UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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)
December 5, 2014
TIBCO
Software Inc.
(Exact name of registrant as specified in its charter)
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| Delaware |
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000-26579 |
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77-0449727 |
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of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
3303 Hillview Avenue
Palo Alto, California 94304-1213
(Address of principal executive offices, including zip code)
(650) 846-1000
(Registrant’s telephone number, including area code)
Not Applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
Supplemental Indenture
TIBCO
Software Inc. (the “Company”) and U.S. Bank National Association, as trustee (“U.S. Bank”), are parties to an Indenture, dated as of April 23, 2012 (the “Existing Indenture”), governing the Company’s 2.25%
Convertible Senior Notes due 2032 (the “Existing Notes”). On December 5, 2014, the Company and U.S. Bank entered into a supplemental indenture (the “Supplemental Indenture”) to amend the Existing Indenture in order to set
forth the conversion values for the Existing Notes. As set forth in the Supplemental Indenture, each Existing Note that is converted from and after the effective date of the Merger (as defined below) is convertible solely into cash at fixed
conversion values.
The foregoing description of the Supplemental Indenture is qualified in its entirety by reference to the Supplemental
Indenture, a copy of which is attached as Exhibit 4.1 and is incorporated herein by reference.
Senior Secured Credit Agreement
On December 5, 2014, the Company, as borrower, entered into a senior secured credit agreement, dated as of December 5, 2014, by and
among Balboa Merger Sub, Inc. (“Merger Sub”), Balboa Intermediate Holdings LLC, as a guarantor (“Parent” and, together with Merger Sub, an affiliate of Vista Equity Partners Fund V, L.P.), certain of the Company’s domestic
subsidiaries who have granted secured guarantees of the Company’s obligations under the Senior Secured Credit Agreement (together with Parent, the “Guarantors”), JPMorgan Chase Bank, N.A., as administrative agent and collateral agent
(the “Administrative Agent”) and the lenders party thereto (the “Senior Secured Credit Agreement”), pursuant to which the Company incurred certain loans and granted a first priority lien (subject to customary priming liens) on
substantially all of its assets to secure the obligations under the Senior Secured Credit Agreement.
Principal, Amortization and
Maturity
The lenders under the Senior Secured Credit Agreement have advanced to the Company approximately $1,670,000,000 in the
aggregate of senior secured term loans with a maturity date of December 5, 2020 and $350,000,000 in the aggregate of senior secured asset sale loans with a maturity of December 5, 2015 and also have provided the company with a revolving
line of credit of up to $125,000,000 with a maturity date of December 5, 2019 (the “Senior Secured Credit Facilities”). The term loans under the Senior Secured Credit Facilities will amortize at 1% per annum in equal quarterly
installments with the balance payable on the final maturity date. The entire amount of the asset sale loans under the Senior Secured Credit Facilities is payable on December 5, 2015.
Interest Rate
Loans under the Senior Secured Credit Facilities bear interest at a rate equal to, at the Company’s option, the adjusted Eurodollar rate
or an alternate base rate, in each case, plus an applicable margin. The revolving loans have applicable margins equal to 4.00%, in the case of Eurodollar revolving loans, or 3.00%, in the case of base rate revolving loans. The term loans have
applicable margins equal to 5.50%, in the case of Eurodollar term loans, or 4.50%, in the case of base rate term loans. The asset sale loans have applicable margins of 4.50%, in the case of Eurodollar asset sale loans, or 3.50%, in the case of base
rate asset sale loans.
Mandatory Prepayments
Subject to certain customary exceptions, the Senior Secured Credit Facilities are subject to mandatory prepayments in amounts equal to:
(1) 100% of the net cash proceeds from any non-ordinary course sale or other disposition of assets (including as a result of casualty or condemnation) by the Company or certain of its subsidiaries subject to customary reinvestment provisions
and certain other exceptions; (2) 100% of the net cash proceeds from issuances or incurrences of debt by the Company or certain of its subsidiaries; (3) a customary annual excess cash flow sweep; and (4) 100% of the net cash proceeds
of any disposition of the Company’s headquarters, which will first be applied to outstanding asset sale loans.
Certain Other Provisions
The Senior Secured Credit Agreement contains a number of customary affirmative and negative covenants and events of default. The Senior Secured
Credit Agreement also requires the Company and Guarantors to comply with a springing net leverage ratio if more than 30% of the revolving line of credit is drawn.
New Indenture; Notes
Overview
On
December 5, 2014, the Company completed the private placement of $950,000,000 aggregate principal amount of 11.375% senior notes due 2021 (the “Notes”) to several initial purchasers. The initial purchasers subsequently sold the Notes
to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), to persons outside the United States under Regulation S of the Securities Act, and to persons inside the United
States that are institutional accredited investors (within the meaning of Rule 501(a)(1), (2), (3), (7) or (8) under the Securities Act). The Notes were issued pursuant to an indenture (the “Indenture”), dated as of
December 5, 2014, by and among Merger Sub, Parent and Wilmington Trust, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of December 5, 2014, by and among the Company
(as successor by merger to Merger Sub), the Trustee and the guarantors named therein (together with the Parent, the “Note Guarantors”).
