 1. |
Indemnification of Directors and Officers |
8 |
SECTION 2. |
Indemnification of Employees and Agents |
8 |
SECTION 3. |
Non-Exclusivity |
8 |
SECTION 4. |
Continuing Contractual Rights |
8 |
SECTION 5. |
No Retroactive Amendment |
9 |
ARTICLE VI Seal |
9 | |
ARTICLE VII Share Certificates and Transfers |
9 | |
SECTION 1. |
Form of Share Certificates |
9 |
SECTION 2. |
Transfers of Record |
9 |
SECTION 3. |
Record Dates |
9 |
ARTICLE VIII Fiscal Year |
9 | |
ARTICLE IX Amendments |
9 | |
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BYLAWS
of
MAGELLAN HEALTH, INC.
(A Delaware corporation)
As adopted on January 5, 2004 and amended on February 25, 2008, June 4, 2014, April 4, 2016, and May 24, 2017
ARTICLE I
Certain Definitions; Principal Office; Notices to the Corporation
SECTION 1. Certain Definitions . Unless the context otherwise requires, the following terms when used herein shall have the following meanings:
(a) “Certificate of Incorporation” shall mean the Second Amended and Restated Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware on May 25, 2017, of the Corporation, as it may from time to time be amended and in effect in accordance with law, and shall include any certificate of designations determining the designation, voting rights, preferences, limitations and special rights of any shares of the Corporation which have been adopted by the Board as permitted by the certificate of incorporation and the law, as then in effect.
(b) “Beneficial Ownership” shall have the same meaning as provided by Regulation 13D-G under the Exchange Act, as from time to time in effect (and any successor regulation).
(c) “Board” shall mean the Board of Directors of the Corporation as constituted in accordance with the Certificate of Incorporation and Article III of the Bylaws.
(d) “Business Day” shall mean any day other than a Saturday, a Sunday, or any day on which banking institutions in Delaware are required or authorized to close by law or executive order.
(e) “Bylaws” shall mean these Bylaws, dated as of January 5, 2004 and amended on February 25, 2008, June 14, 2014, April 4, 2016 and May 24, 2017 as the same may from time to time be amended and in effect in accordance with law. References in the Bylaws to “herein,” “hereof” or “hereto,” or any like reference, shall refer to the Bylaws (as amended and in effect from time to time) as a whole and not to any specific article, section, subsection, paragraph, sentence or clause of the Bylaws unless explicitly provided.
(f) “Common Stock” shall mean all common stock of the Corporation, as designated in the Certificate of Incorporation.
(h) “Corporation” shall mean Magellan Health, Inc., the Delaware corporation incorporated by the filing of a certificate of incorporation with the Secretary of State of the State of Delaware on August 11, 1969.
(i) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended and as the same may be amended from time to time (and any successor statute).
(j) “Independent Director” shall mean a director who meets the criteria of independence established by the standards for the listing of the Common Stock of the Corporation on Nasdaq or, if the Common Stock is listed at the time on the NYSE, on the NYSE (or, if at any time the Common Stock is not listed on either such market, as would be applicable if the Common Stock were then listed on Nasdaq) in order for such director to be treated as independent under such listing standards.
(k) “Nasdaq” shall mean the Nasdaq Stock Market.
(l) “NYSE” shall mean the New York Stock Exchange.
(m) “Subsidiary” shall mean any company controlled, directly or indirectly, by the Corporation. Unless otherwise determined by the Board, the Corporation shall be considered to control any company of which it, directly or through one of more Subsidiaries, owns a majority of the securities entitled to vote in the election of the directors thereof (or persons performing similar functions) or securities entitled to elect a majority of the directors thereof (or persons performing similar functions) and any partnership of which it owns, directly or through one or more Subsidiaries, a general partner interest and any limited liability company of which it owns, directly or through one or more Subsidiaries, a managing member interest, and the Corporation shall not be considered to control a company in which it does not own, directly or through one or more Subsidiaries, such an interest.
(n) “Whole Board” shall mean the number of members of the Board at any time if there were then no vacancies on the Board.
1
SECTION 2. Principal Office; Notices to the Corporation . The principal office of the Corporation shall be at such location in Scottsdale, Arizona as the Board shall from time to time determine. All notices to the Corporation required or permitted by the Bylaws may be addressed to the principal office of the Corporation and shall be marked to the attention of the Secretary unless otherwise provided herein.
ARTICLE II
Stockholders’ Meetings
SECTION 1. Annual Meetings of Stockholders . An annual meeting of stockholders shall be held in each year on such date and at such time as may be set by the Board (or by an officer of the Corporation authorized to do so by the Board) for the purpose of electing directors and the transaction of such other business as may properly come before the meeting.
