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): September 17, 2024
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (408 ) 720-9002
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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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. ☐
Introductory Note
This Current Report on Form 8-K is being filed in connection with the consummation on September 17, 2024 (the “Closing Date”) of the transaction contemplated by that
certain Agreement and Plan of Merger, dated June 17, 2024 (the “Merger Agreement”), by and among Boston Scientific Corporation, a Delaware corporation (“Boston Scientific”), Seminole Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Boston Scientific (“Merger Sub”), and Silk Road Medical, Inc., a Delaware corporation (“Silk Road”).
On the Closing Date, pursuant to the Merger Agreement, Merger Sub merged with and into Silk Road (the “Merger”), with Silk Road surviving the Merger as a wholly owned
subsidiary of Boston Scientific (the “Surviving Corporation”).
| Item 1.02 |
Termination of a Material Definitive Agreement.
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In connection with the consummation of the Merger, on September 17, 2024, Silk Road repaid in full all outstanding indebtedness and terminated all obligations and
commitments under its Loan and Security Agreement, dated as of May 27, 2022, by and between Silk Road and Oxford Finance, LLC, as amended on June 13, 2022 (the “Existing Loan Agreement”). Silk Road incurred a 1.0% prepayment fee for early prepayment
of the term loans under the Existing Loan Agreement, which had a scheduled maturity date of May 1, 2027 for the revolving facility and the term loans. In connection with the repayment of the outstanding indebtedness by Silk Road under the Existing
Loan Agreement, any guarantees, liens and other security interests in connection therewith were automatically terminated and/or released, as applicable.
In connection with the consummation of the Merger, Silk Road paid a success fee of $367,500 (the “Success Fee”) to Stifel Bank under its Success Fee Agreement with
Stifel Bank, dated October 29, 2020 (the “Success Fee Agreement”), by and between Silk Road and Stifel Bank, which Silk Road entered into in connection with its Loan and Security Agreement, dated as of October 29, 2020, by and between Silk Road and
Stifel Bank. The Success Fee Agreement required Silk Road to pay Stifel Bank the Success Fee in the event that Silk Road completed a Liquidity Event (liquidation, merger, sale of Silk Road or change in control) prior to the Success Fee Agreement
termination date of October 29, 2025. In connection with the repayment of the Success Fee by Silk Road under the Success Fee Agreement, all obligations of Silk Road or any of its affiliates under the Success Fee Agreement were satisfied and released
with no further action necessary and the Success Fee Agreement was terminated.
The material terms of the Existing Loan Agreement and the Success Fee Agreement are more fully described in Silk Road’s Current Report on Form 10-Q filed with the U.S.
Securities and Exchange Commission (the “SEC”) on August 7, 2024, which descriptions are incorporated herein by reference.
| Item 2.01 |
Completion of Acquisition or Disposition of Assets.
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The information set forth in the Introductory Note, Item 3.01, Item 3.03, Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into
this Item 2.01.
Pursuant to the Merger Agreement, at the effective time of the Merger on the Closing Date (the “Effective
Time”) each share of Silk Road’s common stock (the “Common Stock”) outstanding immediately prior to the Effective Time (subject to certain customary exceptions specified in the Merger Agreement) was cancelled and converted automatically into the
right to receive $27.50 in cash, without interest (the “Merger Consideration”) and subject to applicable taxes.
Pursuant to the Merger Agreement, at the Effective Time, each outstanding and unexercised Silk Road option to purchase Common Stock (the “Options”) with an exercise
price that was less than the Merger Consideration, whether vested or unvested, was canceled and converted into the right to receive an amount in cash, without interest and subject to applicable taxes, equal to the product of (i) the amount by which
the Merger Consideration exceeded the exercise price of such Option and (ii) the aggregate number of shares issuable upon the exercise of such Option. Any Option, whether vested or unvested, with an exercise price that was equal to or greater than
the Merger Consideration was canceled without the payment of consideration.
Pursuant to the Merger Agreement, at the Effective Time, each outstanding Silk Road restricted stock unit covering Common Stock that was subject to time or service-based
vesting (“RSUs”), whether vested but unsettled or unvested, was canceled and converted into the right to receive an amount in cash, without interest and subject to applicable taxes, equal to the product of (i) the Merger Consideration and (ii) the
aggregate number of shares underlying such RSU.
