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): August 10, 2016
Electro Rent Corporation
(Exact Name of Registrant as Specified in Charter)
| California | 000-09061 | 95-2412961 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 6060 Sepulveda Boulevard, Van Nuys, CA | 91411-2512 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: (818) 787-2100
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Introductory Note
On August 10, 2016, Electro Rent Corporation (the “Company”) completed its merger (the “Merger”) with Elecor Merger Corporation (“Merger Sub”), a wholly-owned subsidiary of Elecor Intermediate Holding II Corporation (“Parent”), pursuant to the Amended and Restated Agreement and Plan of Merger entered into among the Company, Merger Sub and Parent on June 23, 2016 (the “Merger Agreement”). Parent and Merger Sub are affiliates of Platinum Equity, a Beverly Hills-based private equity group.
Item 1.01. Entry into Material Definitive Agreement.
On August 5, 2016, in connection with the Merger and pursuant to the Merger Agreement, the Company’s board of directors approved an amendment to the Company’s Supplemental Executive Retirement Plan (the “SERP”) to remove the requirement for employer matching contributions. Effective August 10, 2016, the Company amended the Company’s SERP and, pursuant to such amendment, the Company is no longer required to make any matching contributions under the SERP. A copy of the amendment to the SERP is filed as an exhibit to this Current Report on Form 8-K and is incorporated herein by reference.
Item 1.02. Termination of Material Definitive Agreement.
On August 10, 2016, the Company terminated its existing credit facility. The existing credit facility was governed by the terms and conditions of a Credit Agreement, dated November 19, 2013 (as amended or otherwise modified prior to the date hereof, including without limitation by that Amendment Number One, dated November 27, 2015, the “Credit Agreement”), by and among the Company, JP Morgan Chase Bank National Association, as administrative agent, J.P. Morgan Securities LLC as sole lead arranger and sole bookrunner and the lenders party thereto. The Credit Agreement was terminated without penalty.
Item 2.01. Completion of Acquisition or Disposition of Assets.
The information set forth in the Introductory Note is incorporated herein by reference.
Under the terms of the Merger Agreement, which was adopted by the Company’s shareholders at the special meeting of the Company’s shareholders held on August 5, 2016, upon the effective time of the Merger: (i) each outstanding share of common stock, no par value, of the Company (“Common Stock”) (other than shares held by Parent, Merger Sub and the Company (as treasury stock or otherwise) and any of their respective direct or indirect wholly-owned subsidiaries) was converted automatically into the right to receive $15.50 in cash, without interest and less any applicable withholding taxes (the “Merger Consideration”);
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and (ii) holders of Common Stock immediately prior to the effective time of the Merger ceased to have any rights as shareholders in the Company other than the right to receive the Merger Consideration. In addition, pursuant to the Merger Agreement, at the effective time of the Merger, each restricted stock unit issued by the Company (whether vested or unvested) that was outstanding at the effective time of the Merger became vested in full and was cancelled and converted into solely the right to receive the Merger Consideration. In addition, each restricted stock unit that was unvested at the effective time of the Merger received an amount in cash, without interest, equal to the dividends that were accrued and unpaid with respect to such unvested restricted stock unit, less applicable withholding taxes.
The foregoing description of the Merger and the Merger Agreement is not complete and is qualified in its entirety by reference to the Merger Agreement, which is attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 24, 2016, and is incorporated herein by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
The information set forth in the Introductory Note and Item 2.01 is incorporated herein by reference.
In connection with the consummation of the Merger, the Company notified The NASDAQ Stock Market LLC (“NASDAQ”) on August 10, 2016 that each outstanding share of Common Stock was converted automatically into the right to receive the Merger Consideration, other than shares held by Parent, Merger Sub and the Company (as treasury stock or otherwise) and any of their respective direct or indirect wholly-owned subsidiaries. As part of such notice, the Company requested that NASDAQ file with the Securities and Exchange Commission a notification of removal from listing on Form 25 to report that shares of Common Stock are no longer listed on NASDAQ. NASDAQ filed the Form 25 with the Securities and Exchange Commission on August 10, 2016. The Company intends to file with the Securities and Exchange Commission a Form 15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), requesting the deregistration of the Common Stock and the suspension of the Company’s reporting obligations under the Exchange Act.
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in the Introductory Note and in Item 2.01 is incorporated herein by reference.
