Roger K. Newport
PROXY STATEMENT
We are
furnishing this Proxy Statement in connection with the solicitation by the Board of Directors of AK Steel Holding Corporation (the Company, AK Steel, us, we, or our) of proxies to be voted
at the Special Meeting of Stockholders (Special Meeting) to be held on September 7, 2016 via live webcast at
www.virtualshareholdermeeting.com/AKS
, and at any and all postponements or adjournments thereof.
On or about July 25, 2016, we mailed to stockholders of record a Notice of Internet Availability of Proxy Materials
(Notice) containing instructions on how to access our Proxy Statement on the Internet and on how to vote online. That Notice also contains instructions on how you can receive a paper copy of the Proxy Statement via the United States mail
or an electronic copy via e-mail if you prefer either of those alternatives. A list of stockholders entitled to vote at the Special Meeting will be available for examination on the internet through the virtual web conference during the Special
Meeting.
QUESTIONS AND ANSWERS ABOUT THE PROXY AND SPECIAL MEETING
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1. What is the
purpose of the Special Meeting and why is it being webcast?
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At the Special Meeting, stockholders will be asked to approve the proposed amendment to
our Restated Certificate of Incorporation to increase the number of authorized shares of common stock and to transact such other business as properly may come before the meeting. The Special Meeting is being held on a virtual-only basis in order to
reach the broadest number of stockholders possible and to save costs relative to holding a physical meeting. A number of prominent publicly-traded Delaware companies hold virtual-only stockholder meetings, and consequently we are confident in the
technology and that it will be efficient and convenient for our stockholders.
A proxy is a person or entity authorized to act for another person. In this instance,
the Board of Directors has appointed a Proxy Committee to vote the shares represented by proxy forms submitted by stockholders to us prior to the Special Meeting. Giving the Proxy Committee your proxy means that you authorize the Proxy Committee to
vote your shares on your behalf at the Special Meeting as you specifically instruct on your proxy card with respect to the proposal, or if a matter that is not raised on the proxy card comes up for a vote at the Special Meeting, in accordance with
the Proxy Committees best judgment.
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3. Whom am I
appointing as my proxy?
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The Proxy Committee consists of Roger K. Newport, Kirk W. Reich, and Joseph C. Alter.
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4. What is a
Proxy Statement?
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The document you are reading is a Proxy Statement. It is intended to provide our
stockholders with information necessary to vote in an informed manner on matters to be presented at the Special Meeting. It is sent in conjunction with a solicitation of your proxy.
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5. Why did I
receive more than one Proxy Statement or proxy card?
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You may receive more than one Proxy Statement and proxy card if you hold our stock in
different ways (
e.g.
, joint tenancy, in trust, or in a custodial account) or in multiple accounts.
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6. Why are you
soliciting my proxy?
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The Board of Directors is soliciting your proxy to vote at the Special Meeting because, at the close of
business on July 11, 2016, the record date, you were: (1) a stockholder of record, which means that you were shown on our records as the owner of our common stock, or (2) the beneficial owner of shares held in street
name. All stockholders of record are entitled to vote at the meeting. It is important that as many stockholders as possible vote, either virtually or by proxy, on the issues to be decided at the Special Meeting. The process of soliciting
proxies is intended to increase the number of stockholders who vote on those issues. In addition, stockholders who vote by proxy are deemed to be in attendance at the meeting for purposes of determining if there is a quorum.
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7. What is the
difference between a stockholder of record and a beneficial owner of shares held in street name?
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Stockholder of Record
. If your shares are registered directly in your name with
our transfer agent, Computershare Investor Services, LLC (Computershare), you are considered the stockholder of record with respect to those shares.
Beneficial Owner of Shares Held in Street Name
. If your shares are held in an account at a bank,
broker or other institution, then you are the beneficial owner of shares held in street name. The entity holding your account is considered the stockholder of record for purposes of voting at the Special Meeting. As a
beneficial owner, you have the right to instruct that entity on how to vote the shares held in your account.