SECTION 2. Special Meetings of Stockholders . Special meetings of the stockholders may be called at any time by the Board (or by an officer of the Corporation authorized to do so by the Board). A special meeting of stockholders may also be called by the holders of at least 40% of the votes that all stockholders are entitled to cast on the matter to be voted on at the particular meeting, including a special meeting of the holders of Common Stock for the purpose of electing directors or taking any other action that such holders may take.
At any time, upon written request of any person or persons entitled to call and who have duly called a special meeting, it shall be the duty of the Secretary to set the date of the meeting, if such date has not been set by the Board, on a day not more than sixty days after the receipt of the request, and to give due notice of such meeting to the stockholders. If the Secretary shall neglect or refuse to set the date of the meeting and give notice thereof, the person or persons calling the meeting may do so.
SECTION 3. Place and Notice of Meetings of Stockholders . All meetings of stockholders shall be held at the principal office of the Corporation unless the Board (or an officer of the Corporation authorized to do so by the Board) shall decide otherwise, in which case such meetings may be held at such location within or without the State of Delaware as the Board may from time to time direct. Written notice of the place, day, and hour of all meetings of stockholders and, in the case of a special meeting, of the general nature of the business to be transacted at the meeting, shall be given to each stockholder of record entitled to vote at the particular meeting either personally or by sending a copy of the notice through the mail or by overnight courier to the address of the stockholder appearing on the books of the Corporation or supplied by him to the Corporation for the purpose of notice or by other means including electronic means permitted by law. Except as otherwise provided by the Bylaws or by law, such notice shall be given at least 10 days before the date of the meeting by the President, Vice President, or Secretary. A waiver in writing of any written notice required to be given, signed by the person entitled to such notice, whether before or after the time stated, shall be deemed equivalent to the giving of such notice. Attendance of a person, either in person or by proxy, at any meeting shall constitute a waiver of notice of such meeting, except where a person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting was not lawfully called or convened.
SECTION 4. Nominations by Stockholders of Candidates for Election as Directors . In addition to the nomination by the Board of candidates for election to the Board as hereinafter provided, candidates may be nominated by any stockholder of the Corporation entitled to notice of, and to vote at, any meeting called for the election of directors. Subject to the last sentence of this section, nominations, other than those made by or on behalf of the Board, shall be made in writing and shall be received by the Secretary of the Corporation not later than (i) with respect to an election of directors to be held at an annual meeting of stockholders, 90 days prior to the anniversary date of the immediately preceding annual meeting, provided that, if the date of the annual meeting is more than 30 days before or after the anniversary date of the immediately preceding annual meeting, the stockholder nomination shall be received within 15 days after the public announcement by the Corporation of the date of the annual meeting, and (ii), with respect to an election of directors to be held at a special meeting of stockholders, the close of business on the 15th day following the date on which notice of such meeting is first given to stockholders or public disclosure of the meeting is made, whichever is earlier. Such nomination shall contain the following information to the extent known to the notifying stockholder: (a) the name, age, business address, and residence address of each proposed nominee and of the notifying stockholder; (b) the principal occupation of each proposed nominee; (c) a representation that the notifying stockholder intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (d) the class and total number of shares of capital stock and other securities of the Corporation that are Beneficially Owned by the notifying stockholder and by the proposed nominee and, if such securities are not owned solely and directly by the notifying stockholder or the proposed nominee, the manner of Beneficial Ownership; (e) a description of all arrangements or understandings between the notifying stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the notifying
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stockholder; (f) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed with the Securities and Exchange Commission pursuant to Regulation 14A under the Exchange Act had the nominee been nominated, or intended to be nominated, by the Board; and (g) the consent of each nominee to serve as a director of the Corporation if so elected. The Corporation may request any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the qualifications of the proposed nominee to serve as a director of the Corporation. Within 15 days following the receipt by the Secretary of a stockholder notice of nomination pursuant hereto, the Board shall instruct the Secretary of the Corporation to advise the notifying stockholder of any deficiencies in the notice as determined by the Board. The notifying stockholder shall cure such deficiencies within 15 days of receipt of such notice. No persons shall be eligible for election as a director of the Corporation unless nominated in accordance with the Bylaws. Nominations not made in accordance herewith may, in the discretion of the presiding officer at the meeting and with the advice of the Board, be disregarded by the presiding officer and, upon his or her instructions, all votes cast for each such nominee may be disregarded. The determinations of the presiding officer at the meeting shall be conclusive and binding upon all stockholders of the Corporation for all purposes.
