AMENDED AND RESTATED BYLAWS
OF
CASCADE RETAIL HOLDINGS INC.
(a Delaware corporation)
Adopted by the Board of Directors on March 11, 2024
These Amended and Restated Bylaws supersede the Amended and Restated Bylaws last amended on May 14, 2019.
AMENDED AND RESTATED BYLAWS
OF
CASCADE RETAIL HOLDINGS INC.
Preamble
These Amended and Restated Bylaws, as amended from time to time in accordance with their terms and applicable law, are the bylaws of Cascade Retail Holdings Inc., a Delaware corporation (the “Corporation”), and are adopted pursuant to the Delaware General Corporation Law, as amended from time to time (the “DGCL”), and the Restated Certificate of Incorporation of the Corporation filed with the Secretary of State of the State of Delaware on October 3, 2016, as the same may be amended, restated, supplemented, or otherwise modified from time to time (the “Certificate of Incorporation”).
These Amended and Restated Bylaws are referred to herein as these “Bylaws.” These Bylaws supersede in their entirety the Amended and Restated Bylaws of the Corporation last amended on May 14, 2019 (the “Prior Bylaws”). From and after the adoption of these Bylaws, the Prior Bylaws shall be of no further force or effect, except to the extent necessary to preserve actions validly taken thereunder prior to such adoption.
The Corporation is incorporated in the State of Delaware. The principal executive offices of the Corporation are located at 4800 Lakeview Blvd, Suite 1100, Bellevue, Washington 98004, or at such other place as may be designated from time to time by the Board of Directors of the Corporation.
ARTICLE I
OFFICES
Section 1.1 Registered Office
The registered office of the Corporation in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware 19801. The registered agent of the Corporation at such address shall be National Registered Agents of Delaware, Inc.
The Board of Directors of the Corporation (the “Board of Directors” or the “Board”) may, from time to time and in the manner provided by the DGCL, change the registered office of the Corporation and may change the registered agent of the Corporation in the State of Delaware. Any such change shall become effective upon the filing of such certificates, statements, or other instruments as may be required by the DGCL or by the Secretary of State of the State of Delaware.
Section 1.2 Principal Executive Office
The principal executive office of the Corporation shall be located at 4800 Lakeview Blvd, Suite 1100, Bellevue, Washington 98004, or at such other place, within or without the State of Delaware, as the Board of Directors may designate from time to time.
The principal executive office may serve as the location at which corporate records are maintained, officers conduct the general business of the Corporation, and notices required by these Bylaws may be delivered, unless the Board of Directors designates another address for any such purpose.
Section 1.3 Other Offices
The Corporation may have such other offices and places of business, within or without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require.
The Corporation may maintain offices, facilities, distribution centers, administrative locations, or other business premises in such jurisdictions as may be necessary or desirable for the conduct of the Corporation’s business, subject to applicable law and any determinations made by the Board of Directors or by officers acting within authority delegated by the Board.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Annual Meeting
An annual meeting of the stockholders of the Corporation shall be held each year on such date, at such time, and at such place, if any, either within or without the State of Delaware, as shall be designated by the Board of Directors from time to time and stated in the notice of meeting. The annual meeting shall be held for the purpose of electing directors and for the transaction of such other business as may properly come before the meeting in accordance with the Certificate of Incorporation, these Bylaws, and applicable law.
The Board of Directors may, in its sole discretion, determine that any meeting of stockholders, including any annual meeting, shall not be held at any physical place but shall instead be held solely by means of remote communication in accordance with Section 211(a)(2) of the DGCL. If a meeting is held by means of remote communication, the Corporation shall implement such reasonable measures as are required by the DGCL to verify that each person deemed present and permitted to vote at the meeting by remote communication is a stockholder or proxyholder, to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, and to maintain a record of any vote or other action taken by means of remote communication.
