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 29, 2022
LL Flooring Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
| 001-33767 |
| 27-1310817 |
(State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) |
4901 Bakers Mill Lane, Richmond, Virginia |
| 23230 |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (804) 463-2000
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class: | Trading Symbol: | Name of exchange on which registered: | ||
Common Stock, par value $0.001 per share | LL | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Years.
On September 29, 2022, the Board of Directors of LL Flooring Holdings, Inc. (the “Company”) approved the amendment and restatement of our Bylaws to establish a customary 30-day window for shareholders to make director nominations and business proposals; revise procedures and disclosure requirements for shareholders to make director nominations and business proposals; clarify that the Board has maximum flexibility to delegate authority to committees; and make other administrative, modernizing, clarifying and conforming changes to the Bylaws. The full text of the Second Amended and Restated Bylaws reflecting these amendments is filed herewith as Exhibit 3.2 and incorporated by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are being furnished pursuant to Item 5.03 above.
3.2 | Second Amended and Restated Bylaws of LL Flooring Holdings, Inc., effective September 29, 2022. | |||
104 | Cover Page Interactive Data File (formatted in Inline XBRL and contained in Exhibit 101) |
EXHIBIT INDEX
Exhibit No. |
| Description | |
3.2 | Second Amended and Restated Bylaws of LL Flooring Holdings, Inc., effective September 29, 2022. | ||
104 | Cover Page Interactive Data File (formatted in Inline XBRL and contained in Exhibit 101) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
LL FLOORING HOLDINGS, INC. | ||
(Registrant) | ||
Date: October 4, 2022 | By: | /s/ Alice G. Givens |
Alice G. Givens | ||
Chief Legal Officer and Corporate Secretary | ||
Exhibit 3.2
SECOND AMENDED AND RESTATED BYLAWS
OF
LL FLOORING Holdings, Inc.
Article I – Offices
Article II – Stockholders
(a) Except as otherwise provided by law or the Certificate of Incorporation, a written notice of the date, time and place of all meetings of stockholders, describing the purposes of the meeting, shall be given
by the Secretary or an Assistant Secretary (or other person authorized by the Board of Directors to provide notice of such meeting) no fewer than ten (10) nor more than sixty (60) days before the meeting date to each stockholder entitled to vote at such meeting and to each stockholder who, by law or by the Certificate of Incorporation or by these Bylaws, is entitled to such notice, except that where any other minimum or maximum notice period for any action to be taken at such meeting is required under the DGCL, then such other minimum or maximum notice period shall control.
(b) If at any meeting action is proposed to be taken which, if taken, would entitle stockholders fulfilling the requirements of Section 262(d) of the DGCL to an appraisal of the fair value of their shares, the notice of such meeting shall contain a statement of that purpose and to that effect and shall be accompanied by a copy of that statutory Section.
(a) An annual or special meeting of stockholders may be adjourned to a different date, time, or place by the chairperson of such meeting or by the holders of a majority of the votes of the outstanding shares of capital stock entitled to be voted at the meeting who are present, in person or by proxy. If an annual or special meeting of stockholders is adjourned to a different date, time or place, written notice need not be given of the new date, time or place if the new date, time or place, if any, is announced at the meeting at which the adjournment is taken before adjournment; provided, however, that if the date for any adjourned meeting is more than 30 days after the date of the original meeting, or if a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given in conformity with this Article II. At the adjourned meeting, any business may be transacted which might have been transacted at the original meeting. All notices to stockholders shall conform to the requirements of Article IV.
(b) Any previously scheduled annual or special meeting of stockholders may be postponed by resolution of the Board of Directors, upon public notice given prior to the date scheduled for such meeting.
(a) Unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, a majority of the votes entitled to be cast on the matter by a voting group, present in person or by proxy, constitutes a quorum of that voting group for action on that matter. As used in these Bylaws, a “voting group” includes all shares of one or more classes or series that, under the Certificate of Incorporation or the DGCL, are entitled to vote and to be counted together collectively on a matter at a meeting of stockholders.
(b) A share once represented for any purpose at a meeting is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless (i) the stockholder attends solely to object to lack of notice, defective notice or the conduct of the meeting on other grounds and does not vote the shares or otherwise consent that they are to be deemed present, or (ii) in the case of an adjournment, a new record date is or shall be set for that adjourned meeting.
