| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
(a) At the 2021 annual meeting of stockholders (the “2021 Annual Meeting”) of Benefitfocus, Inc. (the “Company”), stockholders approved amendments to the Restated Certificate of Incorporation of Benefitfocus, Inc., as amended (the “Charter”) to (i) declassify the Company’s board of directors (the “Board”) and provide for the annual election of directors after the expiration of their respective current terms (the “Charter Declassification Amendment”) and (ii) increase the total number of authorized shares of common stock, par value $0.001 per share (“Common Stock”), reserved for issuance under the Charter from 50,000,000 to 95,000,000 shares (the “Charter Share Issuance Amendment”).
Pursuant to the terms of the Charter Declassification Amendment, the directors elected prior to the 2021 Annual Meeting will continue to serve the remaining portion of their three-year terms, but directors elected at or after the 2021 Annual Meeting were and will be elected to one-year terms. Accordingly, the entire Board will be elected on an annual basis at the Company’s 2023 annual meeting of stockholders and at each annual meeting of stockholders thereafter.
The Charter Share Issuance Amendment and the Charter Declassification Amendment were previously approved by the Board, subject to approval by the Company’s stockholders, and became effective upon filing a certificate of amendment to the Charter (the “Certificate of Amendment”) with the Delaware Secretary of State on June 30, 2021. The foregoing description of the Certificate of Amendment does not purport to be complete and is qualified in its entirety by the full text of the Certificate of Amendment filed with the Delaware Secretary of State, a copy of which is attached hereto as Exhibit 3.1 and incorporated herein by reference.
On June 30, 2021, the Board approved an amendment and restatement of the Company’s amended and restated bylaws (the “Second Amended and Restated Bylaws”), effective as of such date. The Second Amended and Restated Bylaws make conforming changes with respect to the Charter Declassification Amendment, change the voting standard for the election of directors to a majority voting standard in uncontested elections, and conform and update the advance notice and other procedural requirements for stockholder proposals and nominations of directors. The foregoing description of the Second Amended and Restated Bylaws does not purport to be complete and is qualified in its entirety by the full text of the Second Amended and Restated Bylaws, a copy of which is attached hereto as Exhibit 3.2 and incorporated herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
The Company held its 2021 Annual Meeting on June 30, 2021. The following proposals were voted upon and the final voting results with respect to each such proposal are set forth below.
At the 2021 Annual Meeting, stockholders approved the Charter Declassification Amendment, as described in Item 5.03 above. The vote for this proposal was 32,431,523 shares for, 117,620 shares against, 10,057 shares abstaining, and 1,694,662 broker non-votes.
At the 2021 Annual Meeting, stockholders also elected one Class II Common Stock director, Coretha M. Rushing, for a one-year term expiring in 2022, or until her successor is duly elected and qualified. The vote for her election was 29,169,198 shares for, 3,390,002 shares withheld, and 1,694,662 broker non-votes.
Additionally, the holders of all of the Company’s 1,777,778 shares of Series A Convertible Preferred Stock (entitled to an aggregate of 5,333,334 votes) elected one Preferred Stock director, Zeynep Young, for a one-year term expiring in 2022, or until her successor is duly elected and qualified, with no shares withheld and no broker non-votes.
