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): October 18, 2018
Energy XXI Gulf Coast, Inc.
(Exact name of registrant as specified in its charter)
| DELAWARE | 001-38019 | 20-4278595 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
1021 Main Street, Suite 2626
Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code (713) 351-3000
(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)) |
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 o
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. o
Item 2.01. Completion of Acquisition or Disposition of Assets.
On October 18, 2018, Energy XXI Gulf Coast, Inc., a Delaware corporation (“EGC”) became an indirect wholly-owned subsidiary of MLCJR LLC, a Delaware limited liability company (“Cox”), as a result of the merger of YHIMONE, Inc. (“Merger Sub”), a Delaware corporation and wholly-owned subsidiary of CEXXI, Inc., a Delaware corporation and direct wholly owned subsidiary of Cox (“Holdco”), with and into EGC, with EGC as the surviving corporation (the “Merger”). The Merger was effected pursuant to an Agreement and Plan of Merger, dated as of June 18, 2018, by and among EGC, Cox and Merger Sub (as amended, the “Merger Agreement”).
Pursuant to the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each issued and outstanding share of EGC common stock, par value $0.01 per share (“Common Stock”), was converted into the right to receive $9.10 cash without interest (the “Merger Consideration”).
In connection with the Merger, each EGC restricted stock unit (“RSU”), whether or not vested, accelerated (if not already vested), with any performance conditions deemed achieved at target, and was cancelled and converted into the right to receive the Merger Consideration, multiplied by the number of shares of Common Stock subject to such RSU.
The exercise price for each outstanding stock option to purchase shares of Common Stock was greater than the Merger Consideration. As a result, in connection with the Merger, each stock option, regardless of whether vested or unvested, was cancelled for no consideration and the holder has no further rights with respect to such stock option.
In accordance with the warrant agreement under which the EGC warrants were issued, the warrants no longer represented the right to acquire shares of Common Stock at the effective time of the Merger. Instead, at that time, each warrant became exercisable for $9.10 in cash, but the warrant holder would be required to pay the warrant’s cash exercise price of $43.66 per share in order to receive $9.10. Therefore, as provided for in the Merger Agreement, in connection with the Merger, each outstanding warrant was cancelled for no consideration.
The foregoing description of the Merger Agreement and the Merger is only a summary, does not purport to be complete, and is qualified in its entirety by reference to the Merger Agreement, which is filed as Exhibit 2.1 to EGC’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 18, 2018 and incorporated herein by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
In connection with the completion of the Merger, EGC notified the NASDAQ Global Select Market (“NASDAQ”) on October 18, 2018 that trading in Common Stock should be suspended and the listing of Common Stock on the NASDAQ should be removed. The trading of Common Stock on the NASDAQ will be suspended after market close on October 18, 2018.
Item 3.03. Material Modifications to Rights of Security Holders.
Pursuant to the Merger Agreement, each outstanding share of Common Stock was converted into the right to receive the Merger Consideration. As of the Effective Time, holders of Common Stock immediately prior to the Effective Time ceased to have any rights as stockholders of EGC (other than the right to receive the Merger Consideration or as otherwise provided by the Merger Agreement or by law).
The information set forth in Items 2.01, 3.01 and 5.01 is incorporated herein by reference.
Item 5.01. Changes in Control.
A change of control of EGC occurred on October 18, 2018, upon the filing of the certificate of merger with the Secretary of State of the State of Delaware, at which time Merger Sub merged with and into EGC. As a result of the Merger, immediately after the Effective Time, HoldCo became the holder of all of the issued and outstanding shares of EGC’s capital stock.
The information set forth in Items 2.01 and 3.03 above is incorporated herein by reference.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection with the Merger, effective as of the Effective Time, Douglas E. Brooks, President, Chief Executive Officer and director of EGC; T.J. Thom Cepak, Chief Financial Officer of EGC; Scott M. Heck, Chief Operating Officer of EGC; Marguerite Woung-Chapman, Senior Vice President, General Counsel and Secretary of EGC; and each of EGC’s other directors voluntarily resigned. Each such director and executive officer resigned in connection with the Merger and not because of any disagreement with EGC. Pursuant to the terms of the Merger Agreement, from and after the Effective Time, the directors and officers of Merger Sub became the directors and officers of EGC.