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8. How do I vote
my stock if it is held in street name?
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If your stock is held in street name, you will receive a Notice, typically
entitled Voting Instruction Form or something similar, either electronically or by mail from the bank, broker or other institution holding your stock. This notice contains instructions regarding how to access the proxy materials and how
to vote your shares. Also, please note that if your shares are held in street name and you wish to vote at the Special Meeting, you must follow the special instructions provided at
www.proxyvote.com
for submitting a legal proxy
from the record holder of the shares (your broker, bank or nominee) authorizing you to vote at the Special Meeting.
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9. If I hold my
stock in street name and do not provide specific voting instructions to the bank, broker or other institutions holding it on my behalf, may a vote be cast on my behalf on the sole proposal?
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Yes. If you are a holder of shares in street name and you fail to provide
specific voting instructions to the bank, broker or other institution holding the stock on your behalf, that entity may cast a vote on your behalf with respect to the sole proposal, the approval of the proposed amendment to our Restated Certificate
of Incorporation to increase the number of authorized shares of common stock (Proposal No. 1).
Banks, brokers
and other institutions may vote shares held in street name on a discretionary basis for purposes of Proposal No. 1.
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10. What documentation must I
provide to be admitted to the online Special Meeting and how do I attend?
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If your shares are registered in your name, you will need to provide your sixteen-digit
control number included on your Notice or your proxy card (if you receive a printed copy of the proxy
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materials) in order to be able to enter the meeting. If your shares are
not
registered in your name (if, for instance, your shares are held in street name for you by your
broker, bank or other institution), you must follow the instructions printed on your Notice. In order to participate in the Special Meeting, please log on to
www.virtualshareholdermeeting.com/AKS
, at least 15 minutes prior to the start of the
Special Meeting to provide time to register and download the required software, if needed. The webcast replay will be available at
www.virtualshareholdermeeting.com/AKS
until the 2017 Annual Meeting of Stockholders.
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11. What documentation must I
provide to vote online at the Special Meeting?
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If you are a stockholder of record, you may vote all shares registered in your name at
the Special Meeting. If you are not a stockholder of record as to any of your shares (i.e., instead of being registered in your name, all or a portion of your shares are registered in street name and held by your broker, bank or other
institution for your benefit), you must follow the instructions printed on your Notice.
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12. Is there any way for me to vote
other than by proxy at the Special Meeting?
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Yes. If you are a stockholder of record, you may vote over the telephone or via the
Internet. Our proxy card that you received in the mail (if you received a printed copy of the proxy materials) contains instructions for voting by these methods. If you hold your shares in street name, you must follow the instructions
contained in the voting instruction card provided to you by the broker, bank or other institution holding your shares on your behalf.
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13. Do I vote only once regardless
of how many shares I own? If not, how many votes do I get to cast?
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You are entitled to one vote for each share of our common stock that you held as of the
close of business on July 11, 2016.
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14. How do I submit a question at
the Special Meeting?
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If you would like to submit a question during the Special Meeting, simply type your
question in the ask a question box and click submit. Questions will be answered in the order received, subject to time limitations.
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15. What is a quorum and why is it
important?
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In the context of the Special Meeting, a quorum is the presence at the meeting, either
virtually or by proxy, of stockholders holding the minimum number of shares of stock necessary to make the proceedings of that meeting valid under our By-laws and applicable law. More specifically, the presence of stockholders at the meeting,
virtually or represented by proxy, holding a majority of our issued and outstanding shares constitutes a quorum. As of July 11, 2016, there were 238,207,690 issued and outstanding shares of our common stock, which is the only class of stock
outstanding. The number of shares necessary to constitute a quorum in the context of the Special Meeting is 119,103,846.
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16. What are my choices when voting
the proposal?
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You may vote FOR, AGAINST or ABSTAIN with respect to
the proposal.
Every stockholder voice is important and we urge you to cast your vote.
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17. How many votes are needed for
the proposal to pass?
