UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Bylaw 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): December 18, 2008 (December 12, 2008)
ACI WORLDWIDE, INC.
(Exact name of registrant as specified in its
charter)
Delaware
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0-25346
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47-0772104
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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120 Broadway, Suite 3350
New York, New York 10271
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(Address of principal executive offices) (Zip Code)
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Registrants Telephone Number, Including Area
Code: (646) 348-6700
(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 December 12, 2008,
the Board of Directors of ACI Worldwide, Inc. (the Company), pursuant to
Bylaw 38 of the Companys Bylaws, amended Bylaw 8(c) and Bylaw 14(c) and
adopted Amended and Restated Bylaws incorporating the amendments (the Bylaws).
Bylaw 8(c) Advance
Notice Provisions Related to Business Other than Director Nominations
The amendments to Bylaw 8(c) clarified
that the advance notice provisions set forth in Bylaw 8(c) related to
business to be properly requested by a stockholder to be brought before an
annual meeting other than business relating to the
nomination or election of directors, which is governed exclusively by Bylaw
14(c). The amendments to
Bylaw 8(c) also changed the advance notice provisions to provide that in
order to be timely, written notice of any business requested by a stockholder
to be brought before an annual meeting must be delivered to or mailed and
received at the principal executive offices of the Company not less than 90
calendar days nor greater than 120 calendar days prior to the first anniversary
of the date of the immediately preceding years annual meeting of
stockholders. Previously, Bylaw 8(c) set
forth an advance notice window of not less than 60 nor more than 90 calendar
days prior to the first anniversary of the date on which the Company first
mailed its proxy materials for the preceding years annual meeting of
stockholders.
Bylaw 14(c) Advance
Notice Provisions Related to Stockholder Director Nominations
The Companys Board of
Directors also amended Bylaw 14(c) to make the same changes to the advance
notice window as those described above so that the in order to be timely,
written notice of any director nomination by a stockholder must be delivered to
or mailed and received at the principal executive offices of the Company not
less than 90 calendar days nor greater than 120 calendar days prior to the
first anniversary of the date of the immediately preceding years annual
meeting of stockholders. Previously,
Bylaw 14(c) set forth an advance notice window of not less than 60 nor
more than 90 calendar days prior to the first anniversary of the date on which
the Company first mailed its proxy materials for the preceding years annual
meeting of stockholders. The amendments
to Bylaw 14(c) also modified the information required to be included in
the stockholder notice related to a director nomination to clarify that in
addition to the name and address of the stockholder making the nomination, as
they appear on the Companys books, the notice must also include the name and
principal business address of all (A) persons controlling, directly or
indirectly, or acting in concert with, such stockholder, (B) beneficial
owners of shares of stock of the Company owned of record or beneficially by
such stockholder (with the term beneficial
ownership as used herein to have the meaning given to that term in Rule 13d-3
under the Exchange Act) and (C) persons controlling, controlled by, or
under common control with, any person specified in the foregoing clause (A) or
(B) (with the term control
as used herein to have the meaning given to that term in Rule 405 under
the Securities Act of 1933, as amended) (any such person or beneficial owners
set forth in the foregoing clauses (A), (B) and (C) shall be a Stockholder Associated Person for
purposes of Bylaw 14(c)).
The amendments to Bylaw 14(c) also
added a requirement that the stockholder notice disclose any derivative
positions related to any class or series of securities of the Company held or
beneficially held by the stockholder and each Stockholder Associated Person (as
defined above); (v) whether and the extent to which any hedging, swap or
other transactions or series of transactions have been entered into by or on
behalf of, or any other agreement, arrangement or understanding (including any
short position or any borrowing or lending of shares of stock) has been made,
the effect or intent of which is to mitigate loss to, or manage risk of stock
price changes for, or to increase the voting power
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of, the stockholder or any Stockholder
Associated Person with respect to any shares of stock of the Company.
Bylaw
14(c), as amended, now also provides that, if the Board so requires, to be
eligible to be a nominee for election or reelection as a director of the
Company, a person must deliver (in accordance with the time periods prescribed
for delivery of notice under Bylaw 14(c)) to the Secretary at the principal
executive offices of the Company a written questionnaire with respect to the
identity, background and qualification of such person and the background of any
other person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the Secretary upon written request) and a
written representation and agreement (in the form provided by the Secretary
upon written request) that such person (A) is not and will not become a
party to (1) any agreement, arrangement or understanding with, and has not
given any commitment or assurance to, any person or entity as to how such
person, if elected as a director of the Company, will act or vote on any issue
or question (a Voting Commitment)
that has not been disclosed to the Company or (2) any Voting Commitment
that could limit or interfere with such persons ability to comply, if elected
as a director of the Company, with such persons fiduciary duties under
applicable law, (B) is not and will not become a party to any agreement,
arrangement or understanding with any person or entity other than the Company
with respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director that has not
been disclosed the questionnaire, and (C) in such persons individual
capacity and on behalf of any person or entity on whose behalf the nomination
is being made, would be in compliance, if elected as a director of the Company,
and will comply, with all applicable publicly disclosed corporate governance,
conflict of interest, confidentiality and stock ownership and trading policies
and guidelines of the Company.
