Iqvia Holdings Inc 8-K, filed Apr 18, 2023
Iqvia Holdings Inc. (IQV)
8-K
2023-04-18
For: 2023-04-18
View Original
Added on
April 04, 2026
About this 8-K
Iqvia Holdings Inc filed this 8-K on April 18, 2023.
Items reported
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 5.07: Shareholder vote results
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 18, 2023
(Exact name of registrant as specified in its charter)
|
|
|
|
|
(State or other jurisdiction of incorporation)
|
(Commission File Number)
|
(IRS Employer Identification No.)
|
(Address of principal executive offices)
Registrant’s telephone number, including area code: (919 )
998-2000
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
|
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 Each Class
|
Trading Symbol
|
Name of Each Exchange on which Registered
|
||
|
|
|
|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
|
Emerging growth company
|
|
|
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 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
|
On April 18, 2023, IQVIA Holdings Inc. (the “Company”) held its 2023 Annual Meeting of Stockholders and approved a proposal to amend the Company’s Amended and Restated
Certificate of Incorporation (the “Charter”) to provide stockholders representing at least 25% or more of the Company’s outstanding common stock the right to request a special meeting of stockholders (a “Special Meeting Right”). The amendment to
the Charter became effective upon the filing of an Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware on April 18, 2023.
The Board previously approved a corresponding amendment to the Company’s Amended and Restated Bylaws (the “Bylaws”), subject to stockholder approval of the proposal to
provide a Special Meeting Right. The Bylaws of the Company became effective on April 18, 2023.
The foregoing description of the amendments to the Charter and the Bylaws is not complete and is qualified in its entirety by reference to the Amended and Restated
Certificate of Incorporation effective as of April 18, 2023 and the Amended and Restated Bylaws effective as of April 18, 2023, which are filed as Exhibit 3.1 and Exhibit 3.2 hereto, respectively, and incorporated herein by reference.
| Item 5.07 |
Submission of Matters to a Vote of Security Holders.
|
As discussed under Item 5.03 of this Current Report on Form 8-K, on April 18, 2023, the Company held its 2023 Annual Meeting of Stockholders. As of February 17, 2023, the
record date for the meeting, there were 186,141,208 shares of the Company’s common stock outstanding and entitled to vote on all matters. At the meeting, stockholders voted on the following proposals:
Proposal No. 1 – The following nominees were
elected by majority vote to serve on the Board of Directors for one-year terms based upon the following votes:
|
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|
|
Carol J. Burt
|
150,718,481
|
8,516,745
|
70,087
|
6,635,524
|
|
Colleen A. Goggins
|
142,947,094
|
16,288,708
|
69,511
|
6,635,524
|
|
Sheila A. Stamps
|
153,090,496
|
6,145,238
|
69,579
|
6,635,524
|
Proposal No. 2 – An advisory (non-binding) vote to
approve the 2022 compensation of the Company’s named executive officers received the following votes:
|
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|
126,672,483
|
32,526,896
|
105,934
|
6,635,524
|
Proposal No. 3 – The Company’s proposal to approve
an amendment to the Charter to provide a Special Meeting Right was approved by stockholders based upon the following votes:
|
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|
141,139,003
|
5,721,441
|
12,444,869
|
6,635,524
|
Proposal No. 4 – An advisory (non-binding)
stockholder proposal vote concerning special stockholder meetings received the following votes:
|
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|
77,091,008
|
81,643,308
|
570,997
|
6,635,524
|
Proposal No. 5 – An advisory (non-binding)
stockholder proposal vote for separate Chairman and Chief Executive Officer roles received the following votes:
|
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|
54,282,603
|
104,922,150
|
100,560
|
6,635,524
|
Proposal No. 6 – The appointment of
PricewaterhouseCoopers LLP as the Company’s independent registered public accounting firm for the year ending December 31, 2023 was ratified based upon the following votes:
|
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|
155,066,495
|
10,809,845
|
64,497
|
0
|
|
Item 9.01
|
Financial Statements and Exhibits
|
(d) Exhibits
|
Exhibit
No.
|
Description
|
|
Amended and Restated Certificate of Incorporation of IQVIA Holdings Inc., effective April 18, 2023.
|
|
|
Amended and Restated Bylaws of IQVIA Holdings Inc., effective April 18, 2023.
|
|
|
104
|
Cover Page Interactive Data File (embedded within the Inline XBRL document).
|
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
Date: April 18, 2023
|
IQVIA HOLDINGS INC.
|
||
|
By:
|
/s/ Eric M. Sherbet
|
|
|
Eric M. Sherbet
|
||
|
Executive Vice President, General Counsel and Secretary
|
||
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IQVIA HOLDINGS INC.
(Under Sections 242 and 245 of the
Delaware General Corporation Law)
IQVIA Holdings Inc., a corporation organized and existing under the laws of the State of Delaware, as amended (the “Corporation”), does hereby certify as follows:
FIRST. The Corporation filed its original certificate of incorporation with the Secretary of State of the State of
Delaware on October 3, 2016 under the name Quintiles Transnational Holdings Inc. (the “Certificate of Incorporation”).
SECOND. The board of directors of the Corporation (the “Board
of Directors”) adopted resolutions proposing to amend and restate the Certificate of Incorporation in its entirety, and the requisite stockholders of the Corporation have duly approved the amendment and restatement.
THIRD. Pursuant to Sections 242 and 245 of the of the General Corporation Law of the State of Delaware, as amended
from time to time, this Amended and Restated Certificate of Incorporation restates, integrates and further amends the Certificate of Incorporation of the Corporation to read in its entirety as follows:
1. The name of the corporation is “IQVIA Holdings Inc.” (hereinafter referred to as the “Corporation”).
2. The street address and county of the registered office of the Corporation in the State of Delaware is 251 Little
Falls Drive, in the City of Wilmington, County of New Castle, 19808, and the name of its registered agent at such address is Corporation Service Company.
3. The purpose for which the Corporation is organized is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
4. Capitalization.
A. Authorized Shares. The
Corporation shall have authority to issue four hundred and one million (401,000,000) shares, consisting of (a) four hundred million (400,000,000) shares of Common Stock, par value $0.01 per share (the “Common Stock”); and (b) one million (1,000,000) shares of Preferred Stock, par value $0.01 per share (the “Preferred Stock”).
B. Common Stock. All shares of
Common Stock will be identical in all respects and will entitle the holders thereof to the same preferences, limitations and relative rights.
1. Voting Rights. On all
matters to be voted on by the Corporation’s stockholders, each holder of record of shares of Common Stock will be entitled to one vote per share so held.
2. Dividends. When and as
dividends are declared or paid on shares of Common Stock, whether in cash, property or securities of the Corporation, each holder of record of shares of Common Stock will be entitled to a ratable portion of such dividend, based upon the number of
shares of Common Stock then held of record by each such holder.
3. Liquidation. The
holders of the Common Stock will be entitled to share ratably, on the basis of the number of shares of Common Stock then held by each such holder, in all distributions to the holders of the Common Stock in any liquidation, dissolution or winding up
of the Corporation.
C. Preferred Stock. The Preferred
Stock may be issued from time to time in one or more series, the shares of each such series to have such designations, preferences, relative rights and powers, including voting powers (or qualifications, limitations or restrictions thereof) as are
stated in the resolution or resolutions providing for the issuance of such series adopted by the Board of Directors of the Corporation. Authority is expressly granted to the Board of Directors, subject to the provisions hereof and to any
limitations provided under the DGCL, to authorize the issuance of one or more series within the class of Preferred Stock, and with respect to each such series to determine and fix by resolution or resolutions the designations, preferences, relative
rights and powers, including voting powers, full or limited, or no voting power, of such shares, or the qualifications, limitations or restrictions of such shares. This paragraph is intended to afford to the Board of Directors the maximum authority
permitted under the DGCL.
5. Stockholders of the Corporation may not take any action by written consent in lieu of a meeting.
Subject to the requirements of applicable law, a special meeting of the stockholders of the Corporation may be called
at any time (i) by a majority of the members of the Board of Directors, (ii) by the Chairman of the Board or Chief Executive Officer of the Corporation, or (iii) by the Secretary of the Corporation upon receipt of the written request of one or more
record holders (and the record or beneficial owners, if any, such holders represent) representing ownership of an aggregate of not less than 25% of the voting power of all issued and outstanding shares of Common Stock of the Corporation, provided
that such shares have been owned continuously by such holders for at least one year, and provided such request complies with the procedures for calling a special meeting of stockholders as set forth in the Corporation’s bylaws, as may be amended
from time to time.
Any special meeting of the stockholders shall be held on such date, at such time and at such place within or outside
the State of Delaware as the Corporation may designate. Notice of every special meeting of the stockholders of the Corporation shall state the purpose or purposes of such meeting. No business may be transacted and no corporate action may be taken
at a special meeting other than business within the purpose or purposes stated in the notice of the meeting unless all of the stockholders are present in person or by proxy, in which case any and all business may be transacted at the meeting even
though the meeting is held without notice.
6. The Corporation shall be entitled to treat the person in whose name any shares are registered as the owner thereof
for all purposes and shall not be bound to recognize any equitable or other claim to, or interest in, such shares on the part of any other person, whether or not the Corporation shall have notice thereof, except as required by applicable law.
2
7. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
The number of directors which shall constitute the Board of Directors shall be not less than five (5) nor more than seventeen (17), and shall be fixed in such a manner as may be prescribed by the bylaws. Each director who is serving as a director
immediately following the 2022 annual meeting of stockholders, or is elected thereafter as a director, shall hold office until the expiration of the term for which he or she has been elected, and until his or her successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement, disqualification, or removal from office. At the 2023 and 2024 annual meetings of stockholders, the successors to the class of directors whose terms expire at each such
meeting shall be elected for a one-year term expiring at the subsequent annual meeting of stockholders. At the 2025 annual meeting of stockholders, and at each meeting of shareholders thereafter, each director shall be elected for a one-year term
expiring at the next annual meeting of stockholders. Each director shall hold office until the expiration of the term for which he or she is elected, and until his or her successor shall be elected and qualified, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. In the case of any vacancy on the Board of Directors, including a vacancy created by an increase in the number of directors, the vacancy may be filled by the Board of Directors for a
term of office continuing until the next election of directors by the stockholders.