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In order to increase the number of authorized shares of a companys common stock,
the laws of the State of Delaware, under which we are incorporated, require an amendment to the Certificate. The
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affirmative vote of a majority of the outstanding shares of our common stock is required to approve this proposal. Abstentions therefore will have the effect of votes against the
proposal in this context. If the proposed amendment is approved, it will become effective upon the filing of a Certificate of Amendment to our Restated Certificate of Incorporation with the Secretary of State of the State of Delaware, which we would
expect to file promptly following the Special Meeting.
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18. What does it mean to
ABSTAIN from voting and what impact does that have?
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Abstentions will have the effect of votes against the proposed amendment to
our Restated Certificate of Incorporation to increase the number of authorized shares of common stock (Proposal No. 1), as the affirmative vote of a majority of the outstanding shares of our common stock is required to approve the proposal.
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19. Who will count the
votes?
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The votes will be counted by an inspector of election appointed by the Board. The Board
has appointed Ms. Amy Pavich of Broadridge as the inspector of election and Ms. Marlayna Jeanclerc, also of Broadridge, as an alternate inspector of election in the event Ms. Pavich is unable to serve.
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20. What happens if I return my
proxy card but do not mark how I want my votes to be cast?
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If you timely return a signed and dated proxy card, but do not mark how your shares are
to be voted, those shares will be voted by the Proxy Committee as recommended by the Board of Directors.
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21. Where can I find the voting
results of the Special Meeting?
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We intend to announce preliminary voting results at the Special Meeting and disclose
final results in a Current Report on Form 8-K that we will file with the SEC following the Special Meeting. All periodic and current reports we file with the SEC are publicly available when filed. We make available free of charge on our website,
www.aksteel.com, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, reports filed pursuant to Section 16 and amendments to those reports as soon as reasonably practicable after such materials are
electronically filed or furnished to the SEC.
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22. How does the Board of Directors
recommend that I vote?
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The Board of Directors recommends that you vote your shares:
FOR
the approval of the proposed amendment to our Restated Certificate of Incorporation to increase the number of authorized
shares of common stock (Proposal No. 1).
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APPROVAL OF PROPOSED AMENDMENT TO OUR RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF
COMMON STOCK
(Proposal No. 1 on the
proxy card)
Introduction and Summary of the Proposed Amendment
Our Restated Certificate of Incorporation (the Certificate) currently authorizes the issuance of up to 300 million
shares of common stock, par value $.01 per share. On June 10, 2016, the Board of Directors unanimously adopted a resolution approving, subject to the approval of our stockholders, an amendment to section (a) of the fourth Article of the
Certificate to increase the total number of shares of common stock that we are authorized to issue from 300 million to 450 million shares.
In light of the fact that we have only 3.2% of our total authorized shares of common stock remaining available, the Board believes that
it is advisable and in our stockholders best interests to increase the total number of authorized shares in order to provide us with greater flexibility in considering and planning for potential future strategic needs of the Company. As of
June 30, 2016, of the 300 million shares of common stock currently authorized, only about 9.8 million shares remain available for issuance. As of that date, 238.2 million shares of our common stock are issued and outstanding. In
addition, approximately 6.8 million shares of common stock have been reserved pursuant to previously granted awards under our Stock Incentive Plan (Stock Plan), and approximately 7.7 million shares of our common stock have been
reserved for future issuance under the Stock Plan. We also have reserved 37.5 million shares in connection with our 5.00% Exchangeable Notes due 2019 (the Exchangeable Notes). The total of these outstanding or reserved shares (238.2
million, 6.8 million, 7.7 million and 37.5 million) is approximately 290.2 million. That leaves about 9.8 million shares, or 3.2% of the currently authorized share amount, available for future use. The pie chart below graphically
illustrates the use of the currently authorized shares and the limited amount that is still available for issuance.
Text of the Proposed Amendment
We propose to amend the existing language of section (a) of the fourth Article of the Certificate as follows (with additions in
italics
and deletions indicated by strike-through text):
FOURTH: (a) The total number of shares of all
classes of stock that the Corporation shall have authority to issue is
475,000,000
325,000,000
, consisting of
450,000,000
300,000,000
shares of
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Common Stock, par value $.01 per share (the Common Stock), and 25,000,000 shares of Preferred Stock, par value $1.00 per share (the Preferred Stock).