Pursuant to the Merger Agreement, at the Effective Time, each outstanding Silk Road restricted stock unit covering Common Stock that vests based on achievement of any
performance condition (“PSUs”), whether vested but unsettled or unvested, was canceled and converted into the right to receive an amount in cash, without interest and subject to applicable taxes, equal to the product of (i) the Merger Consideration
and (ii) the aggregate number of shares underlying such PSU determined based on achievement of market or performance conditions in accordance with the applicable award agreement or stock plan relating thereto as of immediately prior to the Effective
Time.
The foregoing description of the Merger and the Merger Agreement contained in this Item 2.01 does not purport to be complete and is subject to and qualified in its
entirety by reference to the full text of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to Silk Road’s Current Report on Form 8-K, filed by Silk Road with the SEC on June 17, 2024. Such exhibit is incorporated by reference.
| Item 2.04. |
Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.
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The information set forth in Item 1.02 of this Current Report on Form 8-K is incorporated by reference into this Item 2.04 to the extent applicable.
| Item 3.01 |
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
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The information set forth in the Introductory Note, Item 2.01, Item 3.03, Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into
this Item 3.01.
On the Closing Date, the Surviving Corporation notified The Nasdaq Stock Market LLC (“Nasdaq”) of the consummation of the Merger and requested that Nasdaq delist the
Common Stock on the Closing Date. As a result, trading of the Common Stock on Nasdaq was suspended prior to the opening of trading on Nasdaq on the Closing Date. On the Closing Date, the Surviving Corporation also requested that Nasdaq file a
notification of removal from listing and registration on Form 25 with the SEC to effect the delisting of the Common Stock from Nasdaq and the deregistration of the Common Stock pursuant to Section 12(b) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).
Following the effectiveness of the Form 25, the Surviving Corporation intends to file with the SEC a certification and notice of termination on Form 15 to terminate the
registration of the Common Stock under Section 12(g) of the Exchange Act and suspend Silk Road’s reporting obligations under Section 13 and Section 15(d) of the Exchange Act with respect to Common Stock.
| Item 3.03 |
Material Modification to Rights of Security Holders.
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The information set forth in the Introductory Note, Item 2.01, Item 3.01, Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into
this Item 3.03.
Pursuant to the Merger Agreement, at the Effective Time, each outstanding share of Common Stock that was issued and outstanding immediately prior to the Effective Time
(subject to certain customary exceptions specified in the Merger Agreement) was converted into the right to receive the Merger Consideration. Accordingly, at the Effective Time, the holders of such shares of Common Stock ceased to have any rights as
stockholders of Silk Road, other than the right to receive the Merger Consideration.
| Item 5.01 |
Change in Control of Registrant.
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The information set forth in the Introductory Note, Item 2.01, Item 3.01, Item 3.03, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by
reference into this Item 5.01.
As a result of the consummation of the Merger, at the Effective Time, a change in control of Silk Road occurred, and the Surviving Corporation became a wholly owned
subsidiary of Boston Scientific.
| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement.
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The information set forth in the Introductory Note and Item 2.01, Item 3.01, Item 3.03, Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by
reference into this Item 5.02.
At the Effective Time, pursuant to the Merger Agreement, Charles S. McKhann, Rick D. Anderson, Kevin J. Ballinger, Tanisha V. Carino, Ph.D., Tony M. Chou, M.D., Jack W.
Lasersohn, Elizabeth H. Weatherman and Donald J. Zurbay, each of whom was a director of Silk Road as of immediately prior to the Effective Time, ceased to be a director of Silk Road and a member of any committee of Silk Road’s Board of Directors. At
the Effective Time, Vance R. Brown and Emily Woodworth became the directors of Silk Road.
At the Effective Time, pursuant to the Merger Agreement, Charles M. McKhann and Kevin M. Klemz, each of whom was an officer of Silk Road as of immediately prior to the Effective Time, ceased to be an officer of Silk Road. At the Effective Time, Michael F. Mahoney,
Daniel J. Brennan and Emily M. Woodworth became officers of Silk Road.
| Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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The information set forth in the Introductory Note, Item 2.01, Item 3.01, Item 3.03, Item 5.01 and Item 5.02 of this Current Report on Form 8-K is incorporated by
reference into this Item 5.03.