8. In furtherance and not in limitation of the powers conferred by law, the Board of Directors is expressly
authorized to adopt, alter, amend and repeal the bylaws of the Corporation. Any amendment, alteration, change, addition or repeal of the bylaws of the Corporation by the stockholders of the Corporation shall require the affirmative vote of the
holders of a majority of the shares of the Corporation present in person or by proxy at a meeting and entitled to vote on such amendment, alteration, change, addition or repeal.
9. Subject to the rights, if any, of the holders of shares of Preferred Stock then outstanding, (i) any director who
prior to the 2022 annual meeting of stockholders was elected to a three-year term (a “Classified Term”) that continues beyond the date of the 2022 annual meeting (a “Classified Director”) may be removed from office during such Classified Term by
the stockholders of the Corporation only for cause, and only by the affirmative vote of the holders of a majority of the shares of the Corporation then entitled to vote generally in the election of directors, considered for the purposes of this
Section 9 as one class, and (ii) any director that is not a Classified Director may be removed from office by the stockholders of the Corporation, with or without cause, by the affirmative vote of the holders of a majority of the shares of the
Corporation then entitled to vote generally in the election of directors, considered for the purposes of this Section 9 as one class.
Subject to the bylaws of the Corporation, when one or more directors shall resign effective at a future date, a
majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so
chosen shall hold office as herein provided in connection with the filling of other vacancies.
3
10. Limitation of Director Liability; Indemnification
(A) Limitation of Director Liability.
To the fullest extent that the DGCL or any other law of the State of Delaware (as they exist on the date hereof or as they may hereafter be amended) permits the limitation or elimination of the liability of directors, no director of the Corporation
shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. No amendment to, or modification or repeal of, this Article 10 shall adversely affect any right or protection of a director of
the Corporation existing hereunder with respect to any state of facts existing or act or omission occurring, or any cause of action, suit or claim that, but for this Article 10, would accrue or arise, prior to such amendment, modification or
repeal. If the DGCL is amended after the Effective Time to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the DGCL, as so amended.
(B) Indemnification.
1. Nature of Indemnity.
The Corporation shall indemnify any person (an “Indemnitee”) who at any time serves or has served as a director or officer of the Corporation, or at the request of the
Corporation is or was serving as a director, officer, partner, member, trustee, employee or agent of any other foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other
enterprise, or as a trustee or administrator under any employee benefit plan of the Corporation or any wholly owned subsidiary thereof (any such entity, an “Other Entity”), to
the fullest extent from time to time permitted by law in the event he or she is or is threatened to be involved as a party, witness or otherwise in any threatened, pending or completed action, demand, suit or proceeding, whether civil, criminal,
administrative, arbitrative, investigative or other and whether formal or informal, including but not limited to any investigation, inquiry, hearing or alternative dispute resolution process, whether or not brought by or on behalf of the
Corporation, by reason of the fact that he or she is or was acting in such capacity; provided, however, that the Corporation shall not indemnify any such Indemnitee against liability or expenses such person may incur on account of his or her
activities which were, at the time taken, known or believed by him or her to be clearly in conflict with the best interests of the Corporation. The rights of those receiving indemnification hereunder shall, to the fullest extent from time to time
permitted by law, cover (1) reasonable expenses, including without limitation all reasonable attorneys’ fees actually incurred by him or her in connection with any such action, suit or proceeding; (2) all payments made by him or her in satisfaction
of any judgment, money decree, fine (including an excise tax assessed with respect to an employee benefit plan), penalty, or settlement for which he or she may have become liable in such action, suit or proceeding; and (3) all reasonable expenses
incurred in enforcing the indemnification rights provided herein. The rights granted herein shall not be limited by the provisions contained in Section 145 of the DGCL.
2. Determination That Indemnification
Is Proper. The Board of Directors shall take all such action as may be necessary and appropriate to authorize the Corporation to pay the indemnification required by Article 10(B)(1), including without limitation making a
determination that indemnification is permissible in the circumstances and a good faith evaluation of the manner in which the claimant for indemnity acted and of the reasonable amount of indemnity due him or her. The Board of Directors may appoint
a committee or special counsel to make such determination and evaluation. The Board of Directors may give notice to, and obtain approval by, the stockholders of the Corporation for any decision to indemnify.
4
3. Advance Payment of Expenses.
Expenses incurred by a director or an officer in connection with an action, suit or proceeding referred to in Article 10(B)(1) shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of the director or officer to repay such amount unless it shall ultimately be determined that he or she is entitled to be indemnified by the Corporation pursuant to this Article 10(B); provided, however, that the
Corporation shall have no obligation to advance expenses incurred by a director or officer with respect to any claim initiated by such director or officer without the prior written consent of or authorization of the Board of Directors (other than a
claim brought by a director or officer to enforce his or her or rights under this Article 10). Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.
The Board of Directors may authorize the Corporation’s legal counsel to represent such director, officer, employee or agent in any action, suit or proceeding, whether or not the Corporation is a party to such action, suit or proceeding.
4. No Duplication of Payments.
The Corporation shall not be liable under this Article 10(B) to make any payment in connection with any claim made against any Indemnitee to the extent such person has otherwise received payment (under any insurance policy, bylaw or otherwise) of
the amounts otherwise payable as indemnity hereunder; provided, however, that the Corporation agrees that, as between the Corporation, on the one hand, and any Sponsor Stockholder with whom a director is or was affiliated and any insurer providing
insurance coverage to such Sponsor Stockholder, on the other hand, the Corporation (1) is the indemnitor of first resort under this Article 10 (i.e., its obligations under this Article 10 are primary and any indemnification or advancement
obligations of any Sponsor Stockholder with whom a director is or was affiliated and the obligations of any insurer of such Sponsor Stockholder to provide insurance coverage with respect to the same obligations are secondary), (2) shall be required
to advance the full amount of expenses incurred by the director and shall be liable for the full amount of indemnification obligations as required by the terms of this Certificate of Incorporation and any other agreements the Corporation may have
with the director, without regard to any rights the director may have against such Sponsor Stockholder, and (c) unconditionally and irrevocably waives, relinquishes, releases such Sponsor Stockholder from and agrees not to exercise any rights that
it may have with respect to any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof. For purposes of this Article 10, “Sponsor Stockholder”
means any current or former stockholder that is or was party to the Stockholders Agreement (as defined below), any Affiliate (as defined in the Stockholders Agreement) of such stockholder (other than the Corporation and its subsidiaries), and/or
any other investment entity or related management company that is advised by the same investment adviser as any of the foregoing entities or by an Affiliate (as defined in the Stockholders Agreement) of such investment adviser.
5
5. Subrogation. Subject to
the limitations set forth in Article 10(B)(4), in the event of payment of indemnification to an Indemnitee, the Corporation shall be subrogated to the extent of such payment to any right of recovery such person may have and such person, as a
condition of receiving indemnification from the Corporation, shall execute all documents and do all things that the Corporation may deem necessary or desirable to perfect such right of recovery, including the execution of such documents necessary
to enable the Corporation effectively to enforce any such recovery.
(C) Insurance. The Corporation
shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, trustee, employee, member or agent of the Corporation, or was serving at the request of the Corporation as a director, officer,
trustee, employee, member or agent of an Other Entity, against any liability asserted against the person and incurred by the person in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the
power or the obligation to indemnify such person against such liability under the provisions of this Article 10 or the DGCL.
(D) Non-Exclusivity of Rights. The
rights conferred on any Indemnitee by this Article 10 are not exclusive of other rights arising under any bylaw, agreement, vote of directors or stockholders or otherwise, and shall continue as to a person who has ceased to be a director, officer,
employee or agent, and shall inure to the benefit of the heirs and legal representatives of such Indemnitee. The Corporation may enter into an agreement with any of its directors, officers, employees or agents providing for indemnification and
advancement of expenses, including attorneys’ fees, that may change, enhance, qualify or limit any right to indemnification or advancement of expenses created by this Article 10.
(E) Survival; Amendment or Repeal.
The foregoing provisions of this Article 10 shall be deemed to be a contract between the Corporation and each Indemnitee at any time while these provisions as well as the relevant provisions of the DGCL are in effect and any repeal or modification
thereof shall not affect any right or obligation then existing with respect to any state of facts then or previously existing or any action, suit, or proceeding previously or thereafter brought or threatened based in whole or in part upon any such
state of facts. Such a contract right may not be modified retroactively without the consent of the Indemnitee.
(F) Other Indemnification. This
Article 10 shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to Indemnitees or persons other than Indemnitees when and as authorized by appropriate corporate action,
including without limitation by separate agreement with the Corporation.
11. Except as set forth herein, the Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on stockholders herein are granted subject to this reservation.
12. Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the Corporation
may provide. The books of the Corporation may be kept (subject to any provision contained in applicable law) outside the State of Delaware at such place as may be designated from time to time by the Board of Directors or in the bylaws of the
Corporation.
13. The stockholders of the Corporation shall have no right to cumulate their votes for the election of directors.
6
14. Renouncement of Corporate Opportunity.
A. Scope. The provisions of this
Article 14 are set forth to define, to the extent permitted by applicable law, the duties of Exempted Persons (as defined below) to the Corporation and, to the extent applicable, its stockholders, with respect to certain classes or categories of
business opportunities. “Exempted Person” means each of the Bain Shareholders, the TPG Shareholders, the CPP Shareholder and the LG Shareholders (each as defined in the
Shareholders Agreement, dated as of May 3, 2016, by and among the Corporation and certain of its stockholders named therein, as such agreement existed as of May 3, 2016 (the “Stockholders
Agreement”)), their respective Affiliates (other than the Corporation and its subsidiaries), TPG Global, LLC and Bain Capital, LLC and their Affiliates and all of their respective partners, principals, directors, officers, members,
managers, managing directors and/or employees, including any of the foregoing who serve as officers or directors of the Corporation. Solely for purposes of this Article 14, references to “Affiliate”,
“Nominee”, and “Stockholder Group” have the meaning ascribed to such terms in the Stockholders Agreement.
