NIC-Colorado shall not be required to wind up its affairs or pay its liabilities and distribute its assets, and the Conversion shall not be deemed to constitute a dissolution of NIC-Colorado and shall constitute a continuation of the existence of NIC-Colorado in the form of a Delaware corporation.

 

3.              Effective Time . Provided that this Plan has not been terminated, abandoned or deferred pursuant to Section 11, the Conversion shall be effected as soon as practicable after the shareholders of NIC-Colorado have approved this Plan. Subject to the foregoing, unless another date and time is specified, the Conversion shall be effective upon (a) the filing with the Secretary of State of the State of Colorado of a duly executed Statement of Conversion meeting the requirements of Section 7-90-201.7 of the CCAA and (b) the filing with the Secretary of State of the State of Delaware of (i) a duly executed Certificate of Conversion meeting the requirements of Section 265 of the DGCL, and (ii) the Certificate of Incorporation of NIC-Delaware in the form specified below (the “ Effective Time ”).

 

4.              Governance and Other Matters Related to NIC-Delaware .

 

(a)            Certificate of Incorporation . At the Effective Time, the Certificate of Incorporation of NIC-Delaware shall be substantially in the form of Exhibit A attached hereto and shall be filed with the Delaware Secretary of State.

 

(b)            Bylaws . At the Effective Time, the Bylaws of NIC-Delaware shall be as set forth in Exhibit B attached hereto (the “ Bylaws ”), and shall be adopted as such by the Board of Directors of NIC-Delaware. Thereafter, the Bylaws may be amended by the Board of Directors or stockholders of NIC-Delaware as provided in the Certificate of Incorporation and Bylaws of NIC-Delaware.

 

(c)            Directors and Officers . The members of the Board of Directors and the officers of NIC-Colorado immediately prior to the Effective Time shall continue in office following the Effective Time as directors and officers of NIC-Delaware until the expiration of their respective terms of office and until their successors have been elected and qualified, or until their earlier death, resignation or removal. After the Effective Time, NIC-Delaware and its Board of Directors shall take any necessary actions to cause each of such individuals to be appointed or to confirm such appointments.

 

5.              Effect of the Conversion on the Common Stock of NIC-Colorado . Subject to the terms and conditions of this Plan, at the Effective Time, automatically by virtue of the Conversion and without any further action on the part of NIC-Colorado, NIC-Delaware or any shareholder thereof, each share of common stock, no par value per share, of NIC-Colorado (the “ Colorado Common Stock ”), shall convert into one validly issued, fully paid and nonassessable share of common stock, par value $0.0001 per share, of NIC-Delaware (the “ Delaware Common Stock ”).

 

6.              Stock Certificates . From and after the Effective Time, all of the outstanding certificates which prior to that time represented shares of Colorado Common Stock shall be deemed for all purposes to evidence ownership of and to represent the shares of Delaware Common Stock into which the shares represented by such certificates have been converted as

 

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provided herein. The registered owner on the books and records of NIC-Delaware or its transfer agent of any such outstanding stock certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to NIC-Delaware or its transfer agent, have and be entitled to exercise any voting and other rights with respect to and to receive any dividend and other distributions upon the shares of NIC-Delaware evidenced by such outstanding certificate as provided above.

 

7.              Employee Benefit and Compensation Plans . At the Effective Time, each employee benefit plan, incentive compensation plan, stock purchase plan and other similar plans to which NIC-Colorado is then a party shall be automatically assumed by, and continue to be the plan of, NIC Delaware, without further action by NIC-Colorado or NIC-Delaware. To the extent any employee benefit plan, incentive compensation plan or other similar plan provides for the issuance or purchase of, or otherwise relates to, Colorado Common Stock, after the Effective Time such plan shall be deemed to provide for the issuance or purchase of, or otherwise relate to, the Delaware Common Stock.

 

8.              Outstanding Awards . At the Effective Time, all outstanding stock options, purchase rights, restricted stock awards and other stock awards relating to the Colorado Common Stock shall, by virtue of the Conversion and without any further action on the part of NIC-Colorado, NIC-Delaware or the holder thereof, continue on the same terms and conditions and be assumed by NIC-Delaware, provided that all such awards shall be deemed to provide for the issuance or purchase of, or otherwise relate to, the Delaware Common Stock. !