The Amended and Restated
Bylaws adopted by the Board of Directors which incorporate the amendments to
Bylaw 8(c) and Bylaw 14(c) described above are attached hereto as Exhibit 99.1,
and are incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No.
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Description
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3.02
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Amended
and Restated Bylaws
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3
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
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ACI WORLDWIDE, INC.
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/s/ Dennis P. Byrnes
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Dennis P. Byrnes
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Senior Vice President
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Date: December 18,
2008
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4
EXHIBIT INDEX
Exhibit No.
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Exhibit Description
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3.02
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Amended
and Restated Bylaws
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Exhibit 3.02
ACI WORLDWIDE, INC.
AMENDED AND RESTATED BYLAWS
As Adopted and in
Effect on December 12, 2008
TABLE OF CONTENTS
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Page
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STOCKHOLDERS MEETINGS
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1
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1.
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Time and Place of Meetings
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1
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2.
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Annual Meeting
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1
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3.
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Special Meetings
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1
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4.
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Notice of Meetings
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1
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5.
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Inspectors for Stockholder Meetings
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2
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6.
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Quorum
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2
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7.
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Voting; Proxies
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2
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8.
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Order of Business
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2
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CONSENTS OF STOCKHOLDERS
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5
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9.
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Consent of Stockholders in Lieu of Meeting
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5
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10.
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Inspectors for Consent of Stockholders in Lieu of
Meeting
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5
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DIRECTORS
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5
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11.
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Function
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5
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12.
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Number, Election and Terms
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5
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13.
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Vacancies and Newly Created Directorships
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6
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14.
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Nominations of Directors; Election
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6
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15.
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Resignation
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8
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16.
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Regular Meetings
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9
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17.
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Special Meetings
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9
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18.
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Quorum
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9
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19.
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Participation in Meetings by Remote Communications
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9
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20.
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Committees
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9
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21.
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Compensation
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10
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22.
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Rules
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NOTICES
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10
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23.
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Generally
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10
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24.
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Waivers
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11
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OFFICERS
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11
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25.
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Generally
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11
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26.
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Compensation
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11
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TABLE OF CONTENTS
(continued)
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Page
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27.
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Succession
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11
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28.
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Authority and Duties
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11
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STOCK
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11
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29.
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Certificated and Uncertificated Shares
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11
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30.
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Classes of Stock
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12
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31.
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Lost, Stolen or Destroyed Certificates
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12
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32.
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Record Dates
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12
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GENERAL
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14
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33.
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Contracts, Checks, Etc
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14
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34.
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Fiscal Year
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14
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35.
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Seal
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14
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36.
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Reliance Upon Books, Reports and Records
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14
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37.
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Time Periods
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14
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38.
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Amendments
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14
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39.
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Insurance
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14
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40.
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Certificate of Incorporation and Applicable Law
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15
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ii
STOCKHOLDERS MEETINGS
1. Time
and Place of Meetings. All meetings
of the stockholders for the election of the members of the Board of Directors
(the Directors) or for any other
purpose will be held at such time and place, within or without the State of
Delaware, as may be designated by the Board of Directors of the Company (the Board) or, in the absence of a designation
by the Board, the Chairman of the Board (the Chairman),
the Chief Executive Officer, the President or the Secretary, and stated in the
notice of meeting. Notwithstanding the
foregoing, the Board may, in its sole discretion, determine that meetings of
the stockholders shall not be held at any place, but may instead be held by
means of remote communications, subject to such guidelines and procedures as
the Board may adopt from time to time.
The Board may postpone and reschedule any previously scheduled annual or
special meeting of the stockholders.
2. Annual
Meeting. An annual meeting of the
stockholders will be held at such date and time as may be designated from time
to time by the Board, at which meeting the stockholders will elect by a plurality
vote the Directors, and will transact such other business as may properly be
brought before the meeting in accordance with Bylaw 8.
3. Special
Meetings. Special meetings of the
stockholders may be called only by (i) the Chairman, (ii) the
President or (iii) the Secretary within 10 calendar days after receipt of
the written request of a majority of the total number of Directors that the
Company would have if there were no vacancies (the Whole
Board). Any such request
by a majority of the Whole Board must be sent to the Chairman and the Secretary
and must state the purpose or purposes of the proposed meeting. Special meetings of holders of the
outstanding Preferred Stock of the Company (the Preferred
Stock), if any, may be called in the manner and for the
purposes provided in the applicable Preferred Stock Designation (as defined in
the certificate of incorporation of the Company, as amended from time to time
(the Certificate of Incorporation)).