The proposed amendment of the Certificate will not affect the number of shares of preferred stock authorized. A copy of the Certificate,
as amended by the proposed change to Article FOURTH, is attached to this Proxy Statement as Annex A in the form of a blacklined, or comparison, copy of the existing Certificate to the Amended Certificate, with the proposed amendments to Article
FOURTH identified.
Rationale for the Amendment and Factors to Consider
The Board of Directors believes that the additional authorized shares of common stock will provide us with the necessary flexibility to
utilize shares for various corporate purposes that may be identified in the future which are expected to enhance stockholder value. These corporate purposes may include, but are not limited to, potential strategic transactions (such as mergers,
acquisitions, and other business combinations), future stock splits and stock dividends, equity or equity-linked offerings and other capital-raising or financing transactions, grants and awards under the Stock Plan, and other types of general
corporate purpose transactions. We believe that it is important to have the flexibility to issue shares of common stock beyond the limited amount remaining. As of the date of the Proxy Statement, we do not have any plans, commitments, arrangements,
understandings or agreements to issue any of the additional shares of common stock that would be authorized pursuant to the proposed amendment of the Certificate or any of the currently authorized and unissued shares of common stock (except for
shares of common stock that have been reserved in connection with the Exchangeable Notes and shares reserved pursuant to previously granted awards pursuant to the Stock Plan or for future issuance under the Stock Plan). We have, however, previously
disclosed that one of our top financial priorities is a significant reduction in our indebtedness over time, and that offerings of common shares, from time to time, may be prudently utilized by us as a manner of executing this debt reduction goal.
As such, subject to market conditions, we may use some of the additional requested authorized common shares to raise funds for the purpose of de-leveraging our balance sheet or for other related purposes following the Special Meeting.
The additional authorized shares of common stock, if and when issued, would be part of the existing class of common stock and would have
the same rights and privileges as the shares of common stock currently outstanding. The authorization of the additional shares of common stock sought by this proposal would not have any immediate dilutive effect on the proportionate voting power or
other rights of existing stockholders but, to the extent that the additional authorized shares of common stock are issued in the future or are used in connection with securities convertible into shares of common stock, they may decrease existing
stockholders percentage of equity ownership and thus could be dilutive to existing stockholders. Depending on the price at which such shares are issued, they also may have a negative effect on the market price of our common shares. Any such
future issuances also could have a dilutive effect on our earnings per share and book value per share. In addition, although the Board has not proposed the increase in the total number of authorized shares of common stock with the intent of using
the additional shares to prevent or discourage any actual or threatened takeover, under certain circumstances, such shares could have an anti-takeover effect. For example, the additional shares could be issued to dilute the stock ownership or voting
rights of persons seeking to obtain control or could be issued to persons allied with the Board or Management, thereby having the effect of making it more difficult to remove Directors and Management by diluting the stock ownership or voting rights
of persons seeking to effect such a removal or to otherwise effect a takeover. As such, if the proposed amendment is approved, the additional shares of authorized common stock may render more difficult or discourage a non-consensual merger, a tender
offer or proxy contest, the assumption of control by a holder of a large block of the our common stock, or the replacement or removal of our Board (and thus Management).
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Applicable law requires that we disclose in connection with this proposal the provisions in
our Certificate and By-laws that could have an anti-takeover effect. Below is a summary of the provisions of our Certificate or By-laws, among others, may have the anti-takeover effect of preventing, discouraging or delaying a change in the control:
(i) Our By-laws establish advance notice procedures with regard to stockholder proposals relating to the nomination of
candidates for election as directors or new business to be brought before meetings of our stockholders, including that noticewhich must include certain information specified in the By-lawsof such proposals be timely given (generally not
less than 60 days nor more than 90 days prior to the first anniversary date of the annual meeting for the preceding year) in writing to our Secretary prior to the meeting at which the action is to be taken.
