EVERTEC, Inc 8-K, filed Jun 1, 2023
EVERTEC, Inc. (EVTC)
8-K
2023-06-01
For: 2023-05-25
View Original
Added on
April 11, 2026
About this 8-K
EVERTEC, Inc filed this 8-K on June 1, 2023, reporting on events of May 25, 2023.
Items reported
- Item 3.03: Change to shareholders' rights
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 5.07: Shareholder vote results
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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): May 25, 2023
(Name of Registrant as Specified In Its Charter)
| (State or other jurisdiction of incorporation or organization) | (I.R.S. employer identification number) | ||||||||||
| (Address of principal executive offices) | (Zip Code) | ||||||||||
(787 ) 759-9999
(Registrant’s telephone number, including area code)
Not applicable
(Former name, former address and former fiscal year, if changed since last report)
COMMISSION FILE NUMBER 001-35872
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:
| 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)) | |||||
Securities registered pursuant to Section 12(b) of the Act:
| Title of Class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in 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 ☐
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. ☐
Item 3.03 Material Modification to Rights of Security Holders.
To the extent required by Item 3.03 of Form 8-K, the information set forth in Item 5.03 below is incorporated by reference into this Item 3.03.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On May 25, 2023, EVERTEC, Inc. (the “Company”) held its 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting”). At the 2023 Annual Meeting, the Company’s stockholders approved the Company’s Third Amended and Restated Certificate of Incorporation (as amended, the “Amended Certificate of Incorporation”), which, among other things, eliminated the requirement that the Company’s Board of Directors (the “Board”) be fixed at nine directors. On May 25, 2023, the Board increased its size from nine to ten members and appointed Virginia Gambale, effective immediately with a term expiring at the annual meeting of stockholders to be held in 2024 and until her successor is duly elected and qualified. In addition to serving on the Board, Ms. Gambale was also appointed to serve on the Audit Committee and Information Technology Committee of the Board.
Ms. Gambale, age 63, founded and has served since 2003 as Managing Partner of Azimuth Partners, Inc., a strategic advisory firm that develops growth, innovation and transformation strategies and planning for technology companies. Prior to founding Azimuth in 2003, she worked at Deutsche Bank, where she was a General Partner & Managing Director of ABS Ventures, responsible for the management of the Tech Venture group and head of Deutsche Bank Strategic Ventures. Before Deutsche Bank, Ms. Gambale was the Chief Information Officer, Managing Director and Partner at Bankers Trust Alex Brown, and she also served as Chief Information Officer for Global Investment Banking at Merrill Lynch. Ms. Gambale currently serves as a director for JAMF Software, Nutanix, Virtu Financial, and First Derivatives. Ms. Gambale holds a bachelor’s degree in Math, Computer and Business from the New York Institute of Technology.
In connection with her appointment to the Board, the Board determined that Ms. Gambale is independent under the independence standards of the New York Stock Exchange. As a non-employee director of the Company, Ms. Gambale will participate in the compensation program for non-employee directors as described under the heading “Director Compensation” in the Company’s definitive proxy statement on Schedule 14A, filed with the Securities and Exchange Commission (the “SEC”) on April 13, 2023 (the “Proxy Statement”). Pursuant to the Company’s Director Compensation Policy, Ms. Gambale, as a non-employee director, is eligible to receive the standard Board retainer of $82,500 paid in cash and $132,500 paid in equity as well as the standard committee retainer of $12,500 and $5,000 for the Audit Committee and Information Technology Committee, respectively.
In connection with Ms. Gambale’s appointment, Ms. Gambale has entered into the Company’s standard form of indemnification agreement for directors and officers.
There are no transactions in which Ms. Gambale has an interest requiring disclosure under Item 404(a) of Regulation S-K.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On May 25, 2023, the Company held its 2023 Annual Meeting. At the 2023 Annual Meeting, the Company’s stockholders approved the Amended Certificate of Incorporation. As further disclosed in the Company’s Proxy Statement, the Amended Certificate of Incorporation eliminates the requirement that the Board be fixed at nine directors and deletes certain obsolete provisions and references relating to the stockholder agreement, dated April 17, 2012 (the “Stockholder Agreement”), by and among the Company and the stockholders party thereto, which terminated on July 1, 2022.
On May 25, 2023, in connection with the adoption of the Amended Certificate of Incorporation, the Board also adopted amendments to the Company’s amended and restated bylaws (as amended, the “Amended and Restated Bylaws”), which became effective the same day. Among other things, the amendments effected by the Amended and Restated Bylaws:
•provide that the Board shall consist of one or more member as shall be determined by resolution of the Board and any newly created directorships, including those resulting from an increase in the number of directors, will be filled by the Board;
•delete obsolete provisions and references to the Stockholder Agreement;
•provide that directors may be removed with or with cause and clarify procedures for director and officer resignations;
•make certain clarifying changes to procedures for meetings of the Board;
•address the universal proxy rules adopted by the SEC, by clarifying that no person may solicit proxies in support of a director nominee other than the Board’s nominees unless such person has complied with Rule 14a-19 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including applicable notice and solicitation requirements;
•enhance notice and disclosure requirements in connection with requesting a special meeting, including, without limitation, providing that:
•a stockholder may make a demand to call a special meeting only after first submitting a request that the Board fix a record date for the purpose of determining the stockholders entitled to demand that the Company call a special meeting (a “Demand Record Date”), which must be accompanied by, among other things, certain information and disclosures regarding such requesting person and a description of each item of business proposed to be brought before the special meeting;
•if a Demand Record Date is established, holders of the requisite voting power must deliver, by no later than sixty (60) days following the Demand Record Date, a further written demand to call such special meeting, which demand must be accompanied by certain information and disclosures;
•requiring that information previously provided to the Company in connection with such request or demand be updated so that it is accurate as of the stockholder meeting record date and as of ten (10) business days prior to the stockholder meeting; and
•clarifying the Board’s authority to reasonably request additional information from any proposing stockholders and director nominees;
•enhance procedural mechanics and disclosure requirements in connection with stockholder nominations of directors and submissions of proposals regarding other business at stockholder meetings (other than proposals to be included in the Company’s proxy materials pursuant to Rule 14a-8 under Exchange Act), including, without limitation, by requiring additional background information and disclosures regarding proposing stockholders, proposed director nominees and business, and other persons related to a stockholder’s solicitation of proxies; and
•require that a stockholder directly or indirectly soliciting proxies from other stockholders use a proxy card color other than white.
The Amended and Restated Bylaws also incorporate certain technical, modernizing, clarifying and conforming changes.
The foregoing descriptions of the Amended Certificate of Incorporation and the Amended and Restated Bylaws do not purport to be complete and are qualified in their entirety by reference to the full text of the Certificate of Incorporation and the Amended and Restated Bylaws, copies of which are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively. A marked copy of the Amended and Restated Bylaws showing the changes from the previous bylaws of the Company that were previously in effect is filed herewith as Exhibit 3.3.
Item 5.07 Submission of Matters to a Vote of Security Holders.
The Company’s stockholders voted on and approved four proposals presented at the 2023 Annual Meeting, each of which is described in more detail in the Company’s Proxy Statement.
At the close of business on March 27, 2023, the record date for the determination of stockholders entitled to vote at the 2023 Annual Meeting, there were 65,078,462 shares of the Company’s common stock, $0.01 par value per share, each share being entitled to one vote, constituting all of the outstanding voting securities of the Company.
Present at the 2023 Annual Meeting in person or by proxy were the holders of 60,873,463 shares of the Company’s common stock, constituting a quorum. The final voting results were as follows:
Proposal 1: Election of directors.
| Name | For | Against | Abstain | Broker Non-Votes | ||||||||||
| Frank G. D’Angelo | 58,593,001 | 575,109 | 10,755 | 1,694,598 | ||||||||||
| Morgan M. Schuessler, Jr. | 59,071,327 | 96,894 | 10,644 | 1,694,598 | ||||||||||
| Kelly Barrett | 58,846,984 | 256,694 | 75,187 | 1,694,598 | ||||||||||
| Olga Botero | 59,008,554 | 133,435 | 36,876 | 1,694,598 | ||||||||||
| Jorge A. Junquera | 58,027,800 | 1,104,181 | 46,884 | 1,694,598 | ||||||||||
| Iván Pagán | 59,014,729 | 132,030 | 32,106 | 1,694,598 | ||||||||||
| Aldo J. Polak | 58,529,480 | 616,539 | 32,846 | 1,694,598 | ||||||||||
| Alan H. Schumacher | 58,059,927 | 1,072,054 | 46,884 | 1,694,598 | ||||||||||
| Brian J. Smith | 54,612,324 | 4,533,799 | 32,742 | 1,694,598 | ||||||||||
Proposal 2: Advisory vote on executive compensation.
| For | Against | Abstain | Broker Non-Votes | ||||||||
| 58,299,647 | 819,186 | 60,032 | 1,694,598 | ||||||||
Proposal 3: Ratification of appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm.
| For | Against | Abstain | ||||||
| 60,289,869 | 576,681 | 6,913 | ||||||
Proposal 4: Approval of Third Amended and Restated Certificate of Incorporation, which eliminates the requirement that the Board be fixed at nine directors, and deletes certain obsolete provisions and references relating to the Stockholder Agreement, which terminated on July 1, 2022.
| For | Against | Abstain | ||||||
| 60,797,868 | 45,368 | 30,227 | ||||||
Based on the foregoing votes, each of Frank G. D’Angelo, Morgan M. Schuessler, Jr., Kelly Barrett, Olga Botero, Jorge A. Junquera, Iván Pagán, Aldo J. Polak, Alan H. Schumacher, and Brian J. Smith were elected as directors, and Proposals 2, 3 and 4 were approved.
Item 7.01 Regulation FD Disclosure.
On June 1, 2023, the Company issued a press release announcing the appointment of Virginia Gambale as a director to the Board. A copy of the press release is attached hereto as Exhibit 99.1 and incorporated herein by reference.
The information contained in this Item 7.01 shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act except as expressly set forth by specific reference in such a filing.
Item 9.01 Financial Statements and Exhibits.
(d)Exhibits.
| Number | Exhibit | |||||||
| Third Amended and Restated Certificate of Incorporation, dated as of May 25, 2023 | ||||||||
| Amended and Restated Bylaws of EVERTEC, Inc., dated as of May 25, 2023 | ||||||||
| Amended and Restated Bylaws of EVERTEC, Inc., dated as of May 25, 2023 (marked to show changes against prior version) | ||||||||
| Press Release re: EVERTEC, Inc. appoints new director | ||||||||
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) | |||||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| EVERTEC, Inc. | ||||||||
| (Registrant) | ||||||||
| Date: June 1, 2023 | By: | /s/ Luis A. Rodríguez | ||||||
| Luis A. Rodríguez | ||||||||
| Executive Vice President, Chief Legal and Administrative Officer, and Secretary of the Board of Directors | ||||||||
EXHIBIT 3.1
COMMONWEALTH OF PUERTO RICO
CERTIFICATE OF AMENDMENT AND RESTATEMENT
OF CERTIFICATE OF INCORPORATION
OF
EVERTEC, INC.