SECTION 5. Advance Notice of Other Matters to be Presented by Stockholders . At any annual meeting or special meeting of stockholders, only such business as is properly brought before the meeting in accordance with this paragraph may be transacted. To be properly brought before any meeting, any proposed business must be either (a) specified in the notice of the meeting (or any supplement thereto) given by or at the direction of the Board, (b) otherwise properly brought before the meeting by or at the direction of the Board, or (c) if brought before the meeting by a stockholder, then (1) written notification of such proposed business (a “Stockholder Notification”) must have been received by the Secretary of the Corporation from a stockholder of record on the record date for the determination of stockholders entitled to vote at such meeting not later than (i), with respect to business to be proposed at an annual meeting of stockholders, 90 days prior to the anniversary date of the immediately preceding annual meeting (provided, that if the date of the annual meeting is more than 30 days before or after the anniversary date of the immediately preceding annual meeting, the Stockholder Notification must have been received within 15 days after the public announcement by the Corporation of the date of the annual meeting) and (ii) with respect to business to be proposed at a special meeting of stockholders, the close of business on the 15th day following the date on which notice of such meeting is first given to stockholders or public disclosure of the meeting is made, whichever is earlier. Such Stockholder Notification shall set forth the nature of and reasons for the proposal in reasonable detail and, as to the stockholder giving notification, (1) the name and address of such stockholder and (2) the class and series of all shares of the Corporation that are beneficially owned by such stockholder.
Within 15 days following receipt by the Secretary of a Stockholder Notification pursuant hereto, the Corporation shall advise the stockholder of any deficiencies in the Stockholder Notification. The notifying stockholder may cure such deficiencies within 15 days after receipt of such advice, failing which the Stockholder Notification shall be deemed invalid.
SECTION 6. Quorum for Stockholder Meetings . At any meeting of the stockholders, the presence, in person or by proxy, of stockholders entitled to cast at least a majority of the votes which all stockholders are entitled to cast upon a matter shall constitute a quorum for the transaction of business upon such matter, and the stockholders present at a duly organized meeting can continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. If a meeting cannot be organized because a quorum has not attended, those present may, except as otherwise provided by law, adjourn the meeting to such time and place as they may determine, but in the case of any meeting called for the election of directors, those who attend the second of such adjourned meetings, provided they represent, in person or by proxy, stockholders entitled to at least 1/3 of the votes which all stockholders are entitled to cast in the election of directors, shall constitute a quorum for the purpose of electing directors.
SECTION 7. Votes Per Share . Except as otherwise provided in the Certificate of Incorporation or a resolution or resolutions of the Board providing for the issuance of a series of preferred stock in accordance with Article Fifth, Part C of the Certificate of Incorporation, every stockholder of record shall have, at every stockholders’ meeting, one vote for every share standing in his or her name on the books of the Corporation.
SECTION 8. Proxies . Every stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for him by proxy. A proxy may be submitted to the Secretary by a stockholder in writing, by telephone, electronically or any other means permitted by law.
SECTION 9. Required Votes for Stockholder Action . Except in respect of the election or removal of directors (as to which the Certificate of Incorporation provides the required vote), all questions submitted to the stockholders and all actions by the stockholders shall be decided by the affirmative vote of the stockholders present, in person or by proxy, entitled to cast at least a majority of the votes which all stockholders present are entitled to vote on the matter, unless otherwise provided by the Certificate of Incorporation, Bylaws or by law.
SECTION 10. Ballots; Judges of Election . Elections for directors need not be by ballot but the Board of Directors
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or the presiding officer at a meeting of stockholders may direct the use of ballots for voting at the meeting. In advance of any meeting of stockholders, the Board may appoint judges of election who need not be stockholders to act at such meeting or any adjournment thereof, and if such appointment is not made, the presiding officer of any such meeting may, and on request of any stockholder or his proxy shall, make such appointment at the meeting. The number of judges shall be one or three and, if appointed at a meeting on request of one or more stockholders or their proxies, the majority of the shares present and entitled to vote shall determine whether one or three judges are to be appointed. No person who is a candidate for office shall act as a judge. In case any person appointed as judge fails to appear or fails or refuses to act, the vacancy may be filled by appointment made by the Board in advance of the convening of the meeting or at the meeting by the person or officer presiding at the meeting. On request of the presiding officer of the meeting or of any stockholder or his proxy, the judges shall make a report in writing of any challenge or question or matter determined by them and execute a certificate of any fact found by them.