 

9.              Further Assurances . If, at any time after the Effective Time, NIC-Delaware shall determine or be advised that any agreements, documents or assurances or any other acts or things are necessary, desirable or proper, consistent with the terms of this Plan to carry out the purposes of this Plan, NIC-Delaware and its proper officers and directors (or their designees), are hereby authorized to execute and deliver, in the name and on behalf of NIC-Colorado all such agreements, documents and assurances and do, in the name and on behalf of NIC-Colorado, all such other acts and things necessary, desirable to carry out the purposes of this Plan and the Conversion.

 

10.            Amendment . This Plan may be amended by the Board of Directors of NIC-Colorado at any time prior to the Effective Time, provided that an amendment made subsequent to the approval of this Plan by the shareholders of NIC-Colorado shall not alter or change (a) the amount or kind of shares or other securities to be received by the shareholders hereunder, (b) any term of the Certificate of Incorporation or the Bylaws, other than changes permitted to be made without stockholder approval by the DGCL, or (c) any of the terms and conditions of this Plan if such alteration or change would adversely affect the holders of any class or series of the stock of NIC-Colorado.

 

11.            Termination or Deferral . At any time before the Effective Time, this Plan may be terminated and the Conversion may be abandoned by action of the Board of Directors of NIC-Colorado, notwithstanding the approval of this Plan by the shareholders of NIC-Colorado, or the consummation of the Conversion may be deferred for a reasonable period of time if, in the opinion of the Board of Directors of NIC-Colorado, such action would be in the best interest of NIC-Colorado and its shareholders. In the event of termination of this Plan, this Plan shall

 

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become void and of no effect and there shall be no liability on the part of NIC-Colorado or its Board of Directors or shareholders with respect thereto.

 

12.            Third Party Beneficiaries . This Plan shall not confer any rights or remedies upon any person or entity other than as expressly provided herein.

 

13.            Severability . Whenever possible, each provision of this Plan will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Plan is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Plan.

 

[Signature page follows]

 

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IN WITNESS WHEREOF, NIC-Colorado has caused this Plan to be executed by its duly authorized representative as of the date first stated above.

 

 

		NIC INC., a Colorado corporation
		By:	/s/ William F. Bradley, Jr.
		Name:	William F. Bradley, Jr.
		Title:	Chief Operating Officer, General Counsel and Secretary

 

5

 

Exhibit A

 

CERTIFICATE OF INCORPORATION

 

OF

 

NIC INC.

 

ARTICLE I

 

NAME

 

The name of the corporation is NIC Inc. (hereinafter referred to as the “ Corporation ”).

 

ARTICLE II

 

PERIOD OF DURATION

 

The Corporation shall exist perpetually unless dissolved in accordance with applicable law.

 

ARTICLE III

 

REGISTERED OFFICE

 

The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The name of the registered agent of the Corporation at that address is The Corporation Trust Company.

 

ARTICLE IV

 

PURPOSE

 

The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law.

 

ARTICLE V

 

CAPITAL STOCK

 

Section 1.           Authorized Stock .  The total number of shares of stock which the Corporation has authority to issue is Two Hundred Million (200,000,000) shares of Common Stock, par value $.0001 per share (the “ Common Stock ”).

 

Section 2.           Voting Rights .  Except as otherwise provided herein with respect to any class or series of Preferred Stock outstanding at any time, voting power for the election of directors and for all other purposes shall be vested exclusively in the holders of the Common Stock. Except as otherwise provided herein with respect to any class or series of Preferred Stock outstanding at any time, at every meeting of stockholders of the Corporation each holder of

 

 

Common Stock shall be entitled to one vote per share on all matters submitted to a vote of stockholders; provided, however, that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Certificate of Designations relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding classes or series of Preferred Stock if the holders of such affected classes or series are entitled, either separately or together as a class with the holders of one or more other such classes or series, to vote thereon pursuant to this Certificate of Incorporation (including any Certificate of Designations relating to any series of Preferred Stock).

 

Section 3.           Dividends .  Subject to the rights, powers and preferences applicable to any class or series of Preferred Stock outstanding at any time, the holders of Common Stock shall be entitled to receive dividends when and as declared out of funds legally available therefor at such times and in such amounts as the Board of Directors may determine in its sole discretion. Holders of shares of Common Stock shall be entitled to share equally, share for share, in such dividends.