CERTIFICATE OF AMENDMENT AND RESTATEMENT
OF CERTIFICATE OF INCORPORATION
OF
EVERTEC, INC.
REGISTRY NUMBER: 206,131
EVERTEC, Inc., a corporation organized and existing under the laws of the Commonwealth of Puerto Rico (the “Corporation”), does hereby certify as follows:
1.This Amended and Restated Certificate of Incorporation (this “Certificate”) was duly adopted by the board of directors (the “Board”) of the Corporation and the stockholders of the Corporation in accordance with the provisions of Article 8.02(b)(1) of the General Corporations Law of the Commonwealth of Puerto Rico of 2009 (the “General Corporations Law”) (14 L.P.R.A. §§ 3682(b)(1) and 3685).
2.This Certificate restates, integrates and further amends provisions of the original certificate of incorporation of the Corporation, which was filed with the Department of State of the Commonwealth of Puerto Rico on April 13, 2012 (as amended on September 19, 2012, April 1, 2013, April 17, 2013, and April 17, 2017, the “Original Certificate”).
3.The text of the Original Certificate is hereby amended and restated to read in its entirety as follows:
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EVERTEC, INC.
CERTIFICATE OF INCORPORATION
OF
EVERTEC, INC.
THE duly elected BOARD OF DIRECTORS of the below named corporation, a corporation organized and existing under and in accordance with the General Corporations Law of the Commonwealth of Puerto Rico of 2009, as amended (the “General Corporations Law”), has duly adopted, with the express consent of the stockholders of the corporation as required by the provisions of Section 8.05 of the General Corporations Law (14 L.P.R.A. §3685), the following Amended and Restated Certificate of Incorporation (this “Certificate”) for such corporation:
ARTICLE I
NAME
NAME
The name of the corporation is EVERTEC, Inc. (the “Corporation”).
ARTICLE II
PURPOSE
PURPOSE
The nature of the business of the corporation, to the extent permitted by applicable law, will be to invest, acquire, maintain, hold, re-invest, transact, sell, exchange, pledge, assign, transfer, convey, deal in shares, private or public, equity, participations and other interests in any entity, corporation, partnership, limited liability companies, limited liability partnerships, and other forms of legal entities, and any other lawful business authorized by the General Corporations Law and other applicable laws.
ARTICLE III
REGISTERED AGENT
REGISTERED AGENT
The street address of the registered office of the Corporation in Puerto Rico is Carr. 176, Km. 1.2, Cupey Bajo, San Juan, Puerto Rico 00926; the mailing address is PO Box 364527, San Juan, PR 00936; and the name of the Corporation’s resident agent at such address is EVERTEC, Inc., with an email address: legal@evertecinc.com and telephone number: 787-759-9999.
ARTICLE IV
CAPITALIZATION
CAPITALIZATION
Section 4.1 Authorized Capital Stock.
(a) The total number of shares of capital stock that the Corporation is authorized to issue is 208,000,000 shares, consisting of 206,000,000 shares of common stock, par value $0.01 per share (the “Common Stock”), and, subject to Section 4.2 hereof, 2,000,000 shares of preferred stock, par value $0.01 per share (the “Preferred Stock”).
(b) The number of authorized shares of any class or classes of stock of the Corporation may be increased or decreased (but not to less than the number of shares then outstanding) by the affirmative vote of holders of a majority of the Common Stock of the Corporation entitled to vote. The powers, preferences and relative, participating, optional and other special rights of the respective classes of the Corporation’s capital stock or the holders thereof and the qualifications, limitations and restrictions thereof are set forth in this ARTICLE IV.
Section 4.2 Preferred Stock. Shares of Preferred Stock may be issued in one or more series from time to time, with each such series to consist of such number of shares and to have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, as shall be stated in the resolution or resolutions providing for the issuance of such series adopted by the board of directors of the Corporation (the “Board”) and included in a certificate of designations (a “Preferred Stock Designation”) in accordance with the General Corporations Law, and, the Board is hereby expressly vested with the authority, to the full extent now or hereafter provided by law, to adopt any such resolution or resolutions.
Section 4.3 Common Stock. The terms of the Common Stock set forth below shall be subject to the express terms of any series of Preferred Stock.
(a) Voting Rights. Except as otherwise provided herein or expressly required by law, the holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of shares of Common Stock are entitled to vote. Except as otherwise required by law or this Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders, the holders of shares of Common Stock shall have the exclusive right to vote on all matters properly submitted to a vote of the stockholders in accordance with the provisions of this Certificate and the Bylaws of the Corporation then in effect (the “Bylaws”). Notwithstanding the foregoing, except as otherwise required by law or this Certificate (including a Preferred Stock Designation), holders of shares of Common Stock shall not be entitled to vote on any amendment to this Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate (including any Preferred Stock Designation).
(b) Dividends and Other Distributions. Dividends shall be paid in accordance with the General Corporations Law. Subject to the rights of the holders of Preferred Stock, if any, as provided in the General Corporations Law, this Certificate (as amended from time to time) or any resolution or resolutions approved thereon by the Board in connection with the issuance of Preferred Stock, the record holders of shares of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor and shall share equally on a per share basis in all such dividends and distributions.
(c) Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, subject to the rights of holders of Preferred Stock, if any, in respect thereof, the holders of shares of Common Stock shall be entitled to receive all the remaining 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, Powers, Restrictions and Limitations. As required by the General Corporations Law, while the Corporation is entitled to issue more than one class of stock or more than one series of any class, any information consisting of the number of shares, voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, optional or other special rights, and the qualifications, conditions, limitations or restrictions of such preferences and rights as approved by resolution or resolutions of the Board shall either be entered in full or summarized on the face or back of the certificate or certificates issued by the
Corporation to represent such stock, or a statement shall be inserted therein to the effect that the Corporation will provide, without charge to each stockholder who so requests, a list of such powers, rights, designations and preferences, and the qualifications, conditions, limitations or restrictions thereof.
ARTICLE V
DIRECTORS
DIRECTORS
Section 5.1 Board Powers. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Certificate or the Bylaws, the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of (a) the General Corporations Law, (b) this Certificate and (c) any Bylaws adopted in accordance with this Certificate; provided, however, that, no Bylaws hereafter adopted shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.
Section 5.2 Election. Unless and except to the extent that the Bylaws shall so require, the election of directors of the Corporation (the “Directors”) need not be by written ballot.
ARTICLE VI
BYLAWS
BYLAWS
The Bylaws may be adopted, amended, altered or repealed by the Board, subject to any limitations that may be contained in such Bylaws. Any Bylaws so adopted by the Board may be amended, modified or repealed by the affirmative vote of the holders holding at least a majority of the Common Stock and entitled to vote thereon, subject to any limitations that may be contained in such Bylaws.
ARTICLE VII
LIMITATION OF DIRECTOR LIABILITY;
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
LIMITATION OF DIRECTOR LIABILITY;
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 7.1 Limitation of Director Liability. To the fullest extent that the General Corporations Law or any other law of Puerto Rico as the same exists or is hereafter amended permits the limitation or elimination of the liability of directors, no person who is or was a Director of the Corporation shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent that such exemption from liability or limitation thereof is not permitted under the General Corporations Law or any other law of Puerto Rico as the same exists or is hereafter amended. Any repeal, modification or amendment of this Section 7.1 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Certificate inconsistent with this Section 7.1, will, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to further limit or eliminate the liability of Directors and the Corporation does so) and shall not adversely affect any right or protection of a Director of the Corporation existing at the time of such repeal or amendment or adoption of such inconsistent provision with respect to acts or omissions occurring prior to such repeal or amendment or adoption of such inconsistent provision.
Section 7.2 Indemnification and Advancement of Expenses.
(a) To the fullest extent permitted by the General Corporations Law or any other applicable law of Puerto Rico, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was an incorporator, agent, resident agent, Director or officer of the Corporation or, while an incorporator, agent, resident agent, Director or officer of the Corporation, is or was serving at the request of the Corporation as an incorporator, resident agent, Director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a Director, officer, employee or agent, or in any other capacity while serving as a Director, officer, employee or agent, against all liability and loss suffered by such indemnitee and all expenses (including, without limitation, attorneys’ fees and expenses, judgments, fines, Employee Retirement Income Security Act, as amended (“ERISA”) excise taxes and penalties and amounts paid in settlement) incurred in a reasonable manner by such indemnitee in connection with such proceeding if such indemnitee acted in good faith and in a manner such indemnitee deemed to be reasonable and consistent with the best interests of the Corporation and not opposed thereto, and with respect to any criminal action or proceeding, had no reasonable cause to believe such indemnitee’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption
that such indemnitee (i) did not act in good faith and in a manner that such indemnitee deemed to be reasonable and consistent with the best interests of the Corporation and not opposed thereto, and (ii) with respect to any criminal action or proceeding, had reasonable cause to believe that such indemnitee’s conduct was unlawful. The right to indemnification conferred by this Section 7.2 shall include the right to be paid by the Corporation for the expenses (including, without limitation, attorneys’ fees and expenses) incurred in defending, testifying or otherwise participating in any such proceeding in advance of its final disposition; provided, however, that, if the General Corporations Law requires, an advancement of expenses shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that the indemnitee is not entitled to be indemnified for the expenses under this Section 7.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 7.2 shall be contract rights, and such rights shall continue as to an indemnitee who has ceased to be an incorporator, agent, resident agent, Director or officer and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 7.2, except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.
(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 7.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Certificate, the Bylaws, an agreement, vote of stockholders or disinterested Directors, or otherwise.
(c) Any repeal or amendment of this Section 7.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Certificate inconsistent with this Section 7.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto) and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
(d) This Section 7.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.