(c) If a quorum shall fail to attend any meeting, the chairperson of the meeting or the holders of a majority of the votes of the outstanding shares of capital stock entitled to be voted at the meeting who are present, in person or by proxy, may adjourn the meeting to another place, date and time, without notice other than as specified in Section 5 of this Article II.
(a) The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairperson of the meeting. Subject to the requirements set forth in Section 9(b) below, the Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairperson of the meeting shall have the right and authority to convene and to adjourn the meeting. The chairperson of the meeting shall also have the right and authority to determine the order of business and the procedure at the meeting, including such rules and regulations of the manner of voting and the conduct of discussion as seems to such person to be in order, and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting.
(b) The rules and regulations for the conduct of the meeting of stockholders adopted by the Board of Directors or prescribed by the chairperson of the meeting shall permit time for questions or comments by participants, and the Board of Directors may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; (v) limitations on the aggregate amount of time, and the amount of time each participant has, for questions or comments; and (vi) restrictions on the use of cell phones, audio or video recording devices and similar devices at the meeting.
(c) The chairperson of any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare at the meeting whether a matter or business was properly brought before the meeting. If such chairperson should determine that such matter is not properly brought before the meeting, such chairperson shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
(d) Notwithstanding the foregoing provisions of this Section 9, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or item of business, such proposed business shall not be transacted and such nomination shall be disregarded, notwithstanding that proxies in respect of such vote may have been received by the Corporation.
(a) Subject to the terms of the Preferred Stock, at any meeting of stockholders, each stockholder shall have, with respect to each matter voted upon at a meeting of stockholders, one vote for each share of stock entitled to vote owned by such stockholder of record according to the books of the Corporation, unless otherwise provided by law or by the Certificate of Incorporation.
(b) At any meeting of stockholders, a stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation may either (i) vote in person or (ii) appoint a proxy to vote or otherwise act by authorizing such proxy by an instrument in writing or a transmission permitted by law. An appointment of a proxy is effective when filed in accordance with the procedure established for the meeting or, if no such procedures are established, when received by the Secretary or other officer or agent authorized to tabulate votes. Unless otherwise provided in an appointment form, an appointment is valid for a period of three years from the date the stockholder signed the form or, if it is undated, from the date of its receipt by the officer or agent authorized to tabulate votes, unless and to the extent otherwise provided in the proxy. Except as otherwise limited therein, proxies shall entitle the persons authorized thereby to vote at any adjournment of such meeting but shall not be valid after final adjournment of such meeting. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by one of them if the person signing appears to be acting on behalf of all the co-owners unless at or prior to exercise of the proxy the Corporation receives a specific written notice to the contrary from any one of them. Subject to the provisions of Section 212 of the DGCL (or any successor provision thereof) and to any express limitation on the proxy’s authority provided in the appointment form, the Corporation is entitled to accept the proxy’s vote or other action as that of the stockholder making the appointment.
(c) All voting, except as provided in the Certificate of Incorporation or where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefor by a stockholder entitled to vote or by a duly appointed proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting.
(d) In advance of any meeting of stockholders, the Board of Directors shall appoint one or more inspectors to act at the meeting and make a written report thereof and may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Before executing the duties of inspector, each inspector shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such person’s ability and may perform such other duties not inconsistent herewith as may be requested by the Corporation.
(a) Any vote, consent, waiver, proxy appointment or other action by a stockholder or by the proxy or other agent of any stockholder shall be considered given in writing, dated and signed, if, in lieu of any other means permitted by law, it consists of an electronic transmission that sets forth or is delivered with information from which the Corporation can determine (i) that the electronic transmission was authorized by the stockholder or proxyholder and transmitted by the stockholder, proxyholder or a person authorized to act for them and (ii) the date on which such stockholder, proxyholder or authorized person transmitted the electronic transmission. The date on which the electronic transmission is transmitted shall be considered to be the date on which it was signed. The electronic transmission shall be considered received by the Corporation if it has been sent to any address specified by the Corporation for the purpose or, if no address has been specified, to the principal office of the Corporation, addressed to the Secretary or other officer or agent having custody of the records of proceedings of stockholders.
(b) Any copy, facsimile or other reliable reproduction of a vote, consent, waiver, proxy appointment or other action by a stockholder or by the proxy or other agent of any stockholder may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, so long as the copy, facsimile or other reproduction is a complete reproduction of the entire original writing or transmission.