Item 5.03. Amendment to Certificate of Formation or LLC Agreement; Change in Fiscal Year.
In accordance with the provisions of the Merger Agreement, at the Effective Time, the EGC Certificate of Incorporation was amended and restated as set forth in Exhibit 3.1, and as so amended and restated became the certificate of incorporation of EGC as the surviving corporation (the “Surviving Corporation Certificate of Incorporation”). The EGC Bylaws were amended and restated as set forth in Exhibit 3.2 and, as so amended and restated, became the bylaws of EGC as the surviving corporation (the “Surviving Corporation Bylaws”).
The foregoing disclosures are only a summary, do not purport to be complete, and are qualified in their entirety by reference to the Surviving Corporation Certificate of Incorporation and the Surviving Corporation Bylaws, which are attached hereto as Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
|
Exhibit No. |
Description | |
| 3.1 | Certificate of Incorporation of Energy XXI Gulf Coast, Inc., as the surviving corporation | |
| 3.2 | Bylaws of Energy XXI Gulf Coast, Inc., as the surviving corporation | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: October 18, 2018 | By: | /s/ Glen Priestley |
| Glen Priestley | ||
| Vice President, Treasury |
Exhibit 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
Energy XXI Gulf Coast, Inc.
ARTICLE I
NAME
The name of the corporation is Energy XXI Gulf Coast, Inc. (the “Corporation”).
ARTICLE II
REGISTERED OFFICE
The address of the Corporation’s registered office in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. The registered office and registered agent of the Corporation may be amended or modified from time to time in accordance with the Bylaws of the Corporation (as may be amended, modified or supplemented from time to time in accordance with the terms thereof, the “Bylaws”).
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. The Corporation is to have perpetual existence.
ARTICLE IV
CAPITAL STOCK
The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, $0.01 par value. Cumulative voting of the stock is expressly prohibited. No stockholder shall have, as a stockholder of the Corporation, any preemptive right to acquire, purchase or subscribe for the purchase of any or all additional issues of stock of the Corporation or any of the classes or series thereof, or for any securities convertible into such stock, whether now or hereinafter acquired.
ARTICLE V
Board of Directors
All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed by or under the direction of, the board of directors of the Corporation (the “Board of Directors”). The size of the Board of Directors shall be determined as set forth in the Bylaws.
ARTICLE VI
ELECTION OF Directors
Directors need not be elected by written ballot unless required by the Bylaws of the Corporation.
ARTICLE VII
Bylaws
In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation or adopt new bylaws, without any action on the part of the stockholders, except as may be required by applicable law or the Bylaws of the Corporation.
ARTICLE VIII
Amendment
The Corporation reserves the right to amend or repeal any provision contained in this Third Amended and Restated Certificate of Incorporation in the manner now or hereafter prescribed by statute. All rights conferred upon stockholders herein are granted subject to this reservation.
ARTICLE IX
INDEMNIFICATION
A. Right to Indemnity. Except as otherwise provided in the Debtors’ Second Amended Proposed Joint Chapter 11 Plan of Reorganization filed by the Corporation and certain of its debtor affiliates on November 21, 2016 (as amended or supplemented from time to time, the “Plan”), each person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise (hereinafter, a “proceeding”), by reason of the fact that such person, or a person of whom such person is the legal representative, is or was or has agreed to become a director or officer of the Corporation, or while a director or officer of the Corporation is or was serving or has agreed to serve at the request of the Corporation in any capacity, including as a director, officer, employee, fiduciary or agent, of another corporation or of a partnership, joint venture, trust or other enterprise, including, without limitation, service with respect to employee benefit plans maintained or sponsored by the Corporation or any of its subsidiaries (an “Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, fiduciary or agent or in any other capacity while serving as a director, officer, employee, fiduciary or agent, shall be indemnified and held harmless by the Corporation to the fullest extent which it is empowered to do so by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, to the fullest extent permitted by law, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment) against all cost, expense, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) actually and reasonably incurred by such Indemnitee in connection with a proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such person’s conduct was unlawful. The termination of any claim, action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful. Such indemnification shall continue as to a person who has ceased to serve in the capacity which initially entitled such person to indemnity hereunder, and such indemnification shall inure to the benefit of such person’s heirs, executors and administrators. Notwithstanding the foregoing, except as provided in Section C with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any Indemnitee seeking indemnification in connection with a proceeding initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.