(e) The Corporation hereby acknowledges that an indemnitee may have certain rights to indemnification, insurance and/or advancement of expenses provided by one or more Persons (as defined herein) who employ such indemnitee or of which such indemnitee is a partner or member or with such Persons’ respective affiliated investment funds, managed funds and management companies, if applicable, or such Persons’ respective affiliates (collectively, the “Secondary Indemnitors”). “Person” shall be construed broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity (including any federal, national, supranational, state, provincial, Commonwealth, local or foreign or similar government, governmental subdivision, regulatory or administrative body or other governmental or quasi-governmental agency, tribunal, commission, court, judicial or arbitral body or other entity with competent jurisdiction) or any department, agency or political subdivision thereof. The Corporation hereby agrees (i) that it is the indemnitor of first resort—meaning that, its obligations under this Section 7.2 are primary and any obligation of the Secondary Indemnitors to advance expenses and provide indemnification for the same expenses and liabilities incurred by any such indemnitee are secondary, (ii) that it shall be required to advance the full amount of expenses incurred by any such indemnitee and shall be liable for the full amount of any losses, claims, damages, liabilities and expenses (including, without limitation, attorneys’ fees, judgments, fines, penalties and amounts paid in settlement) to the extent legally permitted and as required by this Certificate, the Bylaws or any other agreement between the Corporation and such indemnitee, without regard to any rights that such indemnitee may have against the Secondary Indemnitors and (iii) that it irrevocably waives, relinquishes and releases the Secondary Indemnitors from any and all claims that it has or may have against the Secondary Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Corporation further agrees that no advancement or payment by the Secondary Indemnitors shall affect the foregoing and that the Secondary Indemnitors shall be subrogated to the extent of such advancement or payment to all of the rights of recovery of any such indemnitee against the Corporation. The Corporation and each indemnitee agree that Secondary Indemnitors are express third-party beneficiaries of this Section 7.2.
ARTICLE VIII
STOCKHOLDER RIGHTS PLAN
STOCKHOLDER RIGHTS PLAN
Notwithstanding anything in this Certificate to the contrary, the adoption of any stockholder rights plan, rights agreement or any other form of “poison pill” that is designed to or has the effect of making an acquisition of
large holdings of the Corporation’s Common Stock more difficult or expensive (“Stockholder Rights Plan”) or the amendment of any such Stockholder Rights Plan that has the effect of extending the term of a Stockholder Rights Plan or any rights or options provided thereunder, shall require the affirmative vote of a majority of the entire Board.
ARTICLE IX
DURATION
DURATION
This Certificate will become effective at 12:00 a.m. Puerto Rico time on May 25, 2023. The term of existence of the Corporation will be perpetual.
ARTICLE X
SEVERABILITY
SEVERABILITY
If any provision or provisions of this Certificate shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Certificate (including, without limitation, each portion of any paragraph of this Certificate containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby; and (ii) to the fullest extent permitted by applicable law, the provisions of this Certificate (including, without limitation, each such portion of any paragraph of this Certificate containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE XI
AMENDMENT OF CERTIFICATE OF INCORPORATION
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate by the affirmative vote of the stockholders holding at least a majority of the Common Stock then outstanding and entitled to vote, subject to the limitations on amending, altering, changing and repealing contained in ARTICLE VI. All rights, preferences and privileges herein conferred upon stockholders, Directors or any other Persons by and pursuant to this Certificate in its present form or as hereafter amended are granted subject to the rights reserved in this ARTICLE XI. Any Person purchasing or otherwise acquiring any interest in any shares of the capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this ARTICLE XI.
IN WITNESS WHEREOF, the undersigned hereby swears that the facts herein stated are true, this 25th day of May, 2023.
/s/ Luis A. Rodríguez González
Secretary
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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
EVERTEC, INC.
a Puerto Rico corporation
(the “Company”)
(Adopted as of April 12, 2013, amended as of April 17, 2013, and amended and effective as of May 25, 2023)
AMENDED AND RESTATED
BYLAWS
OF
EVERTEC, INC.
BYLAWS
OF
EVERTEC, INC.
(the “Bylaws”)
ARTICLE I
OFFICES
OFFICES
Section 1.1 Registered Office. The registered office of the Company within the Commonwealth of Puerto Rico shall be located at either (i) the principal place of business of the Company in the Commonwealth of Puerto Rico or (ii) the office of the corporation or individual acting as the Company’s registered agent in Puerto Rico.
Section 1.2 Additional Offices. The Company may, in addition to its registered office in the Commonwealth of Puerto Rico, have such other offices and places of business, both within and outside of the Commonwealth of Puerto Rico, as the Board of Directors of the Company (the “Board”) may from time to time determine or as the business and affairs of the Company may require.
ARTICLE II
STOCKHOLDERS MEETINGS
STOCKHOLDERS MEETINGS
Section 2.1 Annual Meetings. Annual meetings of stockholders shall be held on such date, and at such time and place, either within or without the Commonwealth of Puerto Rico, or may not be held at any place, but may instead be held solely by means of remote communication, in the matter provided in Section 7.01 (B) of the General Corporations Law of the Commonwealth of Puerto Rico of 2009 (the “General Corporations Law”) (14 L.P.R.A. §3641 (b)) in each case as may be fixed by resolution of the Board and stated in the notice of the meeting, at which the stockholders shall elect the directors of the Company and transact such other business as may properly be brought before the meeting.
Section 2.2 Special Meetings.
(a) Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law or by the Company’s Amended and Restated Certificate of Incorporation, effective as of May 25, 2023, as amended from time to time (the “Certificate of Incorporation”), (i) may be called by (a) the Chair of the Board, (b) the Board, pursuant to a resolution approved by a majority of the entire Board, (c) the Chief Executive Officer or (d) the President and (ii) shall be called by the Secretary, following the Secretary’s receipt of one or more written demands to call a special meeting of the stockholders in accordance with, and subject to, this Section 2.2 from stockholders of record as of the record date fixed in accordance with Section 2.2(e) who hold, in the aggregate, capital stock of the Company representing a majority of the votes of all capital stock of the Company entitled to vote thereat. The notice of a special meeting shall state the purpose or purposes of the special meeting, and the business to be conducted at the special meeting shall be limited to the purpose or purposes stated in the notice. Except in accordance with this Section 2.2, stockholders shall not be permitted to propose business to be brought before a special meeting of the stockholders. Stockholders who nominate persons for election to the Board at a special meeting must also comply with the applicable requirements with respect to nominations set forth in Section 2.5.
(b) No stockholder may demand that the Corporation call a special meeting of the stockholders pursuant to Section 2.2(a) unless a stockholder of record has first submitted a request in writing that the Board fix a record date (a “Demand Record Date”) for the purpose of determining the stockholders entitled to demand that the Secretary of the Company call such special meeting, which request shall be in proper form and delivered to, or mailed and received by, the Secretary of the Company at the principal executive offices of the Company.
(c) To be in proper form for purposes of this Section 2.2, a request by a stockholder for the Board to fix a Demand Record Date shall set forth: (i) as to each Requesting Person (as defined below), the Stockholder Information (as defined in Section 2.5.1(c)(i), except that for purposes of this Section 2.2 the term “Requesting Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.5.1(c)(i)); (ii) as to each Requesting Person, any Disclosable Interests (as defined in Section 2.5.1(c)(ii), except that for purposes of this Section 2.2 the term
“Requesting Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.5.1(c)(ii) and the disclosure with respect to the business to be brought before the meeting in Section 2.5.1(c)(ii) shall be made with respect to the business proposed to be conducted at the special meeting or the proposed election of directors at the special meeting, as the case may be); (iii) as to the purpose or purposes of the special meeting, (A) a reasonably brief description of the purpose or purposes of the special meeting and the business proposed to be conducted at the special meeting, the reasons for conducting such business at the special meeting and any material interest in such business of each Requesting Person, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws, the language of the proposed amendment), (C) a reasonably detailed description of all agreements, arrangements and understandings (x) between or among any of the Requesting Persons or (y) between or among any Requesting Person and any other person or entity (including their names) in connection with the request for the special meeting or the business proposed to be conducted at the special meeting, and (D) any other information relating to the request for the special meeting or such item of business that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (as so amended and inclusive of such rules and regulations, the “Exchange Act”); and (iv) if directors are proposed to be elected at the special meeting, the Nominee Information for each person whom a Requesting Person expects to nominate for election as a director at the special meeting. For purposes of this Section 2.2(c), the term “Requesting Person” shall mean (i) the stockholder making the request to fix a Demand Record Date for the purpose of determining the stockholders entitled to demand that the Secretary call a special meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf such request is made, and (iii) any affiliate of such stockholder or beneficial owner.
(d) The Board may request that any Requesting Person furnish such additional information as may be reasonably required by the Board. Such Requesting Person shall provide such additional information within ten (10) days after it has been requested by the Board.
(e) Within ten (10) days after receipt of a request to fix a Demand Record Date in proper form and otherwise in compliance with this Section 2.2 from any stockholder of record, the Board may adopt a resolution fixing a Demand Record Date for the purpose of determining the stockholders entitled to demand that the Secretary of the Company call a special meeting, which date shall not precede the date upon which the resolution fixing the Demand Record Date is adopted by the Board. If no resolution fixing a Demand Record Date has been adopted by the Board within the ten (10) day period after the date on which such a request to fix a Demand Record Date was received, the Demand Record Date in respect thereof shall be deemed to be the twentieth (20th) day after the date on which such a request is received, or the next business day thereafter, if such date shall fall on a Saturday, Sunday, or holiday observed by any stock exchange on which the Company’s common stock is traded. Notwithstanding anything in this Section 2.2 to the contrary, no Demand Record Date shall be fixed if the Board determines that the demand or demands that would otherwise be submitted following such Demand Record Date could not comply with the requirements set forth in clauses (ii), (iv), (v) or (vi) of Section 2.2(g).
(f) Without qualification, a special meeting of the stockholders shall not be called pursuant to Section 2.2(a) unless stockholders of record as of the Demand Record Date who own, in the aggregate, capital stock of the Company representing a majority of the votes of all capital stock of the Company entitled to vote thereat (the “Requisite Percentage”) timely provide one or more demands to call such special meeting in writing and in proper form to the Secretary of the Company at the principal executive offices of the Company. Only stockholders of record on the Demand Record Date shall be entitled to demand that the Secretary of the Company call a special meeting of the stockholders pursuant to Section 2.2(a). To be timely, a stockholder’s demand to call a special meeting must be delivered to, or mailed and received at, the principal executive offices of the Company not later than the sixtieth (60th) day following the Demand Record Date. To be in proper form for purposes of this Section 2.2, a demand to call a special meeting shall set forth (i) the business proposed to be conducted at the special meeting or
the proposed election of directors at the special meeting, as the case may be, (ii) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws, the language of the proposed amendment), if applicable, and (iii) with respect to any stockholder or stockholders submitting a demand to call a special meeting (except for any stockholder that has provided such demand in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A (a “Solicited Stockholder”)), the information required to be provided pursuant to this Section 2.2 of a Requesting Person. A stockholder may revoke a demand to call a special meeting by written revocation delivered to, or mailed and received by, the Secretary at the principal executive offices of the Company at any time prior to the special meeting. If any such revocation(s) are received by the Secretary after the Secretary’s receipt of written demands from the holders of the Requisite Percentage of stockholders, and as a result of such revocation(s), there no longer are unrevoked demands from the Requisite Percentage of stockholders to call a special meeting, the Board shall have the discretion to determine whether or not to proceed with the special meeting.