Interest; Ranking; Guarantees; Security
The Notes will mature on December 1, 2021, and bear interest at a rate of 11.375% per annum, payable semi-annually in cash in arrears
on June 1 and December 1 of each year, beginning on June 1, 2015. The Notes are senior unsecured obligations of the Issuers and will be guaranteed by the Note Guarantors.
Optional Redemption
The Notes will be redeemable, in whole or in part, at any time on or after December 1, 2017, at the redemption prices specified in the
Indenture governing the Notes, together with accrued and unpaid interest, if any, to the redemption date. The Notes will be redeemable, in whole or in part, at any time prior to December 1, 2017, at a price equal to 100% of the aggregate
principal amount thereof plus a make-whole premium and accrued and unpaid interest, if any, to the redemption date. At any time prior to December 1, 2017, the Company may redeem up to 35% of the aggregate principal amount of the Notes with the
net cash proceeds from certain equity offerings at a redemption price equal to 111.375% of the principal amount thereof, together with accrued and unpaid interest, if any, to the redemption date.
Change of Control
Upon the occurrence of a change of control triggering event specified in the Indenture, the Company must offer to purchase the Notes at a
redemption price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase.
Covenants and Events of Default
The terms of the Indenture, among other things, limits the ability of Parent and its restricted subsidiaries (including the Company) to
(i) incur additional indebtedness and guarantee indebtedness, (ii) pay dividends or make other distributions in respect of, or repurchase or redeem, capital stock, (iii) prepay, redeem or repurchase certain debt, (iv) make loans
and investments, (v) sell or otherwise dispose of assets, (vi) sell stock of the subsidiaries, (vii) incur liens, (viii) enter into transactions with affiliates, (ix) enter into agreements restricting the subsidiaries’
ability to pay dividends and (x) consolidate, merge or sell all or substantially all of their assets.
The Indenture provides for
customary events of default (subject in certain cases to customary grace and cure periods), which include nonpayment, breach of covenants in the Indenture, payment defaults or acceleration
of other indebtedness, a failure to pay certain judgments and certain events of bankruptcy and insolvency. If an event of default occurs and is continuing, the Trustee or holders of at least 30%
in principal amount of the outstanding Notes, as applicable, may declare the principal, accrued and unpaid interest, if any, on all the Notes, as applicable, to be due and payable. These events of default are subject to a number of important
qualifications, limitations and exceptions that are described in the Indenture.
Item 1.02. Termination of a Material Definitive Agreement.
In connection with the entry into the Senior Secured Credit Agreement and the consummation of the Merger (as described further under
Item 2.01), (1) the Loan Agreement, dated as of June 24, 2003, by and between the Company and Silicon Valley Bank and (2) the Amended And Restated Credit Agreement, dated as of December 19, 2011, by and between the Company
and Bank of America, N.A., as administrative agent, were each terminated and all obligations outstanding thereunder (other than letters of credit subject to customary cash collateralization arrangements) were paid off and extinguished.
Item 2.01. Completion of Acquisition or Disposition of Assets.
On December 5, 2014, pursuant to the terms of an Agreement and Plan of Merger, dated as of September 27, 2014 (the “Merger
Agreement”), by and among the Company, Parent and Merger Sub, Parent completed its acquisition of the Company via the merger of Merger Sub with and into the Company (the “Merger”), with the Company continuing as the surviving
corporation in the Merger and becoming a wholly owned subsidiary of Parent. Parent and Merger Sub were formed by affiliates of Vista Equity Partners.
At the effective time of the Merger, each share of common stock, par value $0.001 per share, of the Company (the “Common Stock”)
(other than those shares of Common Stock owned by (1) Parent, Merger Sub or any other subsidiary of Parent; (2) the Company as treasury stock; or (3) stockholders of the Company who properly exercised appraisal rights with respect
thereto in accordance with Section 262 of the Delaware General Corporation Law) was cancelled and extinguished and converted into the right to receive cash in an amount equal to $24.00, without interest thereon (the “Per Share
Price”). In addition, (1) each stock option issued by the Company, whether vested or unvested, was cancelled immediately prior to the effective time of the Merger and converted into, with respect to each cancelled option, the right to
receive the amount, if any, by which the Per Share Price exceeded the option exercise price, without interest thereon and less any applicable withholding for taxes; and (2) each stock-based award issued by the Company, other than stock options
issued by the Company, outstanding prior to the effective time of the Merger, whether vested or unvested, was cancelled immediately prior to the effective time of the Merger and converted into the right to receive the Per Share Price multiplied by
the number of shares of Common Stock underlying such stock-based award.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 is incorporated herein by
reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
The information set forth under Item 2.01 is incorporated herein by reference.