Item 5.01. Changes in Control of Registrant.
As a result of the completion of the Merger on August 10, 2016, a change of control of the Company occurred, and the Company became a wholly-owned subsidiary of Parent. The information set forth in the Introductory Note and in Item 2.01 is incorporated herein by reference.
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The aggregate purchase price paid for the Company, including (i) payments under the Merger Agreement to the Company’s shareholders and restricted stock unit holders, (ii) fees and expenses relating to the closing of the Merger and the debt financing transactions, and (iii) the repayment of certain indebtedness of the Company and its subsidiaries, was approximately $405 million. The consideration paid to the Company’s shareholders and restricted stock unit holders was funded through (x) equity capital available to certain private investment funds controlled by Platinum Equity, (y) proceeds received in connection with a new credit facility with a syndicate of financial institutions led by Bank of America, N.A., as administrative agent and collateral agent, and (z) cash on hand at the Company.
Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Agreements of Certain Officers.
Pursuant to the Merger Agreement, at the effective time of the Merger, (i) each of the directors of the Company immediately prior to the effective time of the Merger ceased to be a director of the Company, and (ii) each of the directors of Merger Sub immediately prior to the effective time of the Merger became the directors of the Company. The incumbent officers of the Company immediately prior to the completion of the Merger continued as officers of the Company following the Merger.
Item 5.03. Amendments to Articles of Incorporation or By-laws; Change in Fiscal Year.
At the effective time of the Merger, the articles of incorporation and bylaws of the Company, as in effect immediately prior to the effective time of the Merger, were amended and restated to be identical to the articles of incorporation and bylaws of Merger Sub, except that the articles of incorporation and bylaws were changed to reflect that the name of the Company is “Electro Rent Corporation.” Copies of the amended and restated articles of incorporation and amended and restated bylaws are filed as exhibits to this Current Report on Form 8-K and are incorporated herein by reference.
Item 8.01. Other Events.
On August 10, 2016, the Company issued a press release regarding the closing of the Merger. A copy of the press release is attached as an exhibit to this report and is incorporated herein by reference.
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Item 9.01. Financial Statements and Exhibits.
| Exhibit |
Description | |
| 3.1 | Restated Articles of Incorporation of Electro Rent Corporation | |
| 3.2 | Amended and Restated Bylaws of Electro Rent Corporation | |
| 10.1 | First Amendment to the 2008 Electro Rent Corporation Supplemental Executive Retirement Plan, dated August 10, 2016 | |
| 99.1 | Press Release of the Company dated August 10, 2016 | |
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SIGNATURE
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.
| ELECTRO RENT CORPORATION |
| /s/ Allen Sciarillo |
| Name: Allen Sciarillo Title: Chief Financial Officer |
Dated: August 10, 2016
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Exhibit 3.1
RESTATED ARTICLES OF INCORPORATION
OF
ELECTRO RENT CORPORATION
The undersigned certify that:
| 1. | They are the president and secretary, respectively, of Electro Rent Corporation, a California corporation. |
| 2. | The Articles of Incorporation of this corporation are amended and restated to read as follows: |
| a. | The name of the corporation is Electro Rent Corporation. |
| b. | The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. |
| c. | This corporation is authorized to issue only one class of shares of stock. The total number of shares which this corporation is authorized to issue is 1000. |
| 3. | The foregoing amendment and restatement of Articles of Incorporation has been duly approved by the board of directors. |
| 4. | The foregoing amendment and restatement of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902, California Corporations Code. The total number of outstanding shares of the corporation is 100. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. |
We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge.
DATE: August 10, 2016
| /s/ Steve Markheim |
| Steve Markheim, President and Chief Executive Officer |
| /s/ Eva M. Kalawski |
| Eva M. Kalawski, Vice President and Secretary |
Exhibit 3.2
ELECTRO RENT CORPORATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Meetings of shareholders shall be held at such place, either within or without the State of California, or by means of remote communication, as designated by the board of directors.
Section 2. Unless an annual meeting of shareholders is not required under the General Corporation Law of the State of California (the “GCL”), annual meetings shall be held at such date and time as designated by the board of directors and stated in the notice of such meetings, at which the shareholders shall elect directors by a plurality vote and transact such other business as may properly be brought before the meeting.