(g) The Secretary shall not accept, and shall consider ineffective, a written demand from a stockholder to call a special meeting (i) that does not comply with this Section 2.2, (ii) that relates to an item of business to be transacted at such meeting that is not a proper subject for stockholder action under applicable law, (iii) that includes an item of business to be transacted at such meeting that did not appear on the written request that resulted in the determination of the Demand Record Date, (iv) that relates to an item of business (other than the election of directors) that is identical or substantially similar to an item of business (a “Similar Item”) for which a record date for notice of a stockholder meeting (other than the Demand Record Date) was previously fixed and such demand is delivered between the time beginning on the sixty-first (61st) day after such previous record date and ending on the one-year anniversary of such previous record date, (v) if a Similar Item will be submitted for stockholder approval at any stockholder meeting to be held on or before the ninetieth (90th) day after the Secretary receives such demand, or (vi) if a Similar Item has been presented at the most recent annual meeting or at any special meeting held within one year prior to receipt by the Secretary of such demand to call a special meeting.
(h) After receipt of demands in proper form and in accordance with this Section 2.2 from a stockholder or stockholders holding the Requisite Percentage, the Board shall duly call, and determine the place, date and time of, a special meeting of stockholders for the purpose or purposes and to conduct the business specified in the demands received by the Company. Notwithstanding anything in these Bylaws to the contrary, the Board may submit its own proposal or proposals for consideration at such a special meeting. The record date for notice and voting for such a special meeting shall be fixed in accordance with Section 10.2 of these Bylaws. The Board shall provide written notice of such special meeting to the stockholders in accordance with Section 2.3.
(i) In connection with a special meeting called in accordance with this Section 2.2, the stockholder or stockholders (except for any Solicited Stockholder) who requested that the Board fix a record date for notice and voting for the special meeting in accordance with this Section 2.2 or who delivered a demand to call a special meeting to the Secretary shall further update and supplement the information previously provided to the Company in connection with such request or demand, if necessary, so that the information provided or required to be provided in such request or demand pursuant to this Section 2.2 shall be true and correct as of the record date for stockholders entitled to vote at the special meeting and as of the date that is ten (10) business days prior to the special meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Company not later than five (5) business days after the record date for stockholders entitled to vote at the special meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the special meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the special meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the special meeting or any adjournment or postponement thereof)). For the avoidance of doubt,
the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Company’s rights with respect to any deficiencies in any request or demand provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted a request or demand hereunder to amend or update any such request or demand, including by changing or adding nominees, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
(j) Notwithstanding anything in these Bylaws to the contrary, the Secretary shall not be required to call a special meeting pursuant to this Section 2.2 except in accordance with this Section 2.2. If the Board shall determine that any request to fix a record date for notice and voting for the special meeting or demand to call and hold a special meeting was not properly made in accordance with this Section 2.2, or shall determine that the stockholder or stockholders requesting that the Board fix such record date or submitting a demand to call the special meeting have not otherwise complied with this Section 2.2, then the Board shall not be required to fix such record date or to call and hold the special meeting. In addition to the requirements of this Section 2.2, each Requesting Person shall comply with all requirements of applicable law, including all requirements of the Exchange Act, with respect to any request to fix a record date for notice and voting for the special meeting or demand to call a special meeting.
Section 2.3 Notices. Written notice of each stockholders’ meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote thereat by or at the direction of the officer calling such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. Any such notice shall be given either personally, by electronic transmission in the manner provided in Section 7.21 of the General Corporations Law (except to the extent prohibited by Section 7.21(E) of the General Corporations Law) (14 L.P.R.A. § 3661(e)) or by mail, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears on the stock transfer books of the Company. If notice is given by electronic transmission, such notice shall be deemed to be given at the times provided in the General Corporations Law. If said notice is for a stockholders meeting other than an annual meeting, it also shall state the purpose or purposes for which said meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in said notice and any matters reasonably related thereto. Attendance of a person at a meeting or the participation thereof therein shall constitute a waiver of the notice of such meeting, except when a person attends a meeting for the express purpose of objecting at the commencement of the meeting that the same was not called nor commenced in accordance with Section 7.18 of the General Corporations Law (14 L.P.R.A. §3658).
Section 2.4 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, a quorum for the transaction of business at any meeting of the stockholders shall consist of holders of a majority of the total amount of Common Stock (as defined in the Certificate of Incorporation) outstanding and entitled to vote at such meeting. At a Reconvened Meeting (defined as a meeting of the Board or the stockholders, as the case may be, that (i) has been properly called in accordance with these Bylaws (including by giving proper notice of such meeting in accordance with Section 2.3 of these Bylaws, as applicable) as if such meeting was not an adjourned meeting and (ii) has the same agenda as a previously convened meeting that was adjourned due to the lack of a quorum) at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the meeting as originally notified. If a quorum shall not be present or represented at any meeting of the stockholders, either (i) the person presiding over the meeting or (ii) a majority of the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the Reconvened Meeting, a notice of said meeting shall be given to each stockholder entitled to vote at said meeting. The stockholders present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Section 2.5 Notice of Stockholder Business and Nominations.
Section 2.5.1 Annual Meetings of Stockholders.
(a) At any annual meeting of the stockholders, only such nominations of persons for election to the Board and only other business shall be considered or conducted, as shall have been properly brought before the meeting in compliance with the procedures set forth in this Section 2.5 to the extent applicable. For nominations to be properly made at an annual meeting, and proposals of other business to be properly brought before an annual meeting, nominations and proposals of other business must be: (i) specified in and pursuant to the Company’s notice of meeting given by or at the direction of the Board, (ii) if not specified in a notice, otherwise brought before the meeting by or at the direction of the Board or the Chair of the Board or (iii) made by any stockholder of the Company who (A) (1)was a stockholder of record at the time of giving of notice provided for in this Section 2.5 and at the time of the annual meeting, (2) is entitled to vote at the meeting and (3) complies with the this Section 2.5 in all applicable respects as to such business or nomination, or (B) in the case of business proposals, properly made such proposal in accordance with Rule 14a-8 under the Exchange Act. Clause (iii) of the immediately preceding sentence shall be the exclusive means for a stockholder to make nominations or propose other business before an annual meeting of stockholders.
(b) Without qualification or limitation, for any nominations or any other business to be properly brought before an annual meeting by a stockholder pursuant to Section 2.5.1(a)(iii) of these Bylaws, the stockholder must (i) have given timely notice thereof in writing to the Secretary and in proper form and, in the case of nominations, provide the information, agreements and questionnaires with respect to such Proposing Person’s candidate for nomination as required to be set forth by this Section 2.5, and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.5. To be timely, a stockholder’s notice shall be delivered to, or mailed and received at, the principal executive offices of the Company not earlier than the 120th day and not later than the 90th day prior to the one-year anniversary of the preceding year’s annual meeting; provided, however, that in the event that (and only if) the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, to be timely, notice by the stockholder must be so delivered, or mailed and received, (i) not earlier than the 120th day prior to the date of such annual meeting and not later than the 90th day prior to the date of such annual meeting or (ii) if later, the 10th day following the date on which public announcement (as defined below) of the date of such meeting is first made by the Company (such notice within such periods, “Timely Notice”). In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above. The Board may request that any Proposing Person furnish such additional information as may be reasonably required by the Board. Such Proposing Person shall provide such additional information within ten (10) days after it has been requested by the Board. In addition, a Proposing Person shall update and supplement, if necessary, its notice of any nomination or intent to propose any business so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the stockholders entitled to vote at the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof. Such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Company not later than (i) five (5) business days after the record date for stockholders entitled to vote at the meeting in the case of the update and supplement required to be made as of the record date, and (ii) not later than eight (8) business days prior to the date for the meeting or any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Company’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any nomination or any proposal, or to submit any new
proposal, including by changing or adding nominees, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
(c) To be in proper form, a stockholder’s notice (whether given pursuant to Section 2.5.1(b) or Section 2.5.2 to the Secretary must: (i) set forth, as to the stockholder giving the notice, the beneficial owner, if any, on whose behalf the nomination or proposal is made and any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder (each such stockholder, beneficial owner or participant, a “Proposing Person”) (A) the name and address of such stockholder (including, if applicable, as they appear on the Company’s books), (B) the class or series and number of shares of the Company which are, directly or indirectly, owned beneficially and of record by such Proposing Person, except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of the Company as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future, (C) the date or dates such shares were acquired, (D) the investment intent of such acquisition, and (E) any pledge by such Proposing Person with respect to any of such shares (the disclosures to be made pursuant to the foregoing clauses (A) through (E) are referred to as “Stockholder Information”), (ii) set forth, as to each Proposing Person, (A) the material terms and conditions of any “derivative security” (as such term is defined in Rule 16a-1(c) under the Exchange Act) that constitutes a “call equivalent position” (as such term is defined in Rule 16a-1(b) under the Exchange Act) or a “put equivalent position” (as such term is defined in Rule 16a-1(h) under the Exchange Act) or other derivative or synthetic arrangement in respect of any class or series of shares of the Company (“Synthetic Equity Position”) that is, directly or indirectly, held or maintained by, held for the benefit of, or involving such Proposing Person, including, without limitation, (1) any option, warrant, convertible security, stock appreciation right, future or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Company or with a value derived in whole or in part from the value of any class or series of shares of the Company, (2) any derivative or synthetic arrangement having the characteristics of a long position or a short position in any class or series of shares of the Company, including, without limitation, a stock loan transaction, a stock borrow transaction, or a share repurchase transaction or (3) any contract, derivative, swap or other transaction or series of transactions designed to (x) produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of the Company, (y) mitigate any loss relating to, reduce the economic risk (of ownership or otherwise) of, or manage the risk of share price decrease in, any class or series of shares of the Company, or (z) increase or decrease the voting power in respect of any class or series of shares of the Company of such Proposing Person, including, without limitation, due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of the Company, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of the Company, through the delivery of cash or other property, or otherwise, and without regard to whether the holder thereof may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the price or value of any class or series of shares of the Company; provided that, for the purposes of the definition of “Synthetic Equity Position,” the term “derivative security” shall also include any security or instrument that would not otherwise constitute a “derivative security” as a result of any feature that would make any conversion, exercise or similar right or privilege of such security or instrument becoming determinable only at some future date or upon the happening of a future occurrence, in which case the determination of the amount of securities into which such security or instrument would be convertible or exercisable shall be made assuming that such security or instrument is immediately convertible or exercisable at the time of such determination; and, provided, further, that any Proposing Person satisfying the requirements of Rule 13d-1(b)(1) under the Exchange Act (other than a Proposing Person that so satisfies Rule 13d-1(b)(1) under the Exchange Act solely by reason of Rule 13d-1(b)(1)(ii)(E)) shall not be required to disclose any Synthetic Equity Position that is, directly or indirectly, held or maintained by, held for the benefit of, or involving such Proposing Person as a hedge with respect to a bona fide derivatives trade or position of such Proposing Person arising in the ordinary course of such Proposing Person’s business as a derivatives dealer, (B) any rights to dividends on the shares of the Company owned beneficially by such Proposing Person that are separated or separable from
the underlying shares of the Company, (C) any material pending or threatened legal proceeding in which such Proposing Person is a party or material participant involving the Company or any of its officers or directors, or any affiliate of the Company, (D) any other material relationship between such Proposing Person, on the one hand, and the Company or any affiliate of the Company, on the other hand, (E) any proportionate interest in shares of the Company or Synthetic Equity Position held, directly or indirectly, by a general or limited partnership, limited liability company or similar entity in which such Proposing Person is (x) a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership or (y) is the manager, managing member or, directly or indirectly, beneficially owns an interest in the manager or managing member of such limited liability company or similar entity, (F) any direct or indirect interest in any contract or agreement of such Proposing Person with the Company or any affiliate of the Company (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement), (G) a representation that such Proposing Person intends or is part of a group which intends to (1) in the case of a stockholder business proposal, deliver a proxy statement or form of proxy to holders of at least the percentage of the Company’s outstanding capital stock required to approve or adopt the proposal or otherwise solicit proxies from stockholders in support of such proposal or (2) in the case of a stockholder nomination, deliver a proxy statement and solicit the holders of shares representing at least 67% of the voting power of shares entitled to vote on the election of directors in support of director nominees other than the Company’s nominees in accordance with Rule 14a-19 promulgated under the Exchange Act, and (H) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies or consents by such Proposing Person for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder (the disclosures to be made pursuant to the foregoing clauses (A) through (H) are referred to as “Disclosable Interests”), (iii) if the notice relates to any business other than a nomination of a director or directors that the stockholder proposes to bring before the meeting, set forth (A) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of such stockholder and beneficial owner, if any, in such business, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws, the language of the proposed amendment), (C) a reasonably detailed description of all agreements, arrangements and understandings (1) between or among Proposing Persons or (2) between or among any Proposing Person and any other person or persons (including their names) in connection with the proposal of such business by such stockholder, and (D) any other information relating to such item of business that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act, and (iv) set forth or provide, as to each person, if any, whom the stockholder proposes to nominate for election or reelection to the Board (A) all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election, pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including the proposed candidate’s written consent to being named in the proxy statement and accompanying proxy card relating to the Company’s next meeting of stockholders at which directors are to be elected as a nominee and to serving as a director for a full term if elected), (B) a description of any direct and indirect material interest in any material contract or agreements between or among any Proposing Person, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or any other participants in the solicitation, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K if such Proposing Person were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, and (C) a completed and signed questionnaire, representation and agreement required by Section 2.5.4 of these Bylaws (the disclosures made pursuant to the foregoing clauses (A) through (C) are referred to as the “Nominee Information”).