Section 2.2 Special Meetings
Special meetings of the stockholders of the Corporation may be called only by the Chairman of the Board, the Chief Executive Officer, or a majority of the Board of Directors. Stockholders shall not have the right to call a special meeting of stockholders, request that the Secretary call a special meeting of stockholders, or require that any matter be brought before a special meeting except to the extent required by applicable law or expressly provided in the Certificate of Incorporation.
The notice of any special meeting of stockholders shall state the purpose or purposes for which the meeting is called. Only business within the purpose or purposes stated in the notice of such special meeting may be transacted at such meeting. The chairman of the meeting shall have the authority to determine whether any business proposed to be transacted at a special meeting is within the purpose or purposes stated in the notice of meeting.
Section 2.3 Notice of Meetings
Written notice of each meeting of stockholders, whether annual or special, shall be given in accordance with the DGCL to each stockholder of record entitled to vote at such meeting. Each such notice shall state the place, if any, date, and time of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.
Except as otherwise provided by the DGCL, the Certificate of Incorporation, or these Bylaws, notice of a meeting of stockholders shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting.
Notice may be given by mail, courier, electronic transmission, or any other method permitted by the DGCL. If mailed, notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. If given by electronic transmission, notice shall be deemed given as provided in the DGCL. The accidental failure to give notice to, or the nonreceipt of notice by, any stockholder shall not invalidate the proceedings at any meeting if such failure or nonreceipt is not material under applicable law.
Section 2.4 Record Date
In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders, entitled to vote at any meeting of stockholders or any adjournment thereof, 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 in accordance with the DGCL.
Any record date fixed for determining the stockholders entitled to notice of or to vote at a meeting of stockholders shall not precede the date on which the resolution fixing the record date is adopted by the Board of Directors and shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. 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, except as otherwise required by the DGCL or where the Board of Directors fixes a new record date for the adjourned meeting.
Section 2.5 Quorum
Except as otherwise required by the DGCL, the Certificate of Incorporation, or these Bylaws, the holders of a majority of the voting power of the shares of capital stock of the Corporation entitled to vote at a meeting of stockholders, present in person or represented by proxy, shall constitute a quorum for the transaction of business at such meeting.
If a quorum is not present or represented at any meeting of stockholders, the chairman of the meeting or the holders of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote thereon may adjourn the meeting from time to time in the manner provided in these Bylaws. Once a quorum is established at a meeting, the stockholders present in person or represented by proxy may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, unless otherwise required by the DGCL.
Section 2.6 Voting; Proxies
At all meetings of stockholders, each stockholder entitled to vote shall have one vote for each share of capital stock registered in such stockholder’s name on the books of the Corporation as of the applicable record date, unless otherwise provided by the Certificate of Incorporation or required by applicable law.
Stockholders may vote in person or by proxy. Every proxy shall be authorized in writing or by electronic transmission in a manner permitted by the DGCL and shall be filed with the Secretary of the Corporation before or at the time of the meeting, or otherwise submitted in accordance with procedures established for the meeting. No proxy shall be voted or acted upon after three (3) years from its date unless the proxy provides for a longer period, as permitted by the DGCL.
Except as otherwise required by the DGCL, the Certificate of Incorporation, or these Bylaws, including Sections 2.10 and 2.11 hereof, all matters other than the election of directors shall be decided by the affirmative vote of the holders of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the matter.
Section 2.7 Adjournment
Any meeting of stockholders, annual or special, may be adjourned from time to time to another date, time, or place, if any, by the chairman of the meeting or by the stockholders as provided in these Bylaws. Unless otherwise required by the DGCL, notice need not be given of any adjourned meeting if the date, time, place, if any, and means of remote communication, if any, by which stockholders and proxyholders may be deemed present and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken.
If the adjournment is for more than thirty (30) days, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If, after the adjournment, a new record date is fixed for stockholders entitled to vote at the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with the DGCL and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice.
At any adjourned meeting, the Corporation may transact any business that might have been transacted at the original meeting, subject to the terms of the notice of meeting and the requirements of applicable law.