SECTION 11. Action Without a Meeting. To the fullest extent and in the manner permitted by law, any action required or permitted to be taken at a meeting of the stockholders or of a class or series of stockholders may be taken without a meeting of the stockholders or of such class or series of stockholders upon the consent in writing signed by such stockholders who would have been entitled to vote the minimum number of votes that would be necessary to authorize the action at a meeting at which all the stockholders entitled to vote thereon were present and voting. The consents shall be filed with the Secretary.
ARTICLE III
The Board of Directors
SECTION 1. Authority of the Board of Directors . Except as otherwise provided by law and subject to the provisions of the Certificate of Incorporation and the Bylaws, all powers vested by law in the Corporation may be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, a Board that shall be constituted as provided by law, the Certificate of Incorporation and the Bylaws.
SECTION 2. Number Of Directors and Selection Thereof . The Board of Directors shall have not fewer than five and not more than thirteen members, the exact number of members to be determined from time to time by resolution adopted by the affirmative vote of a majority of the Whole Board plus, if applicable, any members who may be elected exclusively by the holders of one or more series of Preferred Stock of the Corporation, as provided by the resolution or resolutions adopted by the Board of Directors and setting the powers, preferences and rights of a series of Preferred Stock of the Corporation; provided that no reduction in the number of members shall end the term of office of any director earlier than such term of office would otherwise end. Directors shall be selected as provided by law, the Certificate of Incorporation (including Part A of Article Sixth of the Certificate of Incorporation) and the Bylaws (including Section 4 of this Article III).
SECTION 3. Independent Directors . The Board shall present to the stockholders nominees for election to the Board (or recommend the election of such candidates as nominated by others) and take such other corporate actions as may be reasonably required to provide that, to the best knowledge of the Board, if such candidates are elected by the stockholders, (i) the composition of the Board shall meet any independence requirements under the then applicable listing standards to which the Corporation is subject, (ii) the requirements of subsection 10(a) of this article regarding the composition of the audit committee shall be satisfied and (iii) the requirements of subsection 10(b) of this article regarding the composition of the management compensation committee shall be satisfied. The foregoing provisions of this section shall not cause a director who, by reason of any change in circumstances, has ceased to qualify as an independent director or ceased to qualify for service on the audit committee or management compensation committee from serving the remainder of the term as a director for which such director has been elected. Notwithstanding the foregoing provisions of this section, no action of the Board shall be invalid by reason of the failure at any time of the Board to be constituted in accordance with this section 3.
SECTION 4. Vacancies . Vacancies on the Board (including any vacancy created by an increase in the size of the Board) may be filled as provided by the Certificate of Incorporation (including Section 1 of Part A of Article Sixth of the Certificate of Incorporation).
SECTION 5. Annual Organizational Meeting of the Board . The Board shall hold an annual organizational meeting immediately following the annual meeting of the stockholders at the place thereof, without notice in addition to the notice of the annual meeting of stockholders, or at such other time as soon as practicable after such meeting as the Board shall determine and shall at the annual organizational meeting elect a President, a Secretary and a Treasurer of the Corporation and such other officers of the Corporation as shall be provided by the Bylaws or determined by the Board to be appropriate, shall establish the standing committees of the Board provided by the Bylaws and may take such other action as the Board determines to be appropriate. Officers of the Corporation and standing and other committees of the Board may also be elected at any other time by the Board.
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SECTION 6. Other Meetings of the Board . All meetings of the Board, other than the annual organizational meeting, shall be held at the principal office of the Corporation unless the Board (or the person or persons entitled to call and calling the meeting) shall decide otherwise, in which case such meetings may be held at such location within or without the State of Delaware as the Board (or the person or persons entitled to call and calling the meeting) may from time to time direct. Regular meetings of the Board shall be held at such time (and place) in accordance with such schedule as the Board shall have determined in advance and no further notice of regular meetings of the Board shall be required. The Independent Directors shall meet periodically without any member of management present and, except as the Independent Directors may otherwise determine, without any other director present to consider the overall performance of management and the performance of the role of the Independent Directors in the governance of the Corporation; such meetings shall be held in connection with a regularly scheduled meeting of the Board except as the Independent Directors shall otherwise determine. Special meetings of the Board may be called by the Chairman of the Board (if any), a Vice Chairman of the Board (if any), the President or by any two or more directors by giving written notice at least two Business Days in advance of the day and hour of the meeting to each director (unless it is determined by the President, the Chairman of the Board (if any) or the Lead Director (if any) to be necessary to meet earlier, in which case no less than twenty-four hours written notice shall be given), either personally or by facsimile, or other means including electronic means permitted by law. Attendance at any meeting of the Board shall be a waiver of notice thereof, unless such lack of notice is protested at the outset of the meeting. If all the members of the Board are present at any meeting, no notice of the meeting shall be required.