In connection with the closing of the Merger, the Company notified The NASDAQ Stock Market (“NASDAQ”) on December 5, 2014 that
each outstanding share of Common Stock (except as described in Item 2.01 hereof) was converted pursuant to the Merger Agreement as set forth under Item 2.01, and requested that NASDAQ file a Form 25 with the Securities and Exchange
Commission (the “SEC”) to remove the Common Stock from listing on NASDAQ and to deregister the Common Stock pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth under Item 2.01 is incorporated herein by reference.
Pursuant to the Merger Agreement and in connection with the consummation of the Merger, each outstanding share of Common Stock (except as
described in Item 2.01 hereof) was converted into the right to receive the Per Share Price.
Item 5.01 Changes in Control of Registrant.
The information set forth under Item 2.01 is incorporated herein by reference.
As a result of the Merger, a change in control of the Company occurred, and the Company became a wholly-owned subsidiary of Parent. The total
amount of consideration payable to the Company’s equityholders in connection with the Merger was approximately $4,100,000,000. The funds used by Parent to consummate the Merger and complete the related transactions came from the proceeds
received in connection with debt financing pursuant to the Senior Secured Credit Agreement and the Notes, equity contributions from Vista Equity Partners Fund V, L.P. and certain of its affiliates, and the Company’s cash on hand.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement.
The information set forth under Item 2.01 is incorporated herein by reference.
Effective upon completion of the Merger, the following persons, who were the directors of Merger Sub, became directors of the Company: James
M. Ford and John Stalder. Vivek Ranadivé, who was a director of the Company immediately prior to the Merger, will continue to be a director of the Company. As a result of the Merger, Nanci Caldwell, Eric Dunn, Manuel A. Fernandez, Phil
Fernandez, Peter Job, David J. West and Philip Wood are no longer directors of the Company. Immediately following the Merger, Murray Rode, Brian N. Sheth, Robert F. Smith and Martin A. Taylor were appointed as directors of the Company.
Effective upon completion of the Merger, the following persons, who were the officers of Merger Sub, became officers of the Company: James M.
Ford and John Stalder. The following officers of the Company immediately prior to the effective time of the Merger will continue to be officers of the Company: Murray Rode, James Johnson and William Hughes.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information set forth under Item 2.01 is incorporated herein by reference.
Effective upon completion of the Merger, the certificate of incorporation of the Company, as in effect immediately prior to the Merger, was
amended and restated to be in the form of the certificate of incorporation attached as Exhibit 3.1, which is incorporated herein by reference.
Effective upon completion of the Merger, the bylaws of the Company were amended and restated to be in the form of the bylaws attached as
Exhibit 3.2, which is incorporated herein by reference.
Item 8.01. Other Events.
On December 5, 2014, the Company issued a press release announcing the completion of the Merger. A copy of the press release is attached
as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
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| Exhibit No. |
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Description |
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| 3.1 |
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Amended and Restated Certificate of Incorporation of TIBCO Software Inc. |
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| 3.2 |
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Amended and Restated Bylaws of TIBCO Software Inc. |
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| 4.1 |
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First Supplemental Indenture between TIBCO Software Inc. and U.S. Bank National Association, dated as of December 5, 2014 |
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| 99.1 |
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Press Release of TIBCO Software Inc. dated December 5, 2014 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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TIBCO Software Inc. |
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| By: |
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/s/ William R. Hughes |
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William R. Hughes |
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Executive Vice President, Chief Administrative Officer and General Counsel |
Date: December 5, 2014
EXHIBIT INDEX
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| Exhibit No. |
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Description |
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| 3.1 |
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Amended and Restated Certificate of Incorporation of TIBCO Software Inc. |
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| 3.2 |
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Amended and Restated Bylaws of TIBCO Software Inc. |
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| 4.1 |
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First Supplemental Indenture between TIBCO Software Inc. and U.S. Bank National Association, dated as of December 5, 2014 |
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| 99.1 |
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Press Release of TIBCO Software Inc. dated December 5, 2014 |
Exhibit 3.1
EIGHTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TIBCO SOFTWARE INC.
ARTICLE ONE
The
name of the corporation is TIBCO Software Inc. (the “Corporation”).
ARTICLE TWO
The address
of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE THREE
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
ARTICLE FOUR
The total number of shares of stock which the Corporation has authority to issue is one thousand (1,000) shares of common stock, with a
par value of $0.001 per share.
ARTICLE FIVE
The Corporation is to have perpetual existence.