(ii) Our By-laws provide that special meetings may be called by the Board (as in the case of this Special Meeting) or the Chief
Executive Officer, or upon written request delivered to the Chief Executive Officer by stockholders holding at least a majority of all the shares entitled to vote at the meeting. No business other than that stated in the notice may be transacted at
any special meeting; provided, however, that matters given by or at the direction of the Board may be presented. In addition, our Chairman, in his or her sole discretion, may present, or accept for presentation, procedural matters. These provisions
may have the effect of delaying consideration of a stockholder proposal until the next annual meeting unless a special meeting is called by the Board or our stockholders, as noted above.
(iii) Our Certificate provides for 25,000,000 authorized shares of preferred stock, which may enable us to render more difficult, or
to discourage, an attempt to obtain control by means of a non-consensual merger, a tender offer, proxy contest, or otherwise. The Certificate grants our Board broad powers to establish the rights and preferences of authorized and unissued shares of
preferred stock, which could be used to adversely affect the rights and powers, including voting rights, of stockholders and could also have the effect of delaying, deterring or preventing a change in control.
The foregoing description of certain terms in our Certificate and By-Laws is a summary only and is qualified by reference in its entirety
to the full text of the Certificate and By-Laws, copies of which have been filed with the Securities and Exchange Commission.
It is
not the intended purpose of the proposed amendment to the Certificate, and the Board has no current intention or plan to employ the proposed increase in our authorized shares of common stock, to discourage or prevent any persons from attempting to
effect a non-consensual transaction or change management. Rather, the proposed amendment has been prompted by business and financial considerations, as set out above, and it is the intended purpose of the proposed amendment to the Certificate to
provide greater flexibility to the Board in considering and planning for our potential future corporate needs.
Stockholder Vote Required; Board Recommendation
In order to increase the number of authorized shares of our common stock, the laws of the State of Delaware, under which we are
incorporated, require an amendment to the Certificate. Thus, the affirmative vote of a majority of the outstanding shares of our common stock is required to approve this proposal. Abstentions therefore will have the effect of votes
against the proposal in this context. If the proposed amendment is approved, it will become effective upon the filing of a Certificate of Amendment to our Restated Certificate of Incorporation with the Secretary of State of the State of
Delaware, which we would expect to file promptly following the Special Meeting.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE
FOR
THE APPROVAL OF THE
AMENDMENT TO OUR RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF SHARES OF OUR AUTHORIZED COMMON STOCK FROM 300,000,000 SHARES TO 450,000,000 SHARES.
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OTHER MATTERS
This
Proxy Statement and the accompanying form of proxy will be furnished on the Internet to stockholders on or about July 25, 2016. In addition, we are requesting banks, brokers and other custodians, nominees and fiduciaries to forward the Notice
of Internet Availability of Proxy Materials to the beneficial owners of shares of our common stock held by them of record and will reimburse them for the reasonable out-of-pocket expenses they incur in complying with this request. We retained
Alliance Advisors, LLC to assist in the solicitation of proxies for a fee estimated to be $10,000 plus out-of-pocket expenses. Solicitation of proxies also may be made by our officers and employees, via personal contacts, telephone or email. The
cost of soliciting proxies will be borne by us.
The Board of Directors does not know of any matters to be presented at the meeting
other than those set forth in the accompanying Notice of Meeting. However, if any other matters properly come before the meeting, it is intended that the holders of proxies will vote on the matter in their discretion pursuant to the authority
granted them in the proxy.
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ADDITIONAL INFORMATION ABOUT US
From time to time, we receive calls from stockholders asking how to obtain additional information about us. If you would like to receive
information about us, you may use one of the following methods:
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Our main Internet site, located at www.aksteel.com. Our investor relations section contains, among other things,
management presentations, financial information, stock quotes and links to our filings with the SEC.