SECTION 7. Quorum . A majority of the whole number of the directors then in office and entitled to vote on a particular matter shall constitute a quorum for the transaction of business with respect to such matter, but if at any meeting a quorum shall not be present, the meeting may adjourn from time to time until a quorum shall be present.
SECTION 8. Telephonic Participation . Directors may participate in a meeting of the Board or a committee thereof by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.
SECTION 9. Chairman and Vice Chairman of the Board . The Board may, by resolution adopted by a majority of the Whole Board, at any time designate one of its members as Chairman of the Board. The Chairman of the Board shall preside at the meetings of the Board, shall be responsible for the orderly conduct by the Board of its oversight of the business and affairs of the Corporation and its other duties as provided by law, the Certificate of Incorporation and the Bylaws and shall have such other authority and responsibility as the Board may designate. The Board may, by resolution adopted by a majority of the Whole Board, at any time also designate one or more of its members as Vice Chairman of the Board. A Vice Chairman of the Board shall assist the Chairman of the Board in the conduct of his duties, including by presiding at meetings of the Board in the absence of the Chairman of the Board, and shall have such other authority and responsibility as the Board may designate. A Chairman or Vice Chairman of the Board shall not be considered an officer of the Corporation unless otherwise provided by the Board.
SECTION 10. Lead Director . The non-employee directors may, by resolution adopted by a majority of the non-employee directors, at any time designate one non-employee director as Lead Director of the Board. The Lead Director shall chair executive sessions of the non-employee directors. In his or her absence, another director selected by a majority of the non-employee directors present at the meeting shall chair the executive session. The Lead Director shall, in the absence of a Chairman or a Vice Chairman of the Board (if any), preside at all meetings of the Board. The Lead Director shall meet regularly with the Chairman of the Board and Chief Executive Officer of the Corporation regarding major corporate strategies and policies.
SECTION 11. Committees of the Board . The Board may, by resolution adopted by a majority of the Whole Board, at any time designate one or more committees, each committee to consist of one or more of the directors of the Corporation, except as otherwise provided by the Bylaws. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Subject to the following provisions of this section, any such committee to the extent provided in such resolution shall have and may exercise any or all of the authority and responsibility of the Board in the management of the business and affairs of the Corporation, except as otherwise provided by law, the Certificate of Incorporation or the Bylaws. Except as otherwise provided by the Certificate of Incorporation, the Bylaws or action of the Board, a quorum for action by a committee shall be a majority of the members (assuming no vacancy) and action by vote of a majority of the members at a meeting duly called at which a quorum is present shall constitute action by the committee. Each committee shall keep a record of its actions and all material actions taken by a committee on behalf of the Board shall be reported to the full Board periodically. In all other respects, the Board may, by resolution adopted by a majority of the Whole Board, establish rules of procedure for a committee, including designating a member of a committee as its chair. In the absence of the designation by the Board of the chairman of a committee or the adoption by the Board of rules of procedure for a committee, the committee shall adopt its own rules of procedure and elect its chair. The Board shall establish standing committees of the Board as provided by the following provisions of this section. In the event any or all of the members of any committee are required to be independent under any then applicable listing
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standards to which the Company is subject or any other legal requirement, for the performance of some, but not all, of the duties of such committee, the Board may establish a separate committee for the performance of only those duties the performance of which requires such independent Directors.
(a) Audit Committee . The audit committee shall be composed of at least three members of the Board, each of whom shall be an Independent Director, shall not, in relation to the Corporation, be an “affiliated person” as defined in Rule 10A-3 under the Exchange Act (as from time to time in effect) and shall meet such other qualifications for membership on the audit committee as are from time to time required by the listing standards of the Nasdaq or NYSE applicable to the Corporation. The audit committee shall assist the Board in overseeing the Corporation’s financial reporting and shall have such authority and responsibility as is provided in the committee’s charter (as hereinafter provided for) and, subject thereto, as is normally incident to the functioning of the audit committee of a publicly-traded company and shall perform the other functions provided to be performed by it by the Bylaws and such other functions as are from time to time assigned to it by the Board.