ARTICLE SIX
In
furtherance and not in limitation of the powers conferred by statute, the board of directors of the Corporation is expressly authorized to make, alter or repeal the by-laws of the Corporation.
ARTICLE SEVEN
Meetings of stockholders may be held within or without the State of Delaware, as the by-laws of the Corporation may provide. The books of the
Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the Corporation. Election of directors need not be by written ballot unless the
by-laws of the Corporation so provide.
ARTICLE EIGHT
To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a
director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE EIGHT shall not adversely affect any right
or protection of a director of the Corporation existing at the time of such repeal or modification.
ARTICLE NINE
The Corporation may indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or
proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director, officer, employee or agent of the Corporation or any predecessor of the Corporation or serves or
served at any other enterprise as a director, office, employee or agent at the request of the Corporation or any predecessor to the Corporation. Any repeal or modification of the foregoing provision of this ARTICLE NINE shall not adversely
affect any right or protection of a director or officer of the Corporation with respect to any acts or omissions of such director or officer occurring prior to such repeal or modification.
ARTICLE TEN
The
Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.
ARTICLE
ELEVEN
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of
incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.
Exhibit 3.2
BY-LAWS
OF
TIBCO SOFTWARE INC.
A
Delaware corporation
(Amended and Restated as of December 5, 2014)
ARTICLE I
OFFICES
Section 1 Registered Office. The registered office of the corporation in the State of Delaware shall be located at c/o Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of the corporation’s registered agent at such address shall be The Corporation Trust Company. The registered office and/or registered agent of
the corporation may be changed from time to time by action of the board of directors.
Section 2 Other Offices. The
corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF
STOCKHOLDERS
Section 1 Annual Meetings. An annual meeting of the stockholders shall be held each year within one hundred
twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any,
and/or the means of remote communication, of the annual meeting shall be determined by the board of directors of the corporation. No annual meeting of stockholders need be held if not required by the corporation’s certificate of incorporation
or by the General Corporation Law of the State of Delaware.
Section 2 Special Meetings. Special meetings of stockholders may
be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships) and may be held at such time and place, within or without the State of Delaware, and/or by means of remote communication, as
shall be stated in a written notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the president and shall be called by the president upon the written request of
holders of shares entitled to cast not less than a majority of the votes at the meeting, which written request shall state the purpose or purposes of the meeting and shall be delivered to the president. The date, time and place, if any, and/or
remote communication, of any special meeting of stockholders shall be determined by the board of directors of the corporation. On such written request, the president shall fix a date and time for such meeting within 10 days after receipt of a
request for such meeting in such written request.
Section 3 Place of Meetings. The board of directors may designate any
place, either within or without the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.
Section 4 Notice. Whenever stockholders are required or permitted to take any action
at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and,
in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting and to each director not less than 10 nor more than 60 days before the date of the meeting. All such
notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the president or the secretary, and if
mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. If given by electronic
transmission, such notice shall be deemed to be delivered (a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic mail, when directed to an electronic
mail address at which the stockholder has consented to receive notice; (c) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (1) such posting and (2)
the giving of such separate notice; and (3) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall
be deemed revoked if (1) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant
secretary of the corporation or to the transfer agent. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to
the transaction of any business because the meeting is not lawfully called or convened.
Section 5 Stockholders List. The
officer who has charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing
the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior
to the meeting: (i) 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, and/or (ii) during ordinary business hours, at the principal
place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of
the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and 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, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list
shall be provided with the notice of the meeting.
Section 6 Quorum. The holders of a majority of the issued and outstanding
shares of capital stock, entitled to vote thereon, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the corporation’s certificate of
incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.
Section 7 Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned
meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in
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person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 8 Vote Required. When a quorum is present, the affirmative vote of the majority of
shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the
corporation’s certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 9 Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the
corporation’s certificate of incorporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each
share of common stock held by such stockholder.
Section 10 Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a
meeting of stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the
proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person
designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.
Section 11 Action by Written Consent. Unless otherwise provided in the corporation’s certificate of incorporation, any action
required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the
state of Delaware, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the
corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested or by reputable overnight courier service. All consents properly delivered in accordance with this section shall be deemed to be
recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within 60 days after the earliest dated consent delivered to the corporation as required by this section, written consents
signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders
who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.