B. Advancement of Expenses. To the fullest extent to which it is permitted to do so by the DGCL or other applicable law, the Corporation shall, in advance of the final disposition of the matter, pay the expenses and costs (including attorneys’ fees) actually and reasonably incurred by any Indemnitee in defending or otherwise participating in any proceeding and any appeal therefrom for which such person may be entitled to such indemnification under this Article IX or otherwise; provided, however, if required by the DGCL, such payment of expenses and costs in advance of the final disposition of the proceeding shall be made only upon receipt by the Corporation of an undertaking by or on behalf of such Indemnitee to repay all amounts advanced if it should be ultimately determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such expenses under this Article IX or otherwise. Expenses incurred by other employees, fiduciaries and agents who are considered Indemnitees hereunder may be so paid upon such terms and conditions, if any, as the Board of Directors of the Corporation deems appropriate.
C Procedures for Indemnification of Directors and Officers. Any indemnification or advancement of expenses under this Article IX shall be made promptly, and in any event within thirty (30) days, upon the written request of the Indemnitee, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days. If a determination by the Corporation that the Indemnitee is entitled to indemnification pursuant to this Article IX is required, and the Corporation fails to respond within sixty (60) days to a written request for indemnity, the Corporation shall be deemed to have approved the request. If the Corporation denies a written request for indemnification or advancement of expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty (30) days (or twenty (20) days in the case of a claim for advancement of expenses), the right to indemnification or advancement of expenses as granted by this Article IX shall be enforceable by the Indemnitee in any court of competent jurisdiction. Such Indemnitee’s costs and expenses incurred in connection with successfully establishing the right to indemnification, in whole or in part, in any such action or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the Corporation) that the Indemnitee has not met the standards of conduct which make it permissible under the DGCL for the Corporation to indemnify the Indemnitee for the amount claimed, but the burden of such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the Indemnitee is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article IX or otherwise, shall be on the Corporation.
D. Requested Services. Without limiting the meaning of the phrase “serving at the request of the Corporation” as used herein, any person serving as a director, officer or equivalent executive of (i) another corporation of which a majority of the shares entitled to vote in the election of its directors is owned, directly or indirectly, by the Corporation, or (ii) any employee benefit plan maintained or sponsored by the Corporation or any corporation referred to in clause (i), shall be deemed to be doing so at the request of the Corporation for purposes of Section A.
E. Contract Rights. The provisions of this Article IX shall be deemed to be a contract right between the Corporation and each Indemnitee and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, employee, fiduciary or agent, or if the relevant provisions of the DGCL or other applicable law cease to be in effect. Such contract right shall vest for each Indemnitee who is a director, officer, employee, fiduciary or agent at the time such person is elected or appointed to such position, and no repeal or modification of this Article IX or any such law shall affect any such vested rights or obligations then existing with respect to any state of facts or proceeding arising after such election or appointment and prior to such repeal or modification.
F. Insurance. The Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary or agent of the Corporation or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL or this Article IX.
G. Employees and Agents. Except as otherwise provided in the Plan, Persons who are not covered by the foregoing provisions of this Article IX and who are or were employees, fiduciaries or agents of the Corporation, or who are or were serving at the request of the Corporation as employees, fiduciaries or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the Board of Directors of the Corporation to the fullest extent of this Article IX.
