SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
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CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): June 15, 2016
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SeaWorld Entertainment, Inc.
(Exact Name of Registrant as Specified in Charter)
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Delaware
of Incorporation) |
001-35883 (Commission File Number)
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27-1220297
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9205 South Park Center Loop, Suite 400 Orlando, Florida (Address of Principal Executive Offices) |
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32819 (Zip Code) |
(407) 226-5011
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
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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))
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On June 15, 2016, at the 2016 Annual Meeting of Stockholders (the “Annual Meeting”), the stockholders of SeaWorld Entertainment, Inc. (the “Company”), a Delaware corporation, approved amendments to the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) to provide for the phased-in declassification of the Company’s Board of Directors (the “Board”) beginning in 2017. A description of this amendment to the Certificate of Incorporation is more fully described on pages 25-26 of the Company’s definitive proxy statement for the Annual Meeting filed on April 29, 2016 (the “Proxy Statement”) in the section entitled “Proposal 4. Approval of Management Proposal to Amend the Company’s Certificate of Incorporation to Provide for the Phased-In Declassification of the Board of Directors,” which pages are incorporated herein by reference as Exhibit 99.1. The amendment to the Certificate of Incorporation reflecting these revisions was filed with the Secretary of State of the State of Delaware on June 15, 2016 and went effective on that date. The above description of the amendment to the Certificate of Incorporation is qualified in its entirety by reference to the text of the Certificate of Amendment of Amended and Restated Certificate of Incorporation, which is filed as Exhibit 3.1 hereto and is incorporated herein by reference.
On June 15, 2016, a corresponding amendment to the Company’s Second Amended and Restated Bylaws (the “Bylaws”) became effective, which amended Section 3.05 of the Bylaws to provide for the phased-in declassification of the Board beginning in 2017. The foregoing summary of the amendment to the Bylaws is qualified in its entirety by reference to the text of the Amendment No. 1 to the Bylaws, which is filed as Exhibit 3.2 hereto and is incorporated herein by reference.
In addition, at the Annual Meeting, the Company’s Board presented a proposal to the stockholders to determine the advisability of the Board taking the steps necessary to implement a majority voting standard in uncontested director elections. The proposal was approved by the requisite vote of the stockholders and, on June 15, 2016, the Board approved an amendment to Section 2.06 of the Company’s Bylaws to provide for a “majority voting standard” in uncontested director elections, effective immediately (the “Majority Vote Amendment”). The majority voting standard provision provides that a director nominee in an uncontested election is not elected unless he or she receives a majority of the votes cast, which means that the number of votes cast “for” a director’s election exceeds the number of votes cast “against” that director’s election (with “abstentions” and “broker non-votes” not counted as a vote cast either “for” or “against” that director’s election). A plurality voting standard remains applicable to any election in which the number of nominees for director is greater than the number to be elected.
The foregoing summary of the Majority Vote Amendment to the Bylaws is qualified in its entirety by reference to the text of the Amendment No.1 to the Bylaws which is attached as Exhibit 3.2 hereto and is incorporated by reference herein.
Item 5.07. Submission of Matters to a Vote of Security Holders.
(a)(b) On June 15, 2016, the Company held its Annual Meeting . A quorum was present at the meeting as required by the Company’s Bylaws. The immediately following charts set forth the number of votes cast for and against, and the number of abstention votes and broker non-votes, with respect to each matter voted upon by the stockholders.
Proposal 1 – Election of Directors
The following three individuals were elected to the Board of the Company to serve as directors until the 2019 Annual Meeting of Stockholders and until their successors have been duly elected and qualified.
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Votes
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Votes
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Broker
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Donald C. Robinson |
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65,494,730 |
1,515,730 |
5,324,519 |
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Deborah M. Thomas |
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65,977,013 |
1,033,447 |
5,324,519 |
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Peter F. Wallace |
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65,799,348 |
1,211,112 |
5,324,519 |
Proposal 2 – Ratification of Independent Registered Public Accounting Firm
The appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2016 was ratified.
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Votes
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Votes
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Votes
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71,374,661 |
455,808 |
504,510 |
Proposal 3 – Non-binding Vote on Executive Compensation
The stockholders approved, on an advisory, non-binding basis, the compensation paid to the Company’s named executive officers.