Section 3. Written notice of any annual meeting of shareholders, stating the place or means of remote communication, date and hour of such meeting, and the record date for such meeting, shall be given to each shareholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of such meeting.
Section 4. The secretary shall prepare and make, at least ten (10) days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting; provided, however, if the record date for determining the shareholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the shareholders entitled to vote as of the tenth (10th) day before the meeting date, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting, during ordinary business hours, at the principal place of business of the company. At any meeting (other than a meeting held solely by remote communication), a list of shareholders entitled to vote at the meeting shall be produced and kept at the place of such meeting during the whole time thereof and may be examined by any shareholder who is present. If the meeting is to be held solely by means of remote communication, then such list shall be open to the examination of any shareholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
Section 5. Special meetings of the shareholders may be called by the board of directors, the president or the secretary for any purpose. In addition, special meetings shall be called by the president or the secretary upon the written request of one or more shareholders entitled to cast not less than ten percent (10%) of the votes at the meeting.
Section 6. Written notice of a special meeting of shareholders stating the place or means of remote communication, date and hour of the meeting, the record date for such meeting and purpose for which the meeting is called, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each shareholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of shareholders shall be limited to the purpose stated in the notice.
Section 8. The holders of a majority of the shares issued and outstanding and entitled to vote, present in person or represented by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by the GCL or other applicable law or by the articles of incorporation. If such quorum shall not be present or represented at any meeting, the shareholders entitled to vote, present in person or represented by proxy, shall have power to adjourn the meeting until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than forty-five (45) days, or if at the original meeting a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the adjourned meeting.
Section 9. When a quorum is present at any meeting of shareholders, the vote of the holders of a majority of the shares having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which a different vote is expressly required by the GCL, other applicable law, the articles of incorporation or these bylaws, in which case such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the articles of incorporation, at every meeting of shareholders, each shareholder shall be entitled to one (1) vote in person or by proxy for each share of stock having voting power held by such shareholder. No proxy shall be valid after the expiration of eleven (11) months from the date thereof, unless otherwise provided in the proxy.
Section 11. Any action that is required to, or may, be taken at an annual or special meeting of shareholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize such action at a meeting at which all shares entitled to vote were present and voted. Prompt notice of the taking of the action without a meeting by less than unanimous written consent shall be given to those shareholders who have not consented in writing.
ARTICLE II
DIRECTORS
Section 1. The authorized number of directors shall be fixed by resolution duly adopted by a vote or written consent of holders of a majority of the outstanding shares; provided that if the authorized number of directors is five or more, any proposal to reduce the authorized number of directors to a number less than five cannot be adopted if the votes cast against its adoption at a meeting, or the shares not consenting in the case of action by written consent, are equal to more than sixteen and two-thirds percent (16-2/3%) of the outstanding shares entitled to vote. The initial number of directors which shall constitute the board of directors shall be one (1).
The number or minimum number of directors shall not be less than three; provided, however, that (1) before shares are issued, the number may be one or two, (2) so long as the
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company has only one shareholder, the number may be one or two, and (3) so long as the company has only two shareholders, the number may be two.
Each director elected shall hold office until the next annual meeting of shareholders or until such person’s successor is duly elected and qualified, unless such person sooner resigns or is removed.
Section 2. Vacancies and newly created directorships resulting from any increase in number of directorships may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and each director so chosen shall hold office until the next annual meeting of shareholders or until such person’s successor is duly elected and qualified, unless such person sooner resigns or is removed. If there are no directors in office, then an election of directors may be held in the manner provided by the GCL or other applicable law.
MEETINGS OF THE BOARD OF DIRECTORS
Section 3. Meetings of directors, or committees thereof, shall be held at such place, either within or without the State of California, or by means of remote communication, as designated by the board of directors, or members of such committees.
Section 4. Meetings of the board of directors shall be held at such date and time as shall be determined by the board of directors. Meetings may also be called by the secretary. Notice of any meeting shall be provided at least one (1) hour by personal delivery or by telephone, including a voice messaging system or by electronic transmission prior to such meeting in any manner set forth in Article III of these bylaws. At all meetings, a majority of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by the GCL or other applicable law or by the articles of incorporation. If a quorum shall not be present at any meeting, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 5. Any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board of directors or such committee, as the case may be, consent thereto in writing, or by electronic transmission, and such writings or electronic transmissions are filed with the minutes of proceedings of the board of directors or such committee.