Effective upon completion of the Merger, the certificate of incorporation of Silk Road, as in effect immediately prior to the Merger, was amended and restated to be in
the form of the certificate of incorporation filed herewith as Exhibit 3.1. Such exhibit is incorporated by reference.
Effective upon completion of the Merger, the bylaws of Silk Road, as in effect immediately prior to the Merger, were amended and restated to be in the form of the bylaws
filed herewith as Exhibit 3.2. Such exhibit is incorporated by reference.
| Item 9.01 |
Financial Statements and Exhibits.
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Exhibit No.
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Description
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Agreement and Plan of Merger, dated June 17, 2024, among Boston Scientific Corporation, Seminole Merger Sub, Inc. and Silk Road Medical, Inc. (incorporated by reference to Exhibit
2.1 to Silk Road’s Current Report on Form 8-K filed with the SEC on June 18, 2024).*
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Amended and Restated Certificate of Incorporation of Silk Road Medical, Inc.
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Amended and Restated Bylaws of Silk Road Medical, Inc.
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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Certain exhibits and schedules to the Agreement and Plan of Merger have been omitted from this filing pursuant to Item 601(a)(5) of Regulation S-K. Silk Road will furnish copies of such exhibits and
schedules to the SEC upon its request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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SILK ROAD MEDICAL, INC.
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By:
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/s/ Kevin M. Klemz
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Kevin M. Klemz
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Authorized Signatory
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Date: September 17, 2024
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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SILK ROAD MEDICAL, INC.
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The name of the corporation is: Silk Road Medical, Inc. (the “Corporation”).
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| 2. |
The address of the registered office of the Corporation in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, Wilmington, DE, county of New Castle, 19808. The name of the registered agent of the Corporation at
such address is Corporation Service Company.
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| 3. |
The nature of the business or purposes to be conducted or promoted is: management services and any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware (the “DGCL”).
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| 4. |
The total number of shares of all classes of stock which the Corporation shall have authority to issue is: One Hundred (100); all of such shares shall be shares of common stock, par value $0.001 per share.
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| 5. |
The Corporation is to have perpetual existence.
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| 6. |
In furtherance and not in limitation of the powers conferred by statute, the board of directors of the Corporation is expressly authorized:
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| a. |
To make, alter or repeal the by-laws of the Corporation (the “By-Laws”).
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| b. |
To authorize and cause to be executed mortgages and liens upon the real and personal property of the Corporation.
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To set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve in the manner in which it was created.
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Exhibit 3.1
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| d. |
By a majority of the whole board of directors, to designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The board of directors may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The By-Laws may provide that in the absence or disqualification of a member of a committee, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the board of directors, or in the By-Laws of the Corporation, shall have and may exercise all the powers and authority of the board of directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending this Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the By-Laws; and, unless the resolution or By-Laws expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of
stock.
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| e. |
When and as authorized by the stockholders in accordance with law, to sell, lease or exchange all or substantially all of the property and assets of the Corporation, including its goodwill and its corporate franchises, upon such terms and
conditions and for such consideration, which may consist in whole or in part of money or property including shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors shall deem expedient
and for the best interests of the Corporation.
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| 7. |
Elections of directors need not be by written ballot unless the By-Laws shall so provide.
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| a. |
Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the board of directors or in the By-Laws.
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| b. |
Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State
of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8
of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or
class of stockholders, of the Corporation, as the case may be, and also on the Corporation.
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Exhibit 3.1
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| 8. |
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 upon stockholders herein are
granted subject to this reservation.
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| 9. |
Indemnification; Limitation of Liability.
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| a. |
The Corporation shall indemnify (and advance expenses to) its officers and directors to the full extent permitted by the DGCL, as amended from time to time.
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| b. |
To the fullest extent permitted by law, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of
law imposing such liability.
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| c. |
No amendment to or repeal of this provision, nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Section 9, shall apply to or have any effect on (i) the liability or alleged liability of any
director of the Corporation or (ii) the indemnification and advancement rights of any director or officer, in each case, for or with respect to any acts or omissions of such director or officer occurring prior to such amendment or repeal. If
the DGCL is amended to permit further elimination or limitation of the personal liability of directors or to permit greater indemnification or advancement rights of directors and officers, then the directors and officers of the Corporation
shall be protected from liability (whether through exculpation, indemnification or advancement rights) the fullest extent permitted by the DGCL as so amended.