4. Notice
of Meetings. Written notice of every
meeting of the stockholders, stating the place, if any, date and time thereof,
the means of remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, will be given not less
than 10 nor more than 60 calendar days before the date of the meeting to each
stockholder of record entitled to vote at such meeting, except as otherwise
provided herein or by law. When a
meeting is adjourned to another place, date, or time, written notice need not
be given of the adjourned meeting if the place, if any, date and time thereof,
and the means of remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such adjourned
meeting are announced at the meeting at which the adjournment is taken; provided,
however, that if the adjournment is for more than 30 calendar days, or
if after the adjournment a new record date is fixed for the adjourned meeting,
written notice of the place, if any, date and time thereof, and the means of
remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at
1
such adjourned meeting
must be given in conformity herewith. At
any adjourned meeting, any business may be transacted which properly could have
been transacted at the original meeting.
5. Inspectors
for Stockholder Meetings. The Board
may appoint one or more inspectors of election to act as judges of the voting
and to determine those entitled to vote at any meeting of the stockholders, or
any adjournment thereof, in advance of such meeting. The Board may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act
at a meeting of stockholders, the presiding officer of the meeting may appoint
one or more substitute inspectors.
6. Quorum. Except as otherwise provided by law or in a
Preferred Stock Designation, the holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, will constitute a quorum at all meetings of the stockholders for the
transaction of business thereat. If,
however, such quorum is not present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, will have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present or represented.
7. Voting;
Proxies. Except as otherwise
provided by law, by the Companys Certificate of Incorporation, or in a
Preferred Stock Designation, each stockholder will be entitled at every meeting
of the stockholders to one vote for each share of stock having voting power
standing in the name of such stockholder on the books of the Company on the
record date for the meeting and such votes may be cast either in person or by
proxy. Every proxy must be authorized in
a manner permitted by Section 212 of the Delaware General Corporation Law
(or any successor provision). Without
affecting any vote previously taken, a stockholder may revoke any proxy that is
not irrevocable by attending the meeting and voting in person, by revoking the
proxy by giving notice to the Secretary of the Company, or by a later
appointment of a proxy. The vote upon
any question brought before a meeting of the stockholders may be by voice vote,
unless otherwise required by the Certificate of Incorporation or these Bylaws
or unless the Chairman or the holders of a majority of the outstanding shares
of all classes of stock entitled to vote thereon present in person or by proxy
at such meeting otherwise determine.
Every vote taken by written ballot will be counted by the inspectors of
election. When a quorum is present at
any meeting, the affirmative vote of the holders of a majority of the stock
present in person or represented by proxy at the meeting and entitled to vote
on the subject matter and which has actually been voted (the Voting Stock) will be the act of
the stockholders, except in the election of Directors or as otherwise provided
in these Bylaws, the Certificate of Incorporation, a Preferred Stock
Designation, or by law.
8. Order
of Business.
(a) The
Chairman, or such other officer of the Company designated by a majority of the
Whole Board, will call meetings of the stockholders to order and will
2
act as presiding officer thereof. Unless otherwise determined by the Board
prior to the meeting, the presiding officer of the meeting of the stockholders
will also determine the order of business and have the authority in his or her
sole discretion to regulate the conduct of any such meeting, including without
limitation by imposing restrictions on the persons (other than stockholders of
the Company or their duly appointed proxies) that may attend any such
stockholders meeting, by ascertaining whether any stockholder or his proxy may
be excluded from any meeting of the stockholders based upon any determination
by the presiding officer, in his sole discretion, that any such person has disrupted
or is likely to disrupt the proceedings thereat, and by determining the
circumstances in which any person may make a statement or ask questions at any
meeting of the stockholders.
(b) At
an annual meeting of the stockholders, only such business will be conducted or
considered as is properly brought before the annual meeting. To be properly brought before an annual
meeting, business must be (i) specified in the notice of the annual
meeting (or any supplement thereto) given by or at the direction of the Board
in accordance with Bylaw 4, (ii) otherwise properly brought before
the annual meeting by the presiding officer or by or at the direction of a
majority of the Whole Board, or (iii) otherwise properly requested to be
brought before the annual meeting by a stockholder of the Company in accordance
with Bylaw 8(c).