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Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or
used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
Section 12 Action by Facsimile, Email or Other Electronic Transmission Consent. A facsimile, email or other electronic
transmission by a stockholder or proxyholder (or by any person authorized to act on such person’s behalf) of a proxy or a written consent to an action to be taken (including the delivery of such a document in the .pdf, .tif, .gif, .peg or
similar format attached to an email message) shall be deemed to be written, signed, dated and delivered to the corporation for the purposes of this Article; provided that any such facsimile, email or other electronic transmission sets forth
or is delivered with information from which the corporation can determine (A) that the facsimile, email or other electronic transmission was transmitted by the stockholder or proxyholder or by a person authorized to act for the stockholder or
proxyholder and (B) the date on which such stockholder or proxyholder or authorized person transmitted such facsimile, email or other electronic transmission. The date on which such facsimile, email or other electronic transmission is
transmitted shall be deemed to be the date on which such consent or proxy was signed. Any such facsimile, email or other electronic transmission of a consent or proxy shall be treated in all respects as an original executed consent or proxy and
shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of the board of directors or the Secretary of the corporation, each stockholder, proxyholder or other
authorized person who delivered a consent or proxy by facsimile, email or other electronic transmission shall re-execute the original form thereof and deliver such original to the corporation at its registered office in the State of Delaware, its
principal place of business or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. No consent given by facsimile, email or other electronic transmission shall be deemed
to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or
agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded.
ARTICLE III
DIRECTORS
Section 1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of
directors.
Section 2 Number, Election and Term of Office. The number of directors which shall constitute the board shall be
seven (7). Thereafter, the number of directors shall be established from time to time by resolution of the board. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and
entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as otherwise provided in Section 4 of this Article III. Each director elected shall hold office
until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 3 Removal and Resignation. Any director or the entire board of directors may be removed at any time, with or without
cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more
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directors by the provisions of the corporation’s certificate of incorporation, the provisions of this section shall apply, in respect to the removal without cause of a director or directors
so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon notice given in writing or by electronic transmission to the
corporation.
Section 4 Vacancies. Except as otherwise provided in the corporation’s certificate of incorporation, board
vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so
chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.
Section 5 Annual Meetings. The annual meeting of each newly elected board of directors shall be held without notice (other than
notice under these by-laws) immediately after, and at the same place, if any, as the annual meeting of stockholders.
Section 6
Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place, if any, as shall from time to time be determined by resolution of the board of
directors and promptly communicated to all directors then in office. Special meetings of the board of directors may be called by or at the request of the president or any director on at least 24 hours notice to each director, either personally, by
telephone, by mail or by electronic transmission.
Section 7 Quorum, Required Vote and Adjournment. A majority of the total
number of directors then in office authorized shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum
shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Except as otherwise
required by the corporation’s certificate of incorporation, each director shall be entitled to one vote on exactly the matter presented to the board for approval.
Section 8 Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs
of the corporation, except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such
committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors
when required.
Section 9 Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall
hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of a majority of the members of the
committee then in office shall be necessary to constitute a quorum. In the event that a member and that member’s alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee
is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to
act at the meeting in place of any such absent or disqualified member.
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Section 10 Communications Equipment. Members of the board of directors or any
committee thereof may participate in and act at any meeting of such board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and
participation in the meeting pursuant to this section shall constitute presence in person at the meeting.
Section 11 Waiver of
Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting, except when such member attends for the express
purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent
shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the
secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.
Section 12 Action by Written Consent. Unless otherwise restricted by the corporation’s certificate of incorporation, any
action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board, or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be
in electronic form if the minutes are maintained in electronic form.
ARTICLE IV
OFFICERS
Section 1 Number. The officers of the corporation shall be elected by the board of directors and shall consist of a chairman of
the board, a chief executive officer, a president, one or more vice-presidents, a secretary, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the
same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.
Section 2 Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its
first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a
successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 3 Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its
judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
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Section 4 Vacancies. Any vacancy occurring in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.
Section 5 Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented
from receiving such compensation by virtue of his or her also being a director of the corporation.
Section 6 Chairman of the
Board. The chairman of the board shall be the chief executive officer of the corporation, and shall have the powers and perform the duties incident to that position. Subject to the powers of the board of directors, the chairman of the board
shall be in the general and active charge of the entire business and affairs of the corporation, and shall be its chief policy making officer. The chairman of the board shall preside at all meetings of the board of directors and at all meetings of
the stockholders and shall have such other powers and perform such other duties as may be prescribed by the board of directors or provided in these by-laws. Whenever the president is unable to serve, by reason of sickness, absence or otherwise, the
chairman of the board shall perform all the duties and responsibilities and exercise all the powers of the president.
Section 7
The President and Chief Executive Officer. The president and chief executive officer shall be subject to the powers of the board of directors and have general charge of the business, affairs and property of the corporation, and control over its
officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The president and chief executive officer shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the
corporation. The president and chief executive officer shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these by-laws.
Section 8 Vice-presidents. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by
the board of directors, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as
the board of directors, the president or these by-laws may, from time to time, prescribe.
Section 9 Secretary and Assistant
Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that
purpose. Under the president’s supervision, the secretary shall give, or cause to be given, all notices required to be given by these by-laws or by law, shall have such powers and perform such duties as the board of directors, the president or
these by-laws may, from time to time, prescribe, and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so
affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her
signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the board of directors, the president, or secretary may, from time to time, prescribe.
