Attached files
| file | filename |
|---|---|
| 10-Q - 10-Q - NELNET INC | nni-63017x10q.htm |
| EX-32 - EXHIBIT 32 - NELNET INC | nni-63017xex_32.htm |
| EX-31.2 - EXHIBIT 31.2 - NELNET INC | nni-63017xex_312.htm |
| EX-31.1 - EXHIBIT 31.1 - NELNET INC | nni-63017xex_311.htm |
Exhibit 3.2
[THE FOLLOWING COMPOSITE SECOND AMENDED AND RESTATED ARTICLES OF
INCORPORATION OF NELNET, INC. (THE “CORPORATION”), AS AMENDED,
REFLECT THE PROVISIONS OF THE CORPORATION’S SECOND AMENDED AND
RESTATED ARTICLES OF INCORPORATION, AS FILED WITH THE NEBRASKA
SECRETARY OF STATE ON NOVEMBER 4, 2003, AND ALL SUBSEQUENT
AMENDMENTS THERETO, WHICH WERE FILED WITH THE NEBRASKA SECRETARY
OF STATE ON AUGUST 25, 2006, AUGUST 9, 2007, MAY 27, 2016, AND MAY 25, 2017,
BUT THEY ARE NOT AN AMENDMENT AND/OR RESTATEMENT THEREOF.]
COMPOSITE SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
NELNET, INC.,
AS AMENDED
NAME
The name of the Corporation shall be Nelnet, Inc.
PRINCIPAL AND REGISTERED OFFICES
The principal and registered offices of the Corporation shall be at 121 South 13th Street,
Suite 201, Lincoln, Nebraska 68508, or such other place or places as the Corporation may
establish and maintain in the State of Nebraska or elsewhere as the Board of Directors may deem
prudent, necessary or expedient from time to time. The Corporation's initial registered agent at
such registered office shall be Terry J. Heimes.
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or activity for which a
corporation may now or hereafter be organized under the Nebraska Business Corporation Act
(the "Nebraska Act"). The Corporation shall have all powers that may now or hereafter be lawful
for a corporation to exercise under the Nebraska Act and under the laws of the State of Nebraska
generally. The Corporation shall have perpetual existence.
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CAPITAL STOCK
4.1. Total Number of Shares of Stock. The total number of shares of capital stock of
all classes that the Corporation shall have authority to issue is 710,000,000 shares. The
authorized capital stock is divided into (i) 50,000,000 shares of preferred stock, with par value of
$0.01 per share (the “Preferred Stock”); (ii) 600,000,000 shares of Class A Common Stock (the
“Class A Common Stock”), with par value of $0.01 per share; and (iii) 60,000,000 shares of
Class B Common Stock (the “Class B Common Stock”), with par value of $0.01 per share. The
number of authorized shares of any of the Preferred Stock, Class A Common Stock or Class B
Common Stock may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative votes of the holders of a majority in voting power of the stock of
the Corporation entitled to vote thereon irrespective of any provision of the Nebraska Act now or
hereafter in effect, and no vote of the holders of the Preferred Stock, the Class A Common Stock
or the Class B Common Stock voting separately as a class shall be required therefor. None of
the Class A Common Stock or Class B Common Stock may be subdivided, consolidated,
reclassified or otherwise changed in any manner unless the other class is subdivided,
consolidated, reclassified or otherwise changed in the same manner and proportion. Except for
shares of Class B Common Stock issued in connection with stock splits, stock dividends and
other similar distributions, the Corporation shall not issue additional shares of Class B Common
Stock after May 25, 2006 unless approved by the affirmative votes of the holders of a majority in
voting power of the stock of the Corporation entitled to vote thereon irrespective of any
provision of the Nebraska Act now or hereafter in effect, and no vote of the holders of the
Preferred Stock, the Class A Common Stock or the Class B Common Stock voting separately as
a class shall be required therefor.
4.2. Preferred Stock. Subject to limitations of applicable law, the Board of Directors is
hereby expressly authorized, by resolution or resolutions, to provide, out of the unissued shares
of Preferred Stock, for one or more series of Preferred Stock and, with respect to each such
series, to fix the number of shares constituting such series and the designation of such series, the
voting powers (if any) of the shares of such series and the preferences and relative, participating,
optional or other special rights, if any, and any qualifications, limitations or restrictions thereof,
of the shares of such series. The powers, preferences and relative, participating, optional and
other special rights of each series of Preferred Stock, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series at any time
outstanding. Such rights and restrictions as referred to above shall include, without limitation,
dividend rights, conversion rights, voting rights, terms of redemption, including sinking fund
provisions, redemption price or prices, liquidation preferences and the number of shares
constituting any series or designations of such series.
