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8-K - FORM 8-K - EXPRESS SCRIPTS INC | c64579e8vk.htm |
EX-3.1 - EX-3.1 - EXPRESS SCRIPTS INC | c64579exv3w1.htm |
Exhibit 3.2
Marked Copy Showing Changes to Sections 1.2, 1.11 and 1.12 of the Third Amended and Restated Bylaws
1.2 Special Meetings. (a) Subject to the rights of the holders of any series of
preferred stock under the Certificate of Incorporation, as amended, of the corporation (the
Certificate of Incorporation), special meetings of the stockholders may be called by the chairman
of the Board or the chief executive officer or by resolution of the Board, or, solely to the
extent required by Section 1.2(b), by the secretary of the corporation.
(b) (i) A special meeting of stockholders shall be called by the secretary upon
the written request or requests (each, a Special Meeting Request and collectively, the Special
Meeting Requests) of the holders of record representing not less than thirty-five percent (35%) of
the voting power of all capital stock issued and outstanding and entitled to vote on the matter or
matters to be brought before the proposed special meeting (the Requisite Percent), subject to
this Section 1.2(b) and all other applicable sections of these Bylaws (a Stockholder Requested
Special Meeting). The secretary shall determine in good faith whether all requirements set forth
in these Bylaws relating to a Stockholder Requested Special Meeting have been satisfied and such
determination shall be binding on the corporation and its stockholders. For purposes of this
Section 1.2(b) and for determining the Requisite Percent, a stockholder of record or a beneficial
owner, as the case may be, shall be deemed to own the shares of capital stock of the corporation
that such stockholder or, if such stockholder is a nominee, custodian or other agent that is
holding the shares on behalf of another person (the beneficial owner), that the beneficial owner
would be deemed to own pursuant to Rule 200(b) under the Securities Exchange Act of 1934, as
amended (the Exchange Act), excluding any shares as to which such stockholder or beneficial
owner, as the case may be, does not have the right to vote or direct the vote at the special
meeting or as to which such stockholder or beneficial owner, as the case may be, has entered into a
derivative or other agreement, arrangement or understanding that hedges or transfers, in whole or
in part, directly or indirectly, any of the economic consequences of ownership of such shares.
Whether shares are owned for these purposes shall be decided by the secretary in its good faith.
(ii) A Special Meeting Request shall be delivered by registered U.S. mail, return receipt
requested or courier service, postage prepaid, to the attention of the secretary at the principal
executive offices of the corporation. To be valid, a Special Meeting Request or Special Meeting
Requests must be signed and dated by stockholders (or their duly authorized agents) representing
the Requisite Percent and shall include:
(1) a statement of the specific purpose(s) of the special meeting, a brief
description of the business desired to be brought before the meeting, and the
reasons for conducting such business at the special meeting;
(2) the text of the proposal or business (including the text of any resolutions
proposed for consideration and, in the event that such business includes a proposal
to amend the Bylaws of the corporation, the language of the proposed amendment);
(3) as to the stockholders requesting the special meeting and the beneficial
owners, if any, on whose behalf the Special Meeting Request(s) are being made, the
Proposing Stockholder Information as defined in Section 1.13(b) of these Bylaws
required to be set forth in a stockholders notice required by Section 1.11(b) and
1.12(b) of these Bylaws, as applicable;
(4) in the case of any director nominations proposed to be presented at the
Stockholder Requested Special Meeting, such other information regarding the nominees
required to be provided pursuant to Section 1.11(a) of these Bylaws and required to
be set forth in a stockholders notice required by Section 1.11(b) of these Bylaws
(including, but not limited to, such other information required to be set forth in
connection with a stockholders director nomination);
(5) in the case of any other business proposed to be conducted at the
Stockholder Requested Special Meeting, such other information required to be set
forth in a stockholders notice required by Section 1.12(b) of these Bylaws;
(6) documentary evidence that the stockholders requesting the special meeting
own the Requisite Percent as of the date on which the Special Meeting Request(s) are
delivered to the secretary; provided, however, that if the stockholders of record
making the request are not the beneficial owners of the shares representing the
Requisite Percent, then to be valid, the Special Meeting Request(s) must also
include documentary evidence (or, if not simultaneously provided with the Special
Meeting Request(s), such documentary evidence must be delivered to the secretary
within 10 days after the date on which the Special Meeting Request(s) are delivered
to the secretary) that the beneficial owners on whose behalf the Special Meeting
Request(s) are made beneficially own the Requisite Percent as of the date on which
such Special Meeting Request(s) are delivered to the secretary; and
(7) an agreement by the requesting stockholder(s) and the beneficial owner(s),
if any, on whose behalf the Special Meeting Request(s) are being made, to notify the
corporation immediately in the case of any disposition prior to the Stockholder
Requested Special Meeting of shares of common stock of the corporation owned of
record or beneficially owned, as applicable, and an acknowledgement that any such
disposition shall be deemed a revocation of such Special Meeting Request, such that
the number of shares disposed of shall not be included in determining whether the
Requisite Percent has been reached or is maintained.