(a) After fixing a record date for a meeting of stockholders, the office of the Corporation who had charge of its stock ledger shall prepare an alphabetical list of the names of all its stockholders who are entitled to notice of the meeting. The list shall be arranged by voting group, and within each voting group by class or series of shares, and show the address of and number of shares held by each stockholder, but need not include an email address or other electronic contact information for any stockholder.
(b) The list of stockholders shall be available for inspection by any stockholder for any purpose germane to the meeting for a period beginning ten days prior to the meeting for which the list was prepared and continuing through the meeting: (i) during ordinary business hours, at the Corporation’s principal office; or (ii) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting. If the meeting is to be held at a place, then the list shall be produced and kept at the place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, the list shall be made available on an electronic network and the information required to gain access to such list shall be provided with the notice of the meeting.
(a) (i) To be properly brought before an annual meeting or special meeting, nominations of persons for election to the Board of Directors or other business must be:
(A) specified in the notice of meeting given by or at the direction of the Board of Directors;
(B) otherwise properly brought before the meeting by or at the direction of the Board of Directors; or
(C) otherwise properly brought before the meeting by a stockholder who is a stockholder of record of the Corporation (1) (x) at the time the notice required hereunder is delivered to the Secretary, (y) on the record date for determination of stockholders of the Corporation entitled to vote at the meeting and (z) at the time of the annual meeting or special meeting; (2) who is entitled to vote at the meeting; and (3) who complies with the notice procedures and disclosure requirements set forth in this Section 17 (the “Proposing Stockholder”).
(ii) For business to be properly brought before an annual meeting by a Proposing Stockholder:
(A) the Proposing Stockholder must have given timely notice thereof in writing to the Secretary; and
(B) the subject matter thereof must be a matter which is a proper subject matter for stockholder action at such meeting as required by (a)(iii) of this Section.
(iii) Except as otherwise provided in the Certificate of Incorporation, to be considered timely notice, a Proposing Stockholder’s notice must be delivered to the Secretary at the principal executive offices of the Corporation no earlier than the close of business on the 150th calendar day and no later than the close of business on the 120th calendar day, in each case before the date of the Corporation’s proxy statement released to stockholders in connection with the previous year’s annual meeting of stockholders. If no annual meeting was held in the previous year, or if the date of the applicable annual meeting has been changed by more than 30 days from the date of the previous year’s annual meeting, then a Proposing Stockholder’s notice, in order to be considered timely, must be delivered to the Secretary not later than the later of the close of business on the 90th day prior to such annual meeting or the tenth day following the day on which notice of the date of the annual meeting was mailed or public disclosure of such date was made. For the avoidance of doubt, a Proposing Stockholder shall not be entitled to make additional or substitute nominations following the expiration of the time periods set forth in this Section 17. Such Proposing Stockholder’s notice shall set forth:
(A) With respect to a nomination of a person for election to the Board of Directors, as to each person who the Proposing Stockholder proposes to so nominate: (i) the name, age, business address and residence address of each nominee proposed in such notice (present and for the past five years); (ii) the principal occupation or employment of each such nominee; (iii) the Specified Information for such nominee and any member of the immediate family of such nominee, or any Affiliate or Associate (as such terms are defined below) of such nominee or
any person acting in concert therewith; (iv) a description of any agreement, arrangement or understanding of the type described in clause (C)(iii) or (C)(iv) of this Section 17, but as it relates to each such nominee rather than the Proposing Stockholder; (v) if any such nominee is a party to any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than the Corporation, or has received any compensation or other payment from any person or entity other than the Corporation, in each case in connection with candidacy or service as a director of the Corporation, a complete, accurate and detailed description of such agreement, arrangement or understanding (whether written or oral) and its terms or of any such compensation received; (vi) such other information concerning each such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election of such nominee as a director in an election contest (even if an election contest is not involved) or that is otherwise required to be disclosed under Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; (vii) the consent of the nominee to being named in a proxy statement as a nominee and to serving as a director if elected and a representation by the nominee to the effect that, if elected, the nominee will agree to and abide by all policies of the Board of Directors as may be in place at any time and from time to time; and (viii) with respect to each nominee for election or reelection to the Board of Directors, a completed and signed questionnaire, representation and agreement, and any and all other information as required by clause (a)(iii)(B) of this Section 17.