Section 2.8 Conduct of Meetings
The Chairman of the Board, or in the Chairman’s absence, the Chief Executive Officer, or in the Chief Executive Officer’s absence, a person designated by the Board of Directors, shall act as chairman of any meeting of stockholders. The Secretary of the Corporation shall act as secretary of the meeting, but in the Secretary’s absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
The chairman of the meeting shall have the authority to convene and adjourn the meeting, to determine the order of business, to prescribe rules, regulations, and procedures for the conduct of the meeting, and to take such actions as, in the judgment of the chairman, are appropriate for the orderly conduct of the meeting. Such rules may include, without limitation, procedures for maintaining order and safety, limitations on the time allotted to questions or comments, restrictions on entry after the time fixed for commencement of the meeting, procedures for voting and ballot submission, and rules governing the use of recording devices or other equipment.
The chairman of the meeting shall have the power to determine whether any nomination or other business was properly brought before the meeting in accordance with these Bylaws and, if the chairman determines that any nomination or business was not properly brought before the meeting, to declare to the meeting that such nomination or business shall be disregarded or not transacted.
Section 2.9 Inspectors of Election
The Board of Directors shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. The Board of Directors 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, the chairman of the meeting shall appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspectors shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, and the validity and effect of proxies. The inspectors shall receive votes, ballots, or consents, hear and determine challenges and questions arising in connection with voting rights, count and tabulate all votes, ballots, or consents, determine the result, and perform such acts as may be proper to conduct the election or vote with fairness to all stockholders.
The inspectors may rely on information provided by the Corporation, its transfer agent, proxy solicitor, or other agents, and their determinations shall be conclusive unless determined otherwise by a court of competent jurisdiction.
Section 2.10 Election of Directors; Majority Voting Standard
(a) Uncontested Elections
In an uncontested election of directors, each director shall be elected by the affirmative vote of the majority of the votes cast with respect to that director’s election. For purposes of this Section 2.10, an “uncontested election” means an election in which the number of nominees for election to the Board of Directors does not exceed the number of directors to be elected at such meeting.
For purposes of this Section 2.10, a majority of the votes cast means that the number of votes cast “for” a director’s election must exceed the number of votes cast “against” such director’s election. Abstentions and broker non-votes shall not be counted as votes cast either “for” or “against” a director’s election.
(b) Contested Elections
In a contested election of directors, directors shall be elected by a plurality of the votes cast. For purposes of this Section 2.10, a “contested election” means an election in which the number of nominees for election to the Board of Directors exceeds the number of directors to be elected as of the last day on which stockholders may submit notice of a nomination pursuant to Section 2.12 or Section 2.13 of these Bylaws.
In a contested election, the nominees receiving the greatest number of votes cast “for” their election, up to the number of directors to be elected at such meeting, shall be elected, subject to the Certificate of Incorporation and applicable law.
(c) Director Resignation Policy
As a condition to being nominated for election or re-election as a director by the Board of Directors, each nominee shall submit to the Corporation an irrevocable conditional resignation. Such resignation shall become effective only if both of the following conditions are satisfied:
(a) the nominee fails to receive a majority of the votes cast in an uncontested election; and
(b) the Board of Directors accepts such resignation.
If a nominee fails to receive a majority of the votes cast in an uncontested election, the Nominating & Corporate Governance Committee shall promptly consider the tendered resignation and recommend to the Board of Directors whether to accept or reject the resignation or whether other action should be taken. In making its recommendation, the Nominating & Corporate Governance Committee may consider all factors it deems relevant, including, without limitation, the stated reasons, if any, for the voting results, the director’s qualifications and contributions to the Corporation, the composition of the Board, regulatory or listing requirements, and the best interests of the Corporation and its stockholders.
The Board of Directors shall act on the resignation within ninety (90) days following certification of the election results and shall publicly disclose its decision and the rationale therefor by press release, Current Report on Form 8-K, or other broadly disseminated means of communication. The Board of Directors expects to accept such resignation absent a compelling reason to reject it.
