Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On
The Severance Plan provides that, if a participant's employment is terminated by the Company without "cause" or by the participant for "good reason" (as those terms are defined in the Severance Plan), subject to the participant executing and not revoking a release of claims, the participant will receive the following severance entitlements: (1) the sum, or in the case of a termination within 12 months following a change of control of the Company, two times the sum of (a) the participant's base salary and (b) the participant's average annual bonus earned in the two calendar years preceding the year of termination; (2) a prorated annual bonus for the year of termination; (3) all outstanding time-based equity-based awards vest, and performance-based equity awards will vest if and to the extent the applicable performance-based vesting conditions are satisfied with any such amount pro-rated for the actual number of days in the applicable performance period preceding the effective date of termination; and (4) if the participant elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), continuation of subsidized health care coverage for up to 12 months or, if the participant is not eligible to elect COBRA continuation coverage or the Company determines it cannot provide such coverage under its group health plan, monthly payments equal to the Company cost of providing such coverage. The severance described in (1) above is paid in installments over 12 months following the termination date unless the termination occurs within 12 months following a change in control of the Company, in which case the severance is paid in a lump sum within 60 days after the date of termination.
The Severance Plan defines "good reason" as, without the participant's consent, (i) the assignment of the participant's duties or responsibilities substantially inconsistent with the participant's title at the Company or a material diminution in the participant's title, authority or responsibilities; (ii) a material reduction in the participant's base salary or the target annual bonus opportunity (each as defined in the Severance Plan) during the term of the participant's employment; or (iii) the relocation of the participant's principal place of employment by more than thirty-five (35) miles from the participant's principal place of employment as of the effective date of the Severance Plan. The Severance Plan defines "cause" to include (i) the participant's conviction of, or plea of guilty or nolo contendere to, a felony (excluding traffic-related felonies), or any financial crime involving the Company of a subsidiary; (ii) the participant's willful and gross misconduct in the performance of his or her duties (other than by reason of his or her incapacity of disability), it being expressly understood that the Company's dissatisfaction with the participant's performance that is not willful and gross misconduct in the performance of the participant's duties will not constitute cause under this clause (ii); or (iii) the participant's continuous, willful and material breach of any agreement with the Company after written notice of such breach has been given.
For purposes of the Severance Plan, "change in control" means, in summary, the occurrence of (i) the sale, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the Company's properties or assets, (ii) a change in the majority of the Board unless approved by incumbent directors, (iii) acquisition of 50% of more of the voting power of the Company's stock, or (iv) the consummation of a reorganization, merger, consolidation, statutory share exchange or similar transaction after which the Company's shareholders do not own, directly or indirectly, more than 50% of the voting power of the surviving entity's (or a parent entity's) stock.
The Severance Plan provides that for 12 months following the termination of employment, the participant will not solicit the Company's employees, exclusive consultants or independent contractors, hire any individual who is (or was, within the six month period immediately preceding such hiring) the Company's employee, exclusive consultant, or exclusive independent contractor, solicit, entice or induce the Company's customers for the purpose of providing products or services that are competitive with the products or services the Company provides, or solicit, entice, or induce the Company's customers to terminate or reduce their business with the Company. The Severance plan also contains a non-competition covenant that for a period of 12 months following termination for any reason prohibits the participants from having any ownership interest in a competitor other than a passive investment of no more than 5%, or engaging in or performing services for a competitor, if such services either are the same as or similar to (individually or in the aggregate) the services participant performed for the Company during the participant's employment, or are performed with respect to products or services of the competitor that are competitive with the products or services provided by the Company with which the participant was involved during his or her employment or about which he or she received . . .
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
Opt Out of Maryland's Unsolicited Takeover Act
On
In accordance with Maryland law, the Company filed Articles Supplementary
describing the foregoing prohibition (the "Articles Supplementary") with the
Amendment No. 1 to Amended and Restated Bylaws
On
The Amendment amends Article II, Section 7 of the Bylaws to change the voting
standard for the election of directors from a plurality voting standard to a
majority voting standard in uncontested elections. Under the revised voting
standard, a director shall be elected to the Board of the Company if the votes
cast for such nominee's election exceeds the votes withheld from such nominee's
election; provided that if the election is contested, directors shall be elected
by a plurality of the votes cast. Any director nominee not elected by the
foregoing standard and who is an incumbent director shall promptly tender his or
her resignation to the
The Amendment also amends Article XIV of the Bylaws to give stockholders the right to amend the Bylaws upon the affirmative vote of a majority of votes entitled to be cast on the matter.
The foregoing description of the Amendment is qualified entirely by reference to the Amendment, which is attached as Exhibit 3.2 hereto.
Item 5.07. Submission of Matters to a Vote of Security Holders.
As previously disclosed in the Company's Current Report on Form 8-K filed on
On
As of the record date of
The certified results of the matters voted upon at the meeting, which are more
fully described in the Company's Definitive Proxy Statement on Schedule 14A as
filed with the
The votes regarding the Internalization Proposal were as follows when including
votes cast with respect to shares held by
Votes For Votes Against Abstentions 17,453,097 101,256 63,953
The votes regarding the Internalization Proposal were as follows when, in
accordance with the Purchase Agreement, excluding votes cast with respect to
shares held by
Votes For Votes Against Abstentions 16,661,189 101,256 63,953
As there were sufficient votes to approve the Internalization Proposal, stockholder action on the proposal to approve any adjournment of the Special Meeting to a later date or time, if necessary or appropriate, to solicit additional proxies in favor of the approval of the Internalization, as more fully described in the Proxy Statement, was not required, and the Company did not call the vote on that proposal.
Item 8.01 Other Events.
On
At the time of closing of the Internalization, the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 3.1 Articles Supplementary With Respect to the Opt-Out of Title 3, Subtitle 8 of the MGCL. 3.2 Amendment No. 1 to the Amended and Restated Bylaws ofJernigan Capital, Inc.
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