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): June 23, 2017
CIBC HOLDCO INC.
as successor to
PRIVATEBANCORP, INC.
(Exact name of Registrant as Specified in its Charter)
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Delaware |
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001-34066 |
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36-3681151 |
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(State or other jurisdiction |
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(Commission |
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(I.R.S. Employer |
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of incorporation) |
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File Number) |
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Identification No.) |
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120 South LaSalle Street, |
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Chicago, Illinois |
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60603 |
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(Address of Principal Executive Offices) |
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(Zip code) |
Registrant’s telephone number, including area code: (312) 564-2000
Not Applicable
(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
Introductory Note.
This Current Report on Form 8-K is being filed in connection with the closing of the transactions contemplated by that certain Agreement and Plan of Merger, dated as of June 29, 2016 (as amended, the “Merger Agreement”), by and among Canadian Imperial Bank of Commerce, a Canadian chartered bank (“CIBC”), PrivateBancorp, Inc., a Delaware corporation (“PrivateBancorp”) and CIBC Holdco Inc., a Delaware corporation (“Holdco”). On June 23, 2017, pursuant to the Merger Agreement, PrivateBancorp merged with and into Holdco (the “Merger”), with Holdco surviving the Merger as a wholly owned subsidiary of CIBC.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On June 23, 2016, the Merger was completed pursuant to the Merger Agreement. Under the terms and subject to the conditions of the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each share of common stock, without par value, of PrivateBancorp was converted into the right to receive (i) 0.4176 common shares of CIBC and (ii) $27.20 in cash, and outstanding equity awards of PrivateBancorp were treated as specified in the Merger Agreement.
The foregoing references to the Merger and the Merger Agreement do not purport to be complete and are qualified in their entirety by reference to the Merger Agreement and the amendments to the Merger Agreement, which were filed as Exhibit 2.1 to the Current Report on Form 8-K filed by PrivateBancorp on July 6, 2016, Exhibit 2.1 to the Current Report on Form 8-K filed by PrivateBancorp on March 30, 2017, and Exhibit 2.1 to the Current Report on Form 8-K filed by PrivateBancorp on May 4, 2017 and are 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 under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
As a result of the Merger, PrivateBancorp no longer fulfills the listing requirements of the Nasdaq Global Select Stock Market (“Nasdaq”). PrivateBancorp requested that Nasdaq suspend trading of PrivateBancorp common stock on Nasdaq, which will be effective as of the open of business on June 23, 2017, and file with the SEC a Form 25 to request the removal of the common stock from listing on Nasdaq and to deregister the common stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As a result, PrivateBancorp common stock will no longer be listed on Nasdaq.
Additionally, in connection with the Merger, PrivateBancorp has filed Form 25 notifications with the SEC to request the removal of its 7.125% Subordinated Debentures due 2042 (the “7.125% Debentures”) and the 10% Trust Preferred Securities of PrivateBancorp Capital Trust IV (the “Listed TruPS”) from listing on the New York Stock Exchange and Nasdaq, respectively, and to deregister such securities under Section 12(b) of the Exchange Act.
Following the effectiveness of the foregoing delistings, which will occur 10 days after filing of the respective Forms 25, Holdco (as successor to PrivateBancorp by operation of law) intends to file with the SEC certifications on Form 15 under the Exchange Act requesting the deregistration of the PrivateBancorp common stock, the 7.125% Debentures and the Listed TruPS under Section 12(g) of the Exchange Act and the suspension of PrivateBancorp’s reporting obligations under Section 15(d) of the Exchange Act.
Item 3.03 Material Modification to the Rights of Security Holders.
The information set forth under Items 2.01, 3.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
Effective June 22, 2017, PrivateBancorp satisfied and discharged its obligations under the indenture with respect to its outstanding 7.125% Debentures. In connection therewith, PrivateBancorp made arrangements to have all of the outstanding 7.125% Debentures called for redemption on the first available redemption date of October 30, 2017 at a redemption price equal to 100% of the principal amount outstanding, plus accrued and unpaid interest to, but excluding, the redemption date.
Effective June 22, 2017, PrivateBancorp satisfied and discharged its obligations under the indenture with respect to its outstanding 10.00% Junior Subordinated Debentures due 2068 (“Trust IV Debentures”). In connection therewith, all of the outstanding Trust IV Debentures will be called for redemption on July 24, 2017 at a redemption price of 100% of the principal amount outstanding, plus accrued and unpaid interest to, but excluding, the redemption date. The redemption of the Trust IV Debentures will result in the mandatory redemption on July 24, 2017 of the Listed TruPS.