(B) In addition to the other requirements of this Section 17, each person who the Proposing Stockholder proposes to so nominate must deliver in writing (in accordance with the time periods prescribed for delivery of notice under this Section 17) to the Secretary (i) a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request of any stockholder of record identified by name within five business days) and (ii) a written representation and agreement (in the form provided by the Secretary upon written request of any stockholder of record identified by name within five business days) that such person (a) is not and will not become a party to (1) any agreement, arrangement or understanding (whether written or oral) with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director, with such person’s fiduciary duties under applicable law; (b) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed to the Corporation, and (c) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director, and will comply with all applicable rules of the exchanges upon which the securities of the Corporation are listed and all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.
(C) As to the Proposing Stockholder and the beneficial owner, if any, on whose behalf the proposal or nomination is made (each, a “Holder” and, collectively, the “Holders”): (i) the name and address of each Holder, as it appears on the Corporation’s books, and of any Stockholder Associated Person; (ii) the class and number of shares of the Corporation that are owned beneficially and held of record by each Holder and any Stockholder Associated Person (provided that for purposes of this Section, any such person shall in all events be deemed to
beneficially own any shares of any class or series of capital stock of the Corporation as to which such Holder and any Stockholder Associated Person has the right to acquire (whether such is right exercisable immediately or only after the passage of time or the fulfillment of a condition or both)); (iii) a description of any agreement, arrangement or understanding with respect to such nomination between or among any Holder and any Stockholder Associated Person, and any others (including their names) acting in concert with any of the foregoing; (iv) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the Proposing Stockholder’s notice by, or on behalf of, any Holder or any Stockholder Associated Person, presently or within the past 12 months, the effect or intent of which is to mitigate loss, manage risk or benefit from share price changes for, or increase or decrease the voting power of, any Holder or any of its Affiliates or Associates with respect to shares of stock of the Corporation; (v) any direct or indirect legal, economic or financial interest of each Holder and any Stockholder Associated Person in the outcome of any vote to be taken (x) at any annual meeting or special meeting or (y) any meeting of stockholders of any other entity with respect to any matter that is related, directly or indirectly, to any nomination or business proposed by each Holder under these Bylaws; (vi) any rights to dividends on the shares of the Corporation owned beneficially directly or indirectly by each Holder and any Stockholder Associated Person that are separated or separable from the underlying shares of the Corporation; (vii) any material pending or threatened action, suit or proceeding (whether civil, criminal, investigative, administrative or otherwise) in which each Holder or any Stockholder Associated Person is, or is reasonably expected to be made, a party or material participant involving the Corporation or any of its officers, directors or employees, or any Affiliate of the Corporation, or any officer, director or employee of such Affiliate; (viii) any direct or indirect legal, economic or financial interest (including short interest) in the Corporation, any Affiliate of the Corporation, any officer, director or employee of the Corporation or any Affiliate thereof, or any principal competitor of the Corporation held by each Holder and any Stockholder Associated Person (the information in clauses (i) through (viii), collectively, the “Specified Information”); (ix) a representation by the Proposing Stockholder that such stockholder is a holder of record of shares of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice and (x) with respect to clauses (iii), (iv) and (v) above, a representation that the Proposing Stockholder will promptly notify the Corporation in writing of the same as of the record date for the meeting promptly following the later of the record date or the date notice of the record date is first publicly disclosed.
(D) With respect to all business other than director nominations, a Proposing Stockholder’s notice to the Secretary of the Corporation shall set forth as to each matter the Proposing Stockholder proposes to bring before the annual meeting or properly called special meeting, as the case may be: (i) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting; (ii) the text of any proposal or business (including the text of any resolutions proposed to be considered and in the event such business includes a proposal to amend these Bylaws the language of the proposed amendment); (iii) any other information relating to each Holder required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal and pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; and (iv) a description of all agreements, arrangements, or understandings between or among such Proposing Stockholder, or any Affiliates or Associates of such Proposing Stockholder, and any other person or persons (including their names) in connection with the proposal of such business and any material interest of such Proposing
Stockholder or Stockholder Associated Person in such business, including any anticipated benefit therefrom to such Proposing Stockholder or any Stockholder Associated Person.