B. Competition and Allocation of
Corporate Opportunities. The Exempted Persons shall not have any fiduciary or other duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation or any of its
subsidiaries. To the fullest extent permitted by applicable law, the Corporation, on behalf of itself and its subsidiaries, renounces any interest or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to
participate in, business opportunities that are from time to time presented to the Exempted Persons, even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to
pursue if granted the opportunity to do so, and each such Exempted Person shall have no duty to communicate or offer such business opportunity to the Corporation and, to the fullest extent permitted by applicable law, shall not be liable to the
Corporation or any of its subsidiaries or, to the extent applicable, any of its or their stockholders, for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such Exempted Person pursues or
acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation or its subsidiaries.
C. Certain Matters Deemed Not Corporate
Opportunities. In addition to and notwithstanding the foregoing provisions of this Article 14, a corporate opportunity shall not be deemed to belong to the Corporation if it is a business opportunity that the Corporation is not financially
able or contractually permitted or legally able to undertake, or that is, from its nature, not in the line of the Corporation’s business or is of no practical advantage to it or that is one in which the Corporation has no interest or reasonable
expectancy.
D. Effect of Stockholders Agreement.
The provisions of Sections B and C of this Article 14 (i) shall be subject to compliance with any procedures regarding corporate opportunities specified in the Stockholders Agreement and (ii) shall continue with respect to an Exempted Person until
the first date that both of the following conditions are true (a) such Exempted Person’s applicable Stockholder Group is not entitled to designate at least one (1) Nominee to the Board of Directors of the Corporation pursuant to the Stockholders
Agreement, and (b) no individual is serving on the Board who has at any time been designated as a Nominee by such Exempted Person’s applicable Stockholder Group.
7
E. Amendment of this Article 14.
No amendment or repeal of this Article 14 in accordance with the provisions of Article 11 shall apply to or have any effect on the liability or alleged liability of any Exempted Person for or with respect to any activities or opportunities of which
such Exempted Person becomes aware prior to such amendment or repeal. This Article 14 shall not limit any protections or defenses available to, or indemnification or advancement rights of, any director or officer of the Corporation under this
Certificate of Incorporation of the Corporation, the Corporation’s bylaws or applicable law.
[The remainder of this page is intentionally left blank.]
8
IN WITNESS WHEREOF, the undersigned officer of the Corporation has executed this Amended and Restated Certificate of Incorporation on
behalf of the Corporation this 18th day of April, 2023.
|
IQVIA HOLDINGS INC.
|
|||
|
By:
|
/s/ Eric Sherbet
|
||
|
Name:
|
Eric Sherbet
|
||
|
Title:
|
Executive Vice President,
General Counsel and Secretary
|
||
9
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
IQVIA HOLDINGS INC.
SECTION 1 - STOCKHOLDERS
Section 1.1. Annual Meeting.
An annual meeting of the stockholders of IQVIA Holdings Inc., a Delaware corporation (the “Corporation”),
for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting shall be held at the place, if any, within or without the State of Delaware, on the date and at
the time that the Board of Directors of the Corporation (the “Board of Directors”) shall each year fix. Unless stated otherwise in the notice of the annual meeting of the stockholders of the
Corporation, such annual meeting shall be at the principal office of the Corporation.
Section 1.2. Advance Notice of Nominations and Proposals of Business.
(a) Nominations of persons for election to the Board of Directors and proposals for other business to be transacted by the
stockholders at an annual meeting of stockholders may be made (i) pursuant to the Corporation’s notice with respect to such meeting (or any supplement thereto), (ii) by or at the direction of the Board of Directors or any committee thereof or (iii)
by any stockholder of record of the Corporation who (A) was a stockholder of record at the time of the giving of the notice contemplated in Section 1.2(b), (B) is entitled to vote at such
meeting and (C) has complied with the notice procedures set forth in this Section 1.2 and with the requirements of the Securities Exchange Act of 1934 (as amended from time to time, the “Act”) and the regulations promulgated thereunder (including Rule 14a-19 thereunder). Subject to Section 1.2(k) and except as
otherwise required by law, clause (iii) of this Section 1.2(a) and Section 1.3 shall be the exclusive means for a stockholder to
make nominations or propose other business (other than nominations and proposals properly brought pursuant to applicable provisions of federal law, including the Act and the rules and regulations of the Securities and Exchange Commission thereunder)
before an annual meeting of stockholders.
(b) Except as otherwise required by law, for nominations or proposals to be properly brought before an annual meeting by a
stockholder pursuant to clause (iii) of Section 1.2(a), (i) the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation with the information
contemplated by Section 1.2(c) including, where applicable, delivery to the Corporation of timely and completed questionnaires as contemplated by Section 1.2(c), and (ii) the business must be a proper matter for stockholder action under the General Corporation Law of the State of Delaware (the “DGCL”). The
notice requirements of this Section 1.2 shall be deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder has notified the Corporation of his,
her or its intention to present a proposal at an annual meeting in compliance with applicable rules and regulations promulgated under the Act and such stockholder’s proposal has been included in a proxy statement prepared by the Corporation to
solicit proxies for such annual meeting.
(c) To be timely for purposes of Section 1.2(b), a stockholder’s
notice must be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation on a date (i) not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the
anniversary date of the prior year’s annual meeting or (ii) if there was no annual meeting in the prior year or if the date of the current year’s annual meeting is more than 30 days before or more than 60 days after the anniversary date of the prior
year’s annual meeting, not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of (x) the 90th day prior to such annual meeting or (y) 10 days after the day on which
the date of the current year’s annual meeting is first disclosed in a public announcement. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for
the delivery of such notice. Such notice from a stockholder must state (i) as to each nominee that the stockholder proposes for election or reelection as a director, (A) all information relating to such nominee that would be required to be disclosed
in solicitations of proxies for the election of such nominee as a director pursuant to Regulation 14A under the Act, including the information required to be provided pursuant to Rule 14a-19 under the Act, if applicable, including such person’s
written consent to being named in the proxy statement and form of proxy as a nominee and serving as a director if elected, in accordance with Rule 14a-19 under the Act, this Section 1.2 or
otherwise, and (B) a description of all direct and indirect compensation and other material monetary arrangements, agreements or understandings during the past three years, and any other material relationship, if any, between or concerning such
stockholder, any Stockholder Associated Person (as defined below) or any of their respective affiliates or associates, on the one hand, and the proposed nominee or any of his or her affiliates or associates, on the other hand; (ii) as to each
proposal that the stockholder seeks to bring before the meeting, a brief description of such proposal, the reasons for making the proposal at the meeting, 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 of the Corporation, the language of the proposed amendment) and any material interest that the stockholder has in the proposal; and (iii) (A) the name and
address of the stockholder giving the notice and the Stockholder Associated Persons, if any, on whose behalf the nomination or proposal is made, (B) the class (and, if applicable, series) and number of shares of stock of the Corporation that are,
directly or indirectly, owned beneficially or of record by the stockholder or any Stockholder Associated Person, (C) any option, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class (or, if applicable, series) of shares of stock of the Corporation or with a value derived in whole or in part from the value of any class (or, if applicable, series) of shares of stock
of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise (each, a “Derivative
Instrument”) directly or indirectly owned beneficially or of record by such stockholder or any Stockholder Associated Person and any other direct or indirect opportunity to profit or share in any profit derived from any increase or
decrease in the value of shares of stock of the Corporation of the stockholder or any Stockholder Associated Person, (D) any proxy, contract, arrangement, understanding or relationship pursuant to which such stockholder or any Stockholder Associated
Person has a right to vote any securities of the Corporation, (E) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder or any
Stockholder Associated Person is a general partner or beneficially owns, directly or indirectly, an interest in a general partner, (F) any performance-related fees (other than an asset-based fee) that such stockholder or any Stockholder Associated
Person is entitled to based on any increase or decrease in the value of the shares of stock of the Corporation or Derivative Instruments, (G) any other information relating to such stockholder or any Stockholder Associated Person, if any, required to
be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section
14(a) of the Act and the rules and regulations of the Securities and Exchange Commission thereunder, (H) a representation that the stockholder is a holder of record of the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to propose such business or nomination, (I) a certification as to whether or not the stockholder and all Stockholder Associated Persons, have complied with all applicable federal, state and other legal requirements in
connection with the stockholder’s and each Stockholder Associated Person’s acquisition of shares of capital stock or other securities of the Corporation and the stockholder’s and each Stockholder Associated Person’s acts or omissions as a stockholder
(or beneficial owner of securities) of the Corporation, and (J) whether either the stockholder intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Corporation’s voting shares
required under applicable law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Corporation’s voting shares reasonably believed by such stockholder to be sufficient to elect such nominee or
nominees or otherwise to solicit proxies or votes from stockholders in support of such proposal or nomination. Additionally, such stockholder’s notice shall contain a representation regarding whether such stockholder and/or any Stockholder Associated
Person intends, or is part of a group that intends, to solicit proxies or votes in support of director nominees other than the Corporation’s nominees in accordance with Rule 14a-19 promulgated under the Act, and, in the event that such stockholder,
Stockholder Associated Person and/or group so intends, such notice shall also include the information required by Rule 14a-19(b) under the Act.