(c) For
business to be properly requested by a stockholder to be brought before an
annual meeting (other than business
relating to the nomination or election of Directors, which is governed exclusively
by Bylaw 14(c)), (i) the stockholder must be a stockholder
of the Company of record at the time of the giving of the notice for such
annual meeting provided for in these Bylaws, (ii) the stockholder must be
entitled to vote at such meeting, (iii) the stockholder must have given
timely notice thereof in writing to the Secretary and (iv) if the
stockholder, or the beneficial owner on whose behalf any business is brought
before the meeting, has provided the Company with a Proposal Solicitation Notice,
as that term is defined in this Bylaw 8(c), such stockholder or
beneficial owner must have delivered a proxy statement and form of proxy to the
holders of at the least the percentage of shares of the Company entitled to
vote required to approve such business that the stockholder proposes to bring
before the annual meeting and included in such materials. To be timely, a stockholders notice must be delivered to or mailed and received at the
principal executive offices of the Company not less than 90 calendar days nor greater than 120 calendar days prior to the first
anniversary of the date of the immediately preceding years annual meeting of
stockholders; provided, however, that if the date of the annual
meeting is advanced more than 30 calendar days prior to or delayed by more than
30 calendar days after the anniversary of the preceding years annual meeting,
notice by the stockholder to be timely must be so delivered not later than the
close of business on the later of (A) the 90th
calendar day prior to such annual
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meeting and (B) the 10th calendar day following the day on
which public disclosure of the date of such meeting is first made. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholders notice as described above. A stockholders notice to the
Secretary must set forth as to each matter the stockholder proposes to bring
before the annual meeting (A) a description in reasonable detail of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (B) the name and address,
as they appear on the Companys books, of the stockholder proposing such business
and the beneficial owner, if any, on whose behalf the proposal is made, (C) the
class and series and number of shares of capital stock of the Company that are
owned beneficially and of record by the stockholder proposing such business and
by the beneficial owner, if any, on whose behalf the proposal is made, (D) a
description of all arrangements or understandings among such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business, (E) whether either such stockholder or
beneficial owner intends to deliver a proxy statement and form of proxy to
holders of at least the percentage of shares of the Company entitled to vote
required to approve the proposal (an affirmative statement of such intent, a Proposal Solicitation Notice),
and (F) a representation that such stockholder intends to appear in person
or by proxy at the annual meeting to bring such business before the annual
meeting. Notwithstanding the foregoing
provisions of this Bylaw 8(c), a stockholder must also comply with all
applicable requirements of the Securities Exchange Act of 1934 and the rules and
regulations thereunder (the Exchange Act) with respect to matters set forth in this
Bylaw 8(c). For purposes of this Bylaw
8 and Bylaw 14, public disclosure
means disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable
national news service or in a document filed by the Company with the Securities
and Exchange Commission pursuant
to the Exchange Act or furnished by the Company to stockholders. Nothing in
this Bylaw 8(c) will be deemed to
affect any rights of stockholders to request inclusion of proposals in the Companys
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(d) At
a special meeting of stockholders, only such business may be conducted or
considered as is properly brought before the meeting. To be properly brought before a special
meeting, business must be (i) specified in the notice of the meeting (or
any supplement thereto) given by or at the direction of the Chairman, the
President or a majority of the Whole Board in accordance with Bylaw 4
or (ii) otherwise properly brought before the meeting by the presiding
officer or by or at the direction of a majority of the Whole Board.
(e) The
determination of whether any business sought to be brought before any annual or
special meeting of the stockholders is properly brought before such
4
meeting in accordance
with this Bylaw 8 will be made by the presiding officer of such
meeting. If the presiding officer
determines that any business is not properly brought before such meeting, he or
she will so declare to the meeting and any such business will not be conducted
or considered.
CONSENTS OF STOCKHOLDERS
9. Consent
of Stockholders in Lieu of Meeting.
Subject to the requirements of Bylaw 32 and unless otherwise
provided in the Certificate of Incorporation, any corporate action required to
be taken at a meeting of the stockholders, or any other corporate action which
may be taken at a meeting of the stockholders, may be taken without a meeting,
if a consent or consents in writing setting forth the corporate action to be 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
corporate action at a meeting at which all shares entitled to vote thereon were
present and voted, and delivered to the Companys registered office in the
State of Delaware, to its principal place of business or to any officer or
agent of the Company having custody of the book in which proceedings of
stockholders meetings are recorded, in each case addressed to the attention of
the Secretary. Delivery shall be by hand
or by certified or registered mail, return receipt requested. The Company shall give prompt notice of the
taking of corporate action without a meeting by less than unanimous written
consent to stockholders who have not consented in writing and who, if the
corporate action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date
that written consents signed by a sufficient number of stockholders to take the
corporate action were delivered to the Company in the manner provided herein
and in the Delaware General Corporation Law.
10. Inspectors
for Consent of Stockholders in Lieu of Meeting. The Board may appoint one or more inspectors
of elections to perform a ministerial review, or act as judges, of the validity
of written consents delivered in accordance with Bylaw 9 and any
revocations thereof. No corporate action
by written consent without a meeting shall be effective until such date as the
inspectors certify to the Company that the signed written consents delivered to
the Company in accordance with Bylaw 9 represent at least the minimum
number of votes that would be necessary to authorize or take such corporate
action at a meeting at which all shares entitled to vote thereon were present
and voted.
DIRECTORS
11. Function. The business and affairs of the Company will
be managed under the direction of its Board.
12. Number, Election and Terms. Subject to
the rights, if any, of any series of Preferred Stock to elect additional
Directors under circumstances specified in a Preferred Stock Designation, and
to any minimum and maximum number of authorized Directors provided in the
Certificate of Incorporation, the authorized number of Directors may
5
be
determined from time to time only by a vote of a majority of the Whole Board,
but such number shall be no fewer than three nor more than nine.
13. Vacancies and Newly Created Directorships. Subject to
the rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors under circumstances specified in a Preferred Stock
Designation, newly created directorships resulting from any increase in the
number of Directors and any vacancies on the Board resulting from death,
resignation, disqualification, removal, or other cause will be filled solely by
the affirmative vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board, or by a sole remaining
Director. Any Director elected in
accordance with the preceding sentence will hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until such Directors successor is elected
and qualified. No decrease in the number
of Directors constituting the Board will shorten the term of an incumbent
Director.