H. Merger or Consolidation. For purposes of this Article IX, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including, without limitation, any constituent of a constituent) absorbed in a consolidation or merged in a merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director or officer of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, fiduciary or agent of another corporation or of a partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article IX with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
I. Non-Exclusivity of Rights. The rights to indemnification and the advancement of expenses and costs conferred under this Article IX shall not be exclusive of any other rights to which those seeking indemnification or advancement of expenses and costs may be entitled under any applicable law, provision of this Third Amended and Restated Certificate of Incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors or officers respecting indemnification and advances, to the fullest extent not prohibited by the DGCL or by any other applicable law.
J. Amendments. No amendment, repeal or modification of, and no adoption of any provision inconsistent with, any provision of this Article IX shall adversely affect any right or protection of a director or officer of the Corporation existing by virtue of this Article IX at the time of such amendment, repeal, modification or adoption.
K. Jointly Indemnifiable Claims. Given that certain jointly indemnifiable claims (as defined below) may arise due to the service of the Indemnitee as a director and/or officer of the Corporation at the request of the indemnitee-related entities (as defined below), the Corporation shall be fully and primarily responsible for the payment to the Indemnitee in respect of indemnification or advancement of expenses in connection with any such jointly indemnifiable claims, pursuant to and in accordance with the terms of this Article IX, irrespective of any right of recovery the Indemnitee may have from the indemnitee-related entities. Under no circumstance shall the Corporation be entitled to any right of subrogation against or contribution by the indemnitee-related entities and no right of advancement, indemnification or recovery the Indemnitee may have from the indemnitee-related entities shall reduce or otherwise alter the rights of the Indemnitee or the obligations of the Corporation under this Article IX. In the event that any of the indemnitee-related entities shall make any payment to the Indemnitee in respect of indemnification or advancement of expenses with respect to any jointly indemnifiable claim, the indemnitee-related entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee against the Corporation, and the Indemnitee shall execute all documents and instruments reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents and instruments as may be necessary to enable the indemnitee-related entities effectively to bring suit to enforce such rights. Each of the indemnitee-related entities shall be third-party beneficiaries with respect to this Section K and entitled to enforce this Section K.
The term “indemnitee-related entities” means any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the Corporation or any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise for which the Indemnitee has agreed, on behalf of the Corporation or at the Corporation’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein) from whom an Indemnitee may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the Corporation may also have an indemnification or advancement obligation.
The term “jointly indemnifiable claims” shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which the Indemnitee shall be entitled to indemnification or advancement of expenses from both the indemnitee-related entities and the Corporation pursuant to applicable law, any agreement, certificate of incorporation, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Corporation or the indemnitee-related entities, as applicable.
ARTICLE X
LIMITED LIABILITY OF DIRECTORS
To the fullest extent permitted by the DGCL, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director (it being understood that, without limiting the foregoing, if in the future the DGCL is amended or modified (including with respect to Section 102(b)(7)) to permit the further limitation or elimination of the personal liability of a director of the Corporation to a greater extent than contemplated above, then the provisions of this Article X shall be deemed to provide for the elimination of the personal liability of the directors of the Corporation to such greater extent). This Article X shall not eliminate or limit the liability of a director for any act or omission occurring prior to the date when this Article X becomes effective. Any repeal or amendment or modification of this Article X, or the adoption of any provision of this Third Amended and Restated Certificate of Incorporation inconsistent with this Article X, will, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide a broader limitation on a retroactive basis than permitted prior thereto), and will not adversely affect any limitation on the personal liability of any director of the Corporation at the time of such repeal or amendment or modification or adoption of such inconsistent provision.
Exhibit 3.2
FOURTH AMENDED AND RESTATED BYLAWS
OF
ENERGY XXI GULF COAST, INC.
a Delaware corporation
FOURTH AMENDED AND RESTATED BYLAWS
OF
ENERGY XXI GULF COAST, INC.
ARTICLE
I
REGISTERED OFFICE
Section 1.1 Registered Office. The registered office of Energy XXI Gulf Coast, Inc. (hereinafter called the “Corporation”) in the State of Delaware shall be located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. The registered office and/or registered agent of the Corporation may be changed from time to time by action of the board of directors of the Corporation (the “Board”).