(b) Management Compensation Committee . The management compensation committee shall be composed of at least three members of the Board, each of whom shall be independent, if required, under any then applicable listing standards to which the Corporation is subject, after giving effect to any exemption for “controlled companies,” and shall meet such other qualifications as may be necessary to qualify as a non-employee director under Rule 16b-3 under the Exchange Act (as from time to time in effect) and as an outside director under Section 162(m) of the Internal Revenue Code of 1986, as amended (and as from time to time in effect). No member of the committee shall be eligible to participate in any compensation plan or program of the Corporation or any Subsidiary of the Corporation that is administered or overseen by the committee. The management compensation committee shall assist the Board in overseeing the compensation of the Corporation’s officers, the Corporation’s employee stock option or other equity-based compensation plans and programs and the Corporation’s management compensation policies and shall have such authority and responsibility as is provided in the committee’s charter (as hereinafter provided for) and, subject thereto and subject to other direction of the Board, as is normally incident to the functioning of the management compensation committee of a publicly-traded company and shall perform the other functions provided to be performed by it by the Bylaws and such other functions as are from time to time assigned to it by the Board. Unless reviewed and, if necessary, approved by the committee, the Corporation shall not cause or permit any Subsidiary of the Corporation to pay or grant any compensation to any officer or employee of the Corporation which, if paid or granted by the Corporation, would require review or approval of the committee.
(c) Committee Charters . The Board, by majority vote of the Whole Board, shall approve a charter describing the purposes, functions and responsibilities of each standing committee of the Board. Each standing committee of the Board shall prepare and recommend to the Board for its approval the committee’s charter and shall, at least annually, review and report to the Board on the adequacy thereof. In addition to and without limiting the provisions of paragraphs (a) through (c) of this section, each standing committee of the Board shall have the authority and responsibility provided by its Board-approved charter, subject to further action by the Board, and no further authorization of the Board shall be necessary for actions by a committee within the scope of its charter. Any other committee of the Board may likewise prepare and recommend to the Board a charter for the committee and shall have the authority and responsibility provided by its Board-approved charter.
(e) Committee Advisors and Resources . Each standing committee of the Board shall have the authority to retain, at the Corporation’s expense, such legal and other counsel and advisors as it determines to be necessary or appropriate to carry out its responsibilities within the scope of its charter. Each other committee of the Board shall have like authority to the extent provided by its charter or otherwise authorized by the Board. The Corporation shall pay the compensation of the independent auditor of the Corporation for all audit services, as approved by the audit committee, without need for further authorization.
SECTION 12. Director Compensation . The Board may set the compensation of directors and members of committees of the Board as permitted by law.
ARTICLE IV
Officers
SECTION 1. Officers Generally . The Board shall designate a President, one or more Vice Presidents, a Treasurer, a Secretary and a General Counsel and shall designate an officer as chief financial officer and an officer as chief accounting officer and may designate such other officers, with such titles, authority and responsibility (including Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries), as the Board considers appropriate for the conduct of the business
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and affairs of the Corporation. Any two or more offices may be held by the same individual. Unless sooner removed by the Board, all officers shall hold office until the next annual organizational meeting of the Board and until their successors shall have been elected. Any officer may be removed from office at any time, with or without cause, by action of the Board.
SECTION 2. President . The President shall be the Chief Executive Officer of the Corporation and in that capacity shall have general management, subject to the control of the Board of Directors, of the business of the Corporation, including the appointment of all officers and employees of the Corporation for whose election or appointment no other provision is made in these By-laws; he shall also have the power, at any time, to discharge or remove any officer or employee of the Corporation other than those officers and employees whose election or appointment is otherwise provided for in these By-laws, subject to the action thereon of the Board of Directors, and shall perform all other duties appropriate to this office. The President shall preside at all meetings of the stockholders and, in the absence of a Chairman or Vice Chairman of the Board (if any) and Lead Director (if any), at all meetings of the Board at which the President is present.
SECTION 3. Chief Operating Officer . The Board may designate an officer as the Chief Operating Officer of the Corporation, with such authority and responsibility as the Board may determine.
SECTION 4. Vice Presidents; . The Board may elect one or more Vice Presidents, with such further titles (including designation as President of a division or operation of the Corporation) and with such authority and responsibility as the Board may determine. In the absence or disability of the President, his duties shall be performed by one or more Vice Presidents as designated by the Board.
SECTION 5. Chief Financial Officer; Controller . The Board shall designate an officer as the chief financial officer of the Corporation, who shall have general supervision of the financial affairs of the Corporation, such other authority and responsibility as the Board may designate and, subject to the direction of the Board, the authority and responsibility customary to such office. In the absence or disability of the chief financial officer, his or her duties may be performed by any other officer designated by him or her, by the President or by the Board. The Board shall also designate an officer as the Controller of the Corporation, who shall be the chief accounting officer of the Corporation (and may be the same as or different from the chief financial officer). The Controller shall have general supervision of the books and accounts of the Corporation, such other authority and responsibility as the Board may designate and, subject to the direction of the Board, the authority and responsibility customary to such office. In the absence or disability of the Controller, his or her duties may be performed by any other officer designated by him or her, by the President or by the Board.