14. Nominations of Directors; Election.
(a) Subject to the rights, if any, of the holders of any
series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, only persons who are nominated in
accordance with this Bylaw 14 will be eligible for election at a meeting
of stockholders as Directors of the Company.
(b) Nominations of persons for election as Directors of
the Company may be made only at an annual meeting of stockholders (i) by
or at the direction of the Board or a committee thereof or (ii) by any
stockholder that is a stockholder of record at the time of giving of notice
provided for in this Bylaw 14, who is entitled to vote for the election
of Directors at such annual meeting, and who complies with the procedures set
forth in this Bylaw 14. If a
stockholder, or a beneficial owner on whose behalf any such nomination is made,
has provided the Company with a Nomination Solicitation Notice, as that term is
defined in this Bylaw 14 below, such stockholder or beneficial owner
must have delivered a proxy statement and form of proxy to the holders of at
least the percentage of shares of the Company entitled to vote required to
approve such nomination and included in such materials the Nomination
Solicitation Notice. All nominations by
stockholders must be made pursuant to timely notice in proper written form to
the Secretary.
(c) To
be timely, a stockholders notice must be delivered to or mailed and received
at the principal executive offices of the Company not less than 90 calendar
days nor greater than 120 calendar days
prior to the first anniversary of the date of the immediately preceding years annual meeting of stockholders; provided,
however, that if the date of the annual meeting is advanced more than 30
calendar days prior to or delayed by more than 30 calendar days after the
anniversary of the preceding years annual meeting, notice by the stockholder
to be timely must be so delivered not later than the
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close of business on the
later of (i) the 90th calendar
day prior to such annual meeting and (ii) the 10th
calendar day following the day on which public disclosure of the date of such
meeting is first made. In no event shall
the public disclosure of an adjournment of an annual meeting commence a new
time period for the giving of a stockholders notice as described above. To be
in proper written form, such stockholders notice must set forth or include (i) the
name and address of such stockholder, as they
appear on the Companys books, and the name and principal business address of
all (A) persons controlling, directly or indirectly, or acting in concert
with, such stockholder, (B) beneficial owners of shares of stock of the
Company owned of record or beneficially by such stockholder (with the term beneficial ownership
as used herein to have the meaning given to that term in Rule 13d-3 under
the Exchange Act) and (C) persons controlling, controlled by, or under
common control with, any person specified in the foregoing clause (A) or (B) (with
the term control
as used herein to have the meaning given to that term in Rule 405 under
the Securities Act of 1933, as amended) (any such person or beneficial owners
set forth in the foregoing clauses (A), (B) and (C) shall be a Stockholder Associated Person
for purposes of this Bylaw 14(c)); (ii) a representation that the
stockholder giving the notice is a holder of record of stock of the Company
entitled to vote at such annual meeting and intends to appear in person or by
proxy at the annual meeting to nominate the person or persons specified in the
notice; (iii) the class and number of shares of stock of the Company owned
beneficially and of record by the stockholder giving the notice and each
Stockholder Associated Person; (iv) any derivative positions related to
any class or series of securities of the Company held or beneficially held by
the stockholder and each Stockholder Associated Person; (v) whether and
the extent to which any hedging, swap or other transactions or series of
transactions have been entered into by or on behalf of, or any other agreement,
arrangement or understanding (including any short position or any borrowing or
lending of shares of stock) has been made, the effect or intent of which is to
mitigate loss to, or manage risk of stock price changes for, or to increase the
voting power of, the stockholder or any Stockholder Associated Person with
respect to any shares of stock of the Company, (vi) a description of all
arrangements or understandings between or among any of (A) the stockholder
giving the notice, (B) any Stockholder Associated Person, (C) each
nominee, and (D) any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by the
stockholder giving the notice; (vii) such other information regarding each
nominee proposed by the stockholder giving the notice as would be required to
be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or intended
to be nominated, by the Board; (viii) the signed consent of each nominee
to serve as a Director of the Company if so elected; (ix) whether such
stockholder or any Stockholder Associated Person intends to deliver a proxy
statement and form of proxy to holders of at least the percentage of shares of
the Company entitled to vote required to elect such
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nominee or nominees (an
affirmative statement of such intent, a Nomination Solicitation Notice); and (x) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in the notice (all
of which information in this Bylaw 14(c) shall be supplemented by
such stockholder if any of the facts set forth in the notice change during the
period between the date such notice is sent and the date of the meeting, not
later than five days after the event giving rise to such change). At the request of the Board, any person
nominated by the Board for election as a Director must furnish to the Secretary
the information that would have been required to be set forth in a stockholders notice pertaining
to such nominee. The presiding officer
of any annual meeting will, if the facts warrant, determine that a nomination
was not made in accordance with the procedures prescribed by this Bylaw 14,
and if he or she should so determine, he or she will so declare to the meeting
and the defective nomination will be disregarded. Notwithstanding the foregoing provisions of
this Bylaw 14, a stockholder must also comply with all applicable
requirements of the Exchange Act with respect to the matters set forth in this Bylaw
14. In addition, if the Board so requires,
to be eligible to be a nominee for election or reelection as a director of the