(iv) Notwithstanding anything in paragraph (a)(iii) of this Section 17 to the contrary, in the event that the number of directors to be elected to the Board of Directors at an annual meeting is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least ten days before the last day a Proposing Stockholder may deliver a notice of nominations in accordance with paragraph (a)(iii) of this Section 17, a Proposing Stockholder’s notice required by this Section 17 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.
(v) A Proposing Stockholder shall further update and supplement its notice of any nomination or other business proposed to be brought before an annual meeting or special meeting, if necessary, so that the information provided or required to be provided in such notice pursuant to Section 17 shall be true and correct (i) as of the record date for the meeting and (ii) as of the date that is ten business days prior to the meeting or any adjournment, recess, rescheduling or postponement thereof. Such update and supplement shall be delivered to the Secretary not later than three business days after the later of the record date or the date notice of the record date is first publicly announced (in the case of the update and supplement required to be made as of the record date for the meeting) and not later than seven business days prior to the date for the meeting, if practicable (or, if not practicable, on the first practicable date prior to the meeting), or any adjournment, recess, rescheduling or postponement thereof (in the case of the update and supplement required to be made as of ten business days prior to the meeting or any adjournment, recess, rescheduling or postponement thereof).
(vi) The Corporation may also, as a condition to any such nomination or business being deemed properly brought before any meeting, require any Proposing Stockholder or any proposed nominee to deliver to the Secretary, within five business days of any such request, such other information as may reasonably be requested by the Corporation, including, without limitation, such other information (A) as may be reasonably required by the Board of Directors, in its sole discretion, to determine (i) the eligibility of such proposed nominee to serve as a director and (ii) whether such nominee qualifies as an “independent director” or “audit committee financial expert” under applicable law, securities exchange rule or regulation, or any publicly disclosed corporate governance guideline or committee charter of the Corporation and (B) that the Board of Directors determines, in its sole discretion, could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.
(b) Notwithstanding anything in these Bylaws to the contrary: (i) no nominations shall be made or business shall be conducted at any annual meeting or special meeting except in accordance with the procedures set forth in this Section 17; and (ii) unless otherwise required by law, if a Proposing Stockholder intending to propose business or make nominations at an annual meeting or special meeting pursuant to this Section 17 does not provide the information required under this Section 17 to the Corporation in accordance with the applicable timing requirements set forth in these Bylaws, or the Proposing Stockholder (or a qualified representative of the Proposing Stockholder) does not appear at the meeting to present the proposed business or nominations, such business or nominations shall not be considered, notwithstanding that proxies in respect of such business or nominations may have been received by the Corporation.
(c) For purposes of this Section 17: (i) “close of business” on a particular day shall mean 5:00 p.m. local time in Richmond, Virginia on such day, and if an applicable deadline falls on the close of business
on a day that is not a business day, then the applicable deadline shall be deemed to be the close of business on the immediately preceding business day; (ii) “delivery” of any notice or materials by a stockholder as required to be delivered under this Section 17 shall be made by both (A) hand delivery, overnight courier service, or by certified or registered mail, return receipt required, in each case, to the Secretary at the principal executive offices of the Corporation and (B) email to the Secretary; (iii) “business day” shall mean each Monday, Tuesday, Wednesday Thursday and Friday that is not a day on which banking institutions in Richmond, Virginia are authorized or obligated by law or executive order to close; (iv) “Affiliate” shall have the meaning attributed to such term in Rule 12b-2 under the Exchange Act; (v) “Associate” shall have the meaning attributed to such term in Rule 12b-2 under the Exchange Act; and (vi) “Stockholder Associated Person” shall mean as to any Holder (A) any person acting in concert with such Holder, (B) any person controlling, controlled by or under common control with such Holder or any of their respective Affiliates and Associates, or person acting in concert therewith and (C) any member of the immediate family of such Holder or an Affiliate or Associate of such person.
Article III – Directors
(a) Annual Meetings. The Board of Directors shall meet for the purpose of organization, the election of officers and the transaction of other business, as soon as practicable after each annual meeting of stockholders, on the same day and at the same place where such annual meeting shall be held. Notice of such meeting need not be given. In the event that such annual meeting is not so held, the annual meeting of the Board of Directors may be held at such other time or place (within or without the State of Delaware) as provided in Article II, Section 3 hereof.
(b) Regular Meetings. Regular meetings of the Board of Directors shall be held without notice at such time or times, on such date or dates and at such place or places as the Board of Directors may from time to time determine and publicized among all directors. A notice of each regular meeting shall not be required.