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You may read and copy the Proxy Statement at the SECs Public Reference Room at 100 F Street, N.E., Room 1580,
Washington, D.C. 20549. You may obtain further information about the operation of the SECs Public Reference Room by calling the SEC at 1-800-SEC-0330. Our filings are also available to the public on the SECs website located at
www.sec.gov.
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By order of the Board of Directors,
Joseph C. Alter
Corporate Secretary
West Chester, Ohio
July 25, 2016
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ANNEX A
RESTATED CERTIFICATE OF INCORPORATION
OF
AK STEEL HOLDING CORPORATION
AK Steel Holding Corporation (the Corporation), a corporation organized and existing under the laws of the State of
Delaware, hereby certifies as follows:
A. The Corporation originally was
incorporated under the name AK Steel Corporation and filed its initial Certificate of Incorporation with the Secretary of State of the State of Delaware on December 20, 1993.
B. This Restated Certificate of Incorporation was duly adopted by the Corporations
Board of Directors in accordance with Section 245 of the General Corporation Law of the State of Delaware.
C. This Restated Certificate of Incorporation only restates and integrates and does not
further amend the provisions of the Corporations original Certificate of Incorporation, as heretofore amended or supplemented, and there is no discrepancy between those provisions and the provisions of this Restated Certificate of
Incorporation.
D. The text of the Certificate of Incorporation, as amended, is
restated in its entirety to read as follows:
FIRST: The name of the Corporation is
AK Steel Holding Corporation.
SECOND: The address of the registered office of the
Corporation within the State of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington 19808, County of New Castle. The name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service
Company.
THIRD: The purpose of the Corporation 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, as from time to time amended.
FOURTH: (a) The total number of shares of all classes of stock that the Corporation shall
have authority to issue is 47
5,000,000
325,000,000
, consisting of
300,000,000
450,000,000
shares of Common Stock, par value $.01 per share (the Common Stock), and 25,000,000 shares of
Preferred Stock, par value $1.00 per share (the Preferred Stock).
(b) The shares of Preferred Stock may be issued from time to time in one or more series.
Apart from any other provisions in this Certificate of Incorporation authorizing the issuance of shares of Preferred Stock, the Board of Directors is hereby authorized to establish from time to time by resolution or resolutions the number of shares
to be included in each such series, and to fix the designation, powers, preferences and relative participating, optional, conversion and other special rights of the shares of each such series and the qualifications, limitations or restrictions
thereof, including but not limited to the fixing or alteration of the dividend rights, dividend rate or rates, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), the redemption price or prices, and
the liquidation preferences of any wholly unissued series of shares of Preferred Stock, or any or all of them, all to the fullest extent now or hereafter permitted by the General
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Corporation Law of the State of Delaware; and to increase or decrease the number of shares of any series subsequent to the issue of shares of that series, but not below the number of shares of
such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of
shares of such series. No vote of the holders of the Common Stock or Preferred Stock shall, unless otherwise provided in the resolutions creating any particular series of Preferred Stock, be a prerequisite to the issuance of any shares of any series
of the Preferred Stock authorized by and complying with the conditions of this Certificate of Incorporation. Shares of any series of Preferred Stock that have been authorized for issuance pursuant to this Article FOURTH or any other provisions in
this Certificate of Incorporation and that have been either (i) issued and reacquired in any manner by the Corporation (including upon exchange thereof) or (ii) never issued shall have the status of authorized and unissued shares of
Preferred Stock and may be reclassified and reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors as set forth above.
(c) Subject to the provisions of applicable law or of the By-laws with respect to the
closing of the transfer books or the fixing of a record date for the determination of stockholders entitled to vote, and except as otherwise provided by law or by the resolution or resolutions providing for the issue of any series of Preferred
Stock, the holders of outstanding shares of Common Stock shall exclusively possess the voting power for the election of directors and for all other purposes, each holder of record of shares of Common Stock being entitled to one vote for each share
of Common Stock standing in his name on the books of the Corporation.