2
For purposes of these bylaws, a “Stockholder Associated Person” of any
stockholder means (i) any “affiliate” or “associate” (as those terms are defined in Rule 12b-2 under the Act) of such stockholder, (ii) any beneficial owner of any capital stock or other securities of the Corporation owned of record or beneficially
by such stockholder, (iii) any person directly or indirectly controlling, controlled by or under common control with any such Stockholder Associated Person referred to in clause (i) or (ii) above, and (iv) any person acting in concert in respect of
any matter involving the Corporation or its securities with either such stockholder or any beneficial owner of any capital stock or other securities of the Corporation owned of record or beneficially by such stockholder. In addition, in order for a
nomination to be properly brought before an annual or special meeting by a stockholder pursuant to clause (iii) of Section 1.2(a), subject to Section 1.2(k), any nominee proposed by a stockholder shall complete a questionnaire, in a
form provided by the Corporation, and deliver a signed copy of such completed questionnaire to the Corporation within 10 days of the date that the Corporation makes available to the stockholder seeking to make such nomination or such nominee the
form of such questionnaire and shall deliver a written and signed statement that such person (i) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any
person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (B) any Voting Commitment that could
limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law, (ii) is not and will not become a party to any agreement, arrangement or understanding
with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Corporation that has not been disclosed in the
notice required by this Section 1.2, and (iii) in such person’s individual capacity and on behalf of any person, entity or group on whose behalf the nomination is being made, would be in compliance, if elected as a director of the
Corporation, and will comply with all applicable publicly disclosed codes of ethics and conduct, corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation. The Corporation
may require any proposed nominee to furnish such other information as may be reasonably requested by the Corporation to determine the eligibility of the proposed nominee to serve as an independent director of the Corporation or that could be
material to a reasonable stockholder’s understanding of the independence, or lack thereof, of the nominee. The information required to be included in a notice pursuant to this Section 1.2(c) shall be provided as of the date of such notice
and shall be supplemented by the stockholder not later than 10 days after the record date for the determination of stockholders entitled to notice of the meeting to disclose any changes to such information as of the record date. If any of the facts
set forth in any notice provided pursuant to this Section 1.2(c) changes between the date that such notice is sent and the date of the annual meeting to which such notice pertains, the stockholder must deliver to the Secretary of the
Corporation at the principal executive offices of the Corporation, by the earlier of (i) the close of business on the date that is five days after the event giving rise to such change, or (ii) the commencement of such annual meeting, a supplemental
notice providing such revised information. The information required to be included in a notice pursuant to this Section 1.2(c) shall not include any ordinary course business activities of any broker, dealer, commercial bank, trust company
or other nominee who is directed to prepare and submit the notice required by this Section 1.2(c) on behalf of a beneficial owner of the shares held of record by such broker, dealer, commercial bank, trust company or other nominee and who
is not otherwise affiliated or associated with such beneficial owner. For purposes of these bylaws, “beneficial ownership” shall be determined in accordance with Rule 13d-3 promulgated under the Act.
3
(d) Stockholders and/or any Stockholder Associated Person giving notice to the Corporation regarding a nomination of directors in
accordance with Rule 14a-19 under the Act shall deliver to the Corporation no later than five (5) business days prior to the date of the applicable meeting or any adjournment, recess, rescheduling or postponement thereof, as applicable (or, if not
practicable, on the first practicable date prior to the date to which the meeting has been adjourned, recessed, rescheduled, or postponed) reasonable evidence that such stockholder and/or such Stockholder Associated Person has met and complied with
all of the requirements of these Bylaws and Rule 14a-19 of the Act (including, for the avoidance of doubt, Rule 14a-19(a)(3)). In addition, if any change occurs with respect to the intent of any such stockholder and/or Stockholder Associated Person
to meet the requirements of Rule 14a-19(a)(3) under the Act, such stockholder and/or Stockholder Associated Person shall notify the Corporation promptly of such change.
(e) Subject to the certificate of incorporation of the Corporation
(as amended from time to time, the “Certificate of Incorporation”), Section 1.2(k) and applicable law, only persons nominated in accordance with procedures stated in this Section 1.2 or Section 1.3 shall be eligible
for election as and to serve as members of the Board of Directors and the only business that shall be conducted at an annual meeting of stockholders is the business that has been brought before the meeting in accordance with the procedures set
forth in this Section 1.2. The chairman of the meeting shall have the power and the duty to determine whether a nomination or any proposal has been made according to the procedures stated in this Section 1.2 and, if any nomination
or proposal does not comply with this Section 1.2, or fails to comply with the requirements of Rule 14a-19 under the Act, if
applicable, unless otherwise required by law, the nomination or proposal shall be disregarded.
4
For the avoidance of doubt, if any stockholder (i) provides notice
pursuant to this Section 1.2 and Rule 14a-19(b) under the Act and (ii) subsequently (A) notifies the Corporation that such stockholder no longer intends to solicit proxies in accordance with Rule 14a-19 of the Act, (B)
fails to comply with the requirements of Rule 14a-19 of the Act or (C) fails to provide reasonable evidence sufficient to satisfy the Corporation that such requirements have been met, then such stockholder’s nomination(s) shall be deemed null and
void and the Corporation shall disregard such nomination and any proxies or votes solicited for any director nominee proposed by such stockholder.
(f) For purposes of this Section 1.2, “public announcement” means disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable news service or in a document publicly filed or furnished by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Act.
(g) Notwithstanding the foregoing provisions of this Section 1.2, a
stockholder shall also comply with applicable requirements of the Act and the rules and regulations thereunder with respect to matters set forth in this Section 1.2. Nothing in this Section 1.2 shall affect any rights, if any, of stockholders to request inclusion of nominations or proposals in the Corporation’s proxy statement pursuant to applicable provisions of federal
law, including the Act.
(h) Notwithstanding the foregoing provisions of this Section 1.2,
unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business or does not
provide the information required by Section 1.2(c), including any required supplement thereto, such nomination shall be disregarded and such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 1.2, to be considered a qualified representative of the
stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be 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.
5
(i) Subject to Section 1.4, only such business shall be conducted at
a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board of Directors or any committee thereof or (2) provided that the Board of Directors has determined that directors shall be elected at
such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 1.2 is delivered to the Secretary of the Corporation,
who is entitled to vote at the meeting upon such election and who complies with the notice procedures set forth in this Section 1.2. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as
specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (b) of this Section 1.2 shall be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation not earlier than the close of business on the 120th day prior to such special meeting and not later than the close of business on the later of (x) the 90th day prior to such special meeting or (y) the
10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment
or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(j) 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 for solicitation by the Board of Directors.
(k) All provisions of this Section 1.2 are subject to, and nothing
in this Section 1.2 shall in any way limit the exercise, or the method or timing of the exercise of, the rights of any person granted by the Corporation to nominate directors.
Section 1.3. Proxy Access for Director Nominations.
(a) Whenever the Board of Directors solicits proxies with respect to the election of directors at an annual meeting of
stockholders, subject to the provisions of this Section 1.3, the Corporation shall include in its proxy statement, on its form proxy and on any ballot distributed at such annual meeting, in
addition to any persons nominated for election by the Board of Directors or any committee thereof, the name, together (in the case of the proxy statement) with the Required Information (defined below), of any person nominated for election (the “Stockholder Nominee”) to the Board of Directors by a stockholder or group of no more than 20 stockholders that satisfies the requirements of this Section
1.3 (such stockholder or stockholder group, including each member thereof to the extent the context requires, the “Eligible Stockholder”), and who expressly elects at the time
of providing the notice required by this Section 1.3 (the “Notice of Proxy Access Nomination”) to have its nominee included in
the Corporation’s proxy materials pursuant to this Section 1.3. For purposes of this Section 1.3, in calculating the number of
stockholders in a group seeking to qualify as an Eligible Stockholder, two or more funds that are (i) under common management and investment control, (ii) under common management and funded primarily by the same employer, or (iii) a “group of
investment companies” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended, shall be counted as one stockholder. In the event that the Eligible Stockholder consists of a group of stockholders, any and
all requirements and obligations for an individual Eligible Stockholder that are set forth in these bylaws, including the Minimum Holding Period, shall apply to each member of such group; provided, however, that the Required Ownership Percentage
shall apply to the ownership of the group in the aggregate. For purposes of this Section 1.3, the “Required Information” that the
Corporation will include in its proxy statement is the information provided to the Secretary of the Corporation concerning the Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in the Corporation’s proxy statement by
the regulations promulgated under the Act, and if the Eligible Stockholder so elects, a written statement of the Eligible Stockholder (or, in the case of a group, a written statement of the group), not to exceed 500 words, in support of the candidacy
of such Stockholder Nominee (the “Statement”). Notwithstanding anything to the contrary contained in this Section 1.3, the
Corporation may omit from its proxy materials any information or Statement (or portion thereof) that it, in good faith, believes is untrue in any material respect (or omits to state a material fact necessary in order to make the statements made, in
the light of the circumstances under which they are made, not misleading) or would violate any applicable law or regulation, and the Corporation may solicit against, and include in the proxy statement its own statement relating to, any Stockholder
Nominee.
6
(b) To be timely, the Notice of Proxy Access Nomination must be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation on a date that is (i) no earlier than the close of business on the 150th day and (ii) no later than the close of business on the 120th day prior to the anniversary of the date that the Corporation issued its proxy
statement for the previous year’s annual meeting of stockholders; provided, however, that if there was no annual meeting in the prior year or if the date of the current year’s annual meeting is more than 30 days before or more than 60 days after the
anniversary date of the prior year’s annual meeting, notice by the Proposing Stockholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business
on the later of (x) the 90th day prior to such annual meeting or (y) 10 days after the date of the current year’s annual meeting is first disclosed in a public announcement. In no event shall any adjournment or postponement of an annual meeting or
the announcement thereof commence a new time period (or extend any time period) for the delivery of the Notice of Proxy Access Nomination.
(c) The maximum number of Stockholder Nominees nominated by all Eligible Stockholders that will be included in the Corporation’s
proxy materials with respect to an annual meeting of stockholders shall not exceed the greater of (i) two and (ii) 20% of the total number of directors in office (rounded down to the nearest whole number) as of the last day on which a Notice of Proxy
Access Nomination may be delivered pursuant to and in accordance with this Section 1.3 (the “Final Proxy Access Nomination Date”).