(c) Special Meetings. Special meetings of the Board of Directors may be called by one-third of the directors then in office (rounded up to the nearest whole number), by the Chairperson of the Board, or by the Chief Executive Officer, and shall be held at such place, on such date, and at such time as they or he or she shall fix.
(d) Notice of Special Meeting. Notice of the time, date and place of all special meetings of the Board of Directors shall be given to each director by whom it is not waived by the Secretary or an Assistant Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the officer or one of the directors calling the meeting, in each case not less than 24 hours before the meeting. Notice of any such meeting need not be given to any director who shall waive such notice in conformity with Article IV hereof. A notice of a special meeting of the Board of Directors need not specify the purposes of
the meeting unless required by the Certificate of Incorporation or these Bylaws. All notices to directors shall conform to the requirements of Article IV.
(e) Waiver of Notice of Special Meeting. A director may waive any notice of a special meeting before or after the date and time of the meeting. The waiver shall be in writing, signed by the director entitled to the notice, or in the form of an electronic transmission by the director to the Corporation, and filed with the minutes or corporate records. A director’s attendance at or participation in a meeting waives any required notice to such person of the meeting unless the director at the beginning of the meeting, or promptly upon such person’s arrival, objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
(f) Quorum. At any meeting of the Board of Directors, a majority of the total number of directors then in office shall constitute a quorum for all purposes; provided, that if a quorum of directors shall fail to attend any meeting, any number of directors (whether one or more and whether or not constituting a quorum) constituting a majority of directors present at such meeting may adjourn the meeting to another place, date or time, without further notice or waiver thereof.
(g) Action at Meeting. At any meeting of the Board of Directors at which a quorum is present (or such smaller number as may make a determination pursuant to Section 145 of the DGCL or any successor provision), business shall be transacted in such order and manner as the Board of Directors may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present at such meeting at which there is a quorum, except as is required or provided by law, by the Certificate of Incorporation or by these Bylaws.
(h) Action Without Meeting. Unless the Certificate of Incorporation otherwise provides, any action required or permitted to be taken by the Board of Directors may be taken without a meeting if the action is taken by the unanimous consent of the Board of Directors. The action without a meeting must be evidenced by written consent, which may be executed by each director in counterpart, describing the action taken, or delivered to the Corporation by mail or by electronic transmission to the address specified by the Corporation, or, if no address has been specified, to the principal office of the Corporation, addressed to the Secretary or other officer or agent having custody of the records of proceedings of directors, and such written consents shall be included in the minutes of the Board or filed with the corporate records reflecting the action taken. Action taken under this Section 7 is effective when the last director signs or delivers the consent, unless the consent specifies a different effective date. A consent signed or delivered under this Section 7 has the effect of a meeting vote and may be described as such in any document.
(i) Telephone Conference Meetings. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors may permit any or all directors to participate in a regular or special meeting of the Board of Directors, or any meeting of any committee thereof, by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is considered to be present in person at the meeting.
(j) Interested Parties. A contract or transaction between the Corporation and one or more of its directors or officers who has a financial interest in said contract or transaction (such director or officer is hereinafter referred to as an “Interested Party”), or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers is an Interested Party, shall not be void or voidable solely for this reason or solely because the Interested Party is present or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, as long as: (a) the material facts as to the Interested Party’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee and the Board or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though less than a quorum; or (b) the material facts as to the Interested Party’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved, or ratified by the Board of Directors, a committee thereof, or the stockholders. Interested Parties who are directors of the Corporation shall recuse themselves from any vote regarding such contract or transaction, but may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee thereof that authorizes the contract or transaction or for the purposes of taking action without a meeting pursuant to unanimous consent.
(a) Standing Committees. The Board of Directors shall appoint from among its members directors to serve on an Audit Committee, a Compensation Committee, a Nominating and Corporate Governance Committee, and a Compliance and Regulatory Affairs Committee, each of which shall be composed of at least two directors or such higher number of directors as may be required by law or by the listing standards the New York Stock Exchange or such other stock exchange on which shares of the Corporation are listed, with such lawfully delegable powers and duties as it thereby confers or that are required by law or applicable listing standards.