(d) In no event may a Proposing Person provide Timely Notice with respect to a greater number of director candidates than are subject to election by stockholders at the
applicable meeting. Notwithstanding anything in the second sentence of Section 2.5.1(b) of these Bylaws to the contrary, in the event that, subsequent to such notice, the number of directors to be elected to the Board is increased, such notice as to any additional nominees shall be due on the later of (i) the conclusion of the time period for Timely Notice, (ii) the date set forth in Section 2.5.2, or (iii) the 10th day following the date of public announcement of such increase.
(e) In addition to the requirements of this Section 2.5 with respect to any nomination proposed to be made at a meeting, each Proposing Person shall comply with all applicable requirements of the Exchange Act with respect to any such nominations. Notwithstanding the foregoing provisions of this Section 2.5, unless otherwise required by law, (i) no Proposing Person shall solicit proxies in support of director nominees other than the Company’s nominees unless such Proposing Person has complied with Rule 14a-19 promulgated under the Exchange Act in connection with the solicitation of such proxies, including the provision to the Company of notices required thereunder in a timely manner, and (ii) if any Proposing Person (A) provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act and (B) subsequently fails to comply with the requirements of Rule 14a-19(a)(2) and Rule 14a-19(a)(3) promulgated under the Exchange Act, including the provision to the Company of notices required thereunder in a timely manner, or fails to timely provide reasonable evidence sufficient to satisfy the Company that such Proposing Person has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act in accordance with the following sentence, then the Company shall disregard any proxies or votes solicited for the Proposing Person’s candidates. If any Proposing Person provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act, such Proposing Person shall deliver to the Company, no later than seven (7) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act.
(f) Notwithstanding anything in these Bylaws to the contrary, no candidate for nomination shall be eligible to be seated as a director of the Company unless nominated and elected in accordance with the applicable requirements of this Section 2.5.
Section 2.5.2 Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Company’s notice of meeting given by or at the direction of the person calling the meeting pursuant to Section 2.2, and stockholders shall not be permitted to propose business to be brought before a special meeting of the stockholders. Nominations of persons for election to the Board may only be made at a special meeting if the election of directors is a matter specified in the Company’s notice of meeting, and nominations may only be made at such meeting (i) by or at the direction of the Board, including by any committee or persons authorized to do so by the Board of Directors or these bylaws, or (ii) by any stockholder of the Company present in person who (A) was a stockholder of record at the time of giving of notice provided for in this Section 2.5 and at the time of the special meeting, (B) is entitled to vote at the meeting, and (C) complies with the requirements set forth in this Section 2.5 applicable to nominations, including by providing all information with respect to such stockholder and its candidate for nomination. The immediately preceding sentence shall be the exclusive means for a stockholder to make nominations before a special meeting of stockholders. In the event the Company calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Company’s notice of meeting, if the stockholder (i) provides timely notice thereof in writing and in proper form to the Secretary of the Corporation at the principal executive offices of the Corporation, (ii) provides the information with respect to such stockholder and its candidate for nomination as required by this Section 2.5 and (iii) provides any updates or supplements to such notice at the times and in the forms required by this Section 2.5. To be timely, a stockholder’s notice for any nomination to be made at a special meeting shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Company not earlier than the 120th day prior to the date of such special meeting and not later than the later of the 90th day prior to the date of such special meeting or, if later, the 10th day following the day on which public announcement is first made of the date of the special meeting. In no
event shall any adjournment or postponement of a special meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above.
Section 2.5.3 General.
(a) Only such persons who are nominated in accordance with the procedures set forth in this Section 2.5 shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.5. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the chairperson of the meeting shall, if the facts warrant, determine that the nomination or business proposed to be brought before the meeting was not properly made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.5 and, if any proposed nomination or business is not in compliance with this Section 2.5, he or she shall so declare to the meeting, as applicable (i) that such business shall not be transacted or (ii) that such defective nomination shall be disregarded and any ballots cast for the candidate in question (but in the case of any form of ballot listing other qualified nominees, only the ballots cast for the nominee in question) shall be void and of no force or effect. For purposes of this Section 2.5, (i) “present in person” shall mean that the stockholder, either nominating a person for election to the Board at a meeting or proposing that business be brought before a meeting, or a qualified representative of such stockholder, appears at such meeting and (ii) to be considered a “qualified representative” of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or any other person authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(b) For purposes of this Section 2.5, “public announcement” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(c) Notwithstanding the foregoing provisions of this Section 2.5, a Proposing Person shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.5; provided, however, that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to Section 2.5.1(a)(iii) or Section 2.5.2 of these Bylaws. Nothing in this Section 2.5 shall be deemed to affect any rights (i) of stockholders to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of preferred stock if and to the extent provided for under law, the Certificate of Incorporation or these Bylaws. This Section 2.5 is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders other than any proposal made in accordance with Rule 14a-8 under the Exchange Act and included in the Company’s proxy statement. Subject to Rule 14a-8 under the Exchange Act, nothing in these Bylaws shall be construed to permit any stockholder, or give any stockholder the right, to include or have disseminated or described in the Company’s proxy statement any nomination of director or directors or any other business proposal.
Section 2.5.4 Submission of Questionnaire, Representation and Agreement.
(a) To be eligible to be a nominee for election or reelection as a director of the Company, a candidate must be nominated in the manner prescribed in this Section 2.5 and the candidate for nomination, whether nominated by the Board or by a stockholder of record, must have previously delivered, or mailed and received, (in accordance with the time periods prescribed for delivery in a notice to such candidate given by or on behalf of the Board) to the Secretary at the principal executive offices of the Company (i) a completed written questionnaire with respect to the background,
qualifications, stock ownership and independence of such person (which questionnaire shall be in the form provided by the Secretary upon written request of any stockholder of record therefor) and (ii) a written representation and agreement (in the form provided by the Secretary upon written request of any stockholder of record) that such person (A) is not and, if elected as a director during his or her term, will not become a party to (1) any agreement, arrangement or understanding with, and has not given and will not give any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Company, will act or vote on any issue or question (a “Voting Commitment”) or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Company, with such person’s fiduciary duties under applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, (C) if elected as a director of the Company, will comply with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and other policies and guidelines of the Company applicable to directors and in effect during such person’s term in office as a director (and, if requested by any candidate for nomination, the Secretary of the Company shall provide to such candidate for nomination all such policies and guidelines then in effect), and (D) if elected as director of the Company, intends to serve the entire term until the next meeting at which such candidate would face re-election.
(b) The Board may also require any proposed candidate for nomination as a director to furnish such other information as may reasonably be requested by the Board in writing prior to the meeting of stockholders at which such candidate’s nomination is to be acted upon. Without limiting the generality of the foregoing, the Board may request such other information in order for the Board to determine the eligibility of such candidate for nomination to be an independent director of the Company or to comply with the director qualification standards and additional selection criteria in accordance with the Company’s Corporate Governance Guidelines. Such other information shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Company (or any other office specified by the Company in any public announcement) not later than five (5) business days after the request by the Board has been delivered to, or mailed and received by, the Proposing Person or proposed nominee.
(c) A candidate for nomination as a director shall further update and supplement the materials delivered pursuant to this Section 2.5.4, if necessary, so that the information provided or required to be provided pursuant to this Section 2.5.4 shall be true and correct as of the record date for stockholders entitled to vote at the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Company (or any other office specified by the Company in any public announcement) not later than five (5) business days after the record date for stockholders entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Company’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any nomination or to submit any new proposal, including by changing or adding nominees, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
Section 2.6 Voting of Shares.
Section 2.6.1 Voting Lists. The officer or agent who has charge of the stock ledger of the Company shall prepare, at least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote thereat arranged in alphabetical order and showing the address and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any such stockholder for any purpose germane to the meeting during ordinary business hours for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list also shall be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The original stock transfer books shall be prima facie evidence as to who are the stockholders entitled to examine such list or transfer books or to vote at any meeting of stockholders. Failure to comply with the requirements of this Section 2.6 shall not affect the validity of any action taken at said meeting.