In the event that one or more vacancies for any reason occurs after the Final Proxy Access Nomination Date but before the date of the annual meeting and the Board of Directors resolves to reduce the size of the Board of Directors in connection
therewith, the maximum number of Stockholder Nominees included in the Corporation’s proxy materials shall be calculated based on the number of directors in office as so reduced. The following individuals shall be counted as one of the Stockholder
Nominees for purposes of determining when the maximum number of Stockholder Nominees provided for in this Section 1.3 has been reached: (i) any individual nominated by an Eligible
Stockholder for inclusion in the Corporation’s proxy materials pursuant to this Section 1.3 whom the Board of Directors decides to nominate as a nominee of the Board of Directors, (ii) any
director in office as of the Final Proxy Access Nomination Date who was included in the Corporation’s proxy materials as a Stockholder Nominee pursuant to this Section 1.3 for any of the
two preceding annual meetings of stockholders (including any individual counted as a Stockholder Nominee pursuant to the preceding clause (i)) and whom the Board of Directors decides to nominate for re-election to the Board of Directors, (iii) any
nominee recommended by the Board of Directors who will be included in the Corporation’s proxy materials pursuant to an agreement, arrangement or other understanding with a stockholder or group of stockholders (other than any such agreement,
arrangement or understanding entered into in connection with an acquisition of stock from the Corporation by such stockholder or group of stockholders) and (iv) any individual nominated by an Eligible Stockholder for inclusion in the Corporation’s
proxy materials pursuant to this Section 1.3 but whose nomination is subsequently withdrawn. Any Eligible Stockholder submitting more than one Stockholder Nominee for inclusion in the
Corporation’s proxy materials pursuant to this Section 1.3 shall rank such Stockholder Nominees based on the order that the Eligible Stockholder desires such Stockholder Nominees to be
selected for inclusion in the Corporation’s proxy statement in the event that the total number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 1.3
exceeds the maximum number of nominees provided for in this Section 1.3. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 1.3 exceeds the maximum number of nominees provided for in this Section 1.3, the highest ranking Stockholder Nominee who
meets the requirements of this Section 1.3 from each Eligible Stockholder will be selected for inclusion in the Corporation’s proxy materials until the maximum number is reached, going in
order of the amount (largest to smallest) of shares of the Corporation’s outstanding common stock each Eligible Stockholder disclosed as owned in its respective Notice of Proxy Access Nomination submitted to the Corporation. If the maximum number is
not reached after the highest ranking Stockholder Nominee who meets the requirements of this Section 1.3 from each Eligible Stockholder has been selected, this process will continue as many
times as necessary, following the same order each time, until the maximum number is reached. Following such determination, if any Stockholder Nominee who satisfies the eligibility requirements of this Section
1.3 (y) thereafter is nominated by the Board of Directors or (z) thereafter is not included in the Corporation’s proxy materials or is not submitted for election as a director (in either case in this clause (z), as a result of the
Nominating Stockholder becoming ineligible or withdrawing its nomination, the Stockholder Nominee becoming unwilling or unable to serve on the Board of Directors or the Eligible Stockholder or the Stockholder Nominee failing to comply with the
provisions of this Section 1.3), no other nominee or nominees shall be included in the Corporation’s proxy materials or otherwise submitted for director election in substitution thereof.
7
(d) For purposes of this Section 1.3, an Eligible Stockholder shall
be deemed to “own” only those outstanding shares of common stock of the Corporation as to which the stockholder possesses both:
(i) the full voting and investment rights pertaining to the shares; and
(ii) the full economic interest in (including the opportunity for profit from and risk of loss on) such shares;
provided that the number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares:
(A) sold by such stockholder or any of its affiliates in any transaction that has not been settled or closed, including any short
sale;
8
(B) borrowed by such stockholder or any of its affiliates for any purposes or purchased by such stockholder or any of its
affiliates pursuant to an agreement to resell; or
(C) subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into
by such stockholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of shares of outstanding common stock of the Corporation, in any such case which
instrument or agreement has, or is intended to have, or if exercised by either party would have, the purpose or effect of:
(1) reducing in any manner, to any extent or at any time in the future, such stockholder’s or its affiliates’ full right to vote
or direct the voting of any such shares; and/or
(2) hedging, offsetting or altering to any degree any gain or loss realized or realizable from maintaining the full economic
ownership of such shares by such stockholder or its affiliates.
A stockholder shall “own” shares held in the name of a nominee or other intermediary so long as the stockholder retains the right to instruct how
the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. A stockholder’s ownership of shares shall be deemed to continue during any period in which the stockholder has delegated any voting
power by means of a proxy, power of attorney or other instrument or arrangement which is revocable at any time by the stockholder. A stockholder’s ownership of shares shall be deemed to continue during any period in which the stockholder has loaned
such shares provided that the stockholder (i) has the power to recall such loaned shares on five (5) business days’ notice, (ii) recalls such loaned shares within five (5) business days’ notice of being notified that its Stockholder Nominee will be
included in the Corporation’s proxy materials for the applicable annual meeting and (iii) holds such loaned shares through the date of the applicable annual meeting. The terms “owned,” “owning” and other variations of the word “own” shall have
correlative meanings. Whether outstanding shares of the common stock of the Corporation are “owned” for these purposes shall be determined by the Board of Directors or any committee thereof. For purposes of this Section 1.3, the term “affiliate” or “affiliates” shall have the meaning ascribed thereto under the rules and regulations under the Act. An Eligible Stockholder shall include in its Notice of Proxy Access Nomination the
number of shares it is deemed to own for the purposes of this Section 1.3.
(e) In order to make a nomination pursuant to this Section 1.3, an
Eligible Stockholder must have owned (as defined above) the Required Ownership Percentage (as defined below) of the Corporation’s outstanding common stock (the “Required Shares”)
continuously for the Minimum Holding Period (as defined below) as of both the date the Notice of Proxy Access Nomination is delivered to the Secretary of the Corporation in accordance with this Section
1.3 and the record date for determining the stockholders entitled to vote at the annual meeting and must continue to own the Required Shares through the meeting date. For purposes of this Section
1.3, the “Required Ownership Percentage” shall be at least 3% or more of the Corporation’s outstanding common stock as of the most recent date for which such amount is given
in any filing by the Corporation with the Securities and Exchange Commission prior to the submission of the Notice of Proxy Access Nomination. For purposes of this Section 1.3, the “Minimum Holding Period” shall be at least 3 years. Within the time period specified in this Section 1.3 for delivering the Notice of
Proxy Access Nomination, an Eligible Stockholder must provide the following information in writing to the Secretary of the Corporation:
9
(i) one or more written statements from the record holder of the shares (and from each intermediary through which the shares are
or have been held during the Minimum Holding Period) verifying that, as of a date within seven calendar days prior to the date the Notice of Proxy Access Nomination is delivered to Secretary of the Corporation, the Eligible Stockholder owns, and has
owned continuously for the Minimum Holding Period, the Required Shares, and the Eligible Stockholder’s agreement to provide, within five business days after (A) the record date for the annual meeting (if, prior to the record date, the Corporation (1)
has made a public announcement of such record date or (2) delivered a written notice of the record date (including by electronic mail) to the Eligible Stockholder) or (B) the date on which the Corporation delivered to the Eligible Stockholder written
notice (including by electronic mail) of the record date (if such notice is provided after the record date), written statements from the record holder and intermediaries verifying the Eligible Stockholder’s continuous ownership of the Required Shares
through the record date;
(ii) a copy of the Schedule 14N that has been filed with the SEC as required by Rule 14a-18 under the Act;
(iii) the information, representations and agreements that are the same as those that would be required to be set forth in a
stockholder’s notice of nomination pursuant to Section 1.2(c) of these bylaws;
(iv) the consent of each Stockholder Nominee to being named in the proxy statement as a nominee and to serving as a director if
elected;
(v) a representation and agreement that the Eligible Stockholder:
(A) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control at
the Corporation, and does not at present have such intent;
(B) at present intends to maintain qualifying ownership of the Required Shares through the date of the annual meeting;
(C) has not nominated and will not nominate for election any individual as a director at the annual meeting, other than its
Stockholder Nominee(s);
(D) has not engaged and will not engage in, and has not and will not be a “participant” in another person’s, “solicitation”
within the meaning of Rule 14a-1(l) under the Act in support of the election of any individual as a director at the annual meeting, other than its Stockholder Nominee(s) or a nominee of the Board of Directors;
10
(E) agrees to comply with all applicable laws and regulations with respect to any solicitation in connection with the meeting or
applicable to the filing and use, if any, of soliciting material;
(F) will provide facts, statements and other information in all communications with the Corporation and its stockholders that
are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; and
(G) as to any two or more funds whose shares are aggregated to count as one stockholder for the purpose of constituting an
Eligible Stockholder, within five business days after the date of the Notice of Proxy Access Nomination, will provide to the Corporation documentation reasonably satisfactory to the Corporation that demonstrates that the funds satisfy the
requirements of the second sentence of subsection (a) of this Section 1.3;
(vi) an undertaking that the Eligible Stockholder agrees to:
(A) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s
communications with the stockholders of the Corporation or out of the information that the Eligible Stockholder provided to the Corporation;
(B) indemnify and hold harmless the Corporation and each of its directors, officers and employees individually against any
liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its directors, officers or employees arising out of the Eligible
Stockholder’s efforts to elect a Stockholder Nominee pursuant to this Section 1.3; and
(C) file with the SEC any solicitation made to the Corporation’s stockholders relating to the meeting at which the Stockholder
Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the Act or whether any exemption from filing is available thereunder; and
(vii) in the case of a nomination by a group of stockholders that together is an Eligible Stockholder, the designation by all
group members of one group member that is authorized to act on behalf of all such members with respect to the nomination and matters related thereto, including withdrawal of the nomination.
(f) Within the time period specified in this Section 1.3 for
delivering the Notice of Proxy Access Nomination, a Stockholder Nominee must deliver to the Secretary of the Corporation (which shall be deemed to be part of the Notice of Proxy Access Nomination for purposes of this Section 1.3):
(i) the information required with respect to persons whom a stockholder proposes to nominate for election or reelection as a
director by Section 1.2(c) of these bylaws;
(ii) a written representation and agreement that such person:
11
(A) will act as a representative of all of the stockholders of the Corporation while serving as a director;
(B) is not and will not become a party to (I) a Voting Commitment that has not been disclosed to the Corporation or (II) any
Voting Commitment that could limit or interfere with such Stockholder Nominee’s ability to comply, if elected as a director of the Corporation, with such Stockholder Nominee’s fiduciary duties under applicable law;
(C) is not or will not become a party to any agreement, arrangement or understanding with any person or entity other than the
Corporation with respect to direct or indirect compensation, reimbursement or indemnification in connection with service or nomination as a director that has not been disclosed to the Corporation in the notice required by this Section 1.3;
(D) will comply with all applicable publicly disclosed codes of ethics and conduct, corporate governance, conflict of interest,
confidentiality and stock ownership and trading policies and guidelines of the Corporation, as well as the applicable provisions of these bylaws; and
(E) will provide facts, statements and other information in all communications with the Corporation and its stockholders that
are or will be true and correct in all material respects (and shall not omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading).