Item 5.01 Changes in Control of Registrant.
The information set forth under Items 2.01, 3.03 and 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
As a result of the Merger, a change in control of PrivateBancorp occurred, and Holdco (as successor to PrivateBancorp) is now a wholly owned subsidiary of CIBC.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers.
PrivateBancorp ceased its separate corporate existence at the Effective Time as a result of the Merger. Larry Richman, Michelle Collins, Norman Bobins and Richard Price (each former directors of PrivateBancorp) continued following the Effective Time as members of the board of directors of Holdco. Pursuant to the Merger Agreement, Michelle Collins was also appointed as a director of CIBC.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information regarding the Merger and the Merger Agreement set forth under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.
As of the Effective Time, the Restated Certificate of Incorporation and the Amended and Restated By-laws of PrivateBancorp ceased to be in effect by operation of law and the organizational documents of Holdco (as successor to PrivateBancorp by operation of law) remained the Certificate of Incorporation and Bylaws of Holdco, consistent with the terms of the Merger Agreement.
Item 8.01 Other Events
Effective June 22, 2017, PrivateBancorp satisfied and discharged all its obligations under the subordinated indentures with respect to its outstanding Floating Rate Junior Subordinated Deferrable Interest Debentures due 2034, Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures due 2035 and Junior Subordinated Debt Securities due 2035. In connection therewith, PrivateBancorp has made arrangements to have such debentures called for redemption of the first available redemption dates. The redemption of the foregoing debentures will result in the mandatory redemption on the applicable redemption dates of the trust preferred securities associated with each series of debentures.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
See Exhibit Index.
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.
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CIBC HOLDCO INC., | ||
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as successor to PrivateBancorp, Inc. | ||
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Date: June 23, 2017 |
By: |
/s/ Jennifer R. Evans | |
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Name: |
Jennifer R. Evans |
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Title: |
Executive Vice President, General |
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Counsel and Corporate Secretary | |
EXHIBIT INDEX
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Exhibit No. |
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Description |
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2.1 |
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Agreement and Plan of Merger, dated as of June 29, 2016, by and among Canadian Imperial Bank of Commerce, PrivateBancorp, Inc. and CIBC Holdco Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K of PrivateBancorp, Inc. filed on July 6, 2016) |
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2.2 |
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Amendment No. 1, dated as of March 30, 2017, to the Agreement and Plan of Merger, dated as of June 29, 2016, by and among Canadian Imperial Bank of Commerce, PrivateBancorp, Inc. and CIBC Holdco Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K of PrivateBancorp, Inc. filed on March 30, 2017) |
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2.3 |
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Amendment No. 2, dated as of May 4, 2017, to the Agreement and Plan of Merger, dated as of June 29, 2016, by and among Canadian Imperial Bank of Commerce, PrivateBancorp, Inc. and CIBC Holdco Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K of PrivateBancorp, Inc. filed on May 4, 2017) |
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3.1 |
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Amended and Restated Certificate of Incorporation of CIBC Holdco Inc. |
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3.2 |
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Bylaws of CIBC Holdco Inc. |
Exhibit 3.1
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State of Delaware |
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CIBC HOLDCO INC.
The Original Certificate of Incorporation of CIBC Holdco Inc. was filed on June 20, 2016 with the Office of the Secretary of State of the State of Delaware (the “Original Certificate of Incorporation”). This Amended and Restated Certificate of Incorporation which amends and restates the Original Certificate of Incorporation as set forth below, has been duly adopted, executed and filed and shall become effective in accordance with Sections 103, 228, 242 and 245 of the General Corporation Law of the State of Delaware (the “DGCL”).
FIRST: The name of the Corporation is “CIBC Holdco Inc.” (the “Corporation”).
SECOND: The address, including street, number, city and county, of the registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, City of Wilmington 19808 County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware at such address is Corporation Service Company.
THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the DGCL, and to conduct its business, promote its purposes and carry on its operations in any and all of its other offices, if there be other offices, both within and without the State of Delaware, in any and all States of the United States of America, in the District of Columbia and in any foreign countries, other than Canada.
FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is Ten Thousand Three Hundred and Twenty (10,320) shares, of which:
1) Ten Thousand (10,000) Class A shares of common stock, shall have a par value of $0.01 per share (the “Class A Common Stock”);
2) Ten (10) Class B shares of common stock, shall have a par value of $0.01 per share (the “Class B Common Stock”);
3) Ten (10) Class C shares of common stock, shall have a par value of $0.01 per share (the “Class C Common Stock”, and together with the Class A Common Stock and Class B Common Stock, the “Common Stock”); and
4) Three Hundred (300) shares of preferred stock, shall have no par value (the “Preferred Stock”).
A statement of the powers, designations, preferences, and relative participating, optional or other special rights and the qualifications, limitations and restrictions of the Common Stock is as follows:
I. Common Stock.
(a) Voting Rights. Except as may otherwise be provided in this Amended and Restated Certificate of incorporation (this “Certificate”) or by applicable law, each holder of (i) Class A Common Stock shall be entitled to ten (10) votes for each share of Class A Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote, (ii) Class B Common Stock shall be entitled to one (1) vote for each share of Class B Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote, (iii) Class C Common Stock shall be entitled to 0.5 (1/2) vote for each share of Class C Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote and (iv) Preferred Stock shall not be entitled to any voting powers in respect thereof. The Common Stock shall all vote together as a single class unless otherwise required by applicable law.
(b) Dividends. Subject to applicable law and the rights, if any, of the holders of any outstanding shares of Preferred Stock provided for or fixed pursuant to the provisions hereof, dividends may be declared and paid on the Common Stock at such times and in such amounts as the board of directors of the Corporation (the “Board of Directors”) in its discretion shall determine.
(c) Liquidation; Dissolution. Upon the dissolution, liquidation or winding-up of the Corporation, subject to applicable law and the rights, if any, of the holders of any outstanding shares of Preferred Stock provided for or fixed pursuant to the provisions hereof, the holders of the Common Stock shall be entitled to receive the assets of the Corporation available for distribution to its stockholders ratably in proportion to the number of shares of Common Stock held by them.
(d) Rights of the Common Stock. Except as may otherwise be required by law or as set forth herein, the Common Stock shall have the same rights and privileges, share ratably and be identical in all respects as to all matters.
(e) Redemption; Repurchase. To the extent required by applicable banking laws, including as required to preserve “Common Equity Tier 1” regulatory capital treatment under such laws, any redemption or repurchase of any shares of Common Stock by the Corporation shall be subject to the consent or approval of the Board of Governors of the Federal Reserve System or the applicable Federal Reserve Bank acting under delegated authority.
The designations and the voting powers, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, of the Preferred Stock which are fixed by this Certificate and the express grant of authority to the Board of Directors, to fix by resolution or resolutions the designations and the voting powers, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, of the Preferred Stock which are not fixed by this Certificate are as follows:
II. Preferred Stock.
(a) Grant of Authority. Authority is hereby expressly granted to and vested in the Board of Directors at any time or from time to time to issue the Preferred Stock, and to fix by resolution or resolutions providing for the issue of shares thereof the designations and the voting powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, of such Preferred Stock so far as not inconsistent with the provisions of this Article Fourth applicable to all of the Preferred Stock, and to the full extent now or hereafter permitted by the laws of the State of Delaware.
(b) Dividends.
(i) Subject to applicable law, dividends may be declared and paid on the Preferred Stock at such times and in such amounts as the Board of Directors in its discretion shall determine.
(ii) So long as any shares of Preferred Stock are outstanding, no dividends (other than dividends or distributions paid in shares or options, warrants or rights to subscribe for or purchase shares of Common Stock) shall be declared or paid or set aside for payment or other distribution declared or made upon the Common Stock, nor shall any Common Stock be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any Common Stock) by the Corporation (except by conversion into or exchange for shares of Common Stock) unless, in each case, all declared dividends on all outstanding shares of Preferred Stock shall have been paid or declared and set aside for payment.
(c) Liquidation.
(i) Upon the voluntary or involuntary dissolution, liquidation or winding up of the Corporation, each of the holders of shares of Preferred Stock, as such, shall be entitled to receive (out of the assets of the Corporation legally available for distribution to its stockholders), before any payment or distribution shall be made on the shares of any class or classes or series of any class or classes of capital stock of the Corporation ranking junior to the Preferred Stock, an amount equal to One Thousand U.S. Dollars (US$1,000) per share, plus such holder’s pro rata portion of the Preferred Stock dividends that has accrued and has not been paid (the “Liquidation Amount”).