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Exhibit 3.2
BY-LAWS
OF
SILK ROAD MEDICAL, INC.
ARTICLE I
STOCKHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of the stockholders of Silk Road Medical, Inc. (the “Corporation”), for the purpose of electing directors and for the transaction of such
other business as may be brought before the meeting, shall be held at the principal office of the Corporation, or at such other place within or without the State of Delaware stated in the notice of the meeting as the board of directors of the
Corporation (the “Board of Directors”) may determine, on such day and at such time as the Board of Directors may determine.
Section 2. SPECIAL MEETINGS. Special meetings of stockholders may be called by the Board of Directors or the President and may not be called by any other person.
Special meetings shall be held at such place within or without the State of Delaware as is specified in the call thereof.
Section 3. NOTICE OF MEETING; WAIVER. Unless otherwise required by statute, the notice of every meeting of the stockholders shall be in writing and signed by the Board of Directors or the
President (or a Vice President or the Secretary or an Assistant Secretary, in each case acting at the direction of the Board of Directors or the President) and shall state the time and the place that it is to be held, and a copy thereof shall be
served, either personally or by mail, upon each stockholder of record entitled to vote at such meeting, not less than ten nor more than sixty days before the meeting. If the meeting to be held is other than the annual meeting of stockholders, the
notice shall also state the purpose or purposes for which the meeting is called and shall indicate that it is being issued by or at the direction of the person or persons calling the meeting. If, at any meeting, action is proposed to be taken
which would, if taken, entitle stockholders to receive payment for their shares pursuant to Section 262 of the General Corporation Law of the State of Delaware, the notice of such meeting shall include a statement of that purpose and to that
effect. If the notice is mailed, it shall be directed to a stockholder at the stockholder’s address as it appears on the record of stockholders unless the stockholder shall have filed with the Secretary of the Corporation a written request that
notices intended for the stockholder be mailed to some other address, in which case it shall be mailed to the address designated in such request.
Notice of a meeting need not be given to any stockholder who submits a signed waiver of notice, in person or by proxy, whether before or after the meeting. The attendance of a stockholder at a
meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by the stockholder.
Section 4. QUORUM. At any meeting of the stockholders the holders of a majority of the shares entitled to vote and being present in person or represented by proxy shall constitute a quorum for
all purposes, unless the representation of a different number shall be required by law or by another provision of these by-laws, and in that case the representation of the number so required shall constitute a quorum.
If the holders of the amount of shares necessary to constitute a quorum shall fail to attend in person or by proxy, the holders of a majority of the shares present in person or represented by proxy
at the meeting may adjourn from time to time without further notice other than by an announcement made at the meeting. At any such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at
the meeting as originally called.
Section 5. ORGANIZATION. The President, any Executive Vice President, Senior Vice President or Vice President in the order of their seniority or in such other order as may be designated by the
Board of Directors, shall call meetings of the stockholders to order and shall act as chairperson of such meetings. The Board of Directors or the Executive Committee may appoint any stockholder to act as chairperson of any meeting in the absence
of any of such officers and in the event of such absence and the failure of the Board of Directors or Committee thereof to appoint a chairperson, the stockholders present at such meeting may nominate and appoint any stockholder to act as
chairperson.
The Secretary of the Corporation, or, in their absence, an Assistant Secretary, shall act as secretary of all meetings of stockholders, but, in the absence of said officers, the chairperson of the
meeting may appoint any person to act as secretary of the meeting.
Section 6. VOTING. At each meeting of the stockholders every stockholder of record having the right to vote shall be entitled to vote either in person or by proxy.
Section 7. ACTION BY WRITTEN CONSENT. Any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting on written consent, setting
forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon. Written consent thus given by the holders of all outstanding shares entitled to vote shall have the same effect as a unanimous vote of the
stockholders.
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ARTICLE II
BOARD OF DIRECTORS
Section 1. NUMBER OF DIRECTORS. The number of directors of the Corporation shall be not less than two nor more than six, as determined by action of the Board of Directors.