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Votes
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Votes
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Votes
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Broker
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54,687,371 |
7,699,284 |
4,623,805 |
5,324,519 |
Proposal 4 – Approval of Management Proposal to Amend the Company’s Certificate of Incorporation to Provide for the Phased-In Declassification of the Board of Directors
The amendment to the Company’s Amended and Restated Certificate of Incorporation to provide for the phased-in declassification of the Board, beginning in 2017, was approved.
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Votes
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Votes
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Votes
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Broker
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66,391,379 |
340,353 |
278,728 |
5,324,519 |
Proposal 5 – Management Proposal to Determine the Advisability of Implementing Majority Voting in Uncontested Director Elections
The stockholders approved, on an advisory basis, the implementation of majority voting in uncontested director elections.
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Votes
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Votes
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Votes
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Broker
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66,394,428 |
335,566 |
280,466 |
5,324,519 |
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
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Exhibit
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Title |
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3.1* |
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Certificate of Amendment of Amended and Restated Certificate of Incorporation of SeaWorld Entertainment, Inc., effective June 15, 2016. |
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3.2* |
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Amendment No. 1 to the Second Amended and Restated Bylaws of SeaWorld Entertainment, Inc., effective June 15, 2016. |
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99.1 |
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The section entitled “Proposal 4. Approval of Management Proposal to Amend the Company’s Certificate of Incorporation to Provide for the Phased-In Declassification of the Board of Directors” of the Company’s Proxy Statement is incorporated herein by reference from the Company’s Proxy Statement filed on April 29, 2016. |
* Filed herewith.
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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SEAWORLD ENTERTAINMENT, INC. |
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Date: June 17, 2016 |
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By: |
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/s/ G. Anthony (Tony) Taylor |
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Name: |
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G. Anthony (Tony) Taylor |
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Title: |
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Chief Legal Officer, General Counsel and Corporate Secretary |
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEAWORLD ENTERTAINMENT, INC.
Pursuant to Section 242
of the General Corporation Law of the State of Delaware
SeaWorld Entertainment, Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify that:
1. The Amended and Restated Certificate of Incorporation of the Corporation is hereby amended by deleting Section A of Article VI, and inserting the following in lieu thereof:
“A. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. Except as otherwise provided for or fixed pursuant to the provisions of Article IV (including any certificate of designation with respect to any series of Preferred Stock) and this Article VI relating to the rights of the holders of any series of Preferred Stock to elect additional directors, the total number of directors shall be determined from time to time exclusively by resolution adopted by the Board of Directors. Commencing at the annual meeting of stockholders to be held in 2017 (each annual meeting of stockholders, an “Annual Meeting”), subject to the special rights of holders of any series of Preferred Stock to elect additional directors, the directors of the Corporation shall be elected annually and shall hold office until the next Annual Meeting and until his or her successor shall be elected and qualified, or his or her death, resignation, retirement, disqualification or removal from office. Notwithstanding the foregoing, any director in office at the 2017 Annual Meeting whose term expires at the 2018 Annual Meeting or the 2019 Annual Meeting (each such director, a “Continuing Classified Director”), shall continue to hold office until the end of the term for which such director was elected and until his or her successor shall be elected and qualified, or his or her death, resignation, retirement, disqualification or removal from office.
In the event of any increase or decrease in the authorized number of directors, each Continuing Classified Director then serving shall nevertheless continue as a Continuing Classified Director until the expiration of his or her term or his or her death, resignation, retirement, disqualification or removal from office. In no event shall a decrease in the number of directors remove or shorten the term of any incumbent director.”
2. The Amended and Restated Certificate of Incorporation is hereby amended by deleting the last sentence of Section B of Article VI, and inserting the following in lieu thereof:
“Subject to the special rights of holders of any series of Preferred Stock to elect additional directors, any director elected to fill a vacancy or newly created directorship shall hold office until the next Annual Meeting and until his or her successor shall be elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal. Notwithstanding the foregoing, any director elected to fill a vacancy caused by the death, resignation, retirement, disqualification or removal of a Continuing Classified Director shall hold office until the Annual Meeting at which the term of such Continuing Classified Director would have expired and until his or her successor shall be elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal.”