4.3. Class A Common Stock. Each holder of Class A Common Stock shall be entitled
to one (1) vote for each share of Class A Common Stock held of record by such holder on all
matters on which shareholders generally are entitled to vote.
4.4. Class B Common Stock. Each holder of Class B Common Stock shall be entitled
to ten (10) votes for each share of Class B Common Stock held of record by such holder on all
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matters on which shareholders generally are entitled to vote except as may otherwise expressly
be provided for herein.
4.5. Class Voting. Subject to limitations of applicable law, Class A Common Stock
and Class B Common Stock shall vote as a single class on all matters to be voted on including,
without limitation, any consolidation or merger of the Corporation into or with any other
corporation or the sale or transfer of all or substantially all of its assets; provided, however, that
the vote of a majority of the shares of Class B Common Stock, voting separately as a class, shall
be required to lower the number of votes per share that each share of Class B Common Stock
entitles its holder to have.
4.6. Conversion. Class A Common Stock is not convertible. Each share of Class B
Common Stock is convertible at any time at the holder's option into one (1) share of Class A
Common Stock. Each share of Class B Common Stock shall automatically convert into one
(1) share of Class A Common Stock, without any action by the Corporation or further action
by the holder thereof, upon the Transfer (as defined below) of such share, other than the
following Transfers: (i) to any other holder of Class B Common Stock or to any natural
person or business organization that, directly or indirectly, controls, is controlled by or is
under common control with such holder ("business organization" shall mean any
corporation, limited liability company, partnership or like entity); (ii) to a spouse, sibling,
parent, grandparent or descendant, whether natural or adopted, of a holder of Class B
Common Stock; (iii) to any charitable foundation or other organization qualified under
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or the corresponding
provision of any subsequent federal tax law; (iv) to a trust all of the beneficiaries of which
are holders of Class B Common Stock each of whom is a natural person, natural persons
described in clause (ii) hereof and/or entities described in clause (iii) hereof; (v) by will to
any transferee described in clause (ii), (iii) or (iv) hereof; (vi) pursuant to the laws of descent
and distribution to a spouse, sibling, parent, grandparent and/or descendant, whether natural
or adopted, of a holder of Class B Common Stock; or (vii) to the Corporation.
Notwithstanding the foregoing, a share of Class B Common Stock shall automatically
convert into one (1) share of Class A Common Stock, without any action by the Corporation
or further action by the holder thereof, upon any Transfer of such share pursuant to a divorce
or separation agreement, decree or order. "Transfer" means a sale, assignment, transfer, gift,
encumbrance or other disposition, other than a bona fide pledge for collateral security
purposes.
In the event at any time the shares of the Class B Common Stock outstanding
constitute less than 50% of the Class B Common Stock outstanding as of the date of the final
prospectus relating to the Corporation' s initial public offering (as adjusted for any dividend
or other distribution, recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of shares or other
securities, the issuance of warrants or other rights to purchase shares or other securities, or
other similar capitalization change), each remaining share of Class B Common Stock
outstanding shall automatically be converted into one (1) share of Class A Common Stock.
The Corporation will reserve and at all times keep available out of its authorized but
unissued shares of Class A Common Stock or its shares of treasury stock of such class a
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sufficient number of shares of Class A Common Stock to satisfy the conversion
requirements of all outstanding shares of Class B Common Stock.
4.7. Dividend Rights. Holders of Class A Common Stock and Class B Common
Stock shall be entitled to receive ratably dividends payable in cash, in stock or otherwise,
as and when declared by the Board of Directors out of assets legally available therefor,
subject to any preferential rights of any outstanding Preferred Stock.
4.8. Other Rights. Upon liquidation, dissolution or winding up of the Corporation,
after payment in full of the amounts required to be paid to the holders of any outstanding
Preferred Stock, all holders of Class A Common Stock and Class B Common Stock are
entitled to receive ratably any assets available for distribution to holders thereof after the
payment of all debts and other liabilities of the Corporation. No shares of the Class A
Common Stock or the Class B Common Stock shall have preemptive rights to purchase
additional shares. The rights, preferences and privileges of holders of Class A Common
Stock and Class B Common Stock shall be subject to, and may be adversely affected by, the
rights of holders of outstanding Preferred Stock. All shares of Class A Common Stock,
Class B Common Stock and Preferred Stock which are acquired by the Corporation shall be
available for re-issuance by the Corporation at any time.