COMMITTEES OF DIRECTORS
Section 6. The board of directors may designate one or more committees, each committee to consist of two or more directors. The board of directors may designate alternate members of any committee. In the absence or disqualification of a member of a committee, the other members present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors; but no such committee shall have the power or authority with respect to the following:
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(i) The approval of any action for which the General Corporation Law also requires shareholders’ approval or approval of the outstanding shares.
(ii) The filling of vacancies on the board of directors or in any committee.
(iii) The fixing of compensation of the directors for serving on the board of directors or on any committee.
(iv) The amendment or repeal of these bylaws or the adoption of new bylaws.
(v) The amendment or repeal of any resolution of the board of directors which by its express terms is not so amendable or repealable.
(vi) A distribution to the shareholders of the company, except at a rate, in a periodic amount or within a price range set forth in the articles or determined by the board of directors.
(vii) The appointment of other committees of the board of directors or the members thereof.
Section 7. Unless the board of directors otherwise provides, each committee may adopt, amend and repeal rules for the conduct of its business. In the absence of a provision by the board of directors or a provision in the rules of such committee to the contrary, a majority of the members of such committee shall constitute a quorum for the transaction of business, the vote of a majority of the members present at a meeting shall be the act of such committee, and in all other respects each committee shall conduct its business in the same manner as the board of directors conducts its business pursuant to these bylaws.
COMPENSATION OF DIRECTORS
Section 8. Unless otherwise restricted by the articles of incorporation or these bylaws, the board of directors shall have the authority to fix the compensation of directors. No such compensation shall preclude a director from serving the company in any other capacity and receiving compensation therefor.
REMOVAL OF DIRECTORS
Section 9. Unless otherwise restricted by the articles of incorporation or by applicable law, directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors.
ARTICLE III
NOTICES
Section 1. Whenever notice is required to be given to any director or shareholder, such notice shall be in writing and may be given (i) by personal delivery, (ii) by United States mail (addressed to such director or shareholder, at his or her address as it appears on the records of the company, with postage thereon prepaid), (iii) by overnight courier or (iv) by electronic transmission directed to an address (electronic or otherwise) at which such director or shareholder has consented to receive notice. Notices will be deemed given (i) when delivered, if personally delivered, (ii) two (2) business days after being deposited in the United States Mail,
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if mailed, (iii) when delivered, if delivered by overnight courier, or (iv) upon transmission if sent by electronic transmission. Each director shall provide the secretary with either a facsimile number or an electronic mail address at which the director consents to receive notice.
Section 2. Any notice required to be given to any director or shareholder may be waived by such person in writing or by electronic transmission. Attendance of a person at a meeting shall 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. Neither the business to be transacted at, nor the purpose of, any meeting of shareholders, any meeting of the board of directors or any committee thereof need be specified in any waiver of notice unless so required by the articles of incorporation or these bylaws.
Section 3. For purposes of these bylaws, “electronic transmission” means any electronic mail or any other form of communication (including facsimile transmission), not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
ARTICLE IV
OFFICERS
Section 1. The officers shall be a president, a secretary and a chief financial officer. The company may also have, at the discretion of the board of directors: a chief executive officer; a corporate controller; one or more vice presidents, assistant secretaries and assistant treasurers; and such other officers as may be appointed in accordance with the provisions hereof. One person may hold two or more offices.
Section 2. Each officer shall hold office until such officer’s successor is duly elected and qualified or until such officer’s earlier resignation or removal. Any officer may resign at any time upon written notice to the company. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3. Any officer may be removed, either with or without cause, by the board of directors.
Section 4. A vacancy in any office for any reason shall be filled in the manner prescribed in these bylaws for the regular appointments to such office.
PRESIDENT
Section 5. The president shall, subject to the control of the board of directors, have general supervision, direction and control of the business and affairs of the company. He or she shall have the general powers and duties of management usually vested in the chief executive officer of a corporation, and shall have such other powers and duties with respect to the administration of the business and affairs of the company as may be assigned to him or her by the board of directors or as prescribed by these bylaws.
CHIEF EXECUTIVE OFFICER
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Section 6. The chief executive officer shall exercise and perform such powers and duties as may be assigned to him or her by the board of directors (unless the president is also the chief executive officer).