Section 1.2 Offices. The Corporation may have an office or offices at such places as the Board may from time to time designate.
ARTICLE
II
MEETING OF STOCKHOLDERS
Section 2.1 Annual Meeting. The annual meeting of the stockholders of the Corporation (the “Stockholders”) for the election of members of the Board (each, a “Director”) and conducting such other proper business as may come before the meeting shall be held at such time and date as may be fixed by the Board.
Section 2.2 Special Meetings. Special meetings of the Stockholders may be called at any time by the President (as hereinafter defined) and shall be called by the President upon the request in writing or by vote of a majority of the Directors, or Stockholders of record owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote.
Section 2.3 Time and Place of Meetings. All meetings of the Stockholders may be held at such place or places, within or outside of the State of Delaware, as may from time to time be fixed by the Board or as specified and fixed in the respective notices or waiver of notice thereof. If no designation is made, the place of meeting shall be the principal office of the Corporation.
Section 2.4 Quorum. Except as otherwise provided by applicable law or by the Certificate of Incorporation (as defined below) of the Corporation, a majority of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of Stockholders. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time in accordance with Section 2.5, until a quorum shall be present or represented.
Section 2.5 Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.6 Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the Stockholders, unless the question is one upon which by express provisions of an applicable law or of the Certificate of Incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 2.7 Proxies. Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him, her or it by proxy. Every proxy must be signed by the Stockholder granting the proxy or by his, her or its attorney-in-fact. No proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally.
Section 2.8 Action by Written Consent. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any annual or special meeting of Stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such Stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or Stockholders in writing, setting forth the action so taken and bearing the dates of signature of the Stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than a majority of the shares entitled to vote, or, if greater, not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the state of Delaware, or the Corporation’s principal place of business, or an officer or agent of the Corporation having custody of the book or books in which proceedings of meetings of the Stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested provided, however, that no consent or consents delivered by certified or registered mail shall be deemed delivered until such consent or consents are actually received at the registered office. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered to the Corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those Stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the Stockholders shall have the same force and effect as if taken by the Stockholders at a meeting thereof.
ARTICLE
III
DIRECTORS
Section 3.1 Board of Directors. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all powers of the Corporation and do all such lawful acts and things as are not by statute, the Third Amended and Restated Certificate of Incorporation of the Corporation (as amended, restated or otherwise modified from time to time, the “Certificate of Incorporation”) or by these Fourth Amended and Restated Bylaws directed or required to be exercised or done by the Stockholders. The property and business of the Corporation shall be managed by or under the direction of the Board which such Board shall consist of three (3) Directors, unless the Stockholders unanimously agree that there will be a different number of Directors but not below one (1) at any time.
Section 3.2 Term and Vacancies. Each Director shall hold office until the next annual election by the Stockholders and, subject to his prior resignation or removal in accordance with the terms hereof, until his successor is duly elected and qualified. Directors shall be elected annually by the Stockholders, except that vacancies in the Board by reason of the earlier death, resignation or removal of a Director may be filled for the unexpired term by the remaining Directors, though less than a quorum, by a majority vote (a “Board Appointee”). The Board Appointee shall serve until the next annual election by the Stockholders and, subject to his prior resignation or removal in accordance with the terms hereof, until his successor is elected and qualified. The Stockholders shall have the right to hold an election to fill any vacancy at any time and to replace the Board Appointee.
ARTICLE
IV
POWER OF DIRECTORS
Section 4.1 Powers. The Board shall have such general and specific powers as are conferred upon corporations by the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”), subject only to the provisions of the DGCL, the Certificate of Incorporation, and these Fourth Amended and Restated Bylaws, which may restrict or deny such powers. Any action that normally would be submitted for approval to the board of directors of a corporation under the DGCL shall be submitted to the Board.
Section 4.2 Quorum. A quorum of a majority of the Directors is required in order to hold a meeting of the Board for approval of any action.