3. The Amended and Restated Certificate of Incorporation is hereby amended by deleting Section C of Article VI, and inserting the following in lieu thereof:
“C. Subject to the special rights of holders of any series of Preferred Stock to elect additional directors, any or all of the directors may be removed at any time either with or without cause by the affirmative vote of a majority in voting power of all outstanding shares of stock of the Corporation entitled to vote thereon, voting as a single class; provided, however, that at any time when Blackstone beneficially owns, in the aggregate, less than 40% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, any such director or all such directors may be removed with or without cause only by the affirmative vote of the holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class. Notwithstanding the foregoing, to the fullest extent permitted by applicable law, at any time Blackstone beneficially owns, in the aggregate, less than 40% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, any Continuing Classified Director and any director appointed to fill a vacancy caused by the death, resignation, retirement, disqualification or removal of any Continuing Classified Director may be removed only for cause and only by the affirmative vote of the holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class.”
4. The foregoing amendments were duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
[ Signature Page Follows ]
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment to the Amended and Restated Certificate of Incorporation on this 15 th day of June , 2016.
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SEAWORLD ENTERTAINMENT, INC. |
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By: |
/s/ G. Anthony (Tony) Taylor |
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Name: G. Anthony (Tony) Taylor |
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Title: Chief Legal Officer, General Counsel and Corporate Secretary |
AMENDMENT NO. 1
TO THE SECOND AMENDED AND RESTATED BYLAWS
OF
SEAWORLD ENTERTAINMENT, INC.
1. The Second Amended and Restated Bylaws of SeaWorld Entertainment, Inc. are hereby amended by replacing the last sentence of Section 2.06 with the following text:
Except as otherwise expressly provided by the Amended and Restated Certificate of Incorporation or these Bylaws, at any meeting for the election of directors at which a quorum is present, each director shall be elected by the vote of the majority of the votes cast with respect to the director’s election; provided, however, that if as of a date that is fourteen (14) days in advance of the date the Corporation files its definitive proxy statement for such meeting (regardless of whether or not thereafter revised or supplemented) with the Securities and Exchange Commission, the number of nominees exceeds the number of directors to be elected at such meeting (a “contested election”), the directors shall be elected by a plurality of the votes cast. For purposes of this section, “a majority of the votes cast” means that the number of votes cast “for” a director’s election exceeds the number of votes cast “against” that director’s election (with “abstentions” and “broker non-votes” not counted as votes cast either “for” or “against” that director’s election). Any incumbent director nominee who fails to receive a majority of the votes cast in an election that is not a contested election shall offer to tender his or her resignation to the Board in accordance with the policies and procedures adopted by the Board from time to time. In accordance with such policies and procedures, the Nominating and Corporate Governance Committee will make a recommendation to the Board on whether to accept or reject such resignation, or whether other action should be taken, and the Board will act taking into account the Nominating and Corporate Governance Committee’s recommendation and publicly disclose its decision within 90 days from the date of the certification of the election results. Except as otherwise provided in the Amended and Restated Certificate of Incorporation, each director shall hold office until the annual meeting at which his or her term expires and until his or her successor shall be duly elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal from office.
2. The Second Amended and Restated Bylaws of SeaWorld Entertainment, Inc. are hereby amended by deleting Section 3.05 , and inserting the following in lieu thereof:
“SECTION 3.05 Vacancies and Newly Created Directorships . Except as otherwise provided by law and subject to the Stockholders Agreement, vacancies occurring in any directorship (whether by death, resignation, retirement, disqualification, removal or other cause) and newly created directorships resulting from any increase in the number of directors shall be filled in accordance with the Amended and Restated Certificate of Incorporation. Any director elected to fill a vacancy or newly created directorship shall hold office for the term set forth in the Amended and Restated Certificate of Incorporation.”
3. Except as set forth in this Amendment No. 1 to the Second Amended and Restated Bylaws of SeaWorld Entertainment, Inc., the Second Amended and Restated Bylaws of SeaWorld Entertainment, Inc. remain in full force and effect.