VICE PRESIDENTS
Section 7. The vice presidents shall exercise and perform such powers and duties as may be assigned to each of them by the chief executive officer, the president, the board of directors or as prescribed by these bylaws. In the absence or disability of the chief executive officer (if there is such an officer) and of the president, the vice presidents, in order of their rank as fixed by the board of directors, or if not ranked, the vice president designated by the board of directors, shall perform all of the duties of the president and when so acting shall have all of the powers of and be subject to all the restrictions upon the president.
SECRETARY AND ASSISTANT SECRETARIES
Section 8. The secretary shall keep, or cause to be kept, a book of minutes of all meetings of the board of directors and the shareholders.
Section 9. The secretary shall keep, or cause to be kept, a listing which shows the names of the shareholders and their addresses, the number and classes of shares held by each; the number and date of certificates issued for the same; and the number and date of cancellation of every certificate surrendered for cancellation.
Section 10. The secretary shall give, or cause to be given, notice of all meetings of shareholders and the board of directors required by these bylaws or by the GCL or other applicable law to be given, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or these bylaws. If for any reason the secretary shall fail to give notice of any meeting of the board of directors called by one or more of the persons identified in Section 4 of Article II of these bylaws, or if he or she shall fail to give notice of any special meeting of shareholders called by one or more of the persons identified in Section 5 of Article I of these bylaws, then any such person or persons may give notice of any such special meeting.
Section 11. The assistant secretaries (if any) shall exercise and perform such powers and duties as may be assigned to each of them by the secretary or as prescribed by these bylaws.
TREASURER AND ASSISTANT TREASURERS
Section 12. The treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the company, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of capital, shall be classified according to source and shown in a separate account. He or she shall disburse the funds of the company as may be ordered by the board of directors, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or by these bylaws.
Section 13. The assistant treasurers (if any) shall exercise and perform such powers and duties as may be assigned to each of them by the treasurer or as prescribed by these
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bylaws.
CHIEF FINANCIAL OFFICER
Section 14. The chief financial officer shall exercise and perform such powers and duties as may be assigned to him or her by the board of directors (unless the treasurer is also the chief financial officer).
ARTICLE V
STOCK
Section 1. Every shareholder shall be entitled to have a certificate, signed (manually or electronically) by the chairperson or vice chairperson of the board of directors or the president or a vice president, on the one hand, and the secretary, an assistant secretary, the chief financial officer, or an assistant treasurer, on the other hand, certifying the number of shares owned by such shareholder.
FIXING RECORD DATE
Section 2. In order that the company may determine the shareholders entitled to notice of any meeting of shareholders or any adjournment thereof, the board of directors 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 of directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the board of directors so fixes a date, such date shall also be the record date for determining the shareholders entitled to vote at such meeting unless the board of directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the board of directors, the record date for determining shareholders entitled to notice of and to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for determination of shareholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for shareholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of shareholders entitled to vote in accordance with these bylaws.
Section 3. In order that the company may determine the shareholders entitled to consent to corporate action in writing without a meeting, the board of directors 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 of directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining shareholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by this chapter, 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 by delivery to its registered office in the State of California, its principal place of business or the secretary. Delivery made to a company’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed
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by the board of directors and prior action by the board of directors is required by this chapter, the record date for determining shareholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.
Section 4. In order that the company may determine the shareholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the shareholders entitled to exercise any rights in respect of any change, conversion or exchange of shares, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining shareholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
REGISTERED SHAREHOLDERS
Section 5. The company shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the GCL or other applicable law.
ARTICLE VI
GENERAL PROVISIONS
INDEMNIFICATION
Section 1. The company may indemnify its officers, employees and agents to the fullest extent permitted by the GCL and other applicable law, in each case, as amended from time to time. No amendment to or repeal of this Section 1 of Article VI shall apply to or have any effect on the liability or alleged liability of any such person for or with respect to any acts or omissions of such person occurring prior to such amendment or repeal.
AMENDMENTS
Section 2. These bylaws may be altered, amended or repealed, or new bylaws may be adopted by the shareholders, except as otherwise provided by law or by the articles of incorporation or these bylaws.