(ii) After each Preferred Stock holder receives payment of the Liquidation Amount, the holders of shares of Preferred Stock shall have no right or claim to any of the remaining assets of the Corporation.
(iii) Neither the sale of all or substantially all of the property or business of the Corporation, nor the merger or consolidation of the Corporation into or with any other person or entity or the merger or consolidation of any other person
or entity into or with the Corporation, shall be deemed to be a dissolution, liquidation or winding up, voluntary or involuntary, of the Corporation.
(d) Ranking. For purposes of this Article Fourth Part II, shares of Common Stock shall be deemed to rank junior to shares of Preferred Stock as to dividends.
(e) No Pre-emptive Rights. No holder of Preferred Stock, shall have any pre-emptive rights with respect to Common Stock or any other securities of the Corporation or to any obligations convertible (directly or indirectly) into securities of the Corporation whether now or hereafter authorized pursuant to this Certificate.
(f) Voting Rights. Except as may otherwise be provided in this Certificate or by the DGCL, no holder of shares of Preferred Stock, as such, shall be entitled to any voting powers in respect hereof. So long as any shares of Preferred Stock are outstanding, the vote of at least a majority of the holders of the outstanding shares of Preferred Stock, voting separately as a class, shall be necessary to adopt any alteration, amendment, modification or repeal of any provision of this Article Fourth Section II (including, without limitation, any such alteration, amendment, modification or repeal effected by any merger or consolidation in which the Corporation is a constituent entity).
(g) No Conversion. No share of Preferred Stock shall be convertible into shares of Common Stock.
(h) Redemption Rights. The Corporation, at the option of the Board of Directors, may redeem the whole or any part of the Preferred Stock at the price or prices and on the terms and conditions provided in the resolution or resolutions adopted by the Board of Directors providing for the issue of such Preferred Stock, and to the extent required by applicable banking laws, including as required to preserve “Additional Tier 1” regulatory capital treatment under such laws, any redemption of any shares of Preferred Stock by the Corporation shall be subject to the consent or approval of the Board of Governors of the Federal Reserve System or the applicable Federal Reserve Bank acting under delegated authority.
(i) Registration of Transfer. The Corporation shall keep at its principal office (or such other place as the Corporation reasonably designates) a stock ledger for the registration of Preferred Stock. Upon the surrender of any certificate or certificates representing Preferred Stock at such place, the Corporation shall, at the request of the record holder of such certificate, execute and deliver (at the Corporation’s expense) a new certificate or certificates in exchange therefor representing in the aggregate the number of shares represented by the surrendered certificate. Each such new certificate shall be registered in such name as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate, and dividends shall accrue on the shares of Preferred Stock represented by such new certificate from the date, if any, on which dividends were fully paid or the date of issuance, as the case may
be, on the shares of Preferred Stock formerly represented by such surrendered certificate.
(j) Replacement of Certificate(s). Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the stockholder of record shall be satisfactory) of the ownership and the loss, theft or destruction of any certificate or certificates representing shares of Preferred Stock, and in the case of any such loss, theft or destruction, upon receipt of a bond sufficient to indemnify the Corporation against any claim that may be made against it on account of such loss, theft or destruction, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of Preferred Stock represented by such lost, stolen or destroyed certificate and dated the date of such lost, stolen or destroyed certificate, and dividends shall accrue on the shares of Preferred Stock represented by such new certificate from the date, if any, on which dividends were fully paid or the date of issuance, as the case may be, on the shares of Preferred Stock formerly represented by such lost, stolen or destroyed certificate.
(k) Notices. All notices referred to herein shall be in writing and shall be delivered personally or by first class mail, postage prepaid and shall be deemed to have been given when so delivered or mailed (i) if to the Corporation, at its principal executive offices and (ii) if to any holder of shares of Preferred Stock, at such holder’s address as it appears in the records of the Corporation (unless otherwise specified in a written notice to the Corporation made by such holder).
FIFTH: The Corporation is to have perpetual existence.
SIXTH: Elections of directors need not be by written ballot unless the Bylaws of the Corporation so provide. The number of directors of the Corporation shall be fixed by, or in the manner provided in, the by-laws of the Corporation.