A director whose resignation is under consideration shall not participate in the recommendation of the Nominating & Corporate Governance Committee or in the Board’s decision regarding such resignation; provided, however, that such director may provide information requested by the Committee or the Board. If all members of the Nominating & Corporate Governance Committee failed to receive a majority of the votes cast in the same uncontested election, then the independent directors who did receive a majority of the votes cast shall appoint a committee to consider the resignations and make a recommendation to the Board.
(d) Incumbent Directors
Each director shall hold office until such director’s successor is duly elected and qualified, or until such director’s earlier death, resignation, retirement, disqualification, or removal. No decrease in the authorized number of directors shall shorten the term of any incumbent director unless otherwise provided in the resolution effecting such decrease or required by applicable law.
Section 2.11 Stockholder Action by Written Consent
Unless otherwise provided in the Certificate of Incorporation, no action required or permitted to be taken at any annual or special meeting of stockholders may be taken by written consent in lieu of a meeting. Any action required or permitted to be taken by the stockholders of the Corporation must be taken at a duly called annual or special meeting of stockholders.
Article VII, Section 2 of the Restated Certificate of Incorporation of the Corporation prohibits stockholder action by written consent. This Section 2.11 shall be interpreted consistently with such provision of the Certificate of Incorporation.
Section 2.12 Advance Notice of Stockholder Business and Nominations
(a) Annual Meeting — Stockholder Business
At an annual meeting of stockholders, only such business, other than nominations of persons for election to the Board of Directors, which are governed by Section 2.12(b) and Section 2.13 of these Bylaws, shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be:
(i) specified in the notice of meeting, or any supplement thereto, given by or at the direction of the Board of Directors;
(ii) otherwise properly brought before the meeting by or at the direction of the Board of Directors; or
(iii) properly brought before the meeting by a stockholder of the Corporation who satisfies all of the following requirements: (A) such stockholder was a stockholder of record at the time the notice required by this Section 2.12 is delivered to the Secretary of the Corporation; (B) such stockholder is a stockholder of record as of the record date for the meeting; (C) such stockholder is entitled to vote at the meeting; and (D) such stockholder complies with the notice procedures and other requirements set forth in this Section 2.12.
For the avoidance of doubt, the foregoing clause (iii) shall be the exclusive means for a stockholder to bring business, other than director nominations and matters properly brought under Rule 14a-8 under the Exchange Act, before an annual meeting of stockholders.
(b) Annual Meeting — Director Nominations
Nominations of persons for election to the Board of Directors may be made at an annual meeting of stockholders only if such nominations are properly made. To be properly made at an annual meeting, nominations must be:
(i) specified in the Corporation’s notice of meeting, or any supplement thereto;
(ii) made by or at the direction of the Board of Directors or the Nominating & Corporate Governance Committee; or
(iii) made by a stockholder who complies with the procedures and requirements of this Section 2.12(b) and the other applicable provisions of this Section 2.12.
Nominations intended to be included in the Corporation’s proxy statement and form of proxy pursuant to the Corporation’s proxy access procedures are governed by Section 2.13 of these Bylaws and not by this Section 2.12(b), except to the extent expressly incorporated by Section 2.13.
(c) Timing of Stockholder Notice
For business or nominations to be properly brought before an annual meeting by a stockholder pursuant to this Section 2.12, the stockholder must deliver timely written notice to the Secretary of the Corporation at the principal executive offices of the Corporation.
A stockholder’s notice pursuant to this Section 2.12 shall be delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting and not later than the close of business on the ninetieth (90th) day prior to the first anniversary of the preceding year’s annual meeting.
If the annual meeting is convened more than thirty (30) days before or more than seventy (70) days after such anniversary date, the stockholder’s notice must be delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of:
(i) the ninetieth (90th) day prior to such annual meeting; or
(ii) the tenth (10th) day following the day on which public announcement of the date of such meeting is first made.
For purposes of these Bylaws, “public announcement” means disclosure in a press release reported by a national news service, in a document publicly filed by the Corporation with the Securities and Exchange Commission (the “SEC”), or in a notice of meeting or proxy statement distributed to stockholders.