4.9. Rights With Respect to Future Issuances and Sales. The Board of Directors
shall be authorized to create and issue by one or more resolutions, whether or not in
connection with the issuance and sale of any of the Corporation's securities or properties,
rights entitling the holders thereof to purchase securities issued by the Corporation or any
other entity. The times at and the terms upon which such rights are to be issued are to be
determined by the Board of Directors and set forth in contracts or other instruments which
evidence such rights. The authority of the Board of Directors with respect to such rights
shall include, without limitation, the determination of the initial purchase price, the times
and circumstances under which such rights may be exercised, provisions denying such
holders of a specified percentage of the Corporation's outstanding capital stock the right to
exercise such rights and provisions to permit the Corporation to redeem or exchange such
rights.
4.10. Recapitalization Plan; Exchange of Certificates. Each share of the
Corporation's Class B (nonvoting) Common Stock owned by Michael S. Dunlap, Terri
Dunlap, Stephen F. Butterfield and Union Financial Services, Inc., and each share of the
Corporation's Class A (voting) Common Stock issued and outstanding or held in treasury,
immediately prior to the filing of the Amended and Restated Articles of Incorporation with
the Nebraska Secretary of State on August 14, 2003, was, upon such filing and thereafter,
exchanged for and classified as 210 shares of the Corporation's Class B Common Stock.
Each share of the Corporation's Class B (nonvoting) Common Stock issued and outstanding
or held in treasury immediately prior to the filing of the Amended and Restated Articles of
Incorporation on August 14, 2003 (other than shares of Class B (nonvoting) Common Stock
owned by Michael S. Dunlap, Terri Dunlap, Stephen F. Butterfield and Union Financial
Services, Inc.), was, upon such filing and thereafter, exchanged for and classified as 210
shares of the Corporation's Class A Common Stock. Promptly after the filing of the
Amended and Restated Articles of Incorporation on August 14, 2003, each holder of the
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Corporation' s issued and outstanding capital stock surrendered, or is entitled to surrender, to
the Corporation all certificates representing all such shares of the Corporation's capital
stock, properly endorsed for transfer to the Corporation, which certificates were in any event
deemed cancelled at the time of such filing, and the Corporation thereupon issued and
delivered, or will issue and deliver, to such holder certificates representing the number of
shares of the Corporation's capital stock that such holder was, or is, entitled to receive
pursuant to the recapitalization plan set forth above.
BOARD OF DIRECTORS
5.1. Powers of Board of Directors. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors which shall consist of
not less than three (3) members. In furtherance, and not in limitation, of the powers
conferred by the laws of the State of Nebraska, the Board of Directors is expressly
authorized to:
(a) adopt, amend, alter, change or repeal the By-laws of the Corporation;
provided, however, that no By-laws hereafter adopted shall invalidate any prior act
of the directors that would have been valid if such new By-laws had not been
adopted;
(b) determine the rights, powers, duties, rules and procedures that affect
the power of the Board of Directors to manage and direct the business and affairs of
the Corporation, including the power to designate and empower committees of the
Board of Directors, to elect, appoint and empower the officers and other agents of
the Corporation, and to determine the time and place of, the notice requirements for,
Board meetings, as well as quorum and voting requirements for, and the manner of
taking, Board action; and
(c) exercise all such powers and do all such acts as may be exercised or
done by the Corporation, subject to the provisions of the Nebraska Act, these
Second Amended and Restated Articles of Incorporation and the By-laws of the
Corporation.
5.2. Number of Directors. Subject to Section 5.1, the number of directors
constituting the Board of Directors shall be determined from time to time exclusively by a
vote of a majority of the Board of Directors in office at the time of such vote.
5.3. Vacancies. Subject to the rights of the holders of one or more series of Preferred
Stock then outstanding as provided for or fixed pursuant to the provisions of Article IV hereof,
any vacancies on the Board of Directors for any reason and any newly created directorships
resulting by reason of any increase in the number of directors may be filled only by the Board of
Directors, acting by a majority of the remaining directors then in office, although less than a
quorum, or by a sole remaining director. A director elected to fill a vacancy or a newly created
directorship shall hold office until the next election of the class for which such director shall
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have been chosen pursuant to the provisions of Section 5.5 below, subject to the election and
qualification of a successor and to such director’s earlier death, resignation, or removal.
5.4. Removal of Directors. Except for such additional directors, if any, as elected by
the holders of any series of Preferred Stock as provided for or fixed pursuant to the provisions of
Article IV hereof, any director, or the entire Board of Directors, may be removed from office at
any time, with or without cause, by the affirmative vote of the holders of a majority of the voting
power of all of the shares of capital stock of the Corporation then entitled to vote generally in the
election of directors or class of directors, voting together as a single class.