SEVENTH: The personal liability of Directors of the Corporation is hereby eliminated to the fullest extent permitted by the DGCL as the same exists or may hereafter be amended. Without limiting the generality of the foregoing, a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any amendment, repeal or modification of this Article Seventh shall not adversely affect any right or protection of a Director of the Corporation existing at the time of such amendment, repeal or modification.
EIGHTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation; provided, however, the Corporation may not amend, alter, change or repeal Article Fourth hereof without the consent of the holders of a majority of the shares of the stock issued and outstanding.
NINTH: In furtherance and not in limitation of the powers conferred by law, the Board of Directors of the Corporation is expressly authorized to make, alter or repeal the Bylaws of the Corporation.
[Signature page follows]
Exhibit 3.2
BY-LAWS
OF
CIBC HOLDCO INC.
Dated: June 16, 2016
BY-LAWS
OF
CIBC HOLDCO INC.
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1.1. Place of Meetings. Meetings of the stockholders shall be held at such place as shall be designated by the Board of Directors or the person or persons calling the meeting.
Section 1.2. Annual Meetings. The annual meeting of the stockholders for the election of directors and the transaction of such other business as may properly come before the meeting shall be held after the close of the Corporation’s fiscal year on such date and at such time as shall be designated by the Board of Directors.
Section 1.3. Special Meetings. Special meetings may be called at any time by the President or the Board of Directors. Business transacted at each special meeting shall be confined to the purposes stated in the notice of such meeting.
Section 1.4. Notice of Meetings. A written notice stating the place, date, and hour of each meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called shall be given by, or at the direction of, the Secretary or the person or persons authorized to call the meeting to each stockholder of record entitled to vote at such meeting, not less than ten (10) days nor more than sixty (60) days before the date of the meeting, unless a greater period of time is required by law in a particular case.
Section 1.5. Record Date. In order to determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders 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; and (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 1.6. Informal Action. 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 the stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. 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.
Section 1.7. Action by Stockholders Not Solicited by the Board of Directors. Prior and as a condition to the effectiveness of any action taken pursuant to Section 1.6 of the By-laws by the Board of Directors, which has not been solicited or recommended by the Board of Directors, the Board of Directors shall have ten (10) business days from the receipt of notice of the action taken by the Stockholders, to verify the validity and legality of the action taken by the Stockholders.
Section 1.8. Quorum and Voting. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings or the stockholders for the transaction of business, except as otherwise expressly provided by statute, by the Certificate of Incorporation or by these By-laws. If, however, such majority shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting (except as otherwise provided by statute). At such adjourned meeting at which the requisite amount of voting stock shall be represented any business may be transacted which might have been transacted at the meeting as originally notified. At all meetings of the stockholders each stockholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than three years prior to said meeting, unless such instrument lawfully provides for a longer period. At each meeting of the stockholders each stockholder shall have one vote for each share of capital stock having voting power, registered in his or her name on the books of the Corporation at the record date fixed in accordance with these By-laws, or otherwise determined, with respect to such meeting. Except as otherwise expressly provided by statute, by the Certificate of Incorporation or by these By-laws, all matters coming before any meeting of the stockholders shall be decided by the vote of a majority of the number of shares of stock present in person or represented by proxy at such meeting and entitled to vote thereat, a quorum being present.
ARTICLE II
DIRECTORS
Section 2.1. Powers of Directors. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which shall exercise all powers that may be exercised or performed by the Corporation and that are not by statute, the Certificate of Incorporation or these By-laws directed to be exercised or performed by the stockholders.
Section 2.2. Number, Election and Term of Office. The Board of Directors shall consist of not less than three nor more than nine members as fixed from time to time by the Board of Directors. Directors need not be stockholders of the Corporation. The directors shall
be elected by the stockholders at the annual meeting or any special meeting called for such purpose. Each director shall hold office until his or her successor shall be duly elected and qualified or until his or her earlier resignation or removal. A director may resign at any time upon written notice to the Corporation.
Section 2.3. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority vote of the directors then in office, although less than a quorum, or by a sole remaining director. The occurrence of a vacancy which is not filled by action of the Board of Directors shall constitute a determination by the Board of Directors that the number of directors is reduced so as to eliminate such vacancy, unless the Board of Directors shall specify otherwise. When one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.