(d) Content of Stockholder Notice — Business Proposals
A stockholder’s notice proposing business to be brought before an annual meeting pursuant to this Section 2.12 shall set forth, as to each matter of business the stockholder proposes to bring before the meeting:
(i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting;
(ii) the text of any proposal or resolution proposed for consideration, including the text of any proposed amendment to these Bylaws;
(iii) any material interest of the proposing stockholder and any Stockholder Associated Person in such business; and
(iv) such other information regarding the proposed business, the proposing stockholder, and any Stockholder Associated Person as would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for such business pursuant to the rules and regulations of the SEC.
The Corporation may require the proposing stockholder to furnish such additional information as may reasonably be required by the Corporation to determine whether the proposed business is proper for stockholder action and whether the stockholder has complied with this Section 2.12.
(e) Content of Stockholder Notice — Director Nominations
A stockholder’s notice nominating a person for election to the Board of Directors pursuant to this Section 2.12 shall set forth, as to each person whom the stockholder proposes to nominate:
(i) all information relating to such nominee that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for election of directors pursuant to the SEC’s proxy rules, including such person’s written consent to being named as a nominee in any proxy statement and accompanying proxy card and to serving as a director if elected;
(ii) a description of all direct and indirect compensation, economic interests, agreements, arrangements, understandings, or other relationships during the past three (3) years between or among the proposing stockholder, any Stockholder Associated Person, and the proposed nominee, including any agreement, arrangement, or understanding relating to the nominee’s service or action as a director;
(iii) a completed questionnaire regarding the background, qualifications, independence, and other matters relating to the proposed nominee, in the form required by the Corporation and provided by the Secretary upon request; and
(iv) a representation whether the proposed nominee has entered into, or is subject to, any voting commitment, voting agreement, voting arrangement, or other understanding with any person or entity as to how such proposed nominee, if elected as a director, will vote or act on any issue or question, and a representation whether any such commitment, agreement, arrangement, or understanding could limit or interfere with such proposed nominee’s ability to comply with such person’s fiduciary duties as a director under applicable law.
The Corporation may require any proposed nominee to furnish such additional information as may reasonably be required by the Corporation to determine the eligibility, qualifications, independence, or suitability of such proposed nominee to serve as a director of the Corporation.
(f) Enhanced Disclosure Requirements for Nominating or Proposing Stockholders
A stockholder’s notice pursuant to this Section 2.12 shall also set forth, as to the stockholder giving the notice and each Stockholder Associated Person:
(i) the name and address of such stockholder, as they appear on the Corporation’s books, and the name and address of each Stockholder Associated Person;
(ii) the class, series, and number of shares of stock of the Corporation owned beneficially and of record by such stockholder and each Stockholder Associated Person;
(iii) a description of all derivative positions held by such stockholder and each Stockholder Associated Person, including any option, warrant, convertible security, stock appreciation right, or similar instrument or right with an exercise or conversion privilege or settlement payment or mechanism at a price related to any class or series of stock of the Corporation, or any derivative or synthetic arrangement having the characteristics of a long or short position in shares of the Corporation;
(iv) a description of all short interests in any security of the Corporation held by such stockholder and each Stockholder Associated Person, including any agreement, arrangement, understanding, or relationship, including any repurchase or similar so-called stock borrowing arrangement, engaged in for the purpose or effect of mitigating loss, reducing economic risk, or managing the risk of share price changes;
(v) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder or Stockholder Associated Person has a right to vote, direct the voting of, or influence the voting of any shares of stock of the Corporation;
(vi) any rights to dividends on shares of the Corporation that are separated or separable from the underlying shares;
(vii) any performance-related fees, other than asset-based fees, to which such stockholder or Stockholder Associated Person is entitled based on any increase or decrease in the value of shares of the Corporation or derivative instruments relating to shares of the Corporation;
(viii) a description of all material relationships between the nominating or proposing stockholder, any Stockholder Associated Person, and any proposed nominee, including any agreements, arrangements, or understandings with respect to the nomination;
(ix) any other information relating to such stockholder and any Stockholder Associated Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies pursuant to the SEC’s proxy rules; and
(x) a representation as to whether the stockholder intends, or is part of a group that intends, to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee, and/or otherwise solicit proxies in support of the proposal or nomination.