SECTION 6. Treasurer . The Treasurer (who may be the same as or different from the chief financial officer and/or the Controller) shall have supervision and custody of all funds and securities of the Corporation and keep or cause to be kept accurate accounts of all money received or payments made by the Corporation, and shall have such other authority and responsibility as provided by the Bylaws or as the Board may designate and, subject to the direction of the Board, the authority and responsibility customary to such office. The Treasurer shall be ex-officio, and have the authority and responsibility of, an Assistant Secretary.
SECTION 7. General Counsel . The Board shall designate a General Counsel for the Corporation, who shall be the Corporation’s chief legal officer and shall have general supervision of the legal affairs of the Corporation and such other authority and responsibility as the Board may designate and, subject to the direction of the Board, the authority and responsibility customary to such office.
SECTION 8. Secretary . The Secretary shall have custody of the minutes of the meetings of the Board, its committees and the stockholders, of the Certificate of Incorporation and the Bylaws (as amended from time to time) and such other records of the Corporation as respect its existence and authority to conduct business, shall have such other authority and responsibility as provided by the Bylaws or as the Board may designate and, subject thereto, the authority and responsibility customary to such office. The Secretary shall send out notices of meetings of the Board and stockholders as required by law or the Bylaws. The Secretary shall attend and keep the minutes of the Board except as the Board may otherwise designate. The Secretary shall be ex-officio, and have the authority and responsibility of, an Assistant Treasurer.
SECTION 9. Assistant Treasurers; Assistant Secretaries . In the absence or disability of the Secretary, his or her duties may be performed by an Assistant Secretary. In the absence or disability of the Treasurer, his or her duties may be performed by an Assistant Treasurer. Such assistant officers shall also have such authority and responsibility as may be assigned to them by the Board.
SECTION 10. Bonded Officers and Employees . Such officers and employees of the Corporation as the Board shall determine shall give bond for the faithful discharge of their duties in such form and for such amount and with such surety or sureties as the Board shall require. The expense of procuring such bonds shall be borne by the Corporation.
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ARTICLE V
Indemnification of Directors, Officers, Employees and Agents
SECTION 1. Indemnification of Directors and Officers
(a) Indemnification of Directors and Officers . The Corporation shall indemnify to the full extent permitted by law any person made, or threatened to be made, a party to or otherwise involved in (as a witness or otherwise) an action, suit or proceeding (whether civil, criminal, administrative, legislative or investigative, and whether by or in the right of the Company or otherwise asserted) by reason of the fact that the person
(1) is or was a director or officer of the Corporation or
(2) while a director or officer of the Corporation, either
(i) serves or served as a director, officer, partner, member, trustee, employee or agent of any Subsidiary of the Corporation or other related enterprise at the request of the Corporation or in connection with a related employee benefit plan of the Corporation, any Subsidiary or any such enterprise,
(ii) serves or served as a director, officer, partner, member, trustee, employee or agent of any other unrelated enterprise (including any charitable organization) in furtherance of the interests of, and at the specific written request of the Corporation, or in connection with a related employee benefit plan of such enterprise,
against any expenses, judgments, fines, and amounts paid in settlement actually and reasonably incurred in defending or responding to any such pending or threatened action, suit or proceeding (including any incurred in connection with any actions brought by or in the right of the Corporation). A resolution or other action by the Corporation or Subsidiary electing, nominating or proposing a person to a position referred to in this subsection 2(a) shall constitute a specific written request of the Corporation sufficient for the purposes of this section. Upon written request of a person claiming to be entitled to indemnification hereunder and specifying the expenses, judgments, fines and amounts paid in settlement against which indemnity is sought, the Corporation shall, as soon as practicable and in any event within 90 days of its receipt of such request, make a determination, in such manner as is required by law, as to the entitlement of such person to indemnification against such expenses as provided by this subsection 2(a). Such a determination, however, shall not be conclusive as to such person’s entitlement to indemnification pursuant to this subsection 2(a) and such person may seek to enforce an entitlement to indemnification pursuant to this subsection 2(a) by appropriate proceedings in any court of competent jurisdiction by showing that, notwithstanding such determination, such person satisfied the standard of conduct required by law to be satisfied in order for such person to be entitled to indemnification from the Corporation as permitted by law.