Section 2.4. Meetings of Directors. Regular meetings of the Board of Directors shall be held at such time and place as the Board of Directors shall from time to time by resolution appoint; and no notice shall be required to be given of any such regular meeting. A special meeting of the Board of Directors may be called by the President or any director by giving two (2) days’ notice to each director by letter, electronic mail, telegram, telephone or other oral message. Except as otherwise provided by these By-laws, a majority of the total number of directors shall constitute a quorum for the transaction of business, and the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. The Board of Directors may at any time elect one of its members as Chair of the Board of the Corporation, who shall preside at meetings of the Board of Directors and of the stockholders and shall have such powers and perform such duties as shall from time to time be prescribed by the Board of Directors.
Section 2.5. Informal Action. 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 or 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 committee.
Section 2.6. Telephone Participation in Meetings. Members of the Board of Directors, or any committee designated by the Board, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section shall constitute presence in person at such meeting.
Section 2.7. Committees of Directors. By resolutions adopted by a majority of the whole Board of Directors, the Board may designate an Executive Committee and one or more other committees, each such committee to consist of one or more directors of the Corporation. The Executive Committee shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation (except as otherwise expressly limited by statute), including the power and authority to declare dividends and to authorize the issuance of stock, and may authorize the seal of the corporation to be affixed to all papers which
may require it. Each such committee shall have such of the powers and authority of the Board as may be provided from time to time in resolutions adopted by a majority of the whole Board. The requirements with respect to the manner in which the Executive Committee and each such other committee shall hold meetings and take actions shall be set forth in the resolutions of the Board of Directors designating the Executive Committee or such other committee.
Section 2.8. Removal. A director may be removed by a majority vote of the stockholders with or without cause, as such term is generally used and defined under Delaware General Corporate Law.
Section 2.9. Compensation. The directors shall receive such compensation for their services as may be authorized by resolution of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
ARTICLE III
OFFICERS
Section 3.1. Enumeration. The officers of the Corporation shall be elected by the Board of Directors and shall consist of, at a minimum, a President, a Secretary and a Treasurer. Additional officers of the Corporation may be appointed by the Board of Directors or the President from time to time and may include the titles enumerated in this Article III or as the Board may designate from time to time.
Section 3.2. President. The President shall be the chief executive officer of the Corporation, and shall have general and active charge and control over the business and affairs of the Corporation, subject to the Board of Directors. If there shall be no Chair of the Board, or in his or her absence or inability to act, the President shall preside at meetings of the Board of Directors and of the stockholders.
Section 3.3. Secretary. The Secretary shall record the proceedings of the meetings of the stockholders and directors in a book to be kept for that purpose, and shall give notice as required by statute or these By-laws of all such meetings. The Secretary shall have custody of the seal of the Corporation and of all books, records, and papers of the Corporation, except such as shall be in the charge of the Treasurer or of some other person authorized to have custody and possession thereof by resolution of the Board of Directors. The Secretary shall also have such other powers and perform such other duties as are incident to the office of the secretary of a corporation or as shall from time to time be prescribed by, or pursuant to authority delegated by, the Board of Directors, the President or as may be provided by law.
Section 3.4. Treasurer. The Treasurer shall keep full and accurate accounts of the receipts and disbursements of the Corporation in books belonging to the Corporation, shall deposit all moneys and other valuable effects of the Corporation in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors, and shall also have such other powers and perform such other duties as are incident to the office of the treasurer of a corporation or as shall from time to time be prescribed by, or pursuant to authority
delegated by, the Board of Directors, the President or as may be provided by law. In the event that a Chief Financial Officer is appointed, he or she shall automatically serve as Treasurer without further action, unless or until the Board appoints a Treasurer.
Section 3.5. Executive Officers. The President, Treasurer (or Chief Financial Officer if serving as Treasurer), the Secretary and any other Officers of the Corporation that the Board may so appoint shall serve as Executive Officers of the Corporation.
Section 3.6. Other Officers. Each employee of the Corporation whom, from time to time, shall be designated with any of the following titles in accordance with procedures duly adopted by the Corporation or any entity that controls it, shall be deemed an officer of the Corporation: Chief Administrative Officer, Chief Financial Officer, Chief Operating Officer, Chief Risk Officer, Chief Compliance Officer, Chief Operations Officer, General Counsel, Managing Director, Executive Director, Senior Director and Director. Any two or more offices may be held by the same person, except for the offices of President and Secretary. The powers and duties of each other officer, who may from time to time be appointed by the Board of Directors or the President, shall be as specified by, or pursuant to authority delegated by, the Board of Directors or the President (as the case may be) at the time of the appointment of such other officer or from time to time thereafter.