Section 2.6.2 Votes Per Share. Except as otherwise provided in the Certificate of Incorporation, each stockholder entitled to vote at the meeting or with respect to the matter under consideration shall be entitled to one vote in person or by proxy at every stockholders meeting for each share of capital stock held by such stockholder.
Section 2.6.3 Proxies. Every stockholder entitled to vote at a meeting or to express consent or dissent without a meeting or a stockholder’s duly authorized attorney-in-fact may authorize another person or persons to act for such stockholder by proxy. Each proxy shall be in writing, executed by the stockholder giving the proxy or by such stockholder’s duly authorized attorney. No proxy shall be voted on or after three (3) years from its date, unless the proxy provides for a longer period. Unless and until voted, every proxy shall be revocable at the pleasure of the person who executed it, or his or her legal representatives or assigns, except in those cases where an irrevocable proxy permitted by Section 7.02 of the General Corporations Law, as may be amended from time to time, has been given.
Any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, which shall be reserved for the exclusive use by the Board.
Section 2.6.4 Required Vote. When a quorum is present at any meeting, the vote of the holders, present in person or represented by proxy, of capital stock of the Company representing a majority of the votes of capital stock of the Company entitled to vote thereon present in person or by proxy at the meeting shall decide any question brought before such meeting, unless the question is one upon which, by express provision of law, the Certificate of Incorporation or these Bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 2.6.5 Inspectors of Elections; Opening and Closing the Polls. The Board by resolution shall appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Company in other capacities, including, without limitation, as officers, employees, agents or representatives, to act at the meetings of stockholders and make a written report thereof. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders, the chairperson of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by law. The chairperson of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting. No ballot, proxy or vote, nor any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls. In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted therewith, any information provided by a stockholder who submits a proxy by telegram, cablegram, or other electronic transmission from which it can be determined that the proxy was authorized by the stockholder, any written ballot or, if authorized by the Board, a ballot submitted by electronic transmission together with any information from which it can be determined that the electronic transmission was authorized by the stockholder, any information provided in a record of a vote if such vote was taken at the meeting by
means of remote communication along with any information used to verify that any person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder, ballots and the regular books and records of the corporation, and they may also consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for such purpose, they shall, at the time they make their certification, specify the precise information considered by them, including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is accurate and reliable.
Section 2.6.6 Consents in Lieu of Meeting. Any action required to be or which may be taken at any meeting of stockholders 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 all of the holders of outstanding shares entitled to vote thereon.
Section 2.6.7 Remote Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication: (a) participate in a meeting of stockholders; and (b) be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication; provided, that (i) the Company shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Company shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Company. In the case of any annual meeting of stockholders or any special meeting of stockholders called upon order of the Board, the Board may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communications as authorized by this Section 2.6.7.
ARTICLE III
DIRECTORS
DIRECTORS
Section 3.1 Purpose. The business of the Company shall be managed by or under the direction of the Board, which may exercise all of the powers of the Company and do all such lawful acts and things as are not by law, the Certificate of Incorporation or these Bylaws directed or required to be exercised or done by the stockholders. Directors need not be stockholders or residents of Puerto Rico.
Section 3.2 Number. The Board shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board. Directors need not be stockholders unless so required by the Certificate of Incorporation or these Bylaws.
Section 3.3 Election, Qualification and Term. The directors will be elected at any annual or special meeting of the stockholders (or by written consent in lieu of a meeting of the stockholders). Directors shall hold office for a term ending on the date of the next succeeding annual meeting of stockholders and until his or her successor has been duly elected and qualified pursuant to applicable law, subject to such director’s earlier death, disability, resignation or removal (with or without cause as provided in Section 3.5 hereof).
Section 3.4 Vacancies. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, vacancies resulting from the death, resignation or removal of any director, and newly created
directorships resulting from an increase in the number of directors, shall be filled by the majority of the directors then in office, although such majority is less than a quorum, or by a sole remaining director. Any director so appointed shall hold office until the next annual meeting of stockholders and until such director’s successor shall have been elected and qualified.
Section 3.5 Removal and Resignation. Subject to the rights of the holders of the shares of any series of preferred stock of the Company then outstanding and unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the entire Board or any individual director may be removed from office, with or without cause, by the affirmative vote of the holders of a majority in voting power of the outstanding shares of capital stock of the Company entitled to vote at an election of directors. Any director may resign at any time upon notice given in writing or by electronic transmission to the Chair of the Board or the Company’s Chief Executive Officer, President or Secretary. The resignation shall take effect at the time specified therein or upon the happening of an event specified therein, and if no time or event is specified, at the time of its receipt. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. When one or more directors so resigns and the resignation is effective at a future date or upon the happening of an event to occur on 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, and each director so chosen shall hold office as provided in Section 3.4 hereof in the filling of other vacancies.
Section 3.6 Compensation. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board shall have the authority to fix the compensation of directors. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board and may be paid either a fixed sum for attendance at each meeting of the Board or a stated salary as director. No such payment shall preclude any director from serving the Company in any other capacity and receiving compensation therefor. Members of committees of the Board may be allowed like compensation for attending committee meetings.
ARTICLE IV
BOARD MEETINGS
BOARD MEETINGS
Section 4.1 Annual Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders’ meeting at the place of the annual stockholders’ meeting. No notice to the directors shall be necessary to legally convene this meeting, provided a quorum is present.
Section 4.2 Regular Meetings. Regular meetings of the Board shall be held within sixty (60) days of the end of each fiscal year and at least once every fiscal quarter, in each case at such times and places as shall from time to time be determined by resolution of the Board and communicated to all directors. Written notice of each regular meeting of the Board shall be given to each director at least five (5) business days before the date of such meeting.
Section 4.3 Special Meetings. Special meetings of the Board (i) may be called by the Chair of the Board, the Chief Executive Officer or the President and (ii) shall be called by the Chief Executive Officer, the President or Secretary on the written request of a majority of the total number of directors constituting the Board. Notice of each special meeting of the Board shall be given, either personally or as hereinafter provided, to each director at least 24 hours before the meeting if such notice is delivered personally or by means of telephone, telegram, telex, email or facsimile transmission and delivery; four (4) days before the meeting if such notice is delivered by a recognized express overnight delivery service; and seven days before the meeting if such notice is delivered through the United States mail. Subject to the last sentence of this Section 4.3, any and all business may be transacted at a special meeting which may be transacted at a regular meeting of the Board. The notice need not specify the place of the meeting (if the meeting is held at the Company’s principal executive office) nor the purpose of the meeting.
Section 4.4 Quorum; Required Vote. A quorum for the transaction of business at any meeting of the Board shall consist of a majority of the total number of directors then in office. 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, except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws. If a quorum shall not be present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
Section 4.5 Consent in Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board or 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.
ARTICLE V
COMMITTEES OF DIRECTORS
COMMITTEES OF DIRECTORS
Section 5.1 Establishment; Standing Committees. The Board may by resolution establish, name or dissolve one or more committees, each committee to consist of three or more of the directors. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.
Section 5.2 Available Powers. Any committee established pursuant to Section 5.1 hereof, but only to the extent provided in the resolution of the Board establishing such committee or otherwise delegating specific power and authority to such committee and as limited by law, the Certificate of Incorporation and these Bylaws, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company and may authorize the seal of the Company to be affixed to all papers which may require it.
Section 5.3 Unavailable Powers. No committee of the Board shall have the power or authority to (i) amend the Certificate of Incorporation; (ii) amend the Bylaws of the Company; (iii) adopt an agreement of merger or consolidation; (iv) recommend to the stockholders (a) the sale, lease or exchange of all or substantially all of the Company’s property and assets or (b) a dissolution of the Company or a revocation of such a dissolution; or (v) unless the resolution establishing such committee or the Certificate of Incorporation expressly so provides, declare a dividend, authorize the issuance of stock or adopt a certificate of ownership and merger. Without limiting the foregoing, such committee may, but only to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board and as provided in Section 4.01(c)(2) of the General Corporations Law (14 L.P.R.A. §3561(c)(2)), fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Company or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Company.
Section 5.4 Alternate Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee.
Section 5.5 Procedures. The time, place and notice, if any, of meetings of a committee shall be determined by such committee. At meetings of a committee, a majority of the number of members designated by the Board shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present.
ARTICLE VI
OFFICERS
OFFICERS
Section 6.1 Elected Officers. The Board shall elect a Chief Executive Officer, a President, a Secretary and a Treasurer (collectively, the “Required Officers”) having the respective duties enumerated below and may elect such other officers having the titles and duties set forth below that are not reserved for the Required Officers or such other titles and duties as the Board may by resolution from time to time establish.
Section 6.1.1 Chair of the Board. The Chair of the Board shall preside when present at all meetings of the stockholders and of the Board. The Chair of the Board shall advise and counsel the Chief Executive Officer, the President and other officers and shall exercise such powers and perform such duties as shall be assigned to or required of the Chair of the Board from time to time by the Board or these Bylaws.
Section 6.1.2 Chief Executive Officer. The Chief Executive Officer (i) shall have general supervision of the affairs of the Company and general control of all of its business, subject to the ultimate authority of the Board and (ii) shall be responsible for the execution of the policies of the Board. In the absence (or inability or refusal to act) of the Chair of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders and of the Board. If no Chief Executive Officer has been elected or is duly serving, the President shall serve as the Chief Executive Officer.
Section 6.1.3 President. The President (i) shall be the chief operating officer of the Company, (ii) shall, subject to the authority of the Chief Executive Officer and the Board, have general management and control of the day-to-day business operations of the Company and (iii) shall consult with and report to the Chief Executive Officer. The President shall put into operation the business policies of the Company as determined by the Chief Executive Officer and the Board and as communicated to the President by the Chief Executive Officer and the Board. The President shall make recommendations to the Chief Executive Officer on all operational matters that normally would be reserved for the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chair of the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings of the stockholders and of the Board.
Section 6.1.4 Vice Presidents. In the absence (or inability or refusal to act) of the President, the Vice President (or, in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President. Any one or more of the Vice Presidents may be given an additional designation of rank or function.
Section 6.1.5 Secretary. The Secretary shall attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chair of the Board, the Chief Executive Officer or the President. The Secretary shall have custody of the corporate seal of the Company and the Secretary, or any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by his or her signature or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Company and to attest the affixing thereof by his or her signature. The Secretary shall keep, or cause to be kept, at the principal executive office of the Company or at the office of the Company’s transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates issued for the same and the number and date of certificates cancelled.