FIFTH: In
furtherance and not in limitation of the powers conferred by law, subject to any limitations contained elsewhere in this Certificate of Incorporation, By-laws of the Corporation may be adopted, amended or repealed by a majority of the board of
directors of the Corporation, but any By-laws adopted by the board of directors may be amended or repealed by the stockholders entitled to vote thereon. Election of directors need not be by written ballot. In furtherance and not in limitation of the
powers conferred by law, and subject to the provisions of the Certificate of Incorporation, the By-laws of the Corporation shall be subject to alteration, amendment or repeal, in whole or in part, and new By-laws may be made, either by the
affirmative vote of a majority of the whole Board of Directors at any regular or special meeting of the Board, or by unanimous written consent of the directors, or by the affirmative vote of the holders of record of a majority of the issued and
outstanding shares of stock of the Corporation entitled to vote in respect thereof, given at an annual meeting or at any special meeting.
SIXTH: A director of the Corporation shall not be personally liable either to the
Corporation or to any stockholder for monetary damages for breach of fiduciary duty as a director, except (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions which
are not in good faith or which involve intentional misconduct or knowing violation of the law, (iii) for any matter in respect of which such director shall be liable under Section 174 of Title 8 of the General Corporation Law of the State
of Delaware or any amendment thereto or successor provision thereto, or (iv) for any transaction from which the director shall have derived an improper personal benefit. Neither amendment nor repeal of this Article SIXTH nor the adoption of any
provision of the Certificate of Incorporation inconsistent with this Article SIXTH shall eliminate or reduce the effect of this Article SIXTH in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article SIXTH,
would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
SEVENTH: (a) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact that
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such person is or was, at any time prior to or during which this Article SEVENTH is in effect, a director, officer, employee or agent of the Corporation, or is or was, at any time prior to or
during which this Article SEVENTH is in effect, serving at the request of the Corporation as a director, officer, employee or agent or in any similar capacity of any other corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, against expenses (including attorneys fees), judgments, fines, penalties, amounts paid in settlement and other liabilities actually and reasonably incurred by such person in connection with such action, suit or proceeding to
the full extent permitted by law, and the Corporation may adopt By-laws or enter into agreements with any such person for the purpose of providing for such indemnification.
(b) Expenses (including attorneys fees) incurred in appearing at, participating in
or defending any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, shall be paid by the Corporation at reasonable intervals in advance of the final disposition of such action, suit
or proceeding, upon receipt by the Corporation of a written undertaking by or on behalf of the director or officer to repay such amount unless it ultimately shall be determined that such person is entitled to be indemnified by the Corporation as
provided herein.
(c) It is the intent of the Corporation to indemnify the persons
referred to in this Article SEVENTH to the fullest extent permitted by law with respect to any action, suit or proceeding arising from events that occur prior to or during the time in which this Article SEVENTH is in effect. The indemnification
provided by this Article SEVENTH shall not be deemed exclusive of any other rights to which those seeking indemnification may be or become entitled under any law, By-law, agreement, vote of stockholders or disinterested directors, or otherwise, or
under any policy or policies of insurance purchased and maintained by the Corporation on behalf of any such director or officer, both as to action in such persons official capacity and as to action in another capacity while holding office, and
shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such director or officer.
(d) The indemnification provided by this Article SEVENTH shall be subject to all valid
and applicable laws, and in the event this Article SEVENTH or any of the provisions hereof or the indemnification contemplated hereby are found to be inconsistent with or contrary to any such valid laws, the latter shall be deemed to control and
this Article SEVENTH shall be regarded as modified accordingly, and, as so modified, shall continue in full force and effect.
IN
WITNESS WHEROF, the Corporation has caused this Restated Certificate of Incorporation to be duly executed by its authorized officer this 10
th
day of June, 2016.
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By:
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/s/ Joseph C. Alter
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Name:
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Joseph C. Alter
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Title:
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Vice President, General Counsel and Corporate Secretary
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Amended and Restated June 10, 2016 (subject to stockholder approval at the September 7, 2016 Special
Meeting of Stockholders)
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A-3
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2016 Proxy Statement
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