Section 3.7. Term. Each of the President, Secretary and Treasurer shall hold office until his or her successor is elected and qualified, or until his or her earlier resignation or removal by the Board of Directors, and each other officer shall hold office until his or her earlier resignation or removal by the President or the Board of Directors or termination of employment with the Corporation or any of its affiliates.
Section 3.8. Authorized Signatories. Deeds, transfers, contracts, obligations, proxies and other documents and instruments may be signed for or on behalf of the Corporation by any officer or executive officer. Additionally, the Chair of the Board of Directors, President, Chief Administrative Officer, Chief Financial Officer, Chief Operating Officer, General Counsel or any Managing Director is each authorized, in his or her discretion, to designate from time to time one or more officers, employees or agents as authorized signatories of the Corporation who shall have the authority, to the extent so designated, to execute and deliver deeds, transfers, contracts, obligations, proxies and other documents and instruments for and on behalf of the Corporation. The designation of such authorized signatories shall be in writing and may be evidenced by one or more authorized signatory lists, which lists may contain specimen signatures, manual or facsimile, of such authorized signatories. Execution of any document pursuant to the authority granted in this Section 3.8, is subject to any policies and or procedures duly adopted by the Corporation or any corporation that controls it related to expenditure of funds or contracting authority.
ARTICLE IV
INDEMNIFICATION
Section 4.1. Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent now or hereafter permitted by Delaware
General Corporate Law, each director and officer (including former directors and officers) and any other individual who acts or acted at the Corporation’s request as a director, officer or in a similar capacity for another entity, and his or her heirs and legal representatives; provided, (a) the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of, as the case may be, the Corporation or other entity for which they acted at the Corporation’s request as a director, officer or employee and (b) in the case of a criminal action or proceeding, the person had no reasonable cause to believe their conduct was unlawful. Nothing in this Section 4.1 shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this Section 4.1.
Section 4.2. Indemnification of Others. Subject to Section 4.1, the Corporation may from time to time indemnify and hold harmless, to the fullest extent now or hereafter permitted by Delaware General Corporate Law, any employee of the Corporation who is or was serving at the request of the Corporation, and his or her heirs and legal representatives; provided, (a) the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of, as the case may be, the Corporation or other entity for which they acted at the Corporation’s request as a director, officer or employee and (b) in the case of a criminal action or proceeding, the person had no reasonable cause to believe their conduct was unlawful. Nothing in this Section 4.2 shall limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of this Section 4.2.
Section 4.3. Advancement of Expenses. Upon such terms and conditions, if any, as the Corporation deems appropriate, expenses (including attorneys’ fees) incurred by any current or former officer, director or employee of the Corporation, or any other individual who acts or acted at the Corporation’s request, in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation (at the Corporation’s sole discretion) in advance of the final disposition of such action, suit or proceeding; provided, such advancement shall be subject to and conditioned upon receipt of a written undertaking by or on behalf of such person, in form and substance satisfactory to the Company in its sole discretion, to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article IV.
Section 4.4. Insurance. The Corporation may purchase and maintain insurance on behalf of each incumbent or former director and officer against any liability asserted against or incurred by such person in any capacity, or arising out of such person’s status as an Authorized Representative, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article. The Corporation shall not be required to maintain such insurance if it is not available on terms satisfactory to the Board of Directors or if, in the business judgment of the Board of Directors, either (i) the premium cost for such insurance is substantially disproportionate to the amount of coverage, or (ii) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance. The Corporation may purchase and maintain insurance on behalf of any person referred to in Section 4.1 hereof against any liability asserted against or incurred by such person in any capacity, or arising out of such person’s status as an Authorized Representative, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article.
Section 4.5. Definitions. For the purposes of this Article:
(A) Corporation. References to “the Corporation” include, in addition to the resulting or surviving corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its Authorized Representatives, so that any person who is or was an Authorized Representative of such constituent corporation shall stand in the same position under this Article with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
(B) Authorized Representative. “Authorized Representative” means a director, officer, employee or agent of the Corporation, or a trustee, custodian, administrator, committeeman or fiduciary of any employee benefit plan, or a person serving another corporation, partnership, joint venture, trust, other enterprise or nonprofit entity in any of the foregoing capacities at the request of the Corporation.