 

Section 4.           Liquidation .  If any voluntary or involuntary liquidation, dissolution or winding up of the Corporation occurs, then after payment or provision for payment of the debts and other liabilities of the Corporation, subject to the rights, powers and preferences of any class or series of Preferred Stock, the remaining assets of the Corporation available for distribution to stockholders shall be distributed ratably to the holders of Common Stock in proportion to the number of shares held by them. Neither the merger nor consolidation of the Corporation, nor the transfer of all or part of its assets, shall be deemed to be a voluntary or involuntary liquidation, dissolution or winding up of the Corporation within the meaning of this Section 4 of ARTICLE V .

 

Section 5.           No Preemptive Rights; No Cumulative Voting .  Except as may be expressly provided with respect to any class or series of Preferred Stock, no holder of shares of capital stock of any class or series of the Corporation or holder of any security or obligation convertible into shares of capital stock of any class or series of the Corporation shall have any preemptive right whatsoever to subscribe for, purchase or otherwise acquire shares of capital stock of any class or series of the Corporation, whether now or hereafter authorized; provided that this provision shall not (i) prohibit the Corporation from granting, contractually or otherwise, to any such holder, rights similar to preemptive rights entitling such holder to purchase additional securities of the Corporation or (ii) otherwise limit or otherwise modify any rights of any such holder pursuant to any such contract or other agreement. Except as may be expressly provided with respect to any class or series of Preferred Stock, stockholders of the Corporation shall not be entitled to cumulative voting of their shares in elections of directors.

 

Section 6.           No Action Without a Meeting . Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders. Notwithstanding the foregoing sentence, the holders of any class or series of Preferred Stock shall be entitled to take action by written consent to such extent, if any, as may be provided herein.

 

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ARTICLE VI

 

INCORPORATOR

 

The name and mailing address of the incorporator is as follows:

 

William F. Bradley, Jr.

25501 West Valley Parkway, Suite 300

Olathe, Kansas 66061

 

ARTICLE VII

 

BOARD OF DIRECTORS

 

Section 1.           General . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred upon them by statute or by this Certificate of Incorporation or the bylaws of the Corporation, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation.

 

Section 2.           Term .  Subject to any rights of holders of any class or series of Preferred Stock to elect directors under specified circumstances, at each annual meeting of stockholders, the stockholders shall elect directors to hold office for a term expiring at the next succeeding annual meeting of stockholders. Each director shall hold office for the term for which he or she is elected and until his or her successor shall have been elected and qualified or until his or her earlier death, resignation or removal.

 

Section 3.           Written Ballot . The directors of the Corporation need not be elected by written ballot unless the bylaws of the Corporation so provide.

 

Section 4.           Stockholder Notice . Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the bylaws of the Corporation.

 

ARTICLE VIII

 

BYLAWS

 

In furtherance and not in limitation of the powers conferred by statute, and subject to any provisions of this Certificate of Incorporation restricting such right, the Board of Directors is expressly authorized to make, alter, amend and repeal the bylaws of the Corporation.

 

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ARTICLE IX

 

LIMITATION OF LIABILITY

 

A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.

 

Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.

 

ARTICLE X

 

INDEMNIFICATION

 

The Corporation shall indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director or an officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent authorized or permitted by law and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification to employees and agents of the Corporation to the fullest extent authorized or permitted by law. The Corporation may advance expenses (including attorneys’ fees) incurred by an indemnitee in defending any action, suit, or proceeding in advance of the final disposition of such action, suit or proceeding to the fullest extent authorized or permitted by law.

 

The rights to indemnification conferred in this Article X shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation, the bylaws of the Corporation, any statute, agreement, vote of stockholders or disinterested directors or otherwise. Any repeal or modification of this Article X shall not adversely affect any rights to indemnification of any indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.

 

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ARTICLE XI

 

RIGHT TO AMEND CERTIFICATE OF INCORPORATION

 

The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and all rights conferred upon stockholders are granted subject to this reservation.

 

I, the undersigned, for purposes of forming a corporation under the laws of the State of Delaware, do make, file and record this Certificate, and do certify that the facts herein are true, and I have accordingly hereunto set my hand this 7 th  day of May, A.D. 2009.

 

 

		By:
		Name:	William F. Bradley, Jr.