At the request of the Corporation, the Stockholder Nominee(s) must promptly complete, sign and submit all questionnaires required of directors and
officers of the Corporation. The Corporation may request such additional information as necessary to permit the Board of Directors to determine if each Stockholder Nominee satisfies the requirements of this Section 1.3 or if each Stockholder Nominee is independent under the listing standards of the principal U.S. exchange upon which the common stock of the Corporation is listed, any applicable rules of the SEC and any publicly
disclosed standards used by the Board of Directors in determining and disclosing the independence of the Corporation’s directors.
(g) In the event that any information or communications provided by the Eligible Stockholder or the Stockholder Nominee to the
Corporation or its stockholders ceases to be true and correct in all material respects or omits a material fact necessary to make the statements made, in the light of the circumstances under which they were made, not misleading, each Eligible
Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the Secretary of the Corporation of any defect in such previously provided information and of the information that is required to correct any such defect, it being
understood that providing any such notification shall not be deemed to cure any defect or limit the Corporation’s rights to omit a Stockholder Nominee from its proxy materials as provided in this Section
1.3.
(h) The Corporation shall not be required to include, pursuant to this Section
1.3, a Stockholder Nominee in its proxy materials for any meeting of stockholders, any such nomination shall be disregarded and no vote on such Stockholder Nominee will occur, notwithstanding that proxies in respect of such vote may
have been received by the Corporation:
12
(i) if the Secretary of the Corporation receives a notice (whether or not subsequently withdrawn) that a stockholder proposes to
nominate any person for election to the Board of Directors pursuant to the advance notice requirements for stockholder nominees for director set forth in Section 1.2 of these bylaws;
(ii) if the Eligible Stockholder who has nominated such Stockholder Nominee has nominated for election to the Board of Directors
at the meeting any person other than pursuant to this Section 1.3, or has or is engaged in, or has been or is a “participant” in another person’s, “solicitation” within the meaning of Rule
14a-1(l) under the Act in support of the election of any individual as a director at the meeting (other than its Stockholder Nominee(s) or a nominee of the Board of Directors);
(iii) who is not independent under the listing standards of the principal U.S. exchange upon which the common stock of the
Corporation is listed, any applicable rules of the SEC and any publicly disclosed standards used by the Board of Directors in determining and disclosing independence of the Corporation’s directors, in each case as determined by the Board of
Directors;
(iv) who does not meet the audit committee independence requirements under the listing standards of the principal U.S. exchange
upon which the common stock of the Corporation is listed or any applicable rules of the SEC;
(v) who does not satisfy the requirements for service on the Board of Directors set forth in the Corporation’s Corporate
Governance Guidelines;
(vi) whose election as a member of the Board of Directors would cause the Corporation to be in violation of these bylaws, the
Certificate of Incorporation, the rules and listing standards of the principal U.S. exchange upon which the common stock of the Corporation is listed, or any applicable state or federal law, rule or regulation;
(vii) who is or has been, within the past three years, an officer or director of a competitor, as defined for purposes of Section
8 of the Clayton Antitrust Act of 1914;
(viii) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has
been convicted in such a criminal proceeding within the past ten (10) years;
(ix) who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of
1933, as amended;
(x) if such Stockholder Nominee or the applicable Eligible Stockholder shall have provided information to the Corporation in
connection with such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, as determined by
the Board of Directors or any committee thereof; or
(xi) the Eligible Stockholder or applicable Stockholder Nominee breaches or fails to comply with the requirements of or its
obligations pursuant to these bylaws, including, but not limited to, this Section 1.3 and any agreement, representation or undertaking required by this Section 1.3.
13
(i) Notwithstanding anything to the contrary set forth herein, the Board of Directors or the chairperson of the meeting of
stockholders shall declare a nomination to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the Corporation, if:
(i) the Stockholder Nominee(s) and/or the applicable Eligible Stockholder shall have breached the requirements of or its or their
obligations under this Section 1.3, as determined by the Board of Directors or the chairperson of the meeting of stockholders; or
(ii) the Eligible Stockholder (or a qualified representative thereof) does not appear at the meeting of stockholders to present
any nomination pursuant to this Section 1.3.
(j) Any Stockholder Nominee who is included in the Corporation’s proxy materials for a particular annual meeting of stockholders
but (A) withdraws from or becomes ineligible or unavailable for election at the annual meeting or (B) does not receive at least 20% of the votes cast in favor of his or her election will be ineligible to be a Stockholder Nominee pursuant to this Section 1.3 for the next two annual meetings. For the avoidance of doubt, this Section 1.3(j) shall not prevent any stockholder from
nominating any person to the Board of Directors pursuant to and in accordance with Section 1.2 of these bylaws.
(k) No stockholder shall be permitted to join more than one group of stockholders to become an Eligible Stockholder for purposes
of nominations pursuant to this Section 1.3 per each annual meeting of stockholders.
(l) This Section 1.3 shall be the exclusive method for stockholders
to include nominees for director in the Corporation’s proxy materials.
Section 1.4. Special Meetings; Notice.
| (a) |
Special meetings of the stockholders of the Corporation may be called in accordance with the
Certificate of Incorporation, including by (i) a majority of the members of the Board of Directors, (ii) by the Chairman of the Board or the Chief Executive Officer of the Corporation, or (iii) by the
Secretary of the Corporation upon receipt of the written request (a “Special Meeting Request”) of one or more record holders (and the record or beneficial owners, if any, such
holders represent) representing ownership of an aggregate of not less than 25% of the voting power of all issued and outstanding shares of common stock of the Corporation (the “Requisite
Percentage”), provided that such shares have been owned continuously by such holders for at least one year, who have complied in full with the
requirements set forth in these bylaws. For purposes of this Section 1.4, the shares “owned” by a stockholder of record shall be determined pursuant to Section 1.3(d).
|
14
| (b) |
A Special Meeting Request must be delivered to or be mailed and received by the Secretary at the principal executive offices of the Corporation. A Special Meeting Request shall be valid only if it is
signed and dated by each stockholder of record submitting the Special Meeting Request and the beneficial owners, if any, on whose behalf the Special Meeting Request is being made, or such stockholder’s or beneficial owner’s duly authorized
agent (each, a “Requesting Stockholder”) collectively representing the Requisite Percentage, and includes (A) a statement of the specific purpose(s) of the special meeting and the
reasons for conducting such business at the special meeting; (B) information regarding any material interest in such business of the Requesting Stockholders requesting the special meeting and the beneficial owners, if any, on whose behalf the
Special Meeting Request is being made; (C) as to any director nominations proposed to be presented at the special meeting and any matter (other than a director nomination) proposed to be conducted at the special meeting and as to each
Requesting Stockholder, the information, statements, representations, agreements and other documents that would be required to be set forth in or included with a stockholder’s notice of a nomination pursuant to Section 1.2 (including any nominee’s written consent to being named in the proxy statement and form of proxy as a nominee and to serving as a director if elected and a completed and signed representation
and agreement as required by Section 1.2(c)); (D) a representation that each Requesting Stockholder, or one or more representatives of each such stockholder, intends to appear in
person or by proxy at the special meeting to present the nomination(s) or business to be brought before the special meeting; (E) an agreement by the Requesting Stockholders to notify the Corporation promptly in the event of any disposition
prior to the record date for the special meeting of shares of the Corporation owned beneficially or of record and an acknowledgement that any such disposition shall be deemed to be a revocation of such Special Meeting Request with respect to
such disposed shares; and (F) documentary evidence that the Requesting Stockholders own the Requisite Percentage as of the date on which the Special Meeting Request is delivered to the Secretary; provided, however, that if the Requesting
Stockholders are not the beneficial owners of the shares representing the Requisite Percentage, then to be valid, the Special Meeting Request must also include documentary evidence (or, if not simultaneously provided with the Special Meeting
Request, such documentary evidence must be delivered to the Secretary within 10 days after the date on which the Special Meeting Request is delivered to the Secretary) that the beneficial owners on whose behalf the Special Meeting Request is
made beneficially own the Requisite Percentage as of the date on which such Special Meeting Request is delivered to the Secretary. In addition, the Requesting Stockholders and the beneficial owners, if any, on whose behalf the Special Meeting
Request is being made shall (x) further update and supplement the information provided in the Special Meeting Request, if necessary, so that the information provided or required to be provided therein shall be true and correct as of the
record date for the special meeting, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days following the
later of the record date for the special meeting or the date notice of the record date is first publicly disclosed and (y) promptly provide any other information reasonably requested by the Corporation.
|
15
| (c) |
A Special Meeting Request shall not be valid, and a special meeting requested by stockholders shall not be held, if (A) the Special Meeting Request does not comply with this Section 1.4; (B) the Special Meeting Request relates to an item of business that is not a proper subject for stockholder action under applicable law (as determined in good faith by the
Board of Directors); (C) the Special Meeting Request is delivered during the period commencing 120 days prior to the first anniversary of the date of the immediately preceding annual meeting of stockholders and ending on the earlier of (x)
the date of the next annual meeting and (y) 30 days after the first anniversary of the date of the previous annual meeting; (D) an identical or substantially similar item (as determined in good faith by the Board of Directors, a “Similar Item”), other than the election of directors, was presented at an annual or special meeting of stockholders held not more than twelve (12) months before the Special Meeting
Request is delivered; (E) a Similar Item was presented at an annual or special meeting of stockholders held not more than 120 days before the Special Meeting Request is delivered (and, for purposes of this clause (E), the election of
directors shall be deemed to be a “Similar Item” with respect to all items of business involving the election or removal of directors, changing the size of the Board of Directors and
the filling of vacancies, and/or newly created directorships resulting from any increase in the authorized number of directors); (F) a Similar Item is included in the Corporation’s notice of meeting as an item of business to be brought before
an annual or special meeting of stockholders that has been called but not yet held or that is called for a date within 120 days of the receipt by the Corporation of a Special Meeting Request; or (G) the Special Meeting Request was made in a
manner that involved a violation of Regulation 14A under the Act or other applicable law.