The information set forth in such notice shall be supplemented and updated by the stockholder, or the stockholder’s qualified representative, not later than ten (10) days after the record date for the meeting to disclose any material changes as of the record date. The Corporation may also require such stockholder or Stockholder Associated Person to update and supplement the notice so that the information provided shall be true and correct as of a date not earlier than ten (10) business days prior to the meeting or any adjournment or postponement thereof.
(g) Definition of Stockholder Associated Person
For purposes of these Bylaws, “Stockholder Associated Person” means:
(i) any person controlling, directly or indirectly, or acting in concert with, such stockholder;
(ii) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder; and
(iii) any person directly or indirectly controlling, controlled by, or under common control with, such stockholder or any Stockholder Associated Person.
For purposes of this definition, a person shall be deemed to be acting in concert with another person if such person knowingly acts, whether or not pursuant to an express agreement, arrangement, or understanding, in concert or in parallel with such other person in furtherance of a nomination or proposal.
(h) Special Meetings — Nominations
Only such business as is specified in the notice of a special meeting of stockholders may be brought before such special meeting. Nominations for the election of directors at a special meeting at which directors are to be elected may be made only:
(i) by or at the direction of the Board of Directors; or
(ii) by a stockholder who is a stockholder of record at the time the notice required by this Section 2.12 is delivered, who is a stockholder of record as of the record date for the special meeting, who is entitled to vote at the meeting and upon such election, and who delivers timely written notice to the Secretary of the Corporation containing the information required by this Section 2.12.
To be timely, such notice must 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 one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of:
(i) the ninetieth (90th) day prior to such special meeting; or
(ii) the tenth (10th) day following the day on which public announcement of the date of such meeting and the nominees proposed by the Board of Directors is first made.
(i) Compliance with Exchange Act
Nothing in this Section 2.12 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder (the “Exchange Act”). The requirements of this Section 2.12 shall apply in addition to any requirements under the Exchange Act, including Regulation 14A and Rule 14a-19 thereunder, to the extent applicable.
A stockholder shall also comply with all applicable requirements of state law and of the Exchange Act with respect to the matters set forth in this Section 2.12. The fact that the Corporation may have received notice under this Section 2.12 shall not require the Corporation to include the proposed business or nomination in the Corporation’s proxy statement, except to the extent required by Rule 14a-8 or Section 2.13 of these Bylaws.
Section 2.13 Proxy Access for Director Nominations
(a) Inclusion of Stockholder Nominees in Proxy Materials
Whenever the Board of Directors solicits proxies with respect to the election of directors at an annual meeting of stockholders, subject to the conditions and requirements of this Section 2.13, the Corporation shall include in its proxy statement and on its form of proxy the name of any person nominated for election to the Board of Directors, each such person being referred to as a “Stockholder Nominee,” by an Eligible Stockholder who satisfies, or by a group of up to twenty (20) stockholders who together satisfy, the ownership and other requirements of this Section 2.13.
To use the procedures set forth in this Section 2.13, the Eligible Stockholder must expressly elect, at the time of providing the Proxy Access Nomination Notice required by this Section 2.13, to have the Stockholder Nominee included in the Corporation’s proxy materials. The rights provided by this Section 2.13 are in addition to, and not in limitation of, any rights of stockholders to nominate candidates for election to the Board of Directors pursuant to Section 2.12, provided that a stockholder may not use both Section 2.12 and this Section 2.13 with respect to the same nominee at the same annual meeting.
(b) Maximum Number of Stockholder Nominees
The maximum number of Stockholder Nominees that may be included in the Corporation’s proxy materials pursuant to this Section 2.13 with respect to an annual meeting shall not exceed the greater of:
(i) two (2); or
(ii) twenty percent (20%) of the number of directors in office as of the last day on which a notice of nomination may be delivered pursuant to this Section 2.13, rounded down to the nearest whole number.