 

5

 

Exhibit B

 

BYLAWS

 

OF

 

NIC INC.,

 

a Delaware corporation

 

 

As adopted on May 7, 2009

 

 

TABLE OF CONTENTS

 

ARTICLE I OFFICES		1
Section 1.01.	Registered Office	1
Section 1.02.	Other Offices	1
ARTICLE II MEETINGS OF STOCKHOLDERS		1
Section 2.01.	Time and Place of Meetings	1
Section 2.02.	Annual Meeting	1
Section 2.03.	Special Meetings	1
Section 2.04.	Business Brought Before a Meeting	2
Section 2.05.	Nomination of Directors	5
Section 2.06.	Definitions	7
Section 2.07.	Notices of Annual and Special Meetings	9
Section 2.08.	Quorum	9
Section 2.09.	Proxies and Voting	10
Section 2.10.	Organization	11
Section 2.11.	Conduct of Business	11
Section 2.12.	List of Stockholders Entitled to Vote	11
Section 2.13.	Stock Ledger	11
ARTICLE III DIRECTORS		11
Section 3.01.	Number of Directors	11
Section 3.02.	Vacancies	12
Section 3.03.	Duties and Powers	12
Section 3.04.	Meetings	12
Section 3.05.	Quorum	12
Section 3.06.	Actions of the Board of Directors in Lieu of a Meeting	13
Section 3.07.	Meetings by Means of Conference Telephone	13
Section 3.08.	Committees	13
Section 3.09.	Compensation	14
Section 3.10.	Interested Directors	14
Section 3.11.	Audit Committee	14
Section 3.12.	Compensation Committee	15
Section 3.13.	Corporate Governance and Nominating Committee	15
ARTICLE IV OFFICERS		15
Section 4.01.	General	15
Section 4.02.	Election	15
Section 4.03.	Voting Securities Owned by the Corporation	15
Section 4.04.	Chairman of the Board of Directors	16
Section 4.05.	Chief Executive Officer	16
Section 4.07.	Vice Presidents	16
Section 4.08.	Secretary	17
Section 4.09.	Assistant Secretaries	17
Section 4.10.	Chief Financial Officer	17

 

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Section 4.11.	Other Officers	17
Section 4.12.	Resignations	18
Section 4.13.	Removal	18
Section 4.14.	Compensation	18
Section 4.15.	Authority and Duties of Officers	18
ARTICLE V STOCK		18
Section 5.01.	Certificates for Shares of Stock	18
Section 5.02.	Transfers of Stock	19
Section 5.03.	Regulations	19
Section 5.04.	Lost Certificates	19
Section 5.05.	Record Date	19
Section 5.06.	Beneficial Owners	20
ARTICLE VI NOTICES		20
Section 6.01.	Notices	20
ARTICLE VII GENERAL PROVISIONS		20
Section 7.01.	Dividends	20
Section 7.02.	Disbursements	21
Section 7.03.	Fiscal Year	21
Section 7.04.	Corporate Seal	21
Section 7.05.	Facsimile Signatures	21
Section 7.06.	Reliance upon Books, Reports and Records	21
Section 7.07.	Time Periods	21
ARTICLE VIII INDEMNIFICATION		21
Section 8.01.	Indemnification; Generally	21
Section 8.02.	Indemnification in Actions by Third Parties	22
Section 8.03.	Indemnification in Derivative Actions	22
Section 8.04.	Indemnification for Expenses	23
Section 8.06.	Advancement of Expenses	23
Section 8.07.	Non-Exclusivity	23
Section 8.08.	Insurance	24
Section 8.09.	Vesting of Rights	24
Section 8.10.	Definitions	24
Section 8.11.	Partial Indemnification	25
ARTICLE IX AMENDMENTS		26
Section 9.01.	Amendments	26

 

ii

 

BYLAWS

 

OF

 

NIC INC.

 

ARTICLE I

 

OFFICES

 

Section 1.01.         Registered Office .  NIC Inc. (the “ Corporation ”) shall at all times maintain a registered office in the State of Delaware. The registered office and registered agent of the Corporation shall be fixed in the Corporation’s Certificate of Incorporation (as it may be amended from time to time, the “ Certificate of Incorporation ”) and may be changed from time to time by the Corporation in the manner specified by law.

 

Section 1.02.         Other Offices .  The Corporation may also have offices at such other places both within and outside the State of Delaware as the board of directors of the Corporation (the “ Board of Directors ”) may from time to time determine or as may be appropriate for the business of the Corporation.