|
| (d) |
Special meetings of stockholders called pursuant to this Section 1.4 shall be held at such place, if any, on such date, and at such time
as the Board of Directors shall fix; provided, however, that the special meeting shall not be held more than 120 days after receipt by the Corporation of a valid Special Meeting Request.
|
| (e) |
The Requesting Stockholders may revoke a Special Meeting Request by written revocation delivered to the Secretary at the principal executive offices of the Corporation at any time prior to the
special meeting. If, at any time, the unrevoked requests from Requesting Stockholders (whether by specific written revocation or deemed revocation pursuant to clause (E) of Section 1.4(b)),
represent in the aggregate less than the Requisite Percentage, the Board of Directors, in its discretion, may cancel the special meeting. If none of the Requesting Stockholders appears or sends a duly authorized agent to present the business
to be presented for consideration that was specified in the Special Meeting Request, the Corporation need not present such business for a vote at such special meeting, notwithstanding that proxies in respect of such matter may have been
received by the Corporation.
|
| (f) |
In determining whether a special meeting of stockholders has been requested by the Requesting Stockholders representing in the aggregate at least the Requisite Percentage, multiple Special Meeting
Requests delivered to the Secretary of the Corporation will be considered together only if (A) each Special Meeting Request identifies substantially the same purpose(s) of the special meeting and substantially the same matters proposed to be
acted on at the special meeting, in each case as determined by the Board of Directors (which, if such purpose is the election or removal of directors, changing the size of the Board of Directors and/or the filling of vacancies and/or newly
created directorships resulting from any increase in the authorized number of directors, will mean that the same person or persons are proposed for election or removal in each relevant Special Meeting Request), and (B) such Special Meeting
Requests have been dated and delivered to the Secretary of the Corporation within 60 days of the earliest dated Special Meeting Request.
|
16
| (g) |
Business conducted at any special meeting called pursuant to this Section
1.4 shall be limited to (A) the purpose(s) stated in the valid Special Meeting Request received from the Requisite Percentage of record holders and (B) any additional matters that the Board of Directors determines to include in
the Corporation’s notice of the special meeting.
|
Section 1.5. Notice of Meetings.
Notice of the place, if any, date and time of all meetings of stockholders of the Corporation, the record date for determining the stockholders
entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting) and the means of remote communications, if any, by which stockholders and proxy holders may be deemed present and vote
at such meeting, shall be given not less than 10 nor more than 60 days before the date on which such meeting is to be held, to each stockholder entitled to notice of the meeting.
The Corporation may postpone or cancel any previously called annual or special meeting of stockholders of the Corporation by making a public
announcement (as defined in Section 1.2(f)) of such postponement or cancellation prior to the meeting. When a previously called annual or special meeting is postponed to another time, date
or place, if any, notice of the place (if any), date and time of the postponed meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to
notice of the meeting) and the means of remote communications, if any, by which stockholders and proxy holders may be deemed present and vote at such postponed meeting, shall be given in conformity with this Section 1.5 unless such meeting is postponed to a date that is not more than 60 days after the date that the initial notice of the meeting was provided in conformity with this Section
1.5.
When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, thereof and
the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided , however , that if the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting, or if after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting the Board of Directors shall fix a new record date for notice of such adjourned meeting in conformity herewith and
such notice shall be given to each stockholder of record entitled to vote at such adjourned meeting as of the record date for notice of such adjourned meeting. At any adjourned meeting, any business may be transacted that may have been transacted at
the original meeting.
Section 1.6. Quorum.
At any meeting of the stockholders, the holders of shares of stock of the Corporation entitled to cast a majority of the total votes entitled to be
cast by the holders of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (“Voting Stock”), present in person or by proxy,
shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number is required by applicable law or the Certificate of Incorporation. If a separate vote by one or more classes or series is required, the
holders of shares entitled to cast a majority of the total votes entitled to be cast by the holders of the shares of the class or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter.
17
If a quorum shall fail to attend any meeting, the chairman of the meeting may adjourn the meeting to another place, if any, date and time.
Section 1.7. Organization.
The Chairman of the Board or, in his or her absence, the Vice Chairman of the Board, or, in his or her absence, the person whom the Board of
Directors designates or, in the absence of that person or the failure of the Board of Directors to designate a person, the President of the Corporation or, in his or her absence, the person chosen by the holders of a majority of the shares of capital
stock entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders of the Corporation and act as chairman of the meeting. In the absence of the Secretary or any Assistant Secretary of the Corporation,
the secretary of the meeting shall be the person the chairman appoints.
Section 1.8. Conduct of Business.
The chairman of any meeting of stockholders of the Corporation shall determine the order of business and the rules of procedure for the conduct of
such meeting, including the manner of voting and the conduct of discussion as he or she determines to be in order. The chairman shall have the power to adjourn the meeting to another place, if any, date and time. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of the
meeting shall have the right and authority to convene and (for any or no reason) to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly
authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. The chairman of the meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the
meeting that a nomination or matter of business was not properly brought before the meeting and if such chairman should so determine, such chairman shall so declare to the meeting and any such matter or business not properly brought before the
meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary
procedure.
18
Section 1.9. Proxies; Inspectors.
(a) At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or
by a transmission permitted by applicable law.
(b) Prior to a meeting of the stockholders of the Corporation, the Corporation shall appoint one or more inspectors to act at a meeting of
stockholders of the Corporation and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting may, and to the extent required by applicable law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before beginning the discharge of 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 may appoint or retain other persons or entities to assist the inspectors in the performance of the duties
of inspectors. The inspectors shall have the duties prescribed by applicable law.
Section 1.10. Voting.
Except as otherwise required by the rules or regulations of any stock exchange applicable to the Corporation or pursuant to any law or regulation
applicable to the Corporation or its securities or by the Certificate of Incorporation or these bylaws, all matters shall be determined by a majority of the votes cast on the matter affirmatively or negatively. Except as otherwise provided by these
Bylaws, each director shall be elected by the vote of the majority of the votes cast affirmatively or negatively with respect to that director’s election at any meeting for the election of directors at which a quorum is present, provided that if, as
of the tenth (10th) day preceding the date the Corporation first mails its notice of meeting for such meeting to the stockholders of the Corporation, the number of nominees exceeds the number of directors to be elected (a “Contested Election”), the directors shall be elected by a plurality of the votes cast. For purposes of this Section 1.10 of these Bylaws, a majority of
votes cast shall mean that the number of votes cast “for” exceeds the number of votes cast “against” (with “abstentions” and “broker non-votes” not counted as a vote cast either “for” or “against” the matter).
Section 1.11. Action by Written Consent.
Stockholders may not take any action by written consent in lieu of a meeting of stockholders.
Section 1.12. Stock List.
A complete list of stockholders of the Corporation entitled to vote at any meeting of stockholders of the Corporation, arranged in alphabetical
order for each class of stock and showing the address of each such stockholder and the number of shares registered in the name of such stockholder, shall be open to the examination of any such stockholder, for any purpose germane to a meeting of the
stockholders of the Corporation, for a period of at least 10 days before the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting or
(ii) during ordinary business hours at the principal place of business of the Corporation; provided, however, if the record date
for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the 10th day before such meeting date. Except as otherwise provided by law, the stock
ledger shall be the sole evidence of the identity of the stockholders entitled to vote at a meeting and the number of shares held by each stockholder.
19
SECTION 2 - BOARD OF DIRECTORS
Section 2.1. General Powers and Qualifications of Directors.
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and
authorities these bylaws expressly confer upon them, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by the DGCL or by the Certificate of Incorporation or by these bylaws
required to be exercised or done by the stockholders. Directors need not be stockholders of the Corporation to be qualified for election or service as a director of the Corporation.
Section 2.2. Number.
The number of directors shall be fixed from time to time by resolution of the Board of Directors.
Section 2.3. Removal; Resignation; Vacancies.
The directors of the Corporation may be removed in accordance with the Certificate of Incorporation and the DGCL. Any director may resign at any
time upon notice given in writing, including by electronic transmission, to the Corporation. Any vacancy caused by the death or resignation of any director or for any other reason, and any newly created directorship resulting from any increase in the
authorized number of Directors, may be filled only by the affirmative vote of a majority of the directors then in office, although less than a quorum. Any director so elected to fill any such vacancy or newly created directorship shall hold office
until the next annual meeting of stockholders and until his or her successor is elected and qualified or until his or her earlier resignation or removal.
Section 2.4. Regular Meetings.
Regular meetings of the Board of Directors shall be held at the place (if any), on the date and at the time as shall have been established by the
Board of Directors and publicized among all directors. A notice of a regular meeting, the date of which has been so publicized, shall not be required.
Section 2.5. Special Meetings.
Special meetings of the Board of Directors may be called by (i) the Chairman of the Board, (ii) the Lead Director, (iii) any two directors or (iv)
the chief executive officer of the Corporation, and shall be held at the place, if any, on the date and at the time as he, she or they shall fix. Notice of the place, if any, date and time of each special meeting shall be given to each director
either (a) by mailing written notice thereof not less than five days before the meeting, or (b) by telephone, facsimile or other means of electronic transmission providing notice thereof not less than twenty-four hours before the meeting. Any and all
business may be transacted at a special meeting of the Board of Directors.
20
Section 2.6. Quorum.
At any meeting of the Board of Directors, a majority of the total number of directors then in office shall constitute a quorum for all purposes. If
a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place, if any, date or time, without further notice or waiver thereof.
Section 2.7. Participation in Meetings By Conference Telephone or Other Communications Equipment.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of the Board of Directors or committee thereof by means
of conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each other director, and such participation shall constitute presence in person at the meeting.