ARTICLE V
SHARES OF CAPITAL STOCK
Section 5.1. Issuance of Stock. Shares of capital stock of any class now or hereafter authorized, securities convertible into or exchangeable for such stock, or options or other rights to purchase such stock or securities may be issued or granted in accordance with authority granted by resolution of the Board of Directors.
Section 5.2. Stock Certificates. Certificates for shares of the capital stock of the Corporation shall be in the form adopted by the Board of Directors, shall be signed by the President or a Vice President and by the Secretary, Assistant Secretary, Treasurer or Assistant Treasurer and may be sealed with the seal of the Corporation. All such certificates shall be numbered consecutively, and the name of the person owning the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the books of the Corporation.
Section 5.3. Transfer of Stock. Shares of capital stock of the Corporation shall be transferred only on the books of the Corporation, by the holder of record in person or by the holder’s duly authorized representative, upon surrender to the Corporation of the certificate for such shares duly endorsed for transfer, together with such other documents (if any) as may be required to effect such transfer.
Section 5.4. Lost, Stolen, Destroyed, or Mutilated Certificates. New stock certificates may be issued to replace certificates alleged to have been lost, stolen, destroyed, or mutilated, upon such terms and conditions, including proof of loss or destruction, and the giving of a satisfactory bond of indemnity, as the Board of Directors from time to time may determine.
Section 5.5. Regulations. The Board of Directors shall have power and authority to make all such rules and regulations not inconsistent with these By-laws as it may deem expedient concerning the issue, transfer, and registration of shares of capital stock of the Corporation.
Section 5.6. Holders of Record. The Corporation shall be entitled to treat the holder of record of any share or shares of capital stock of the Corporation as the holder and owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to, or right, title, or interest in, such share or shares on the part of any other person, whether or not the Corporation shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
Section 5.7. Restriction on Transfer. A restriction on the hypothecation, transfer or registration of transfer of shares of the corporation may be imposed either by these By-laws or by an agreement among any number of stockholders or such holders and the corporation. No restriction so imposed shall be binding with respect to those securities issued prior to the adoption of the restriction unless the holders of such securities are parties to an agreement or voted in favor of the restriction.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Corporate Seal. The Corporation may adopt a seal in such form as the Board of Directors shall from time to time determine.
Section 6.2. Fiscal Year. The fiscal year of the Corporation shall be as designated by the Board of Directors from time to time.
Section 6.3. Authorization. All checks, notes, vouchers, warrants, drafts, acceptances, and other orders for the payment of moneys of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
Section 6.4. Financial Reports. Financial statements or reports shall not be required to be sent to the stockholders of the Corporation, but may be so sent in the discretion of the Board of Directors, in which event the scope of such statements or reports shall be within the discretion of the Board of Directors, and such statements or reports shall not be required to have been examined by or to be accompanied by an opinion of an accountant or firm of accountants.
Section 6.5. Effect of By-laws. No provision in these By-laws shall vest any property right in any stockholder.
Section 6.6. Writing and Signing; Electronic Transmission. Whenever any provision of these By-laws specifies that a writing is required or permitted to take action or to give notice, such action or notice may also be accomplished by electronic transmission. Electronic transmission means any form of communication, not directly involving the physical transmission of paper, which 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 recipient through an automated process. If an electronic transmission is used to satisfy any provision of these Bylaws that specifies that a writing is required or permitted to take action or to give notice and these By-laws require that such writing be signed by a particular person, such electronic transmission need not be signed but must either set forth or be submitted with information from which it can be
determined that the electronic transmission was authorized by that person. An electronic transmission shall be deemed given (a) if by facsimile telecommunication, when directed to a number at which the recipient has consented to receive notice, (b) if by electronic mail, when directed to an electronic mail address at which the recipient has consented to receive notice, (c) if by posting on an electronic network together with separate notice to the recipient of such specific posting, upon the later of (i) such posting and (ii) the giving of such separate notice and (d) if by any other form of electronic transmission, when directed to the recipient.
ARTICLE VII
AMENDMENTS
The authority to adopt, amend or repeal By-laws of the Corporation is expressly conferred upon the Board of Directors, which may take such action by the affirmative vote of a majority of the whole Board of Directors at any regular or special meeting duly convened after notice of that purpose, subject always to the powers of the stockholders to adopt, amend or repeal By-laws.