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

Section 2.01.         Time and Place of Meetings . Meetings of the stockholders for the election of directors or for any other purpose will be held at such time and place, either within or without the State of Delaware, as designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. The Board of Directors may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a) of the Delaware General Corporation Law (the “ DGCL ”).

 

Section 2.02.         Annual Meeting .  Annual meetings of stockholders will be held each year on such date and at such time as designated by the Board of Directors. At the annual meeting, the stockholders shall elect directors nominated in accordance with Section 2.05 and shall transact only such other business as is properly brought before the meeting in accordance with these Bylaws.

 

Section 2.03.         Special Meetings .  Subject to the rights of the holders of any class or series of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by (a) the Board of Directors acting pursuant to a resolution adopted by a majority of the members of the Board of Directors then in office or (b) by the Corporation upon the written request of the holder or holders of greater than 50% of the outstanding shares entitled to vote at the meeting. In the event that the Corporation receives such a written request in proper form, the Corporation shall have 120 days after receipt of such request to call and hold the meeting, and if the Corporation fails to call and hold the meeting within 120 days, the special meeting may then be called directly by the stockholders holding greater than 50% of the outstanding shares entitled

 

1

 

to vote at the meeting. The written request shall specify the purpose or purposes for which the meeting is to be called and shall include: (1) for business to be brought before the special meeting other than the election of directors, the information required by Section 2.04 with respect to stockholder proposed business at annual meetings and (2) for the election of directors, the information required by Section 2.05 with respect to stockholder nominations of directors at annual meetings. The stockholders requesting or calling a special meeting of stockholders shall update and supplement the information in the written request to the same extent as required under Sections 2.04 and 2.05. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the notice of meeting.

 

Section 2.04.         Business Brought Before a Meeting .  (A)  At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting.  To be properly brought before an annual meeting, business must be (1) specified in the notice of meeting (or any supplements thereto) given by or at the direction of the Board of Directors (or a duly authorized committee thereof); (2) brought before the meeting by or at the direction of the Board of Directors; or (3) otherwise properly brought before the meeting by a stockholder who (a) was a stockholder of record at the time of giving the notice provided for in this Section 2.04 and on the record date for the determination of stockholders entitled to vote at the annual meeting, (b) is entitled to vote at the meeting, and (c) complied with all of the notice procedures set forth in this Section 2.04 as to such business (except for proposals made in accordance with Rule 14a-8 under the Exchange Act (as defined in Section 2.06 ), which are addressed in Section 2.04(E) ).  The foregoing clause (3) shall be the exclusive means for a stockholder to propose business to be brought before an annual meeting of the stockholders.  Stockholders seeking to nominate persons for election to the Board of Directors must comply with the notice procedures set forth in Section 2.05 of these Bylaws, and this Section 2.04 shall not be applicable to nominations except as expressly provided therein.

 

(B)  Without qualification, for business to be properly brought before an annual meeting by a stockholder, the stockholder must (1) provide Timely Notice (as defined in Section 2.06 ) thereof in writing and in proper form to the Secretary of the Corporation and (2) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.04 .  In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of Timely Notice.

 

(C)  To be in proper form for purposes of this Section 2.04 , a stockholder’s notice to the Secretary pursuant to this Section 2.04 must set forth:

 

(1)            (a)  the name and address of the stockholder providing the notice, as they appear on the Corporation’s books, and of the other Proposing Persons (as defined in Section 2.06 ),

 

(b) the class or series and number of shares of the Corporation that are, directly or indirectly, owned of record and the class and number of shares beneficially owned (as defined in Rule 13d-3 under the Exchange Act) by each Proposing Person, except that any such Proposing Person shall be deemed to beneficially own any shares of any class or series of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future, and

 

2

 

(c) a representation that each Proposing Person will notify the Corporation in writing of the class and number of shares owned of record, and of the class and number of shares owned beneficially, in each case, as of the record date for the meeting;

 