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Section 10 Other Officers, Assistant Officers and Agents. Officers, assistant
officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.
Section 11 Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of
any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to
any other person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1 Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “Proceeding”), by reason of the fact that he or she is or was a director or an officer of the corporation or is or was
serving at the request of the corporation as a director, officer or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an
“Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held
harmless by the corporation to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such Indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this Article V with respect to proceedings to enforce rights to indemnification, the corporation
shall indemnify any such Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the board of directors or is expressly required by law.
Section 2 Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 1 of this
Article V, an Indemnitee shall also have the right to be paid by the corporation the expenses (including attorney’s fees) incurred in defending any such Proceeding in advance of its final disposition (hereinafter an “Advancement of
Expenses”); provided, however, that, if required by the General Corporation Law of the State of Delaware, an Advancement of Expenses incurred by an Indemnitee in his or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the corporation of an undertaking (hereinafter an “Undertaking”), by or on behalf
of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “Final Adjudication”) that such Indemnitee is not entitled
to be indemnified for such expenses under Section 1 of this Article V or otherwise.
Section 3 Right of Indemnitee to Bring
Suit. If a claim under Section 1 or 2 of this Article V is not paid in full by the corporation within sixty (60) days after a written claim has been received by the corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty (20) days, the Indemnitee may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to be paid also the expense of prosecuting or defending such
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suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an Advancement of
Expenses), it shall be a defense that, and (ii) any suit brought by the corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the corporation shall be entitled to recover such expenses upon a Final
Adjudication that, in either case the Indemnitee has not met any applicable standard for indemnification set forth in the General Corporation Law of the State of Delaware. Neither the failure of the corporation (including its directors who are not
parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because
the Indemnitee has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its directors who are not parties to such action, a committee of
such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an Advancement of Expenses hereunder, or brought by the corporation to recover an Advancement of
Expenses pursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such Advancement of Expenses, under this Article V or otherwise shall be on the corporation.
Section 4 Non-Exclusivity of Rights. The rights to indemnification and to the Advancement of Expenses conferred in this Article V
shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, the corporation’s certificate of incorporation, these Bylaws, agreement, vote of stockholders or directors or otherwise.
Section 5 Insurance. The corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee
or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
Section 6 Indemnification of Employees and Agents
of the Corporation. The corporation may, to the extent authorized from time to time by the board of directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the corporation to the fullest extent
of the provisions of this Article V with respect to the indemnification and advancement of expenses of directors and officers of the corporation.
Section 7 Other Indemnification. The corporation’s obligation, if any, to indemnify or advance expenses to any person who was
or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification or advancement
of expenses from such other corporation, partnership, joint venture, trust, enterprise or nonprofit enterprise.
Section 8 Nature
of Rights. The rights conferred upon indemnitees in this Article V shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the
Indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this Article V that adversely affects any right of an Indemnitee or its successors shall be prospective only and shall not limit or eliminate any such
right with respect to any Proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment, alteration or repeal.
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Section 9 Saving Clause. If this Article V or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify and advance expenses to each director and officer to the fullest extent not prohibited by any applicable portion of this Article V that shall not
have been invalidated, or by any other applicable law. If this Article V shall be invalid due to the application of the indemnification provisions of another jurisdiction, then the corporation shall indemnify and advance expenses to each director
and officer to the fullest extent permitted under any other applicable law.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1 Form. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the
corporation by the chairman of the board, the chief executive officer, the president or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such
a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such president,
vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer
or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the
person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively
numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only
be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the
appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event,
it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company
organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.
Section 2 Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any
certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his
or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of
such new certificate.
Section 3 Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date
is adopted by the board of directors, and which
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record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the
meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the board of directors may fix a new record date for the adjourned
meeting.
Section 4 Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the
stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for
determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings
of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior
action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors
adopts the resolution taking such prior action.
Section 5 Fixing a Record Date for Other Purposes. In order that the
corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or
for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty
days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
Section 6 Registered Stockholders. Prior to the surrender to the corporation of the certificate or certificates for a share or
shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights
and powers of an owner. The corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof.
Section 7 Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be
paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to
all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.
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ARTICLE VII
GENERAL PROVISIONS
Section 1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the corporation’s
certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the
corporation’s certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in
which it was created.
Section 2 Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or
to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of
the board of directors or a duly authorized committee thereof.
Section 3 Contracts. The board of directors may authorize any
officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.
Section 4 Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other
employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of
the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
Section 5 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors.
Section 6 Corporate Seal. The board of directors shall provide a corporate seal which shall be in the form of a circle and shall
have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7 Voting Securities Owned By Corporation. Voting securities in any other corporation or other entity (such as a limited
liability company, limited partnership or trust) held by the corporation shall be voted as directed by the board of directors, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general
or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.