Section 3. Subject to the right of shareholders as provided in Section 2 of Article VI to adopt, amend or repeal these bylaws, these bylaws (other than a bylaw or amendment thereof changing the authorized number of directors) may be adopted, amended or repealed by the Board of Directors.
Date Adopted: August 10, 2016
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Exhibit 10.1
First Amendment to the
2008 Electro Rent Corporation Supplemental Executive Retirement Plan
This amendment (Amendment) to the 2008 Electro Rent Corporation Supplemental Executive Retirement Plan (Plan) is made effective as August 10, 2016.
WHEREAS, Electro Rent Corporation (Electro Rent) maintains the Plan;
WHEREAS, Article VII of the Plan permits Electro Rent to amend the Plan at any time;
WHEREAS, the undersigned has the authority to act on behalf of Electro Rent with respect to amending the Plan;
WHEREAS, Electro Rent has entered into that certain Agreement and Plan of Merger by and among Elecor Intermediate Holding II Corporation, Elecor Merger Corporation and Electro Rent (Merger Agreement);
WHEREAS, Section 3.7(b) of the Merger Agreement requires Electro Rent to amend the Plan “to remove the requirement for employer matching contributions,” prior to the closing of the merger contemplated by the Merger Agreement; and
WHEREAS, the undersigned, on behalf of Electro Rent, has determined that it is in the best interest of Electro Rent and its shareholders to comply with Section 3.7(b) of the Merger Agreement.
NOW THEREFORE, the Plan is amended by replacing Section 4.1(b) in its entirety with the following:
Employer may (but shall not be required to) make matching contributions under this Plan in any amount determined by Employer. Employer matching contributions made to this Plan, if any, shall be subject to the same vesting provisions as the Savings Plan.
This Amendment is executed this 10th day of August, 2016.
| Electro Rent Corporation | ||
| By: | /s/ Allen Sciarillo | |
| Name: | Allen Sciarillo | |
| Title: | Chief Financial Officer | |
-1-
Exhibit 99.1
FOR IMMEDIATE RELEASE
For more information contact:
| Roger Pondel/Laurie Berman PondelWilkinson Inc. 310-279-5980 pwinvestor@pondel.com |
Daniel Whelan Platinum Equity 310-282-9202 dwhelan@platinumequity.com |
Platinum Equity Completes Acquisition of Electro Rent
LOS ANGELES – August 10, 2016 – Platinum Equity announced today it has completed the acquisition of Electro Rent Corporation for approximately $382 million, which represents a purchase price of $15.50 per share of Electro Rent common stock.
Electro Rent previously traded on the Nasdaq Global Select Market under the ticker symbol “ELRC.” After the close of the Nasdaq Global Select Market on August 10, 2016, trading of Electro Rent’s common stock ceased and the listing of Electro Rent’s common stock was suspended.
The agreement followed the unanimous recommendation of Electro Rent’s board of directors. Electro Rent shareholders approved the transaction on August 5, 2016. Shareholders of Electro Rent will receive a letter of transmittal from Computershare as paying agent with instructions on how to cash in their shares of Electro Rent’s common stock.
“We are excited to get to work and support Electro Rent’s long-term growth strategy,” said Platinum Equity Partner Louis Samson. “We believe the company, its customers and OEM partners will benefit from our financial resources, operational expertise and commitment to delivering exceptional service.”
Latham & Watkins LLP served as legal counsel to Platinum Equity. Houlihan Lokey served as financial advisor to the Strategic Alternatives Committee of the Board of Directors of Electro Rent, and Sheppard, Mullin, Richter & Hampton LLP served as Electro Rent’s legal counsel.
About Platinum Equity
Founded in 1995 by Tom Gores, Platinum Equity (http://www.platinumequity.com) is a global investment firm with more than $6 billion of assets under management and a portfolio of more than 25 operating companies that serve customers around the world. Platinum Equity specializes in mergers, acquisitions and operations – a trademarked strategy it calls M&A&O® – acquiring and operating companies in a broad range of business markets, including manufacturing, distribution, transportation and logistics, equipment rental, metals services, media and entertainment, technology, telecommunications and other industries. Over the past 20 years Platinum Equity has completed more than 175 acquisitions.
About Electro Rent
Electro Rent Corporation (http://www.ElectroRent.com) is one of the largest global organizations devoted to the rental, leasing and sales of general purpose electronic test equipment, personal computers and servers.
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