Section 4.3 Action of the Board. Except as otherwise provided in Section 5.3, all actions of the Board will be taken at a duly convened meeting of the Board at which a quorum is present, and the approval of the Directors attending such meeting (whether in person, by proxy or, to the extent then permitted under applicable law, by telephone or other medium allowing all participants to hear each other without time delays), as set forth in Section 4.4 to the action upon which approval is sought, shall be required to authorize the Corporation to take any action submitted for the decision of the Board.
Section 4.4 Approval of the Board. Action by the Board shall require the approval of the majority of Directors.
Section 4.5 Abstention from Voting. Notwithstanding the provisions of Section 4.4, a Director shall abstain from any vote on matters directly affecting such Director. In order for such matters to be approved, requisite approval must be obtained as provided in Section 4.4 without the vote of the abstaining Director, and the required number or percentage of votes shall be reduced by the number or percentage of abstaining Directors.
ARTICLE
V
MEETING OF DIRECTORS
Section 5.1 Annual Meeting of the Board. After each annual election of Directors, the newly elected Directors may meet for the purpose of organization, the election of officers, and the transaction of other business, at such place and time as shall be fixed from time to time by the Stockholders at the annual meeting, and if a majority of the Directors be present at such place and time, no prior notice of such meeting shall be required to be given to the Directors. The place and time of such meeting may also be fixed by written consent of the Directors. Regular meetings of the Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board.
Section 5.2 Special Meetings. Special meetings of the Board may be called by the President on two (2) days prior notice either in writing and delivered via email or telecopier or by telephone to each Director and shall be called by the President in like manner upon the written request of two (2) Directors. Special meetings of the Board may be held within or without the State of Delaware at such place as is indicated in the notice or waiver of notice thereof.
Section 5.3 Action without a Meeting. Unless otherwise restricted by the Certificate of Incorporation of the Corporation or these Fourth Amended and Restated Bylaws, any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may, be taken without a meeting if all members of the Board or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or such committee.
Section 5.4 Adjournment of Meetings. A majority of the Directors shall constitute a quorum, but a smaller number of Directors present at a meeting may adjourn from time to time, without further notice, until a quorum is secured.
ARTICLE
VI
OFFICERS
Section 6.1 Officers. The officers of the Corporation shall be appointed by the Board and shall consist of a president, one or more vice presidents, chief financial officer, and secretary. Any number of offices may be held by the same person, unless the Certificate of Incorporation otherwise provides.
Section 6.2 Other Officers and Agents. The Board may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board.
Section 6.3 Term of Office. The officers of the Corporation shall hold office until their successors are chosen and qualify in their stead. Any officer chosen or appointed by the Board may be removed either with or without cause at any time by the affirmative vote of a majority of the entire Board. If the office of any officer or officers becomes vacant for any reason, the vacancy shall be filled by the affirmative vote of a majority of the entire Board.
Section 6.4 President. The President of the Corporation (the “President”) shall have the right to supervise and direct the management and operation of the Corporation and shall perform such other duties and have such other powers as the Board may from time to time prescribe. The President shall have the authority to execute, bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board to some other officer or agent of the Corporation. The President shall be the chief executive officer of the Corporation. It shall be the duty of the President to have general and active management of the business and the Corporation and to see that all orders and resolutions of the Board are carried into effect. The President shall have the general supervision and direction of the other officers of the Corporation and shall see that their respective duties are properly performed.
Section 6.5 Vice Presidents. The Vice President, if any, or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors shall, in the absence or disability of the President, act with all of the powers and be subject to all the restrictions of the President. The Vice Presidents shall also perform such other duties and have such other powers as the Board of Directors, the President or these Fourth Amended and Restated Bylaws may, from time to time, prescribe.
Section 6.6 Secretary. The secretary of the Corporation (the “Secretary”) shall attend all meetings of the Corporation and the Board. The Secretary shall act as clerk thereof and shall record all of the proceedings of such meetings in a book kept for that purpose. The Secretary shall give proper notice of meetings of Stockholders and Directors and shall perform such other duties as shall be assigned to him or her by the President or the Board.
