UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
April 30, 2013
GLEACHER & COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
0-14140
(Commission File Number)
22-2655804
(IRS Employer Identification No.)
1290 Avenue of the Americas
New York, New York
(Address of Principal Executive Offices)
10104
(Zip Code)
(212) 273-7100
(Registrant’s telephone number, including area code)
(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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On April 30, 2013, the Company received a letter from MatlinPatterson FA Acquisition LLC, a stockholder of the Company (“MatlinPatterson”), enclosing the written consents of MatlinPatterson, Eric J. Gleacher, Eric J. Gleacher 2009 Grantor Retained Annuity Trust, Hudson Bay Capital Management LP, Moors & Mendon Master Fund LP, Burnham Financial Services Fund and Burnham Financial Industries Fund to amend the Company’s Amended and Restated Bylaws (the “Bylaws”). According to related correspondence, these stockholders owned as of April 30, 2013 in the aggregate a majority of the Company’s outstanding shares of common stock. The amendments provided for by the consents are summarized below:
Voting for Election of Directors: Amendments to Sections 2.10 and 3.11 of the Bylaws change the voting standard for the election of directors. As a result of this change, each director will be elected only by an affirmative vote of the holders of a majority of the votes cast for directors (regardless of whether such director receives more “for” votes than “against” votes). Prior to this change, in a contested election, directors would be elected under a plurality voting standard, meaning that those nominees receiving the most votes (up to the number of positions to be filled) would be elected to the Board of Directors of the Company (the “Board”), and in an uncontested election, any candidate receiving more “for” votes than “against” votes would be elected. In addition, the amendment also provides that any incumbent director who does not receive such affirmative vote must immediately tender his resignation, and the Board will consider whether to accept it.
Annual Meetings of Stockholders: An amendment to Section 2.2 of the Bylaws provides that (a) there will be an annual meeting of stockholders on May 23, 2013 and (b) the annual meeting may not be adjourned without a vote of three-fourths of the directors present at a meeting of directors at which there is a quorum. The amendment also requires a vote of three-fourths of directors present at a meeting of directors at which there is a quorum to make any further changes to this section.
Action of Stockholders by Written Consent: An amendment to Section 2.11 of the Bylaws requires a vote of three-fourths of directors present at a meeting of directors at which there is a quorum to amend or repeal Section 2.11, which allows stockholders to act by written consent.
Special Meetings of the Board: An amendment to Section 3.6.3 of the Bylaws allows special meetings of the Board to be called by any two directors, in addition to the ways that a special meeting of directors could previously be called. The amendment also requires a vote of three-fourths of directors present at a meeting of directors at which there is a quorum to make any further changes to this section.
Amendment of Bylaws by Board: An amendment to Section 7.9(b) of the Bylaws, which allows the Board to amend the Bylaws, specifies that the Board may not amend the voting standard for the election of directors.
The summary of the amendment is qualified in its entirety by reference to the full text of the amendment filed as Exhibit 3.1 to this Form 8-K, and which is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
3.1 - Bylaw Amendment of Gleacher & Company, Inc. effective April 30, 2013.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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GLEACHER & COMPANY, INC. | |
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By: |
/s/ Thomas J. Hughes |
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Name: |
Thomas J. Hughes |
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Title: |
Chief Executive Officer |
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Dated: May 6, 2013 |
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Exhibit 3.1
AMENDMENT TO THE
BYLAWS
OF
GLEACHER & COMPANY, INC.
(Effective April 30, 2013)
Pursuant to the written consents of the holders of a majority of the outstanding shares of common stock of the Company, and Sections 2.11 and 7.9(a) of the Bylaws, the Bylaws are hereby amended as follows.
Amendments to Section 2.2
RESOLVED, that Section 2.2 of the Bylaws be, and it hereby is, amended and restated to read in its entirety as follows:
2.2 Annual Meetings
The Corporation shall hold annual meetings of stockholders on such date and at such time as shall be designated from time to time by the Board of Directors, at which meetings stockholders shall elect a Board of Directors and transact such other business as may properly be brought before the meeting. Notwithstanding the previous sentence or anything else in the Bylaws to the contrary, the 2013 annual meeting of stockholders will be held at the offices of the Company, located at 1290 Avenue of the Americas, New York, NY 10104, at 9:00 a.m., local time, on May 23, 2013 and shall not be adjourned (and no adjourned meeting shall be further adjourned), unless such time and/or place and/or adjournment is approved by the affirmative vote of three-fourths of the directors present at a meeting of directors at which there is a quorum. Notwithstanding anything else in the Bylaws to the contrary, the Board of Directors may not amend or repeal this Section 2.2, and no provision inconsistent herewith may be adopted, except by the affirmative vote of three-fourths of the directors present at any meeting of directors at which there is a quorum.