(b) Advancement of Expenses . Expenses reasonably incurred by a person referred to in subsection 2(a) above in defending or responding to a civil, criminal, administrative, legislative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of the action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount to the extent it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation against such expenses or, in the case of a criminal action in which a judgment has been entered against such person, as the Board so determines.
SECTION 2. Indemnification of Employees and Agents . The Corporation may, upon authorization by the Board or any officer expressly authorized to do so by the Board, indemnify, or agree to indemnify, and advance expenses to any person who is or was an employee or agent of the Corporation or any Subsidiary to the same extent (or any lesser extent) to which it may indemnify and advance expenses to a director or officer of the Corporation in accordance with section 1 of this article.
SECTION 3. Non-Exclusivity . The right to indemnification and advancement of expenses conferred in this article shall not be deemed exclusive of any other rights to which any person indemnified may be entitled under any agreement, vote of stockholders or directors or otherwise, the Corporation having the express authority to enter such agreements or make other provision for the indemnification of and advancement of expenses to any or all of its representatives as the Board deems appropriate, including establishing corporate policies with respect thereto and the creation of one or more funds or equivalent guarantees for indemnity payments and/or expense advancements to present or future indemnified persons.
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SECTION 4. Continuing Contractual Rights . The right to indemnification and the advancement of expenses provided by Section 1 of this article shall be a contract right, shall continue as to a person who has ceased to serve in the capacities described therein, and shall inure to the benefit of the heirs, executors and administrators of such person. Expenses reasonably incurred by a person in successfully enforcing a right to indemnification or advancement of expenses provided to such person by, or as permitted by, this article shall be paid by the Corporation.
SECTION 5. No Retroactive Amendment. No amendment, alteration or repeal of this article, nor the adoption of any provision inconsistent with this article, shall adversely affect the rights of a person to indemnification and advancement of expenses hereunder existing at the time of such amendment, modification or repeal, or the adoption of such an inconsistent provision.
ARTICLE VI
Seal
The Corporation shall have a seal that shall contain the words “Magellan Health, Inc.” and may be affixed to documents of the Corporation as prima facie evidence of the act of the Corporation to the extent provided by law.
ARTICLE VII
Share Certificates and Transfers
SECTION 1. Form of Share Certificates . Shares of the Corporation may be represented by certificates or may be uncertificated, but stockholders shall be entitled to receive share certificates representing their shares as provided by law. Share certificates shall be in such form as the Board may from time to time determine and shall be signed by the President or one of the Vice Presidents and countersigned by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary and embossed with the seal of the Corporation or, if not so signed and sealed, shall bear the engraved or printed facsimile signatures of the officers authorized to sign and the engraved or printed facsimile of the seal of the Corporation. The death, incapacity, resignation or removal of an officer who signed or whose facsimile signature appears on a share certificate shall not affect the validity of the share certificate.
SECTION 2. Transfers of Record . The shares of the Corporation shall, upon the surrender and cancellation of the certificate or certificates representing the same, be transferred upon the books of the Corporation at the request of the holder thereof, named in the surrendered certificate or certificates, in person or by his legal representatives or by his attorney duly authorized by written power of attorney filed with the Corporation or its transfer agent. In case of loss or destruction of a certificate of stock, another may be issued in lieu thereof in such manner and upon such terms as the Board shall authorize.
SECTION 3. Record Dates . The Board may set a time, not more than 60 days nor less than 10 days prior to the date of any meeting of the stockholders, or not more than 60 days prior to the date set for the payment of any dividend or distribution or the date for the allotment of rights, or the date when any change or conversion or exchange of shares stock will be made or go into effect, as a record date for the determination of the stockholders entitled to notice of, or to vote at, any such meeting, or entitled to receive payment of any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect to any such change, conversion, or exchange of shares of the Corporation. In such case, only such Stockholders as shall be stockholders of record on the date so set shall be entitled to notice of, or to vote at, such meeting, or to receive payment of such dividend or distribution, or to receive such allotment of rights, or exercise such rights, as the case may be, notwithstanding any transfer of shares of the Corporation on the books of the Corporation after any record date set as aforesaid.
ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall end on the 31st day of December.
ARTICLE IX
Amendments
The Bylaws, as from time to time in effect, may be amended, modified or repealed, in whole or in part, at any time and from time to time in any respect by either (i) the stockholders, by the affirmative vote of the holders of a majority of the voting
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power of the outstanding shares of Common Stock, or (ii) by the Board, by the affirmative vote of a majority of the Whole Board, in either case except as otherwise provided by law or by the Certificate of Incorporation.
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