In addition, the stockholders requesting a special meeting of stockholders, the beneficial
owners, if any, on whose behalf the Special Meeting Request(s) are being made, and the proposed
nominees, if any, shall promptly provide any other information reasonably requested by the
corporation, including as to the eligibility of any proposed nominee to serve as an independent
director of the corporation and to comply with applicable law. Such stockholders, beneficial
owners and nominees shall further update and supplement the information required under Section
1.2(b)(ii)(3)-(7) of these Bylaws not later than 10 days after the record date for the meeting so
that such information shall be true and correct as of the record date, and with respect to
information required under Section 1.2(b)(ii)(6), as of a date not more than 5 business days before
the scheduled date of the special meeting.
(iii)In determining whether a special meeting of stockholders has been requested
by the record holders of shares representing in the aggregate at least the Requisite Percent,
multiple Special Meeting Requests delivered to the secretary will be considered together only if
each such Special Meeting Request (x) identifies substantially the same purpose or purposes of the
special meeting and substantially the same matters proposed to be acted on at the special meeting
(in each case as determined in good faith by the Board), and (y) has been dated and delivered to
the secretary within sixty days of the earliest dated of such Special Meeting Requests.
(iv) Any requesting stockholder may revoke his, her or its Special Meeting Request at any
time by written revocation delivered to the secretary at the principal executive offices of the
corporation; provided, however, that if following such revocation (or any deemed revocation
pursuant to Section 1.2(b)(ii)(7) above), the unrevoked valid Special Meeting Requests represent in
the aggregate less than the Requisite Percent at any time prior to the Shareholder Requested
Special Meeting, there shall be no requirement to hold a special meeting and the Board may, in its
discretion, cancel such meeting. The first date on which unrevoked valid Special Meeting Requests
constituting not less than the Requisite Percent shall have been delivered to the corporation is
referred to herein as the Request Receipt Date.
(v) Notwithstanding the foregoing, a special meeting requested by stockholders shall not
be held if:
(1) the stockholders, the beneficial owners, if any, on whose behalf the Special
Meeting Request(s) are being made, or proposed nominees, if any, do not comply with
the requirements of this Section 1.2(b);
(2) in the case of a Stockholder Requested Special Meeting that is called for
the purpose of electing nominees to the Board, no proposed nominee meets the
eligibility criteria set forth in Section 1.11(a) of these Bylaws;
(3) the Special Meeting Request relates to an item of business that is not a
proper subject for stockholder action under applicable law;
(4) the Request Receipt Date is during the period commencing ninety days prior
to the first anniversary of the date of the immediately preceding annual meeting and
ending on the earlier of (x) the date of the next annual meeting and (y) 30 days
after the first anniversary of the date of the previous annual meeting;
(5) an identical or substantially similar item (as determined in good faith by
the Board, a Similar Item) was presented at a meeting of the stockholders held not
more than 120 days before the Request Receipt Date (for purposes of this clause (5),
election or removal of directors shall be deemed to be a Similar Item with respect
to all items of business involving the nomination, election or removal of directors,
changing the size of the Board and filling of vacancies and/or newly created
directorships resulting from any increase in the authorized number of directors);
(6) the Board has called or calls for an annual or special meeting of
stockholders to be held within 120 days of the Request Receipt Date and the business
to be conducted at such meeting includes a Similar Item; or
(7) the Special Meeting Request(s) was made in a manner that involved a
violation of Regulation 14A under the Exchange Act, or other applicable law.
(vi) Special meetings shall be held at such date and time as specified by the Board in
accordance with these Bylaws; provided; however, that a Stockholder Requested Special Meeting shall
not be held more than ninety days after the Request Receipt Date.