Section 6.7 The Chief Financial Officer. The Chief Financial Officer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation; shall deposit all monies and other valuable effects in the name and to the credit of the Corporation as may be ordered by the Board of Directors; shall cause the funds of the Corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the president and the Board of Directors, at its regular meeting or when the Board of Directors so requires, an account of the Corporation; shall have such powers and perform such duties as the Board of Directors, the President or these Fourth Amended and Restated Bylaws may, from time to time, prescribe. If required by the Board of Directors, the Chief Financial Officer shall give the Corporation a bond in such sums and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of Chief Financial Officer and for the restoration to the Corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the Chief Financial Officer belonging to the Corporation.
Section 6.8 Delegation. In case of the absence or disability of any officer of the Corporation or for any other reason deemed sufficient by a majority of the Board, the Board may delegate his powers or duties to any other officer or to any Director for the time being.
ARTICLE
VII
CERTIFICATES OF STOCK
Section 7.1 Certificates. Certificates of stock shall be signed by the President and Secretary. If a certificate of stock is lost or destroyed, another may be issued upon proof of loss or destruction and the giving of a satisfactory bond of indemnity in an amount sufficient to indemnify the Corporation against any claim. A new certificate may be issued without requiring bond when, in the judgment of the Directors, it is proper to do so.
Section 7.2 Stockholders of Record. The Corporation shall be entitled to treat the holder of record of any share or shares of stock of the Corporation as the holder in fact thereof and accordingly shall 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 it shall have express or other notice thereof, save as expressly provided by the laws of Delaware.
Section 7.3 Transfers. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction on its books.
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VIII
GENERAL PROVISIONS
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be determined by the Board and shall initially be a calendar year.
Section 8.2 Dividends. Dividends upon the capital stock may be declared by the Board at any regular or special meeting of the Board and may be paid in cash or property or in shares of the capital stock. The Directors may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purposes and may alter or abolish any such reserve or reserves.
Section 8.3 Checks. All checks, drafts or orders for the payment of money shall be signed by the Chief Financial Officer, if any, or by such other officer or officers as the Board may designate. No check shall be signed in blank.
Section 8.4 Contracts. The Board may authorize any officer or officers, or any agent or agents, of the Corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
Section 8.5 Book and Records. The books, records and accounts of the Corporation, except as otherwise required by the DGCL, may be kept within or outside of the State of Delaware, at such place or places as may from time to time be designated by the Fourth Amended and Restated Bylaws or by resolution of the Directors.
Section 8.6 Inspection of Books and Records. Any Stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the Corporation’s stock ledger, a list of its Stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person's interest as a Stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the Stockholder. The demand under oath shall be directed to the Corporation at its registered office in the State of Delaware or at its principal place of business.
Section 8.7 Notices. Except as otherwise specifically provided herein or required by law, all notices required to be given to any Stockholder, Director, officer, employee or agent shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mail, postage paid, or by sending such notice by electronic transmission. Any such notice shall be addressed to such Stockholder, Director, officer, employee or agent at his or her last known address as the same appears on the books of the Corporation. The time when such notice is received, if hand delivered, or dispatched, if delivered through the mails or by facsimile transmission, shall be the time of the giving of the notice.
Section 8.8 Waiver of Notice. A written waiver of any notice, signed by a Stockholder, Director, officer, employee or agent, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such Stockholder, Director, officer, employee or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
Section 8.9 Section Headings. Section headings in these Fourth Amended and Restated Bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.
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IX
AMENDMENT
Section 9.1 Amendment. These Fourth Amended and Restated Bylaws may be amended, altered, repealed or added to at any regular or special meeting of the Board, by the unanimous affirmative vote of all Directors in office, or at any annual or special meeting of the Stockholders by the affirmative vote of holders of a majority of the issued and outstanding stock entitled to vote.
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X
INDEMNIFICATION
The Corporation shall indemnify any Indemnitee (as defined in the Certificate of Incorporation) as set forth in the Certificate of Incorporation.