Item 8.01. Other Events.
Nasdaq also is filing this Current Report on Form
8-K
for the purpose of clarifying the description of
its common stock and certain material provisions of its Certificate related to the common stock. In accordance with the interpretation of the staff of the Division of Corporation Finance of the Securities and Exchange Commission (the
Division) set forth in Questions 123.07 and 126.23 of the Divisions Securities Act Forms Compliance and Disclosure Interpretations, the Company will incorporate by reference the clarifying description of its common stock and
certain material provisions of the Certificate set forth below into registration statements on Form
S-3
and Form
S-8
filed under the Securities Act of 1933 in lieu of
incorporation by reference of a description of the common stock contained in a registration statement filed under Section 12 of the Securities Exchange Act of 1934, as amended.
In this Current Report on Form
8-K,
unless otherwise specified or the context requires otherwise, we
use the terms we, us and our to refer to the Company.
DESCRIPTION OF CAPITAL STOCK
The following is a description of the material terms and provisions relating to our capital stock. Because it is a summary, the following
description is not complete and is subject to and qualified in its entirety by reference to our Certificate and by-laws, and provisions of Delaware law which define the rights of our stockholders.
Authorized Capital
Our authorized
capital stock consists of (i) 300,000,000 shares of common stock, par value $0.01 per share; and (ii) 30,000,000 shares of preferred stock, par value $0.01 per share. As of March 31, 2018, we had 172,396,708 shares of common stock issued and
166,946,592 shares outstanding and we had no shares of preferred stock issued and none outstanding. As of March 31, 2018, there were approximately 273 record holders of our common stock.
Common Stock
The holders of our common
stock are entitled to one vote per share on all matters to be voted upon by the stockholders except that no person may exercise voting rights in respect of any shares in excess of 5% of the then outstanding shares of our Common Stock. Subject to
certain additional conditions, this limitation does not apply to persons exempted from this limitation by our board of directors prior to the time such person owns more than 5.0% of the then-outstanding shares of our common stock.
At any meeting of our stockholders, a majority of the votes entitled to be cast will constitute a quorum for such meeting.
Holders of common stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by our board of directors
out of funds legally available for them. In the event of our liquidation, dissolution, or winding-up, the holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities, subject to prior distribution
rights of preferred stock, if any, then outstanding. Our common stock has no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to our common stock. All outstanding shares of
common stock are fully paid and non-assessable. Future dividends, if any, will be determined by our board of directors.
Preferred Stock
Our Board of Directors may provide by resolution for the issuance of preferred stock, in one or more series, and to fix the powers,
preferences, and rights, and the qualifications, limitations, and restrictions thereof, of this preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences, sinking fund provisions, if
any, and the number of shares constituting any series or the designation of such series. The issuance of preferred stock could have the effect of decreasing the market price of our common stock and could adversely affect the voting and other rights
of the holders of our common stock.
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Certain Provisions of our Certificate and By-Laws
Some provisions of our Certificate and by-laws, which provisions are summarized below, may be deemed to have an anti-takeover effect and may
delay, defer, or prevent a tender offer or takeover attempt that a stockholder might consider in its best interest, including those attempts that might result in a premium over the market price for the shares held by stockholders.
Advance Notice Requirements for Stockholder Proposals and Directors Nominations
Our by-laws provide that stockholders seeking to bring business before an annual meeting of stockholders, or to nominate candidates for
election as directors at an annual meeting of stockholders, must provide timely notice in writing. To be timely, a stockholders notice must be delivered to or mailed and received at our principal executive offices not less than 90 nor more
than 120 days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, that in the event that the annual meeting is called for a date that is not within 30 days before or 70 days after such anniversary
date, notice by the shareholder in order to be timely must be received not earlier than 120 days prior to the meeting and not later than the later of 90 days prior to the meeting and the close of business on the 10th day following the date on which
notice of the date of the annual meeting was first publicly announced by Nasdaq. In the case of a special meeting of stockholders called for the purpose of electing directors, notice by the stockholder in order to be timely must be received not
earlier than 120 days prior to the meeting and not later than the later of 90 days prior to the meeting or the close of business on the 10th day following the day on which public disclosure of the date of the special meeting and our nominees was
first made. In addition, the by-laws specify certain requirements as to the form and content of a stockholders notice. These provisions may preclude stockholders from bringing matters before an annual meeting of stockholders or from making
nominations for directors at an annual or special meeting of stockholders.
Proxy Access
Our
by-laws
include a proxy access provision that permits a stockholder, or a group of stockholders,
owning at least three percent of our outstanding shares of common stock continuously for at least three years to nominate and include in the proxy materials for an annual meeting of stockholders director nominees constituting up to the greater of
two individuals and 25% of the total number of directors then in office, provided that the stockholder(s) and nominee(s) satisfy the requirements specified in the
by-laws.
Stockholder Action
Our
Certificate provides that stockholders are not entitled to act by written consent in lieu of a meeting.
Right to Call Special Meeting
Our
by-laws
provide that stockholders representing 15% or more of our outstanding shares can convene a
special meeting of shareholders.
Amendments; Vote Requirements
The General Corporation Law of the State of Delaware provides generally that the affirmative vote of a majority of the shares entitled to vote
on any matter is required to amend a corporations certificate of incorporation, unless a corporations certificate of incorporation requires a greater percentage. Our Certificate imposes majority voting requirements in connection with
stockholder amendments to the by-laws and in connection with the amendment of certain provisions of the Certificate, including those provisions of the Certificate relating to the limitations on voting rights of certain persons, removal of directors
and prohibitions on stockholder action by written consent.
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Authorized But Unissued Shares
The authorized but unissued shares of our common stock and preferred stock will be available for future issuance without stockholder approval
in most cases. These additional shares may be utilized for a variety of corporate purposes, including future public or private offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but
unissued shares of our common stock and preferred stock could render more difficult, or discourage, an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Delaware Business Combination Statute
We are organized under Delaware law. Delaware law generally prohibits a publicly-held or widely-held corporation from engaging in a
business combination with an interested stockholder for three years after the stockholder becomes an interested stockholder. An interested stockholder is a person who, together with affiliates and associates, owns
(or, in some cases, within three years, did own) directly or indirectly 15% or more of the corporations outstanding voting stock. A business combination includes a merger, asset sale or other transaction that results in a financial
benefit to the interested stockholder. However, Delaware law does not prohibit these business combinations if:
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1.
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before the stockholder becomes an interested stockholder, the corporations board approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
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2.
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after the transaction that results in the stockholder becoming an interested stockholder, the interested stockholder owns at least 85% of the corporations outstanding voting stock (excluding certain shares); or
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3.
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the corporations board approves the business combination and the holders of at least two-thirds of the corporations outstanding voting stock that the interested stockholder does not own authorize the
business combination at a meeting of stockholders.
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Listing; Transfer Agent and Registrar
Our common stock is listed on The Nasdaq Stock Market under the trading symbol NDAQ. The transfer agent and registrar for our
common stock is Computershare. Its address is 480 Washington Boulevard, Jersey City, New Jersey 07310 and its telephone number is +1 800 736 3001.
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