Section 8 Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written
demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list
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of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a
stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other
agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.
Section 9 Exclusive Jurisdiction. Unless otherwise waived by resolution of the Board, the Court of Chancery of the State of
Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the
corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim against the corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the
corporation’s certificate of incorporation or by-laws or (iv) any action asserting a claim against the corporation governed by the internal affairs doctrine.
Section 10 Section Headings. Section headings in these by-laws are for convenience of reference only and shall not be given any
substantive effect in limiting or otherwise construing any provision herein.
Section 11 Inconsistent Provisions. In the event
that any provision of these by-laws is or becomes inconsistent with any provision of the corporation’s certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these
by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
ARTICLE VIII
AMENDMENTS
These
by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors
shall not divest the stockholders of the same powers.
* * *
* *
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Exhibit 4.1
TIBCO SOFTWARE INC.
2.25% CONVERTIBLE SENIOR NOTES DUE 2032
SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 5, 2014
U.S. BANK NATIONAL ASSOCIATION
AS TRUSTEE
THIS SUPPLEMENTAL INDENTURE dated as of December 5, 2014 (this “Supplemental
Indenture”) is between TIBCO Software Inc., a Delaware corporation (the “Company”), and U.S. Bank National Association, a national banking association organized and existing under the laws of the United States, as Trustee
(the “Trustee”).
RECITALS
A. The Company has executed and delivered to the Trustee an Indenture, dated as of April 23, 2012 (the “Indenture”),
that provides for the issuance by the Company of 2.25% Convertible Senior Notes due 2032 (the “Notes”).
B. The Company
and Balboa Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and a wholly-owned subsidiary of Balboa Intermediate Holdings LLC, a Delaware limited liability company
(“Holdings”), merged (the “Merger”) on the date hereof with the Company being the surviving corporation pursuant to that certain Agreement and Plan of Merger, dated September 27, 2014 (the “Merger
Agreement”), by and among Holdings, Merger Sub and the Company. Pursuant to the Merger Agreement, each share of Common Stock issued and outstanding as of immediately prior to the Merger (other than Owned Company Shares or Dissenting Company
Shares (each as defined in the Merger Agreement)) will be cancelled and extinguished and automatically converted into the right to receive cash in an amount equal to $24.00 per share, without interest thereon (the “Merger
Consideration”).
C. Pursuant to Sections 11.01 and 14.07 of the Indenture, the Company and the Trustee are required to enter
into a supplemental indenture to provide that at and after the effective time of the Merger, the Holder of each Note then outstanding shall have the right to convert each $1,000 principal amount of Notes into the Merger Consideration receivable by a
holder of a number of shares of Common Stock equal to the product of the principal amount (expressed in thousands) of such Notes and the Conversion Rate in effect immediately prior to the Merger, which is equal to $474.60 per $1,000 principal amount
of Notes based on the Conversion Rate of 19.775 shares of Common Stock per $1,000 principal amount of Notes and the Merger Consideration.
D. Section 10.01(b) of the Indenture provides that the Company and the Trustee may supplement the Indenture without the consent of
Holders to provide for conversion rights of Holders of the Notes and the Company’s repurchase obligations in connection with a Fundamental Change in the event of any reclassification of the Company’s Common Stock, merger or consolidation,
or sale, conveyance, transfer or lease of all of substantially all of the Company’s and the Company’s Subsidiaries’ property and assets, taken as a whole.
E. The entry into this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture.
F. All things necessary to make this Supplemental Indenture a valid and binding agreement according to its terms have been done and the
execution and delivery of this Supplemental Indenture have been in all respects duly authorized by the Company.
NOW, THEREFORE, for and in consideration of the foregoing premises, the Company and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the respective Holders of the Notes as follows:
ARTICLE I
MERGER EVENT
Section 1.1. Merger
Event.
At and after the effective time of the Merger Event and in accordance with Section 14.07 of the Indenture, the Holder of
each Note then outstanding shall have the right to convert each $1,000 principal amount of Notes solely into $474.60, payable in cash.
Section 1.2.
Effectiveness.
This Supplemental Indenture will become effective as of the date hereof without any further action by any person.
ARTICLE II
MISCELLANEOUS
Section 2.1. Definitions.
Capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed thereto in the Indenture.
Section 2.2. Confirmation of Indenture.
The Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture, this
Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
Section 2.3.
Concerning the Trustee.
In carrying out the Trustee’s responsibilities hereunder, the Trustee shall have all of the rights,
protections and immunities which it possesses under the Indenture. The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Supplemental Indenture.
Section 2.4. Governing Law.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
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Section 2.5. Separability.
In case any provisions in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.6. Multiple Counterparts.