(b) Other Committees. Unless otherwise provided by the Certificate of Incorporation or these Bylaws, the Board of Directors, by vote of a majority of all the directors then in office, may from time to time establish one or more other committees of the Board and may delegate thereto such lawfully delegable powers and duties as it thereby confers. All members of any such committee shall serve at the pleasure of the Board of Directors, and the Board of Directors may abolish any such committee at any time. Any committee to which the Board of Directors delegates any of its powers or duties shall keep records of its meetings and shall report its actions to the Board of Directors. The Board of Directors shall have the power to rescind any action of any such committee, but no such rescission shall have retroactive effect unless the committee has taken an action that exceeded its delegated powers.
(c) Substitution of Members. In the absence or disqualification of any member of any committee and any alternate member serving in such person’s place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not such person or persons constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
(d) Delegable Authority. Pursuant to the powers delegated to it, a committee 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, except as otherwise provided by the DGCL.
(e) Term. Subject to the requirements specifically set forth in this Section 8, the Board may at any time change, increase or decrease the number of members of a committee or terminate the existence of a committee. The Board may at any time for any reason remove a director from serving as a committee member and the Board may fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee. The membership of the committee shall be appointed by the Board of Directors annually at the Annual Meeting of the Board of Directors, on recommendation of the Nominating and Corporate Governance Committee in consultation with the Chairperson of the Board of Directors to serve until the next Annual Meeting of the Board of Directors. The Board of Directors may, subject to the requirements specifically set forth in this Section 8, 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, and, in addition, in the absence or disqualification of any member of a committee, the
member or members thereof present at any meeting and not disqualified from voting, whether or not such person or persons constitute a quorum, may, subject to the requirements specifically set forth in this Section 8, unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
(f) Conduct of Business of Committees. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings. A majority of the members shall constitute a quorum unless the committee shall consist of one or two members, in which event one member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
Article IV – Manner of Notice
Article V – Officers
(a) Subject to these Bylaws, each officer of the Corporation shall have, in addition to the duties and powers specifically set forth in these Bylaws, such duties and powers as are customarily incident to such person’s office, and such duties and powers as may be designated from time to time by the Board of Directors or by direction of an officer authorized by the Board of Directors to prescribe the duties of such other officer.
(b) Whenever an officer or officers is absent, or whenever for any reason the Board of Directors may deem it desirable, the Board may delegate the powers and duties of any officer or officers to any director or directors.
(c) The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any other provision hereof.
Article VI – Execution of Corporate Instruments and
Voting of Securities Owned by the Corporation
(a) The Board of Directors may, in its discretion, determine the method and designate the signatory officer or officers, or other person or persons, to execute any corporate instrument or document, or to sign the corporate name without limitation, except where otherwise provided by law, and such execution or signature shall be binding upon the Corporation.
(b) Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the Corporation, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the Corporation, and other corporate instruments or documents requiring the corporate seal shall be executed, signed or endorsed by the Chairperson of the Board or by the Chief Executive Officer; in the alternative, such documents may be executed by the Chief Financial Officer or the President and countersigned or attested by the Secretary or Treasurer or any Assistant Secretary or Assistant Treasurer. Certificates of stock shall be signed as set forth in Section 2 of Article VII of these Bylaws. All other instruments and documents requiring the corporate signature, but not requiring the corporate seal, may be executed as aforementioned or in such other manner as may be directed by the Board of Directors.
(c) All checks and drafts drawn on banks or other depositaries on funds to the credit of the Corporation, or in special accounts of the Corporation, shall be signed by such person or persons as the Board of Directors shall authorize so to do.
Article VII – Capital Stock
Article VIII – Corporate Records
(a) The Corporation shall keep as permanent records minutes of all meetings of its stockholders and Board of Directors, a record of all actions taken by the stockholders or Board of Directors without a meeting, and a record of all actions taken by a committee of the Board of Directors in place of the Board of Directors on behalf of the Corporation. The Corporation or its agent shall maintain a record of its stockholders, in a form that permits preparation of a list of the names and addresses of all stockholders, in alphabetical order by class of shares showing the number and class of shares held by each. The Corporation shall maintain its records in written form or in another form capable of conversion into written form within a reasonable time.
(b) The Corporation shall keep within The State of Delaware a copy of such records at its principal office or an office of its transfer agent or of its Secretary or Assistant Secretary or of its registered agent as may be required by law.
Article IX – Indemnification
Article X – Miscellaneous Provisions
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