(vii) If none of the stockholders who submitted the Special Meeting Request appears or
sends a qualified representative to present the matters for consideration that were specified in
the Stockholder Meeting Request, the corporation need not present such matters for a vote at such
meeting, notwithstanding that proxies in respect of such matter may have been received by the
corporation.
(viii) Business transacted at any Stockholder Requested Special Meeting shall be limited
to (1) the purposes set forth in the valid Special Meeting Request(s) received from the Requisite
Percent of record holders and (2) any additional matters that the Board of Directors determines to
include in the Corporations notice of the meeting. Only business related to the purposes set
forth in the notice of the meeting may be transacted at a special meeting called by the
chairman of the Board or the chief executive officer or by resolution of the Board.
1.11 Nominations of Directors. (a) Only Except as otherwise provided in Section
1.2(b), only persons who are nominated in accordance with the procedures set forth in this
Section 1.11 shall be eligible for election by the stockholders as directors of the corporation.
Nominations of persons for election to the Board may be made at a meeting of stockholders (i)
pursuant to the corporations notice of meeting (or any supplement thereto) given by or at the
direction of the Board, (ii) otherwise properly brought before the meeting by or at the direction
of the Board, or (iii) provided that the Board has determined that directors shall be elected at
such meeting, by any stockholder of the corporation who (A) is a stockholder of record at the time
of giving of the notice provided for in this Section 1.11 and at the time of the meeting, (B) is
entitled to vote for the election of directors at such meeting and (C) shall have complied with the
procedures set forth in this Section 1.11; and except as otherwise provided in Section
1.2(b), clause (iii) shall be the exclusive means for a stockholder to make nominations of
persons to the Board before or at a meeting of stockholders. No stockholder, other than the
stockholders requesting a special meeting pursuant to and in compliance with Section 1.2(b), shall
be permitted to submit nominations at any Stockholder Requested Special Meeting.
To be eligible to be a nominee for election or re-election as a director of the corporation, the
prospective nominee (whether nominated by or at the direction of the Board or by a stockholder), or
someone acting on such prospective nominees behalf, must deliver (in accordance with any
applicable time periods prescribed for delivery of notice under this Section 1.11) to the secretary
at the principal executive offices of the corporation a written questionnaire providing such
information with respect to the background and qualifications of such person and the background of
any other person or entity on whose behalf the nomination is being made that would be required to
be disclosed to stockholders pursuant to applicable law or the rules and regulations of any stock
exchange applicable to the
corporation, including all information concerning such persons that would be required to be
disclosed in solicitations of proxies for election of directors pursuant to and in accordance with
Regulation 14A under the Securities Exchange Act of 1934, as amended (or any successor thereto)
(the Exchange Act) (which questionnaire shall be provided by the secretary upon written request).
The prospective nominee must also provide a written representation and agreement, in the form
provided by the secretary upon written request, that such prospective nominee: (i) will abide by
the requirements of Section 1.5(b)(iii); (ii) is not and will not become a party to (A) any
agreement, arrangement or understanding with, and has not given any commitment or assurance to, any
person or entity as to how such prospective nominee, if elected as a director of the corporation,
will act or vote on any issue or question (a Voting Commitment) that has not been disclosed to
the corporation or (B) any Voting Commitment that could limit or interfere with such prospective
nominees ability to comply, if elected as a director of the corporation, with such prospective
nominees fiduciary duties under applicable law; (iii) is not and will not become a party to any
agreement, arrangement or understanding with any person or entity other than the corporation with
respect to any direct or indirect compensation, reimbursement or indemnification in connection with
service or action as a director that has not been disclosed therein; and (iv) would be in
compliance if elected as a director of the corporation, and will comply with all applicable
corporate governance, conflict of interest, confidentiality and stock ownership and trading
policies and guidelines of the corporation. For purposes of this Section 1.11, a nominee shall
include any person being considered to fill a vacancy on the Board.