5.5. Classification and Terms of Directors. Other than those directors, if any, elected
by the holders of any series of Preferred Stock that may be established pursuant to the provisions
of Article IV hereof, the Board of Directors shall be divided into three classes, with each class
containing one-third of the total number of directors, as near as may be practicable, and with
the classes designated Class I, Class II, and Class III. If the number of directors is not evenly
divisible by three, the remaining positions shall be allocated first to Class III and then to Class II.
Except for the terms of such additional directors, if any, as elected by the holders of any series of
Preferred Stock and as provided for or fixed pursuant to the provisions of Article IV hereof, each
director shall serve for a term ending on the date of the third annual meeting of shareholders
following the annual meeting of shareholders at which such director was elected; provided, that
each director initially appointed to Class I shall serve for an initial term expiring at the
Corporation’s first annual meeting of shareholders following the effectiveness of this provision;
each director initially appointed to Class II shall serve for an initial term expiring at the
Corporation’s second annual meeting of shareholders following the effectiveness of this
provision; and each director initially appointed to Class III shall serve for an initial term expiring
at the Corporation’s third annual meeting of shareholders following the effectiveness of this
provision; provided further, that the term of each director shall continue until the election and
qualification of a successor and be subject to such director’s earlier death, resignation, or
removal. The directors in office immediately prior to the effectiveness of this provision shall
assign members of the Board of Directors then in office to such Classes at the time the
classification of the Board of Directors becomes effective.
SHAREHOLDER ACTIONS AND MEETINGS OF SHAREHOLDERS
Special meetings of shareholders of the Corporation may be called only by the Board
of Directors pursuant to a resolution adopted by a majority of the members of the Board of
Directors then in office, except as may otherwise be required by the Nebraska Act.
Elections of officers need not be by written ballot, unless otherwise provided in the By-
laws. For purposes of all meetings of shareholders, a quorum shall consist of shares
constituting a majority of the voting power of all the shares of the capital stock of the
Corporation entitled to vote at such meeting of shareholders, unless otherwise required by
law. In all elections for directors of the Corporation, directors shall be elected by a majority of
the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is
present, and not be a plurality of such votes.
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LIMITATION ON LIABILITY OF DIRECTORS
No person shall be personally liable to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director, including without limitation
directors serving on committees of the Board of Directors; provided, however, that the
foregoing shall not eliminate or limit the liability of a director for (i) any breach of the
director's duty of loyalty to the Corporation or its shareholders; (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of law; (iii) acts
or omissions which the Nebraska Act does not permit indemnity for directors under Section
21-2018(2)(e) of the Nebraska Act or otherwise; or (iv) any transaction from which the
director derived an improper personal benefit. If the Nebraska Act is amended hereafter to
authorize corporate action further eliminating or limiting the personal liability of directors,
then the liability of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Nebraska Act, as so amended. Any amendment, repeal or
modification of this Article VII shall not adversely affect any right or protection of a
director of the Corporation existing hereunder with respect to any act or omission occurring
prior to such amendment, repeal or modification.
INDEMNIFICATION OF DIRECTORS, OFFICERS
EMPLOYEES AND OTHER AGENTS
8.1. Indemnification of Directors and Officers. The Corporation shall, to the
maximum extent and in the manner permitted by the Nebraska Act, indemnify each of its
directors and officers against expenses (as defined in Section 21-20,102 of the Nebraska
Act), judgments, fines, settlements and other amounts actually and reasonably incurred in
connection with any proceeding (as defined in Section 21-20,102 of the Nebraska Act)
arising by reason of the fact that such person is or was an agent of the Corporation. For
purposes of this Article VIII, a "director" or "officer" of the Corporation includes any
person (i) who is or was a director or officer of the Corporation, (ii) who is or was serving
at the request of the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, or (iii) who was a director or officer of a corporation
which was a predecessor corporation of the Corporation or of another enterprise at the
request of such predecessor corporation.
8.2. Indemnification of Others. The Corporation shall have the power, to the
extent and in the manner permitted by the Nebraska Act, to indemnify each of its employees
and agents (other than directors and officers) against expenses (as defined in Section 21-
20,102 of the Nebraska Act) judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding (as defined in Section 21-20,102 of
the Nebraska Act) arising by reason of the fact that such person is or was an agent of the
Corporation. For purposes of this Article VIII, an "employee" or "agent" of the Corporation
(other than a director or officer) includes any person (i) who is or was an employee or agent
of the Corporation, (ii) who is or was serving at the request of the Corporation as an
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employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was an employee or agent of a corporation which was a predecessor
corporation of the Corporation or of another enterprise at the request of such predecessor
corporation.