Section 2.8. Chairman; Vice Chairman.
In its sole discretion based on current circumstances, the Board of Directors shall annually elect one of its members to be Chairman of the Board
and shall fill any vacancy in the position of Chairman of the Board with a director at such time and in such manner as the Board of Directors shall determine. The Chairman of the Board shall preside at all meetings of the Board of Directors at which
he shall be present. The Board of Directors may designate from its membership a Vice Chairman of the Board, who shall preside at all meetings of the stockholders and of the Board of Directors if the Chairman is not present (other than executive
sessions of the Board of Directors when only non-management or independent members of the Board of Directors are present) as well as perform such functions and duties as may be prescribed by the Board of Directors or requested by the Chairman of the
Board. A director may be removed from the position of Chairman of the Board or Vice Chairman of the Board at any time by the affirmative vote of a majority of the Board of Directors. The Chairman of the Board and the Vice Chairman of the Board may
but need not be officers or be employed in an executive or any other capacity by the Corporation.
Section 2.9. Lead Director.
The Board of Directors may designate a director as Lead Director. The responsibilities of the Lead Director shall include: (i) liaising between
non-management directors and management; (ii) presiding at executive sessions of non-management directors, and at meetings of the Board of Directors when the Chairman is not present; (iii) consulting with the Chairman regarding agendas, schedules and
information sent to the Board of Directors for meetings of the Board of Directors; (iv) consulting with the Chairman on other matters pertinent to the Corporation and the Board of Directors; (v) consulting with major shareholders upon their request;
and (vi) such other responsibilities as the Board of Directors may determine from time to time.
21
Section 2.10. Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted in the order and manner that the Board of Directors may from time to time
determine, and all matters shall be determined by the vote of a majority of the directors present, provided a quorum is present at the time such matter is acted upon, except as otherwise provided in the Certificate of Incorporation or these bylaws or
required by applicable law. The Board of Directors or any committee thereof may take action without a meeting if all members thereof consent thereto in writing or by electronic transmission, and the writing or writings, or electronic transmission or
electronic transmissions, are filed with the minutes of proceedings of the Board of Directors or any committee thereof.
Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in
electronic form.
Section 2.11. Compensation of Directors.
The Board of Directors shall be authorized to fix the compensation of directors. The directors of the Corporation shall be paid their expenses, if
any, of attendance at each meeting of the Board of Directors and may be reimbursed a fixed sum for attendance at each meeting of the Board of Directors, paid an annual retainer or paid other compensation, including equity compensation, as the Board
of Directors determines. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees shall have their expenses, if any, of attendance of each meeting of
such committee reimbursed and may be paid compensation as the Board of Directors determines for attending committee meetings or being a member of a committee.
SECTION 3 - COMMITTEES
Section 3.1. Committees of the Board of Directors.
The Board of Directors may designate committees of the Board of Directors, with such lawfully delegable powers and duties as it thereby confers, to
serve at the pleasure of the Board of Directors and shall, for those committees, appoint a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of such committee. In the absence or disqualification of any member of any committee and any alternate member in his or her place, the member or members of the committee present at the meeting and not disqualified
from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member. All provisions of this Section 3.1 are subject to, and nothing in this Section 3.1 shall in any way limit the exercise, or method or timing of the exercise
of, the rights of any person granted by the Corporation with respect to the existence, duties, composition or conduct of any committee of the Board of Directors.
22
SECTION 4 - OFFICERS
Section 4.1. Generally.
The officers of the Corporation shall consist of a Chief Executive Officer or President, one or more Vice Presidents, a Secretary, one or more
Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, a Chief Financial Officer and other officers as may from time to time be appointed by the Board of Directors. Each officer shall hold office until his or her successor is elected
and qualified or until his or her earlier resignation or removal. Any number of offices may be held by the same person. The compensation of officers appointed by the Board of Directors shall be determined from time to time by the Board of Directors
or a committee thereof or by the officers as may be designated by resolution of the Board of Directors.
Section 4.2. President.
Unless otherwise determined by the Board of Directors, the President shall be the Chief Executive Officer of the Corporation. Subject to the
provisions of these bylaws and to the direction of the Board of Directors, he or she shall have the responsibility for the general management and control of the business and affairs of the Corporation and shall perform all duties and have all powers
that are commonly incident to the office of chief executive or which are delegated to him or her by the Board of Directors. He or she shall have the power to sign all stock certificates, contracts and other instruments of the Corporation that are
authorized and shall have general supervision and direction of all of the other officers, employees and agents of the Corporation.
Section 4.3. Vice President.
Each Vice President shall have the powers and duties delegated to him or her by the Board of Directors or the President. One Vice President may be
designated by the Board of Directors to perform the duties and exercise the powers of the President in the event of the President’s absence or disability.
Section 4.4. Secretary and Assistant Secretaries.
The Secretary shall issue all authorized notices for, and shall keep minutes of, all meetings of the stockholders and the Board of Directors. He or
she shall have charge of the corporate books and shall perform other duties as the Board of Directors may from time to time prescribe.
Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the Chief Executive Officer or the Secretary
may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary, (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Secretary.
Section 4.5. Chief Financial Officer, Treasurer and Assistant Treasurers.
The Chief Financial Officer shall keep or cause to be kept the books of account of the Corporation in a thorough and proper manner and shall render
statements of the financial affairs of the Corporation in such form and as often as required by the Board of Directors or the President. The Chief Financial Officer, subject to the order of the Board of Directors, shall have the custody of all funds
and securities of the Corporation. The Chief Financial Officer shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate
from time to time. The President may direct the Treasurer or any Assistant Treasurer to assume and perform the duties of the Chief Financial Officer in the absence or disability of the Chief Financial Officer, and each Treasurer and Assistant
Treasurer shall perform other duties commonly incident to his office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time.
23
Section 4.6. Delegation of Authority.
The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any
provision hereof.
Section 4.7. Removal.
The Board of Directors may remove any officer of the Corporation at any time, with or without cause.
Section 4.8. Action with Respect to Securities of Other Companies.
Unless otherwise directed by the Board of Directors, the President, or any officer of the Corporation authorized by the President, shall have power
to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders or equityholders of, or with respect to any action of, stockholders or equityholders of any other entity in which the Corporation may hold
securities and otherwise to exercise any and all rights and powers which the Corporation may possess by reason of its ownership of securities in such other entity.
SECTION 5 - STOCK
Section 5.1. Certificates of Stock.
Shares of the capital stock of the Corporation may be certificated or uncertificated, as provided in the DGCL. Stock certificates shall be signed
by, or in the name of the Corporation by, (i) the Chairman of the Board (if any) or the Vice Chairman of the Board (if any), the President or a Vice President, and (ii) the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer, or the Chief Financial Officer, certifying the number of shares owned by such stockholder. Any signatures on a certificate may be by facsimile.
Section 5.2. Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation (within or without the State
of Delaware) or by transfer agents designated to transfer shares of the stock of the Corporation.
Section 5.3. Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to regulations as the Board
of Directors may establish concerning proof of the loss, theft or destruction and concerning the giving of a satisfactory bond or indemnity, if deemed appropriate.
Section 5.4. Regulations.
The issue, transfer, conversion and registration of certificates of stock of the Corporation shall be governed by other regulations as the Board of
Directors may establish.
24
Section 5.5. Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the
Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall, unless otherwise required by law, not be more
than 60 nor less than 10 days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors
determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided
, however , that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record
date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of
any rights, or 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 of Directors may fix a record date, which shall not be more than 60 days prior to such
other action. If no such 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 of Directors adopts the resolution relating thereto.
SECTION 6 - NOTICES
Section 6.1. Notices.
Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered
personally or mailed to the directors or stockholders at their addresses appearing on the books of the Corporation. If mailed, notice to a stockholder of the Corporation shall be deemed given when deposited in the mail, postage prepaid, directed to a
stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders of the Corporation may be given by
electronic transmission in the manner provided in Section 232 of the DGCL.
25
Section 6.2. Waivers.
A written waiver of any notice, signed by a stockholder or director, or a waiver by electronic transmission by such person or entity, whether given
before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person or entity. Neither the business nor the purpose of any meeting need be specified in the waiver.
Attendance at any meeting shall constitute waiver of notice except attendance for the sole purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
SECTION 7 - MISCELLANEOUS
Section 7.1. Corporate Seal.
The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary of
the Corporation. If and when so directed by the Board of Directors, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary, Assistant Treasurer or the Chief Financial Officer.
Section 7.2. Reliance upon Books, Reports, and Records.
Each director and each member of any committee designated by the Board of Directors of the Corporation shall, in the performance of his or her
duties, be fully protected in relying in good faith upon the books and records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers, agents or employees, or committees of
the Board of Directors so designated, or by any other person or entity as to matters which such director or committee member reasonably believes are within such other person’s or entity’s professional or expert competence and that has been selected
with reasonable care by or on behalf of the Corporation.
Section 7.3. Fiscal Year.
The fiscal year of the Corporation shall be as fixed by the Board of Directors. If the Board makes no determination to the contrary, the fiscal year
of the Corporation shall be the twelve months ending with December 31 in each year.
Section 7.4. Time Periods.
In applying any provision of these bylaws that requires that an act be done or not be done a specified number of days before an event or that an act
be done during a specified number of days before an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
26
Section 7.5. Exclusive Forum.
To the fullest extent permitted by law, unless the Corporation consents in writing to the selection of an alternate forum, the sole and exclusive
forum for all litigation relating to the internal affairs of the Corporation, including without limitation (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty
owed by any director, officer or other employee of the Corporation to the Corporation or the stockholders of the Corporation, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation or these
bylaws (in each case, as they may be amended from time to time), or (iv) any action asserting a claim governed by the internal affairs doctrine, shall be a state court located within the State of Delaware, or, if no state court located within the
State of Delaware has jurisdiction, the federal district court for the District of Delaware.
SECTION 8 - AMENDMENTS
Section 8.1. Amendments.
Except as otherwise provided herein, these bylaws may be altered, amended or repealed in accordance with the Certificate of Incorporation and the
DGCL.
27