(2)            as to each Proposing Person, (a) any Derivative Instruments (as defined in Section 2.06 ) that are, directly or indirectly, owned or held by such Proposing Person, (b) any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person, directly or indirectly, has or shares a right to vote any shares of any class or series of the Corporation, (c) any Short Interests (as defined in Section 2.06 ), that are held directly or indirectly by such Proposing Person, (d) any rights to dividends on the shares of any class or series of the Corporation owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the Corporation, (e) any performance-related fees (other than an asset based fee) that such Proposing Person is entitled to receive based on any increase or decrease in the price or value of shares of any class or series of the Corporation, of any Derivative Instruments or of any Short Interests, if any, including, without limitation, any such shares, instruments or interests held by persons sharing the same household as such Proposing Person, and (f) any plans or proposals that the Proposing Person may have that relate to or may result in the acquisition or disposition of securities of the Corporation, an extraordinary corporate transaction (such as the sale of a material amount of assets of the Corporation or any of its subsidiaries, a merger, reorganization or liquidation) involving the Corporation or any of its subsidiaries, any change in the Board of Directors or management of the Corporation (including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board of Directors), any material change in the present capitalization or dividend policy of the Corporation, any change in the Corporation’s Certificate of Incorporation or Bylaws, causing a class of securities of the Corporation to be delisted from a national securities exchange or any other material change in the Corporation’s business or corporate structure or any action similar to those listed above;

 

(3)            as to each matter proposed to be brought by any Proposing Person before the annual meeting, (a) a brief description of the business desired to be brought before the annual meeting, the reasons for conducting such business at the meeting, and any material interest of such Proposing Person in such business and (b) a reasonably detailed description of all agreements, arrangements, understandings or relationships between or among any of the Proposing Persons and/or any other persons or entities (including their names) in connection with the proposal of such business by such Proposing Person; and

 

(4)            any other information relating to any Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for the proposal pursuant to Section 14 of the Exchange Act.

 

(D)  A stockholder providing notice of business proposed to be brought before an annual meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.04 shall be true and correct as of the record date for the meeting and as of the date of the meeting or

 

3

 

any adjournment or postponement thereof, as the case may be, and such update and supplement shall be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the later of the record date for the meeting or the date notice of such record date is first Publicly Disclosed (in the case of the update and supplement required to be made as of the record date), and as promptly as practicable after any change in the information required to be provided (in the case of any update or supplement required to be made after the record date).

 

(E)  This Section 2.04 is expressly intended to apply to any business proposed to be brought before an annual meeting, regardless of whether or not such proposal is made by means of an independently financed proxy solicitation.  In addition to the foregoing provisions of this Section 2.04 , each Proposing Person shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth in this Section 2.04 .  This Section 2.04 shall not be deemed to affect (1) the rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act and, if required by such rule to be included in the Corporation’s proxy statement, to include a description of such proposal in the notice of meeting and to be submitted for a stockholder vote at the applicable meeting, or (2) to affect the rights of the holders of any class or series of preferred stock as set forth in the Certificate of Incorporation.

 

(F)  Notwithstanding satisfaction of the provisions of this Section 2.04 , the proposed business described in the notice may be deemed not to be properly brought before the meeting if, pursuant to the Certificate of Incorporation, the Bylaws, state law or any rule or regulation of the Securities and Exchange Commission, it was offered as a stockholder proposal and was omitted, or had it been so offered, it could have been omitted, from the notice of, and proxy material for, the meeting (or any supplement thereto) authorized by the Board of Directors.

 

(G)  In the event Timely Notice is given pursuant to Section 2.04(B) , and the business described therein is not disqualified pursuant to this Section 2.04 , such business may be presented by, and only by, the stockholder who shall have given the notice required by this Section 2.04 , or a representative of such stockholder who is qualified under the law of the State of Delaware to present the proposal on the stockholder’s behalf at the meeting.

 

(H)  Notwithstanding anything in these Bylaws to the contrary: (1) no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section 2.04 or, subject to Section 2.04(E) , as permitted under Rule 14a-8 under the Exchange Act (other than the election of directors nominated in accordance with Section 2.05 ), and (2) unless otherwise required by law, if a Proposing Person intending to propose business at an annual meeting pursuant to Section 2.04(A)(3)  does not provide the information required under Section 2.04(C)  or does not update or supplement the notice in accordance with Section 2.04(D)  within the periods specified therein, or the stockholder who shall have given the notice required by Section 2.04 (or a qualified representative of the stockholder) does not appear at the meeting to present the proposed business, such business shall not be transacted, notwithstanding that proxies in respect of such business may have been received by the Corporation.  The chairperson of the annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section 2.04 and any such business not properly brought before the meeting

 

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shall not be transacted.  The requirements of this Section 2.04 are included to provide the Corporation notice of a stockholder’s intention to bring business before an annual meeting and shall in no event be construed as imposing upon any stockholder the requirement to seek approval from the Corporation as a condition precedent to bringing any such business before an annual meeting.