8.3. Payment of Expenses in Advance. Expenses incurred in defending any civil or
criminal action or proceeding for which indemnification is required pursuant to Section 8.1 or for
which indemnification is permitted pursuant to Section 8.2 following authorization thereof by the
Board of Directors, shall be paid by the Corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of the indemnified party to
repay such amount if it shall ultimately be determined by final judicial decision, from which
there is not further right of appeal, that the indemnified party is not entitled to be indemnified as
authorized in this Article VIII.
8.4. Indemnity Not Exclusive. The indemnification provided by this Article VIII shall
not be deemed exclusive of any other rights to which those seeking indemnification may be
entitled under any By-law of the Corporation, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, to the extent that such additional rights to indemnification are
authorized in this Article VIII.
8.5. Insurance. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was an agent of the Corporation against any liability
asserted against or incurred by such person in such capacity or arising out of such person's status
as such, whether or not the Corporation would have the power to indemnify him or her against
such liability under the provisions of this Article VIII.
8.6. Conflicts. No indemnification or advance shall be made under this Article VIII,
except where such indemnification or advance is mandated by law or the order, judgment or
decree of any court of competent jurisdiction, in any circumstance where it appears that:
(a) it would be inconsistent with a provision of this Article VIII, the By-laws
of the Corporation, a resolution of the shareholders or an agreement in effect at the time
of the accrual of the alleged cause of the action asserted in the proceeding in which the
expenses were incurred or other amounts were paid, which prohibits or otherwise limits
indemnification; or
(b) it would be inconsistent with any condition expressly imposed by a court
in approving a settlement.
AMENDMENT OF AMENDED AND RESTATED
ARTICLES OF INCORPORATION
The Corporation hereby reserves the right to amend, alter, change or repeal any
provision contained in these Second Amended and Restated Articles of Incorporation in any
manner permitted by the Nebraska Act and all rights and powers conferred upon
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shareholders, directors and officers herein are granted subject to this reservation; provided,
however, that the affirmative vote of the holders of a majority of the voting power of all the
shares of the capital stock of the Corporation then entitled to vote generally in the election
of directors, voting together as a single class, shall be required to amend, repeal or adopt
any provision inconsistent with Section 4.9, Article VI or this proviso.
SEVERABILITY
In the event that any of the provisions of these Second Amended and Restated Articles of
Incorporation (including any provision within a single Section, paragraph or sentence) are held
by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining
provisions are severable and shall remain enforceable to the full extent permitted by law.
INCORPORATOR
The name and street address of the incorporator is: Jay L. Dunlap, 111 Oenida,
Milford, Nebraska.
EXCLUSIVE FORUM FOR ADJUDICATION OF CERTAIN LEGAL ACTIONS
Unless the Corporation consents in writing to the selection of an alternative forum, to
the fullest extent permitted by law, the sole and exclusive forum for (i) any derivative action
or proceeding brought on behalf or in the right of the Corporation; (ii) any action asserting a
claim of breach of a fiduciary duty owed by any director, officer, or employee of the
Corporation to the Corporation or the Corporation’s shareholders; (iii) any action asserting a
claim arising pursuant to any provision of the Nebraska Business Corporation Act (effective
until January 1, 2017), the Nebraska Model Business Corporation Act (effective January 1,
2017), or the Articles of Incorporation or By-laws of the Corporation (as each may be
amended from time to time); or (iv) any action asserting a claim governed by the internal
affairs doctrine shall be the District Court for the State of Nebraska located in the City of
Lincoln, County of Lancaster, Nebraska (or, if such court does not have jurisdiction, the
United States District Court for the District of Nebraska located in the City of Lincoln,
Nebraska). If any action the subject matter of which is within the scope of the preceding
sentence is filed in a court other than a court referred to in the preceding sentence (a
“Foreign Action”) in the name of any shareholder, such shareholder shall be deemed to have
consented to (i) the personal jurisdiction of the state and federal courts located within the
State of Nebraska in connection with any action brought in any such court to enforce the
preceding sentence and (ii) having service of process made upon such shareholder in any
such action by service upon such shareholder’s counsel in the Foreign Action as agent for
such shareholder. Any person or entity owning, purchasing, or otherwise acquiring any
interest in shares of capital stock of the Corporation shall be deemed to have notice of and
consented to the provisions of this Article XII.