Amendments to Section 2.10
RESOLVED, that the first sentence of Section 2.10 of the Bylaws be, and it hereby is, amended and restated to read in its entirety as follows:
2.10 Required Vote
When a quorum is present at any meeting of stockholders, all matters other than the election of directors (which is governed by the provisions of Section 3.11), shall be determined, adopted and approved by the affirmative vote (which need not be by ballot) of the holders of a majority of the votes cast at a meeting of stockholders by the holders of shares entitled to vote thereon, unless the proposed action is one upon which, by express provision of the Delaware General Corporation Law or of the Certificate of Incorporation, a different vote is specified and required, in which case such express provision shall govern and control the decision of such question.
Amendment to Section 2.11
RESOLVED, that Section 2.11 of the Bylaws be, and it hereby is, amended by adding the following sentence to the end of such Section:
Notwithstanding anything else in the Bylaws to the contrary, the Board of Directors may not amend or repeal Section 2.11, and no provision inconsistent herewith may be adopted, except by the affirmative vote of three-fourths of the directors present at any meeting of directors at which there is a quorum.
Amendments to Section Relating to Special Meetings of the Board of Directors
RESOLVED, that the first paragraph of the Bylaw section which is numbered Section 3.6.2 but re-designated as Section 3.6.3 in the Amendment to the Bylaws effective March 26, 2013, and which currently reads as follows:
3.6.2 Special Meetings
Special meetings may be called at any time by any of the following means: by the Chairman of the Board, by the Chief Executive Officer, by the President, by the Secretary, by resolution of the Board of Directors or, if the position of Chairman of the Board is vacant, by the Lead Independent Director of the Board. Special meetings shall be held at such places as shall be fixed by the person or persons calling the meeting and stated in the notice or waiver of notice of the meeting.
be, and it hereby is, amended and restated to read in its entirety as follows:
3.6.3 Special Meetings
Special meetings may be called at any time by the Chairman of the Board, by the Chief Executive Officer, by the President, by the Secretary, or by any two (2) directors, by resolution of the Board of Directors or, if the position of Chairman of the Board is vacant, by the Lead Independent Director of the Board. Special meetings shall be held at such places as shall be fixed by the person or persons calling the meeting and stated in the notice or waiver of notice of the meeting. Notwithstanding anything else in the Bylaws to the contrary, the Board of Directors may not amend or repeal this Section 3.6.3 except by the affirmative vote of three-fourths of the directors present at any meeting of directors at which there is a quorum.
Amendments to Section 3.11
RESOLVED, that Section 3.11 of the Bylaws be, and it hereby is, amended and restated to read in its entirety as follows:
3.11 Majority Voting Standard and Director Resignation Policy
At any election of directors, each director shall be elected by the affirmative vote of the holders of a majority of the votes cast for directors (with broker non-votes and abstentions not treated as votes cast). Any nominee who does not receive such affirmative vote shall not be elected even if such nominee receives more votes cast “for” than “against”. In any election of directors, any incumbent director who does not receive such affirmative vote shall immediately tender his or her resignation. The Board of Directors (excluding the incumbent director in question) shall consider each such resignation and shall decide whether to accept it.
Amendments to Section 7.9(b)
RESOLVED, that Section 7.9(b) of the Bylaws be, and it hereby is, amended and restated to read in its entirety as follows:
(b) By the Board of Directors. Subject to the Delaware General Corporation Law, the Certificate of Incorporation and these bylaws, these bylaws may also be amended or repealed, or new bylaws adopted, by the Board of Directors; provided, however, that as provided in the last sentence of Section 216 of the Delaware General Corporation Law, Section 3.11, having been approved by the stockholders of the Corporation, may not be amended or repealed, and no provision inconsistent herewith may be adopted, by the Board of Directors.