By way of clarification, if the Board of Directors consists of eleven (11) directors, twenty percent (20%) equals 2.2, rounded down to two (2), and the maximum number of Stockholder Nominees is two (2). If the Board of Directors is reduced to nine (9) directors, twenty percent (20%) equals 1.8, rounded down to one (1), but the floor of two (2) applies, and the maximum number of Stockholder Nominees remains two (2).
Stockholder Nominees whose nominations are subsequently withdrawn, who become ineligible, or whom the Board of Directors itself determines to nominate shall be counted against the maximum number of Stockholder Nominees and shall reduce the number of Stockholder Nominees that may be included in the Corporation’s proxy materials for the applicable annual meeting.
(c) Eligible Stockholder
For purposes of this Section 2.13, an “Eligible Stockholder” means a person who has owned, as defined in Section 2.13(d), continuously for at least three (3) years as of both the date the Proxy Access Nomination Notice is delivered to the Corporation and the record date for the annual meeting, shares of the Corporation’s common stock representing at least three percent (3%) of the outstanding shares of the Corporation’s common stock.
Based on seventy million (70,000,000) shares of the Corporation’s common stock outstanding, the three percent (3%) ownership threshold would equal two million one hundred thousand (2,100,000) shares. The applicable number of shares required to satisfy the ownership threshold shall be determined as of the date the Proxy Access Nomination Notice is delivered and as of the record date for the annual meeting, based on the number of outstanding shares at such times.
A group of up to twenty (20) stockholders may aggregate their holdings to satisfy the three percent (3%) ownership threshold, provided that each member of the group has owned its shares continuously for at least three (3) years. Funds under common management and investment control shall be treated as one stockholder for purposes of the aggregation limit.
No shares may be attributed to more than one Eligible Stockholder, and no stockholder may be a member of more than one group constituting an Eligible Stockholder with respect to any annual meeting.
(d) Ownership Definition
For purposes of this Section 2.13, a 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.
The number of shares deemed owned by a stockholder shall not include any shares:
(A) sold by such stockholder in any transaction that has not been settled or closed;
(B) borrowed by such stockholder for any purpose or purchased pursuant to an agreement to resell; or
(C) subject to any option, warrant, forward contract, swap, contract of sale, other derivative instrument, or similar agreement or arrangement that would undermine, hedge, offset, or otherwise alter the full economic interest of such stockholder in such shares.
For purposes of determining continuous ownership, a stockholder’s ownership shall be deemed to continue during any period in which the stockholder has loaned shares, provided that the stockholder has the power to recall such loaned shares on not more than five (5) business days’ notice and recalls such shares upon being notified that any Stockholder Nominee will be included in the Corporation’s proxy materials.
(e) Nomination Notice
An Eligible Stockholder must deliver a written notice, referred to in these Bylaws as the “Proxy Access Nomination Notice,” to the Secretary of the Corporation at the Corporation’s principal executive offices. The Proxy Access Nomination Notice must be delivered not earlier than the close of business on the one hundred fiftieth (150th) day and not later than the close of business on the one hundred twentieth (120th) day before the first anniversary of the date of the proxy statement for the preceding year’s annual meeting.
The Proxy Access Nomination Notice shall include:
(i) the information required by Section 2.12(e) and Section 2.12(f) of these Bylaws with respect to each Stockholder Nominee and the Eligible Stockholder;
(ii) a representation that the Eligible Stockholder satisfies the ownership requirements of this Section 2.13;
(iii) a statement of the Eligible Stockholder’s intent to continue to hold the required shares through the date of the annual meeting;
(iv) a representation that the Eligible Stockholder will appear, in person or by a qualified representative, at the annual meeting to present the nomination;
(v) a representation that the Eligible Stockholder has not nominated and will not nominate any person for election to the Board of Directors at the annual meeting other than through this Section 2.13; and
(vi) an undertaking to provide written statements from each record holder or intermediary through which the Eligible Stockholder holds shares verifying the Eligible Stockholder’s continuous ownership of the required shares for the required three-year period.