Section 2. TERM AND VACANCIES. Directors shall be elected at the annual meeting of stockholders to hold office until the next annual meeting and until their respective successors have been duly
elected and have qualified.
Vacancies in the Board of Directors occurring between annual meetings, from any cause whatsoever including vacancies created by an increase in the number of directors, shall be filled by the vote
of a majority of the remaining directors, though less than a quorum.
Directors need not be stockholders.
Section 3. GENERAL POWERS OF DIRECTORS. The business of the Corporation shall be managed under the direction of its Board of Directors subject to the restrictions imposed by law, by the
Corporation’s certificate of incorporation and amendments thereto, or by these by-laws.
Section 4. MEETINGS OF DIRECTORS. The directors may hold their meetings and may keep an office and maintain the books of the Corporation, except as otherwise provided by statute, in such place or
places in the State of Delaware or outside the State of Delaware as the Board of Directors may, from time to time, determine.
Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all of the directors consent in writing to the adoption of a resolution authorizing the
action, and in such event the resolution and the written consent of all directors thereto shall be filed with the minutes of the proceedings of the Board of Directors.
Any one or more directors may participate in a meeting of the Board of Directors by means of a conference telephone or similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time, and participation by such means shall constitute presence in person at a meeting.
Section 5. REGULAR MEETINGS. Regular meetings of the Board of Directors shall be held at such place within or without the State of Delaware as shall be designated in the notice of the meeting as
follows: one meeting shall be held immediately following the annual meeting of stockholders and further meetings shall be held at such intervals or on such dates as may from time to time be fixed by the directors, all of which meetings shall be
held upon not less than one day’s notice served upon each director by mailing such notice to the director at the director’s address as the same appears upon the records of the Corporation, except the meeting which shall be held immediately
following the annual meeting of stockholders which meeting shall be held without notice.
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Section 6. SPECIAL MEETINGS. Special meetings of the Board of Directors shall be held whenever called by the direction of the President of the Corporation, or of one-third of the directors at the
time in office. The Secretary shall give notice of each special meeting by delivering such notice not less than one day before the date set for a special meeting to each director.
Section 7. WAIVER. Notice of a meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting,
prior thereto or at its commencement, the lack of notice to such director.
Section 8. QUORUM. One-third of the total number of directors shall constitute a quorum for the transaction of business, but if at any meeting of the Board of Directors there be less than a
quorum present, the majority of those present may adjourn the meeting from time to time.
Section 9. ORDER OF BUSINESS. At meetings of the Board of Directors business shall be transacted in such order as the Board of Directors may fix and determine.
At all meetings of the Board of Directors, the President, any Executive Vice President or any Vice President (provided such person be a member of the Board of Directors) shall preside.
Section 10. ELECTION OF OFFICERS AND COMMITTEES. At the first regular meeting of the Board of Directors in each year, at which a quorum shall be present, held next after the annual meeting of the
stockholders, the Board of Directors shall proceed to the election of the executive officers of the Corporation and of the Executive Committee, if the Board of Directors shall provide for such Committee under the provisions of Article III
hereof.
The Board of Directors from time to time may fill any vacancies among the executive officers, members of the Executive Committee and members of any other committees, and may appoint additional
executive officers and additional members of such Executive Committee or any other committees.
Section 11. COMPENSATION. Directors who are not officers or employees of the Corporation or any of its subsidiaries may receive such remuneration as the Board of Directors may fix; provided,
however, that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity or receiving compensation therefor.
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ARTICLE III
COMMITTEES
Section 1. EXECUTIVE COMMITTEE. The Board of Directors by resolution adopted by a majority of the entire Board of Directors, may designate from the Directors an Executive Committee consisting of
one or more, to serve at the pleasure of the Board of Directors. At all times when the Board of Directors is not in session, the Executive Committee so designated shall have and exercise the powers of the Board of Directors, except that such
committee shall have no authority as to the matters set out in Section 3 of this Article III.
Meetings of the Executive Committee shall be called by any member of the same, on three days’ mailed notice, or one day’s telegraphed or telecopied notice to each of the other members, stating
therein the purpose for which such meeting is to be held. Notice of meetings may be waived, in writing, by any member of the Executive Committee.