Company, a person must deliver (in accordance with the time periods prescribed
for delivery of notice under this Bylaw 14(c)) to the Secretary at the
principal executive offices of the Company a written questionnaire with respect
to the identity, background and qualification of such person and the background
of any other person or entity on whose behalf the nomination is being made
(which questionnaire shall be provided by the Secretary upon written request)
and a written representation and agreement (in the form provided by the
Secretary upon written request) that such person (A) is not and will not
become a party to (1) any agreement, arrangement or understanding with,
and has not given any commitment or assurance to, any person or entity as to
how such person, if elected as a director of the Company, will act or vote on
any issue or question (a Voting Commitment) that has
not been disclosed to the Company or (2) any Voting Commitment that could
limit or interfere with such persons ability to comply, if elected as a
director of the Company, with such persons fiduciary duties under applicable
law, (B) is not and will not become a party to any agreement, arrangement
or understanding with any person or entity other than the Company with respect
to any direct or indirect compensation, reimbursement or indemnification in
connection with service or action as a director that has not been disclosed the
questionnaire, and (C) in such persons individual capacity and on behalf
of any person or entity on whose behalf the nomination is being made, would be
in compliance, if elected as a director of the Company, and will comply, with
all applicable publicly disclosed corporate governance, conflict of interest,
confidentiality and stock ownership and trading policies and guidelines of the
Company.
15. Resignation. Any Director may resign at any
time by giving notice in writing or by electronic transmission of his or her
resignation to the Chairman or the Secretary.
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Any
resignation will be effective upon actual receipt by any such person or, if
later, as of the date and time specified in such written notice.
16. Regular Meetings. Regular meetings of the Board may
be held immediately after the annual meeting of the stockholders and at such
other time and place either within or without the State of Delaware as may from
time to time be determined by the Board.
Notice of regular meetings of the Board need not be given.
17. Special Meetings. Special meetings of the Board may
be called by the Chairman or the President on one days notice to each Director
by whom such notice is not waived, given either personally or by mail, courier,
telephone, facsimile, or similar medium of communication, and will be called by
the Chairman or the President, in like manner and on like notice, on the
written request of a majority of the Whole Board. Special meetings of the Board may be held at
such time and place either within or without the State of Delaware as is
determined by the Board or specified in the notice of any such meeting.
18. Quorum. At all meetings of the Board, a majority of
the Whole Board will constitute a quorum for the transaction of business. Except for the designation of committees as
hereinafter provided and except for actions required by these Bylaws or the
Certificate of Incorporation to be taken by a majority of the Whole Board, the
act of a majority of the Directors present at any meeting at which there is a
quorum will be the act of the Board. If
a quorum is not present at any meeting of the Board, the Directors present
thereat may adjourn the meeting from time to time to another place, time, or
date, without notice other than announcement at the meeting, until a quorum is
present.
19. Participation in Meetings by Remote Communications. Members of
the Board or any committee designated by the Board may participate in a meeting
of the Board or any such committee, as the case may be, by means of telephone
conference or other means by which all persons participating in the meeting can
hear each other, and such participation in a meeting will constitute presence
in person at the meeting.
20. Committees.
(a) The Board, by resolution passed by a majority of the
Whole Board, may designate one or more committees. Each such committee will consist of one or
more Directors and will have such lawfully delegable powers and duties as the
Board may confer; provided, however, that no committee shall
exercise any power or duty expressly required by the Delaware General
Corporation Law, as it may be amended from time to time, to be acted upon by
the Board. Any such committee designated
by the Board will have such name as may be determined from time to time by
resolution adopted by the Board.
(b) The members of each committee of the Board will serve
in such capacity at the pleasure of the Board or as may be specified in any
resolution from time to time adopted by the Board. The Board may designate one or more
9
Directors
as alternate members of any such committee, who may replace any absent or
disqualified member at any meeting of such committee. In lieu of such designation by the Board, in
the absence or disqualification of any member of a committee of the Board, the
members thereof present at any such meeting of such committee and not
disqualified from voting, whether or not they constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member.
(c) Except as otherwise provided in these Bylaws, by law
or in any resolution from time to time adopted by the Board, any committee of
the Board will have and may exercise all the powers and authority of the Board
in the direction of the management of the business and affairs of the
Company. Any such committee designated
by the Board will have such name as may be determined from time to time by
resolution adopted by the Board. Unless
otherwise prescribed by the Board, meetings of any committee of the Board may
be held in the same manner as provided in Bylaw 19 or by unanimous
written consent in lieu of a meeting, a majority of the members of any such
committee will constitute a quorum for the transaction of business, and the act
of a majority of the members present at a meeting at which there is a quorum
will be the act of such committee. Each committee
of the Board may prescribe its own rules for calling and holding meetings
and its method of procedure, subject to any rules prescribed by the Board,
will keep minutes of its proceedings and all actions taken by it, and will
report its proceedings to the Board when required or when requested by a
Director to do so.