The Eligible Stockholder shall provide any additional information reasonably requested by the Corporation to verify ownership, eligibility, compliance with this Section 2.13, or the qualifications of any Stockholder Nominee.
(f) Stockholder Nominee Qualifications
Each Stockholder Nominee must meet any director qualification requirements set forth in the Certificate of Incorporation, these Bylaws, any applicable law, rule, or regulation, and the applicable Nasdaq listing standards. Each Stockholder Nominee must also satisfy any independence, background, and qualification requirements applicable to director candidates nominated by the Nominating & Corporate Governance Committee, to the extent such requirements are publicly disclosed or otherwise uniformly applied.
A Stockholder Nominee shall not be eligible for inclusion in the Corporation’s proxy materials pursuant to this Section 2.13 if such person:
(i) has been an officer or director of a competitor of the Corporation within the past three (3) years;
(ii) is a named subject of a pending criminal proceeding, excluding traffic violations and other minor offenses; or
(iii) has been convicted of a felony or a crime involving moral turpitude within the past ten (10) years.
The Corporation may require the Stockholder Nominee to provide such information and certifications as the Corporation reasonably determines are necessary to evaluate compliance with this Section 2.13(f).
(g) Exclusion Events
The Corporation shall not be required to include a Stockholder Nominee in its proxy materials pursuant to this Section 2.13 if the Board of Directors or the chairman of the meeting determines that any of the requirements of this Section 2.13 have not been satisfied or if any of the following occurs:
(i) the Eligible Stockholder or Stockholder Nominee breaches any representation, agreement, certification, or undertaking made pursuant to this Section 2.13;
(ii) the election of the Stockholder Nominee would cause the Corporation to violate the Certificate of Incorporation, these Bylaws, any applicable law, rule, or regulation, or any applicable Nasdaq listing standard; or
(iii) the Eligible Stockholder has engaged in or is currently engaging in a “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any person as a director at the annual meeting other than a Stockholder Nominee.
The Corporation may omit from its proxy materials any information that it believes is materially false or misleading, omits a material fact necessary to make the statements made not misleading, or would violate applicable law or any rule or regulation of the SEC.
(h) Stockholder Nominee Information Requirements
Each Stockholder Nominee shall provide a completed questionnaire and shall comply with all information, certification, consent, and representation requirements applicable to candidates nominated by the Nominating & Corporate Governance Committee. Such requirements may include information regarding independence, background, qualifications, legal proceedings, related-person transactions, conflicts of interest, voting commitments, compensation arrangements, and any other matter reasonably relevant to service as a director of the Corporation.
Each Stockholder Nominee shall provide such information sufficiently in advance of the applicable filing or mailing deadline for the Corporation’s proxy materials to permit the Corporation to comply with applicable disclosure obligations. Failure to provide such information on a timely basis shall constitute grounds for exclusion under this Section 2.13.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as otherwise provided by the DGCL or the Certificate of Incorporation. The Board of Directors shall have the authority to exercise all powers of the Corporation and to do all lawful acts and things that are not by law, the Certificate of Incorporation, or these Bylaws required to be exercised or done by the stockholders.
The Board of Directors may adopt policies, guidelines, and procedures governing the business and affairs of the Corporation, including governance guidelines, committee charters, codes of conduct, and other corporate policies, in each case consistent with the Certificate of Incorporation, these Bylaws, and applicable law.
Section 3.2 Number of Directors; Qualifications
The number of directors constituting the entire Board of Directors shall be determined from time to time exclusively by resolution of the Board of Directors adopted by a majority of the entire Board. As of the date of adoption of these Bylaws, the number of directors is fixed at eleven (11).
Directors need not be stockholders of the Corporation. Directors shall satisfy any qualification requirements set forth in the Certificate of Incorporation, these Bylaws, applicable law, applicable stock exchange listing standards, and any corporate governance guidelines or policies adopted by the Board of Directors.
Section 3.3 Election and Term of Office