All action by the Executive Committee shall be recorded in its minutes and reported from time to time to the Board of Directors.
The Executive Committee shall fix its own rules of procedure and shall meet where and as provided by such rules or by resolution of the Board of Directors.
Any action required or permitted to be taken by the Executive Committee may be taken without a meeting if all of the members of the Executive Committee consent in writing to the adoption of a
resolution authorizing the action, and in such event the resolution and the written consent of all members of the Executive Committee thereto shall be filed with the minutes of the proceedings of the Executive Committee.
Any one or more members of the Executive Committee may participate in a meeting of the Executive Committee by means of a conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time, and participation by such means shall constitute presence in person at a meeting.
Section 2. OTHER COMMITTEES. The Board of Directors may appoint such other committees, of one or more, as the Board of Directors shall, from time to time, deem advisable, which committees shall
have and may exercise such powers as shall be prescribed, from time to time, by resolution of the Board of Directors, except that such committees shall have no authority as to the matters set out in Section 3 of this Article III
hereof.
Actions and recommendations by each committee which shall be appointed pursuant to this section shall be recorded and reported from time to time to the Board of Directors.
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Each such committee shall fix its own rules of procedure and shall meet where and as provided by such rules or by resolution of the Board of Directors.
Any action required or permitted to be taken by any such committee may be taken without a meeting if all of the members of such committee consent in writing to the adoption of a resolution
authorizing the action, and in such event the resolution and the written consent of all members of such committee thereto shall be filed with the minutes of the proceedings of such committee.
Any one or more members of any such committee may participate in a meeting of such committee by means of a conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time, and participation by such means shall constitute presence in person at a meeting.
Section 3. LIMITATIONS. No committee shall have authority as to the following matters:
(1) The submission to stockholders of any action that needs stockholders’ authorization.
(2) The filling of vacancies in the Board of Directors or in any committee.
(3) The fixing of compensation of the directors for serving on the Board of Directors or on any committee.
(4) The amendment or repeal of the by-laws, or the adoption of new by-laws.
(5) The amendment or repeal of any resolution of the Board of Directors which by its terms shall not be so amendable or repealable.
Section 4. ALTERNATES. The Board of Directors may designate one or more directors as alternate members of any such committees, who may replace any absent member or members at any meeting of such
committees.
Section 5. COMPENSATION. Members of special or standing committees may receive such salary for their services as the Board of Directors may determine; provided, however, that nothing herein
contained shall be construed to preclude any member of any such committee from serving the Corporation in any other capacity or receiving compensation therefor.
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ARTICLE IV
OFFICERS
Section 1. TITLES AND TERMS OF OFFICE. The executive officers of the Corporation shall be a President, such number of Executive Vice Presidents, Senior Vice Presidents and Vice Presidents as the
Board of Directors shall determine, and a Treasurer and a Secretary, all of whom shall be chosen by the Board of Directors.
The Board of Directors may also appoint one or more Assistant Secretaries and one or more Assistant Treasurers, and such other junior officers as it shall deem necessary, who shall have such
authority and shall perform such duties as from time to time may be prescribed by the Board of Directors.
Any two or more offices except President and Vice President may be held by the same person.
The officers of the Corporation shall each hold office for one year and until their successors are chosen and qualified, and shall be subject to removal at any time by the affirmative vote of the
majority of the entire Board of Directors.
Section 2. PRESIDENT. The President shall have general management and control over the policy, business and affairs of the Corporation and shall have such other authority and perform such other
duties as usually appertain to a president or a chief executive officer of a business corporation.
Section 3. EXECUTIVE VICE PRESIDENTS, SENIOR VICE PRESIDENTS AND VICE PRESIDENTS. The Executive Vice Presidents, Senior Vice Presidents and Vice Presidents, if any, shall be designated and shall
have such powers and perform such duties as may be assigned to them by the Board of Directors, the Executive Committee or the President. They shall, in order of their seniority or in such other order as may be designated by the Board of Directors,
the Executive Committee or the President, exercise the powers of the President during the absence or inability to act of the President.