(b) Except
as otherwise provided in Section 1.2(b), nNominations by any stockholder
must be made pursuant to timely notice in proper written form to the secretary of the corporation
in accordance with this paragraph. To be timely, a stockholders notice must be delivered to and
received by the secretary at the principal executive offices of the corporation (i) in the case of
an annual meeting, not less than 90 days nor more than 120 days in advance of the first anniversary
of the preceding years annual meeting; provided, however, that in the event that no annual meeting
was held in the previous year or the date of the annual meeting has been advanced by more than 30
days or delayed by more than 60 days from the date of the previous years meeting, notice by the
stockholder to be timely must be so received not earlier than the opening of business on the 120th
day prior to such annual meeting and not later than the close of business on the later of the 90th
day prior to such annual meeting or, if later, the tenth day following the day on which public
disclosure (as defined in Section 1.13 hereof) of the date of the meeting is first made, and (ii)
in the case of a special meeting at which the Board gives notice that directors are to be elected,
not earlier than the opening of business on the 120th day prior to such special meeting and not
later than the close of business on the later of the 90th day prior to such special meeting or, if
later, the tenth day following the day on which public disclosure is made of the date of the
special meeting and of the nominees proposed by the Board to be elected at such meeting. In no
event shall any adjournment or postponement of a stockholders meeting or the public disclosure
thereof commence a new time period (or extend any time period) for the giving of a stockholders
notice as described above.
To be in proper written form, such stockholders notice to the secretary shall set forth in writing
(i) as to each person whom such stockholder proposes to nominate for election or re-election as a
director, (A) all information relating to such person that would be required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in each case pursuant
to and in accordance with Regulation 14A under the Exchange Act (including such persons written
consent to being named in the proxy statement as a nominee and to serving as a director if elected)
as well as (B) a description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings during the past three years, and any other material
relationships, between or among such stockholder and beneficial owner, if any, on whose behalf the
nomination is being made, and their respective affiliates and associates, or others acting in
concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates
and associates, or others acting in concert therewith, on the other hand, including all information
that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the
stockholder making the nomination and any beneficial owner on whose behalf the nomination is made,
if any, or any affiliate or associate thereof or person acting in concert therewith, were the
registrant for purposes of such rule and the nominee were a director or executive officer of such
registrant; (ii) as to the stockholder giving the notice and the beneficial owner on whose behalf
the nomination is made, the Proposing Stockholder Information (as defined in Section 1.13 hereof);
(iii) a representation that the stockholder is a holder of record of stock of the corporation
entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to
propose such nomination; and (iv) a representation as to whether the stockholder or the beneficial
owner, if any, intends, or is or intends to be part of a group that intends, (A) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the corporations
outstanding capital stock required to elect the nominee and/or (B) otherwise
to solicit proxies from stockholders in support of such nomination. At the request of the Board,
any person nominated by the Board for election as a director shall furnish to the secretary that
information required to be set forth in a stockholders notice of nomination which pertains to the
nominee. The corporation may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such proposed nominee to
serve as an independent director of the corporation or that could be material to a reasonable
stockholders understanding of the independence, or lack thereof, of such nominee.
Stockholders making a nomination pursuant to this Section 1.11, beneficial owners on whose
behalf the nomination is made, and nominees shall further update and supplement the information
required under this Section 1.11 not later than 10 days after the record date for the meeting so
that such information shall be true and correct as of the record date. Notwithstanding
anything in this Section 1.11 to the contrary, in the event that the number of directors to be
elected to the Board of the corporation at a stockholders meeting is increased effective at such
meeting and there is no public disclosure by the corporation naming all the nominees proposed by
the Board for the additional directorships at least 100 days in advance of the first anniversary of
the preceding years annual meeting or in the event of a special meeting of stockholders called for
the purpose of electing directors, a stockholders notice required by this Section 1.11 shall also
be considered timely, but only with respect to nominees for such additional directorships, if it
shall be delivered to and received by the secretary not later than the close of business on the
tenth day following the day on which such public disclosure is first made by the corporation.
(c) Except
as otherwise provided in Section 1.2(b), nNo person shall be eligible for
election by the stockholders as a director unless nominated in accordance with the procedures set
forth in this Section 1.11. Except as otherwise provided by law, the Certificate of Incorporation
or these Bylaws, the person presiding over the meeting shall, if the facts warrant, determine and
declare at the meeting that a nomination was not made in accordance with the procedures prescribed
by these Bylaws (including whether the stockholder or beneficial owner, if any, on whose behalf the
nomination is made solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies in support of such stockholders nominee in compliance with such stockholders
representation as required by clause (b)(iv) of this Section 1.11); and if he or she shall so
determine, then he or she shall so declare at the meeting that the defective nomination shall be
disregarded.