21. Compensation. The Board may establish the
compensation for, and reimbursement of the expenses of, Directors for
membership on the Board and on committees of the Board, attendance at meetings
of the Board or committees of the Board, and for other services by Directors to
the Company or any of its majority-owned subsidiaries.
22. Rules. The Board may adopt rules and
regulations for the conduct of meetings and the oversight of the management of
the affairs of the Company.
NOTICES
23. Generally. Except as otherwise provided by law, these
Bylaws, or the Certificate of Incorporation, whenever by law or under the
provisions of the Certificate of Incorporation or these Bylaws notice is
required to be given to any Director or stockholder, it will not be construed
to require personal notice, but such notice may be given in writing, by mail or
courier service, addressed to such Director or stockholder, at the address of
such Director or stockholder as it appears on the records of the Company, with
postage thereon prepaid, and such notice will be deemed to be given at the time
when the same is deposited in the United States mail. Notice to Directors may also be given by
telephone, facsimile, electronic transmission or similar medium of
communication or as otherwise may be permitted by these Bylaws.
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24. Waivers. Whenever any notice is required to be given
by law or under the provisions of the Certificate of Incorporation or these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled
to such notice, or a waiver by electronic transmission by the person or persons
entitled to such notice, whether before or after the time of the event for
which notice is to be given, will be deemed equivalent to such notice. Attendance of a person at a meeting will
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or convened.
OFFICERS
25. Generally. The officers of the Company will be elected
by the Board and will consist of a Chairman, a President, a Secretary and a
Treasurer. The Board may also choose any
or all of the following: one or more
Vice Chairmen, one or more Assistants to the Chairman, one or more Vice
Presidents (who may be given particular designations with respect to authority,
function, or seniority), one or more Assistant Secretaries, one or more
Assistant Treasurers and such other officers as the Board may from time to time
determine. Notwithstanding the
foregoing, by specific action the Board may authorize the Chairman to appoint
any person to any office other than Chairman, Chief Executive Officer,
President, Secretary or Treasurer. Any
number of offices may be held by the same person. Any of the offices may be left vacant from
time to time as the Board may determine.
In the case of the absence or disability of any officer of the Company
or for any other reason deemed sufficient by a majority of the Board, the Board
may delegate the absent or disabled officers powers or duties to any other
officer or to any Director.
26. Compensation. The compensation of all officers
and agents of the Company who are also Directors of the Company will be fixed
by the Board or by a committee of the Board.
The Board may fix, or delegate the power to fix, the compensation of
other officers and agents of the Company to an officer of the Company.
27. Succession. The officers of the Company will
hold office until their successors are elected and qualified. Any officer may be removed at any time by the
affirmative vote of a majority of the Whole Board. Any vacancy occurring in any office of the
Company may be filled by the Board or by the Chairman as provided in Bylaw
23.
28. Authority and Duties. Each of the
officers of the Company will have such authority and will perform such duties
as are customarily incident to their respective offices or as may be specified
from time to time by the Board.
STOCK
29. Certificated and Uncertificated Shares. Shares of
the Companys common stock or Preferred Stock may be certificated or
uncertificated, as permitted under Section 158 of the Delaware General
Corporation Law. Certificates
representing shares of stock of the Company will be in such form as is
determined by the Board, subject to
11
applicable
legal requirements. Each such
certificate will be numbered and its issuance recorded in the books of the
Company, and such certificate will exhibit the holders name and the number of
shares and will be mechanically signed with a facsimile of the signature of the
President or a Vice President, and a facsimile of the signature of the
Secretary or an Assistant Secretary, and shall also be signed by, or bear the
facsimile signature of, a duly authorized officer or agent of any properly
designated transfer agent of the Company. Any or all of the signatures and the
seal of the Company, if any, upon such certificates may be facsimiles,
engraved, or printed. Such certificates may be issued and delivered
notwithstanding that the person whose facsimile signature appears thereon may
have ceased to be such officer at the time the certificates are issued and
delivered.
30. Classes of Stock. The designations, powers,
preferences and relative participating, optional or other special rights of the
various classes of stock or series thereof, and the qualifications, limitations
or restrictions thereof, will be set forth in full or summarized on the face or
back of the certificates which the Company issues to represent its stock or, in
lieu thereof, such certificates will set forth the office of the Company from
which the holders of certificates may obtain a copy of such information at no
charge.
31. Lost, Stolen or Destroyed Certificates. An executive
officer or the Secretary may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
Company alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact, satisfactory to such executive officer or the
Secretary, by the person claiming the certificate of stock to be lost, stolen
or destroyed. As a condition precedent
to the issuance of a new certificate or certificates, such executive officer or
the Secretary may require the owners of such lost, stolen or destroyed
certificate or certificates to advertise the alleged loss, theft or destruction
in such a manner as such executive officer or the Secretary may require, and/or
to give the Company a bond in such sum and with such surety or sureties as such
executive officer or the Secretary may direct as indemnity against any claims
that may be made against the Company with respect to the certificate alleged to
have been lost, stolen or destroyed or the issuance of the new certificate.