Section 4. TREASURER. The Treasurer shall have custody of the funds and securities of the Corporation that come into their hands. When necessary or proper, the Treasurer may endorse on behalf of
the Corporation for collection, checks, notes, and other instruments and obligations and shall deposit the same to the credit of the Corporation in such bank or banks or depositories as the Board of Directors or the Executive Committee shall
designate; whenever required by the Board of Directors or the Executive Committee, the Treasurer shall render a statement of their cash account; the Treasurer shall keep, or cause to be kept, books of account, in which shall be entered and kept
full and accurate accounts of all monies received and paid out on account of the Corporation; they shall perform all acts incident to the position of Treasurer, subject to the control of the Board of Directors, the Executive Committee and the
President; they shall give bond for the faithful discharge of their duties, if, as, and when the Board of Directors or the Executive Committee may require. They shall perform such other duties as from time to time may be assigned to them by the
Board of Directors, the Executive Committee or the President.
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Section 5. ASSISTANT TREASURER. Each Assistant Treasurer shall have such powers and perform such duties as may be delegated to them, and the Assistant Treasurers shall, in the order of their
seniority, or in such other order as may be designated by the Board of Directors, the Executive Committee or the President, exercise the powers of the Treasurer during their absence or inability to act.
Section 6. SECRETARY. The Secretary shall keep the minutes of all meetings of the Board of Directors and the minutes of all meetings of the stockholders and of the Executive Committee, in books
provided for that purpose; they shall attend to the giving and serving of all notices of the Corporation; and they shall have charge of the certificate books, transfer books and records of stockholders and such other books and records as the Board
of Directors or Executive Committee may direct, all of which shall at all reasonable times be open to the inspection of any director upon application during the usual business hours.
They shall keep at the office of the Corporation, or at the office of the transfer agent or registrar of the Corporation’s capital stock, a record containing the names, alphabetically arranged, of
all persons who are stockholders of the Corporation, showing their places of residence, the number of shares held by them, respectively, the time when they respectively became the owners thereof, and the amount paid thereon, and such record shall
be open for inspection as prescribed by Section 220 of the General Corporate Law of the State of Delaware. They shall in general perform all of the duties incident to the office of Secretary, subject to the control of the Board of Directors, the
Executive Committee and the President.
Section 7. ASSISTANT SECRETARIES. Each Assistant Secretary shall have such powers and perform such duties as may be delegated to them, and the Assistant Secretaries shall, in the order of their
seniority, or in such other order as may be designated by the Board of Directors, the Executive Committee or the President, exercise the powers of the Secretary during their absence or inability to act.
Section 8. VOTING UPON STOCKS. The President of the Corporation, or one designated in a proxy executed by them, and in the absence of either, the Executive Vice Presidents, Senior Vice Presidents
or the Vice Presidents of the Corporation, in the order of their seniority, shall have full power and authority on behalf of the Corporation to attend, and to act, and to vote at meetings of stockholders of any corporation in which the Corporation
may hold stock, and each such officer of the Corporation shall have power to sign a proxy deputizing others to vote the same; and all such who shall be so authorized to vote shall possess and may exercise any and all rights and powers incident to
the ownership of such stock and which, as the owner thereof, the Corporation might have possessed and exercised, if present.
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The Board of Directors or the Executive Committee may, by resolution from time to time, confer like powers on any other person or persons, which shall supersede the powers of those designated in
the foregoing paragraph.
Section 9. EXECUTION OF CHECKS, ETC. All checks, notes, drafts or other instruments for the payment of money shall be signed on behalf of the Corporation by such person or persons and in such manner as the Board of
Directors or Executive Committee may prescribe by resolution from time to time.
ARTICLE V
STOCK; RECORD DATE
Section 1. CERTIFICATES FOR STOCK; UNCERTIFICATED SHARES. The certificates for shares of the stock of the Corporation shall be
in such form as shall be proper or approved by the Board of Directors; provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of stock of the Corporation shall be
uncertificated shares. Notwithstanding the foregoing or the adoption of such a resolution or resolutions by the Board of Directors, each holder of uncertificated shares shall be entitled, upon request, to a certificate representing such shares,
to be in such form as the Board of Directors shall have approved. Any such resolution shall not apply to any share represented by a certificate theretofore issued until
such certificate is surrendered to the Corporation. Each certificate shall state (i) that the Corporation is formed under the laws of the State of Delaware, (ii) the name of the person or persons to
whom issued, (iii) the number and class of shares and the designation of the series, if any, which such certificate represents and (iv) the par value, if any, of each share represented by such certificate. Each certificate shall be signed by
the President, an Executive Vice President or a Vice President, and also by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary and sealed with the Corporation’s seal;
provided, however, that if such certificates are signed by a transfer agent or transfer clerk and by a registrar, the signature of the President, the Executive Vice President, Vice President, Treasurer, Assistant Treasurer, Secretary and
Assistant Secretary and the seal of the Corporation upon such certificates may be facsimiles, engraved or printed. Except as otherwise provided by law, the rights and obligations of the holders of
uncertificated shares and the rights and obligations of the holders of shares represented by certificates of the same class and series shall be identical.