1.12 Stockholder Proposals. (a) At any special meeting of the stockholders, only such
business shall be conducted as shall have been brought before the meeting pursuant to the
corporations notice of meeting (or any supplement thereto) given by or at the direction of the
Board pursuant to Section 1.2. At any annual meeting of the stockholders, only such business
(other than nominations of directors, which must be made in compliance with, and shall be
exclusively governed by Section 1.11) shall be conducted as shall have been brought before the
meeting (i) pursuant to the corporations notice of meeting (or any supplement thereto) given by or
at the direction of the Board, (ii) otherwise properly brought before the meeting by or at the
direction of the Board, or (iii) by any stockholder of the corporation who is a stockholder of
record at the time of giving of the notice provided for in this Section 1.12 and at the time of the
meeting, who shall be entitled to vote at such meeting and who complies with the notice procedures
set forth in this Section 1.12; clause (iii) shall be the exclusive means for a stockholder to
submit such business (other than matters properly brought under Rule 14a-8 under the Exchange Act
and included in the corporations notice of meeting) before or at an annual meeting of
stockholders. No stockholder, other than the stockholders requesting a special meeting
pursuant to and in compliance with Section 1.2(b), shall be permitted to submit business before or
at any Stockholder Requested Special Meeting.
(b) For business properly to be brought before an annual meeting by a stockholder pursuant to
clause (iii) of paragraph (a), the stockholder must have given timely notice thereof in proper
written form to the secretary of the corporation and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholders notice must be delivered to and
received by the secretary at the principal executive offices of the corporation not less than 90
days nor more than 120 days in advance of the first anniversary of the preceding years annual
meeting; provided, however, that in the event that (i) no annual meeting was held in the previous
year or (ii) the date of the annual meeting has been advanced by more than 30 days or delayed by
more than 60 days from the date of the previous years meeting, notice by the stockholder to be
timely must be so received not earlier than the opening of business on the 120th day prior to such
annual meeting and not later than the close of business on the later of the 90th day prior to such
annual meeting or, if later, the tenth day following the day on which public disclosure (as defined
in Section 1.13 hereof) of the date of the meeting is first made. In no event shall any
adjournment or postponement of a stockholders meeting or the public disclosure thereof commence a
new time period (or extend any time period) for the giving of a stockholders notice as described
above.
To be in proper written form, such stockholders notice to the secretary shall set forth in writing
(i) as to each matter the stockholder proposed to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the reasons for conducting such business at
such meeting, and the text of the proposal or business (including the text of any resolutions
proposed for consideration and, in the event that such business includes a proposal to amend the
Bylaws of the corporation, the language of the proposed amendment), (ii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the proposal is made, the
Proposing Stockholder Information (as defined in Section 1.13); (iii) any material interest of the
stockholder and the beneficial owner, if any, on whose behalf the proposal is made; (iv) a
description of all agreements, arrangements and understandings between such stockholder and
beneficial owner, if any, and any other person or persons (including their names) in connection
with the proposal of such business by the stockholder; (v) a representation that the stockholder is
a holder of record of stock of the corporation, entitled to vote at such meeting, and intends to
appear in person or by proxy at the meeting to propose such business; and (vi) a representation
whether the stockholder or the beneficial owner, if any, intends, or is or intends to be part of a
group that intends, (A) to deliver a proxy statement and/or form of proxy to holders of at least
the percentage of the corporations outstanding capital stock required to approve or adopt the
proposal and/or (B) otherwise to solicit proxies from stockholders in support of such proposal.
Stockholders proposing to bring business before the stockholders meeting pursuant to this
Section 1.12 and beneficial owners on whose behalf the nomination is made shall further update and
supplement the information required under this Section 1.12(b) not later than 10 days after the
record date for the meeting so that such information shall be true and correct as of the record
date.
(c) Notwithstanding anything in the Bylaws to the contrary, no business (other than the
election of directors) shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 1.12 or if it constitutes an improper subject for stockholder
action under applicable law. The person presiding over an annual meeting shall, if the facts
warrant, determine and declare at the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 1.12 (including whether the stockholder
or beneficial owner, if any, on whose behalf the proposal is made solicited (or is part of a group
which solicited) or did not so solicit, as the case may be, proxies in support of such
stockholders proposal in compliance with such stockholders representation as required by (b)(vi)
of this Section 1.12, and, if he or she should so determine, he or she shall so declare at the
meeting that any such business not properly brought before the meeting shall not be transacted.