Section 6.1.6 Assistant Secretaries. The Assistant Secretary (or, if there be more than one, the Assistant Secretaries in the order designated by the Board) shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
Section 6.1.7 Treasurer. The Treasurer shall perform all duties commonly incident to that office, including, without limitation, the care and custody of the funds and securities of the Company that from time to time may come into the Treasurer’s hands and the deposit of the funds of the Company in such banks or trust companies as the Board, the Chief Executive Officer or the President may authorize.
Section 6.1.8 Assistant Treasurers. The Assistant Treasurer (or, if there shall be more than one, the Assistant Treasurers in the order designated by the Board) shall, in the absence (or inability or refusal to act) of the Treasurer, perform the duties and exercise the powers of the Treasurer.
Section 6.1.9 Divisional Officers. Each division of the Company, if any, may have a president, secretary, treasurer or controller and one or more vice presidents, assistant secretaries, assistant treasurers and other assistant officers. Any number of such offices may be held by the same person. Such divisional officers will be appointed by, report to and serve at the pleasure of the Board and such other officers that the Board may place in authority over them. The officers of each division shall have such authority with respect to the business and affairs of that division as may be granted from time to time by the Board, and in the regular course of business of such division may sign contracts and other documents in the name of the division where so authorized; provided, that, in no case and under no circumstances shall an officer of one division have authority to bind any other division of the Company except as necessary in the pursuit of the normal and usual business of the division of which he is an officer.
Section 6.2 Election. All elected officers shall serve until their successors are duly elected and qualified or until their earlier death, disqualification, retirement, resignation or removal from office.
Section 6.3 Appointed Officers. The Board may also appoint or delegate the power to appoint such other officers, assistant officers and agents and may also remove such officers and agents or delegate the power to remove the same, as it shall from time to time deem necessary, and the titles and duties of such appointed officers may be as described in Section 6.1 hereof for elected officers; provided, that, the officers and any officer possessing authority over or responsibility for any functions of the Board shall be elected officers.
Section 6.4 Multiple Officeholders, Stockholder and Director Officers. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these Bylaws otherwise provide. Officers need not be stockholders or residents of the Commonwealth of Puerto Rico. Officers, such as the Chair of the Board, possessing authority over or responsibility for any function of the Board must be directors.
Section 6.5 Compensation; Vacancies. The compensation of elected officers shall be set by the Board. The Board also shall fill any vacancy in an elected office. The compensation of appointed officers and the filling of vacancies in appointed offices may be delegated by the Board to the same extent as permitted by these Bylaws for the initial filling of such offices.
Section 6.6 Additional Powers and Duties. In addition to the foregoing especially enumerated powers and duties, the several elected and appointed officers of the Company shall perform such other duties and exercise such further powers as may be provided by law, the Certificate of Incorporation or these Bylaws or as the Board may from time to time determine or as may be assigned to them by any competent committee or superior officer.
Section 6.7 Resignation and Removal. Any officer may resign at any time by giving written notice to the Company. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance
of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Company under any contract to which the officer is a party. Any officer may be removed, either with or without cause, by a majority vote of the directors in office at the time at any regular or special meeting of the Board.
ARTICLE VII
SHARE CERTIFICATES
SHARE CERTIFICATES
Section 7.1 Entitlement to Certificates. The shares of the Company shall be represented by certificates, provided that, the Board may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares that, inter alia, may be evidenced by a book-entry system maintained by the duly appointed registrar of such stock. If shares are represented by certificates, such certificates shall be in a form, other than bearer form, approved by the Board. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Company.
Section 7.2 Multiple Classes of Stock. If the Company shall be authorized to issue more than one class of capital stock or more than one series of any class, a statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualification, limitations or restrictions of such preferences and/or rights shall, unless the Board shall by resolution provide that such class or series of stock shall be uncertificated, be set forth in full or summarized on the face or back of the certificate which the Company shall issue to represent such class or series of stock; provided that, to the extent allowed by law, in lieu of such statement, the face or back of such certificate may state that the Company will furnish a copy of such statement without charge to each requesting stockholder.
Section 7.3 Signatures. Each certificate representing capital stock of the Company shall be signed by or in the name of the Company by (i) the Chair of the Board, the President or a Vice President; and (ii) the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company. The signatures of the officers of the Company may be facsimiles. In case any officer or duly appointed transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to hold such office before such certificate is issued, it may be issued by the Company with the same effect as if he held such office on the date of issue.
Section 7.4 Issuance and Payment. Subject to the provisions of law, the Certificate of Incorporation and these Bylaws, shares may be issued for such consideration and to such persons as the Board may determine from time to time. Shares may not be issued until the full amount of the consideration has been paid, unless upon the face or back of each certificate issued to represent any partly paid shares of capital stock there shall have been set forth the total amount of the consideration to be paid therefor and the amount paid thereon up to and including the time said certificate is issued.
Section 7.5 Lost Certificates. The Board may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Company alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his or her legal representative, to advertise the same in such manner as it shall require and/or to give the Company a bond in such sum as it may direct as indemnity against any claim that may be made against the Company with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 7.6 Transfer of Stock. Transfers of stock shall be made on the books of the Company only by the holder of record thereof, by such person’s attorney lawfully constituted in writing and, in the case of certificated shares, upon surrender to the Company or its transfer agent, if any, of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to
transfer and of the payment of all taxes applicable to the transfer of said shares. In the case of certificated shares, upon transfer the Company shall be obligated to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books; provided, however, that, the Company shall not be so obligated unless such transfer was made in compliance with applicable state and federal securities laws.
Section 7.7 Registered Stockholders. 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, vote and be held liable for calls and assessments 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 person other than such registered owner, whether or not it shall have express or other notice thereof, except as otherwise provided by law.
Section 7.8 Transfer Agents and Registrars. The Board may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars.
ARTICLE VIII
INDEMNIFICATION
INDEMNIFICATION
Section 8.1 Right to Indemnification. To the fullest extent that the General Corporations Law or any other applicable law as the same exists or is hereafter amended permits, each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was an incorporator, resident agent, director or officer of the Company or, while an incorporator, resident agent, director or officer of the Company, is or was serving at the request of the Company as such an incorporator, resident agent, director or officer, or as an employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as an incorporator, resident agent, director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Company to the fullest extent authorized or permitted by the General Corporations Law or other applicable law, as the same exists or may hereafter be amended, against all liability and loss suffered by such indemnitee and all expenses (including, without limitation, attorneys’ fees and expenses, judgments, fines, Employee Retirement Income Security Act, as amended (“ERISA”) excise taxes and penalties and amounts paid in settlement) incurred in a reasonable manner by such indemnitee in connection with such proceeding if such indemnitee acted in good faith and in a manner such indemnitee deemed to be reasonable and consistent with the best interests of the Company and not opposed thereto and, with respect to any criminal action or proceeding, had no reasonable cause to believe such indemnitee’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such indemnitee (i) did not act in good faith and in a manner that such indemnitee reasonably believed to be in or not opposed to the best interests of the Company and (ii) with respect to any criminal action or proceeding, had reasonable cause to believe that such indemnitee’s conduct was unlawful; provided, however, that, except as provided in Section 8.3 with respect to proceedings to enforce rights to indemnification and advancement of expenses, the Company shall indemnify an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.
Section 8.2 Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, an indemnitee also shall have the right to be paid by the Company for the expenses (including, without limitation, attorneys’ fees and expenses) incurred in defending, testifying or otherwise participating in any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the General Corporations Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Company (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the
Company of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Article VIII or otherwise.
Section 8.3 Right of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the Company within 60 days after a written claim therefor has been received by the Company, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee also shall be entitled to be paid the expense of prosecuting or defending such suit. In any suit brought by (a) the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Company shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the General Corporations Law. Neither the failure of the Company (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the General Corporations Law, nor an actual determination by the Company (including a determination by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, shall be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Company.
Section 8.4 Non-Exclusivity of Rights. The rights provided to indemnitees pursuant to this Article VIII shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under the General Corporations Law, other applicable law, the Certificate of Incorporation, these Bylaws, any agreement, a vote of stockholders or disinterested directors, or otherwise.
Section 8.5 Insurance. The Company may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Company or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such indemnitee against such expense, liability or loss under the General Corporations Law.
Section 8.6 Indemnification of Other Persons. This Article VIII shall not limit the right of the Company to the extent and in the manner authorized or permitted by law to indemnify and to advance expenses to persons other than indemnitees. Without limiting the foregoing, the Company may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Company and to any other person who is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of expenses of indemnitees under this Article VIII.
Section 8.7 Amendments. Any repeal, modification or amendment of this Article VIII by the Board or the stockholders of the Company or by changes in applicable law or the adoption of any other provision of these Bylaws inconsistent with this Article VIII, shall, to the extent permitted by applicable
law, be prospective only (except to the extent such amendment or change in applicable law permits the Company to provide broader indemnification rights to indemnitees on a retroactive basis than permitted prior thereto) and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
Section 8.8 Certain Definitions. For purposes of this Article VIII, (a) references to “other enterprise” shall include any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; (c) references to “serving at the request of the Company” shall include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants, or beneficiaries; and (d) a person who acted in good faith and in a manner such indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interest of the Company” for purposes of Section 4.08(i) of the General Corporations Law (14 L.P.R.A. §3568(i)).
Section 8.9 Contract Rights. The rights provided to indemnitees pursuant to this Article VIII (a) shall be contract rights based upon good and valuable consideration, pursuant to which an indemnitee may bring suit as if the provisions of this Article VIII were set forth in a separate written contract between the indemnitee and the Company, (b) shall fully vest at the time the indemnitee first assumes his or her position as a director or officer of the Company, (c) are intended to be retroactive and shall be available with respect to any act or omission occurring prior to the adoption of this Article VIII, (d) shall continue as to an indemnitee who has ceased to be a director or officer of the Company, and (e) shall inure to the benefit of the indemnitee’s heirs, executors and administrators.
Section 8.10 Severability. If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article VIII shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Section 8.11 Indemnitor of First Resort. The Company hereby acknowledges that an indemnitee may have certain rights to indemnification, insurance and/or advancement of expenses provided by one or more Persons (as defined herein) who employ such indemnitee or of which any indemnitee is a partner or member or with such Persons’ respective affiliated investment funds, managed funds and management companies, if applicable, or such Persons’ respective affiliates (collectively, the “Secondary Indemnitors”). “Person” shall be construed broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity (including any federal, national, supranational, state, provincial, Commonwealth, local or foreign or similar government, governmental subdivision, regulatory or administrative body or other governmental or quasi-governmental agency, tribunal, commission, court, judicial or arbitral body or other entity with competent jurisdiction) or any department, agency or political subdivision thereof. The Company hereby agrees (i) that it is the indemnitor of first resort—meaning that, its obligations under this Article VIII are primary and any obligation of the Secondary Indemnitors to advance expenses and provide indemnification for the same expenses and liabilities incurred by indemnitees are secondary, (ii) that it shall be required to advance the full amount of expenses incurred by indemnitees and shall be liable for the full amount of any losses, claims, damages, liabilities and expenses (including, without limitation, attorneys’ fees and expenses, judgments, fines, penalties and amounts paid in settlement) to the extent legally permitted and as required by the terms of these Bylaws, the Certificate of Incorporation or any agreement between the Company and any indemnitees, without regard to any rights that indemnitees may have against the Secondary Indemnitors and (iii) that it irrevocably waives, relinquishes and releases the Secondary Indemnitors from any and all claims that it has or may have against the Secondary Indemnitors for
contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Secondary Indemnitors shall affect the foregoing and that the Secondary Indemnitors shall be subrogated to the extent of such advancement or payment to all of the rights of recovery of such indemnitees against the Company. The Company and each indemnitee agree that Secondary Indemnitors are express third-party beneficiaries of this Article VIII.