The parties may sign multiple counterparts of this Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of
them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by facsimile or electronic mail shall be as effective as delivery of a mutually executed original counterpart to this
Supplemental Indenture.
Section 2.7 No Benefit.
Nothing in this Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors or
assigns, and the Holders of the Notes, any benefit or legal or equitable rights, remedy or claim under this Supplemental Indenture or the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed all as of the day and year first above written.
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| TIBCO SOFTWARE INC. |
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| By: |
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/s/ James Johnson |
| Name: |
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James Johnson |
| Title: |
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Chief Financial Officer |
Signature Page to Convertible Notes Supplemental Indenture
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed all as of the day and year first above written.
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| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
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| By: |
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/s/ Paula Oswald |
| Name: |
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Paula M. Oswald |
| Title: |
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Vice President |
Signature Page to Convertible Notes Supplemental Indenture
Exhibit 99.1
VISTA EQUITY PARTNERS COMPLETES ACQUISITION OF TIBCO SOFTWARE
Murray Rode Named Chief Executive Officer
PALO ALTO, Calif. – December 5, 2014 – TIBCO Software Inc., a global leader in infrastructure and business intelligence software, today
announced that it has been acquired by Vista Equity Partners. The transaction, originally announced September 29, 2014, closed Friday, December 5, 2014. TIBCO’s shareholders approved the agreement on Wednesday December 3, 2014.
Following the transaction, Murray Rode was named the Chief Executive Officer of TIBCO. Vivek Ranadivé will remain a Board Member of TIBCO and will assist the company with strategic projects. TIBCO will continue to operate as TIBCO Software
Inc.
“We see tremendous value in TIBCO’s ability to empower customers to extract and act on information utilizing TIBCO’s fast data
platform,” said Robert F. Smith, chairman and chief executive officer, Vista Equity Partners. “We understand the added expertise TIBCO can bring to customers and the marketplace, and we’re incredibly excited to work with the
management team to help TIBCO reach its full potential.”
TIBCO also announced the appointment of Murray Rode as new Chief Executive Officer. For
more than 15 years, Murray has served in a variety of key leadership roles within TIBCO; most recently he served as the Chief Operating Officer.
“We
are very pleased to have this transaction completed. We believe this is the right direction for TIBCO’s long-term strategy and will better serve our customers and employees,” said Murray Rode, chief executive officer, TIBCO. “I look
forward to working with Vista Equity Partners as TIBCO enters its next chapter of innovation, growth and leadership.”
“With today’s
announcement, I will step down as chairman and CEO of TIBCO,” said Vivek Ranadivé. “I firmly believe that taking the company private with a partner like Vista puts TIBCO in the perfect position for its next chapter. After many
years as founder, chairman and CEO, I felt the timing was right for me to pursue exciting new opportunities while continuing to serve as a board member. I am so proud of the great team at TIBCO and am excited about our future. Murray has been by my
side every step of the way as we built this company, and he will make an excellent CEO.”
1
Vista Equity is a leading private equity firm with over $14 billion in cumulative capital commitments, focused on
investments in software, data and technology-enabled service companies. Vista has an extensive track record of successfully completing take-private transactions, including taking five other public companies private in the past three years. The firm
helps its companies achieve operational, product and customer service excellence by contributing professional expertise, proven best practices and management techniques.
About TIBCO
TIBCO Software Inc. is a global leader in
infrastructure and business intelligence software. Whether it’s optimizing inventory, cross-selling products, or averting crisis before it happens, TIBCO uniquely delivers the Two-Second Advantage® — the ability to capture the right information at the right time and act on it preemptively for a competitive advantage. With a broad mix of innovative products and services, TIBCO is the
strategic technology partner trusted by businesses around the world. Learn more about TIBCO at www.tibco.com.
About Vista Equity Partners
Vista Equity Partners, a U.S.-based private equity firm with offices in Austin, Chicago and San Francisco, with over $14 billion in cumulative capital
commitments, currently invests in dynamic, successful software, data and technology-based organizations led by world-class management teams with long-term perspective. Vista is a value-added investor, contributing professional expertise and
multi-level support towards companies realizing their full potential. Vista’s investment approach is anchored by a sizable long-term capital base, experience in structuring technology oriented transactions, and proven management techniques that
yield flexibility and opportunity in private equity investing. For more information, please visit www.vistaequitypartners.com.
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TIBCO, the TIBCO logo and Two-Second Advantage are trademarks or registered trademarks of TIBCO Software Inc. and/or its subsidiaries in the
United States and/or other countries. All other product and company names and marks mentioned in this document are the property of their respective owners and are mentioned for identification purposes only.
TIBCO Software Inc.
For Investors:
John Ederer
(650) 846-8696
jederer@tibco.com
For Media:
Leslie Moore
(650) 846-5025
lmoore@tibco.com
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