Section 2. TRANSFER OF SHARES. Shares of the stock of the Corporation may be transferred on the record of stockholders of the Corporation by the holder thereof in person or by such person’s duly authorized attorney upon surrender of a
certificate therefor properly endorsed or upon receipt of proper transfer instructions from the holder of uncertificated shares.
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Section 3. AUTHORITY FOR ADDITIONAL RULES REGARDING TRANSFER. The Board of Directors and the Executive Committee shall have power and authority to make all such rules and
regulations as respectively they may deem expedient concerning the issue, transfer and registration of certificated or uncertificated shares of the stock of the Corporation, as well as for the issuance of new certificates in lieu of those which may
be lost or destroyed, and may require of any stockholder requesting replacement of lost or destroyed certificates, bond in such amount and in such form as they may deem expedient to indemnify the Corporation, and/or the transfer agents, and/or the
registrars of its stock against any claims arising in connection therewith.
Section 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors or Executive Committee may appoint one or more transfer agents and one or more registrars of transfer and may require all stock
certificates to be countersigned by such transfer agent and registered by such registrar of transfers. One person or organization may serve as both transfer agent and registrar.
Section 5. RECORD DATE. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to or
dissent from any proposal without a meeting, or for the purpose of determining stockholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the Board of Directors shall fix in
advance a date as the record date for any such determination of stockholders. Such date shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action.
Section 6. LIST OF STOCKHOLDERS AS OF RECORD DATE. The Secretary of the Corporation or the transfer agent of its stock shall make and certify a list of the stockholders as of the record date and
number of shares of each class of stock of record in the name of each stockholder and such list shall be present at every meeting of stockholders. If the right to vote at any meeting is challenged, the inspectors of elections, or person presiding
thereat, shall require such list of stockholders to be produced as evidence of the right of the persons challenged to vote at such meeting, and all persons who appear from such list to be stockholders entitled to vote thereat, may vote at such
meeting.
Section 7. DIVIDENDS. Dividends may be declared and paid out of the surplus of the Corporation as often and at such times and to such extent as the Board of Directors may determine, consistent
with the provisions of the Certificate of Incorporation of the Corporation.
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ARTICLE VI
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 1. RIGHT TO INDEMNIFICATION. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any
person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the
fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses
(including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Article VI, Section 3, the Corporation shall be required to indemnify a Covered Person in connection
with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the Corporation.
Section 2. PREPAYMENT OF EXPENSES. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in
defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking
by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.
Section 3. CLAIMS. If a claim for indemnification (following the final disposition of such proceeding) or advancement of expenses under this Article VI is not paid in full within thirty (30) days
after a written claim therefor by the Covered Person has been received by the Corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense
of prosecuting such claim to the fullest extent permitted by law. In any such action the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under
applicable law.
Section 4. NONEXCLUSIVITY OF RIGHTS. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. OTHER SOURCES. The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership,
joint venture, trust, enterprise or non-profit enterprise.
Section 6. AMENDMENT OR REPEAL. Any right to indemnification or to advancement of expenses of any Covered Person arising hereunder shall not be eliminated or impaired by an amendment to or repeal
of these by-laws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought.
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Section 7. OTHER INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. This Article VI 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 persons other than Covered Persons when and as authorized by appropriate corporate action.
ARTICLE VII
AMENDMENTS
Section 1. These by-laws or any of them, may be altered, amended or repealed, or new by-laws may be made by the stockholders entitled to vote thereon at any annual or special meeting thereof or by
the Board of Directors.
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