ARTICLE IX
INTERESTED DIRECTORS, OFFICERS AND STOCKHOLDERS
INTERESTED DIRECTORS, OFFICERS AND STOCKHOLDERS
Section 9.1 Validity. Any contract or other transaction between the Company and any of its directors, officers or stockholders (or any corporation or firm in which any of them are directly or indirectly interested) shall be valid for all purposes notwithstanding the presence of such director, officer or stockholder at the meeting authorizing such contract or transaction or his or her participation or vote in such meeting or authorization.
Section 9.2 Disclosure; Approval. The foregoing shall, however, apply only if the material facts of the relationship or the interest of each such director, officer or stockholder is known or disclosed:
(a) to the Board and it nevertheless in good faith authorizes or ratifies the contract or transaction by a majority of the directors present, each such interested director to be counted in determining whether a quorum is present but not in calculating the majority necessary to carry the vote; or
(b) to the stockholders and they nevertheless in good faith authorize or ratify the contract or transaction by a majority of the shares present, each such interested person to be counted in determining whether a quorum is present but not in calculating the majority necessary to carry the vote.
Section 9.3 Nonexclusive. This provision shall not be construed to invalidate any contract or transaction that would be valid in the absence of this provision.
ARTICLE X
MISCELLANEOUS
MISCELLANEOUS
Section 10.1 Place of Meetings. All stockholders, directors and committee meetings shall be held at such place or places, within or outside of the Commonwealth of Puerto Rico, as shall be designated from time to time by the Board or such committee and stated in the notices thereof. If no such place is so designated, said meetings shall be held at the principal business office of the Company.
Section 10.2 Fixing Record Dates.
(a) In order that the Company may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may fix, in advance, a record date, that shall not precede the date upon which the resolution fixing the record date is adopted by the Board, which record date shall not be more than sixty (60) nor less than ten (10) days prior to any such action. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board 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, 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 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 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 may fix a new record date for the adjourned meeting.
(b) In order that the Company may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board and which record 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. If no record date has been fixed by the Board, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board is otherwise required, 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 Commonwealth of Puerto Rico, its principal place of business or to an officer or agent of the Company having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Company’s registered office shall be by hand delivery or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board and prior action by the Board is required, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.
(c) In order that the Company may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date 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 stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
Section 10.3 Means of Giving Notice. Whenever under law, the Certificate of Incorporation or these Bylaws, notice is required to be given to any director or stockholder, such notice may be given in writing and delivered personally, through the United States mail, by a recognized express delivery service (such as Federal Express) or by means of electronic transmission addressed to such director or stockholder at his or her electronic mail address or address or telex or facsimile transmission number, as the case may be, appearing on the records of the Company, with postage and fees thereon prepaid; provided, however, that in the case of a stockholder a consent for the use of electronic transmissions must have been previously obtained as required by law. Such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail or with an express delivery service or when transmitted, as the case may be. Notice of any meeting of the Board may be given to a director by telephone and shall be deemed to be given when actually received by the director.
Section 10.4 Waiver of Notice. Except as otherwise provided in these Bylaws, whenever any notice is required to be given under law, the Certificate of Incorporation or these Bylaws, a written waiver of such notice, signed before or after the date of such meeting by the person or persons entitled to said notice, shall be deemed equivalent to such required notice. All such waivers shall be filed with the corporate records. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
Section 10.5 Attendance via Communications Equipment. Unless otherwise restricted by law, the Certificate of Incorporation or these Bylaws, members of the Board, any committee thereof or, if done in accordance with Section 2.6.7, the stockholders may hold a meeting by means of telephone conference or other communications equipment by means of which all persons participating in the meeting can effectively communicate with each other. Such participation in a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. The Board shall make such communications equipment available upon the request of any director.
Section 10.6 Dividends. Dividends on the capital stock of the Company, paid in cash, property or securities of the Company and as may be limited by the General Corporations Law, other applicable law and applicable provisions of the Certificate of Incorporation (if any) may be declared by the Board at any regular or special meeting.
Section 10.7 Reserves. Before payment of any dividend, there may be set aside out of any funds of the Company available for dividends such sum or sums as the Board from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, for equalizing dividends, for repairing or maintaining any property of the Company or for such other purpose as the Board shall determine to be in the best interest of the Company. The Board may modify or abolish any such reserve in the manner in which it was created.
Section 10.8 Reports to Stockholders. The Board shall present at each annual meeting of stockholders, and at any special meeting of stockholders when called for by vote of the stockholders, a statement of the business and condition of the Company.
Section 10.9 Contracts and Negotiable Instruments. Except as otherwise provided by law or these Bylaws, any contract or other instrument relative to the business of the Company may be executed and delivered in the name of the Company and on its behalf by the Chair of the Board, the Chief Executive Officer or the President. The Board may authorize any other officer or agent of the Company to enter into any contract or execute and deliver any contract in the name and on behalf of the Company, and such authority may be general or confined to specific instances as the Board may by resolution determine. All bills, notes, checks or other instruments for the payment of money shall be signed or countersigned by such officer, officers, agent or agents and in such manner as are permitted by these Bylaws and/or as, from time to time, may be prescribed by resolution (whether general or special) of the Board. Unless authorized so to do by these Bylaws or by the Board, no officer, agent or employee shall have any power or authority to bind the Company by any contract or engagement, or to pledge its credit, or to render it liable pecuniarily for any purpose or any amount.
Section 10.10 Fiscal Year. The fiscal year of the Company shall end on December 31 of each calendar year.
Section 10.11 Seal. The seal of the Company shall be in such form as shall from time to time be adopted by the Board. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced. Whenever the Company is permitted or required to affix its seal to a document, it shall be sufficient to meet the requirements of any law, rule or regulation relating to a seal to place the word (“SEAL”) adjacent to the signature of the person authorized to execute the document on behalf of the Company.
Section 10.12 Books and Records. The Company shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its stockholders, Board and committees and shall keep at its registered office or principal place of business in the Commonwealth of Puerto Rico. The Company shall keep a record of its stockholders at its registered office or principal place of business or at the office of its transfer agent or registrar, stating the names and addresses of all stockholders and the number and class of the shares held by each.
Section 10.13 Surety Bonds. Such officers and agents of the Company (if any) as the Chair of the Board, the Chief Executive Officer, the President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration to the Company, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging to the Company, in such amounts and by such surety companies as the Chair of the Board, the Chief Executive Officer, the President or the Board may determine. The premiums on such bonds shall be paid by the Company and the bonds so furnished shall be in the custody of the Secretary.
Section 10.14 Proxies in Respect of Securities of Other Corporations. The Chair of the Board, the Chief Executive Officer, the President, any Vice President or the Secretary may from time to time appoint an attorney or attorneys or an agent or agents for the Company to exercise, in the name and on behalf of the Company, the powers and rights that the Company may have as the holder of stock or other securities in any other corporation to vote or consent in respect of such stock or other securities. The Chair of the Board, the Chief Executive Officer, the President, any Vice President or the Secretary may instruct such person or persons as to the manner of exercising such powers and rights. The Chair of the Board, the Chief Executive Officer, the President, any Vice President or the Secretary may execute or cause to be executed, in the name and on behalf of the Company and under its corporate seal or otherwise, all such written proxies or other instruments as he may deem necessary or proper in order that the Company may exercise such powers and rights.
Section 10.15 Amendments. These Bylaws may be amended, altered, changed or repealed or new Bylaws may be adopted only in accordance with Article VI of the Certificate of Incorporation.
EXHIBIT 3.3
EXHIBIT 99.1
EVERTEC APPOINTS VIRGINIA GAMBALE TO BOARD OF DIRECTORS
SAN JUAN, PUERTO RICO – June 1, 2023 - EVERTEC, Inc. (NYSE: EVTC) (“Evertec” or the “Company”) announced today that the Company’s Board of Directors (the “Board”) appointed Ms. Virginia Gambale as an independent director of the Board, effective May 25, 2023.
Ms. Gambale is the founder and Managing Partner of Azimuth Partners, a strategic advisory firm that develops growth, innovation and transformation strategies and planning for technology companies. Prior to founding Azimuth in 2003, she worked at Deutsche Bank, where she was a General Partner & Managing Director of ABS Ventures, responsible for the management of the Tech Venture group and head of Deutsche Bank Strategic Ventures. Before Deutsche Bank, Ms. Gambale was the Chief Information Officer, Managing Director, and Partner at Bankers Trust Alex Brown, and she also served as Chief Information Officer for Global Investment Banking at Merrill Lynch. Ms. Gambale currently serves as a director for JAMF Software, Nutanix, Virtu Financial, and First Derivatives. Ms. Gambale holds a bachelor’s degree in Math, Computer and Business from the New York Institute of Technology.
Frank D’Angelo, Chairman of the Board stated, “We are pleased to welcome Virginia to the Board. Her substantial experience in leadership roles, information technology and fintech, together with her service on several boards, will be of great value to the Company.”
The Board also appointed Ms. Gambale as a member of the following Board committees: Audit Committee and Information Technology Committee.
About Evertec
EVERTEC, Inc. (NYSE: EVTC) is a leading full-service transaction processing business in Puerto Rico, the Caribbean and Latin America, providing a broad range of merchant acquiring, payment services and business process management services. Evertec owns and operates the ATH® network, one of the leading personal identification number (“PIN”) debit networks in Latin America. In addition, the Company processes over six billion transactions annually and manages a system of electronic payment networks in Puerto Rico and Latin America and offers a comprehensive suite of services for core banking, cash processing, and fulfillment in Puerto Rico. Additionally, the Company offers technology outsourcing and payment transactions fraud monitoring to all the regions it serves. Based in Puerto Rico, the Company operates in 26 Latin American countries and serves a diversified customer base of leading financial institutions, merchants, corporations, and government agencies with “mission-critical” technology solutions. For more information, visit www.evertecinc.com.
Investor Contact
Beatriz Brown-Sáenz
(787) 773-5442
IR@evertecinc.com
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