 

Section 2.05.         Nomination of Directors .  (A)  Nominations of persons for election to the Board of Directors at an annual meeting or special meeting called by the Board of Directors (but only if the Board of Directors has first determined that directors are to be elected at such special meeting) may be made at such meeting (1) by or at the direction of the Board of Directors (or a duly authorized committee thereof), or (2) by any stockholder who (a) was a stockholder of record at the time of giving the notice provided for in this Section 2.05 and on the record date for determination of stockholders entitled to vote at the meeting, (b) is entitled to vote at the meeting, and (c) complied with the notice procedures set forth in this Section 2.05 as to such nomination.  Except for the rights of the holders of any class or series of preferred stock to nominate or elect directors pursuant to the terms of such class or series in the Certificate of Incorporation, Section 2.05(A)(2)  of these Bylaws shall be the exclusive means for a stockholder to propose any nomination of a person or persons for election to the Board of Directors to be considered by the stockholders at an annual meeting or special meeting called by the Board of Directors.

 

(B)  Without qualification, for nominations to be made at an annual meeting by a stockholder, the stockholder must (1) provide Timely Notice (as defined in Section 2.06 ) thereof in writing and in proper form to the Secretary of the Corporation and (2) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.05 .  Without qualification, if the Board of Directors has first determined that directors are to be elected at a special meeting, then for nominations to be made at a special meeting by a stockholder, the stockholder must (1) provide notice thereof in writing and in proper form to the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the one hundred twentieth (120th) day prior to such special meeting and not later than the ninetieth (90th) day prior to such special meeting or, if later, the tenth (10th) day following the day on which the date of such special meeting was first Publicly Disclosed and (2) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.05 .  In no event shall any adjournment or postponement of an annual meeting or special meeting, or the announcement thereof, commence a new time period for the giving of a stockholder notice as described above.

 

(C)  To be in proper form for purposes of this Section 2.05 , a stockholder’s notice to the Secretary pursuant to this Section 2.05 must set forth:

 

(1)            (a) the name and address of the stockholder providing the notice, as they appear on the Corporation’s books, and of the other Proposing Persons,

 

(b) the information specified in Section 2.04(C)(1) , clauses (b) and (c), and Section 2.04(C)(2) , as to each Proposing Person, and

 

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(c) any other information relating to each Proposing Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with the solicitation of proxies for the election of directors in a contested election pursuant to Section 14 of the Exchange Act; and

 

(2)           as to each person whom the stockholder proposes to nominate for election as a director, (a) all information with respect to such proposed nominee that would be required to be set forth in a stockholder’s notice pursuant to this Section 2.05 if such proposed nominee were a Proposing Person; (b) all information relating to such proposed nominee that is required to be disclosed in a proxy statement or other filings required to be made in connection with the solicitation of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act (including such proposed nominee’s written consent to being named in the proxy statement as a nominee, if applicable, and to serving as a director if elected), (c) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among any Proposing Person, on the one hand, and each proposed nominee, his or her respective affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act), and any other persons or entities Acting in Concert with such nominee or any of his or her affiliates or associates, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if the Proposing Persons were the “registrant” for purposes of such rule and the proposed nominee were a director or executive officer of such registrant; and (d) a completed and signed questionnaire, representation and agreement as provided in Section 2.05(G) .

 

(D)  The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence or lack of independence of such nominee.

 

(E)  A stockholder providing notice of any nomination proposed to be made at a meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.05 shall be true and correct as of the record date for the meeting and as of the date of the meeting or any adjournment or postponement thereof, as the case may be, and such update and supplement shall be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the later of the record date for the meeting or the date notice of such record date is first Publicly Disclosed (in the case of the update and supplement required to be made as of the record date), and as promptly as practicable after any change in the information required to be provided (in the case of any update or supplement required to be made after the record date).

 

(F)  Notwithstanding anything in the first sentence of Section 2.05(B)  to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting of stockholders, a

 

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stockholder’s notice required by this Section 2.05 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such information was first Publicly Disclosed by the Corporation.

 

(G)  To be eligible to be a stockholder nominee for election as a director of the