32. Record Dates.
(a) In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board may fix a record date, which will not be
more than 60 nor less than 10 calendar days before the date of such
meeting. 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 will be at the close of business on the
calendar day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the calendar 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 the stockholders will apply to
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any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
(b) In order that the Company may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, 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 date shall not be more than 10 days after the date upon which
the resolution fixing the record date is adopted by the Board. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall, by
written notice to the Company, request that the Board fix a record date. Any such written notice shall be delivered to
the Company in the same manner as signed written consents are required to be
delivered pursuant to Bylaw 9. The
Board shall promptly, but in all events within 10 days after the date on which
such a request is received, adopt a resolution fixing the record date. If no record date has been fixed by the Board
within 10 days of the date on which such a request is received, the record date
for determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board is required by applicable
law, shall be the first date on which a signed written consent setting forth
the action taken or proposed to be taken is delivered to the Company in
accordance with Bylaw 9. If no
record date has been fixed by the Board and prior action by the Board is
required by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be
at the close of business on the date on which the Board adopts the resolution
taking such prior action.
(c) In order that the Company 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, which record date
will not be more than 60 calendar days prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose will be at the close of
business on the calendar day on which the Board adopts the resolution relating
thereto.
(d) The Company will be entitled to treat the person in
whose name any share of its stock is registered as the owner thereof for all
purposes, and will not be bound to recognize any equitable or other claim to,
or interest in, such share on the part of any other person, whether or not the
Company has notice thereof, except as expressly provided by applicable
law. In addition, subject to applicable
legal requirements, the Company may (by action of the Whole Board) establish
procedures for the verification that depositary or other holders of shares
beneficially owned by others have been properly instructed
13
with
respect to the voting of such shares and in respect of the effect of changes in
beneficial ownership on the validity of proxies or consents.
GENERAL
33. Contracts, Checks, Etc. All
contracts, agreements, checks, drafts, notes, bonds, bills of exchange and
orders for the payment of money shall be signed or endorsed by the persons whom
the Board of Directors prescribes therefor.
34. Fiscal Year. Effective as of January 1,
2008, the fiscal year of the Company shall commence on January 1 of each
year and shall end the following December 31.
35. Seal. The Board may adopt a corporate seal and use
the same by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
36. Reliance Upon Books, Reports and Records. Each
Director, each member of a committee designated by the Board, and each officer
of the Company will, in the performance of his or her duties, be fully
protected in relying in good faith upon the records of the Company and upon
such information, opinions, reports, or statements presented to the Company by
any of the Companys officers or employees, or committees of the Board, or by
any other person or entity as to matters the Director, committee member, or
officer believes are within such other persons professional or expert
competence and who has been selected with reasonable care by or on behalf of
the Company.
37. Time Periods. In applying any provision of these
Bylaws that requires that an act be performed or not be performed a specified
number of days prior to an event or that an act be performed during a period of
a specified number of days prior to an event, calendar days will be used unless
otherwise specified, the day of the doing of the act will be excluded, and the
day of the event will be included.
38. Amendments. Except as otherwise provided by
law or by the Certificate of Incorporation or these Bylaws, these Bylaws or any
of them may be amended in any respect or repealed at any time, either (i) at
any meeting of stockholders, provided that any amendment or supplement proposed
to be acted upon at any such meeting has been described or referred to in the
notice of such meeting, or (ii) at any meeting of the Board,
provided that no amendment adopted by the Board may vary or conflict with any
amendment adopted by the stockholders in accordance with the Certificate of
Incorporation and these Bylaws.
Notwithstanding the foregoing and anything contained in these Bylaws to
the contrary, Bylaws 1, 3, 8, 9,
10, 12, 13, 14, 32(b) and 38 may
not be amended or repealed by the stockholders, and no provision inconsistent
therewith may be adopted by the stockholders, without the affirmative vote of
the holders of at least a majority of all classes of voting stock issued and
outstanding.
39. Insurance. The Company shall purchase and maintain
insurance on behalf of any person who is a director or officer of the Company,
or is a director or officer of the
14
Company
serving at the request of the Company as a director, officer, employee or agent
of another company or of a partnership, joint venture, trust or other
enterprise, against any expense, liability and loss asserted against and
incurred or suffered by such person or on such persons behalf in any such
capacity, or arising out of such persons status as such, whether or not the
Company would have the power to indemnify such against such liability under the
provisions of the Certificate of Incorporation or applicable law, provided that
such insurance is available on reasonably acceptable terms as determined by (i) the
executive officer(s) responsible for purchasing or maintaining such
insurance; or (ii) a vote of a majority of the Whole Board.
40. Certificate of Incorporation and Applicable Law. These Bylaws
are subject to the provisions of the Certificate of Incorporation and
applicable law.
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