On August 8, 2019, the Board of Directors (the “Board”) of Elanco Animal Health Incorporated (the “Company”) adopted the Company’s Amended and Restated Bylaws (the “Amended and Restated Bylaws”). The Amended and Restated Bylaws amended and restated the prior bylaws of the Company in their entirety, and became effective upon their approval by the Board. Among other changes, the Company’s bylaws were amended in the manner summarized below.
· Article I, Sections 1.9 (Notice of Shareholder Business) and 1.10 (Notice of Shareholder Nominees) have been revised to clarify and enhance the procedures for the submission of shareholder proposals and director nominations, including to change the advance notice deadlines from 120 to 150 days before the date of the proxy statement for the previous year’s annual meeting of shareholders to 90 to 120 days before the anniversary date of the previous annual meeting of shareholders; provided that in the event that no annual meeting was held the previous year or the date of the annual meeting has been changed by more than 30 days from the date of the previous year’s meeting, not later than ten days following the day on which public disclosure of the date of the meeting was made.
· Each of Article I, Section 1.9 and Article I, Section 1.10 has also been revised to provide additional detail regarding the information that must be included in the notice required to be submitted by a shareholder submitting proposals for consideration at any meeting of the Company’s shareholders or shareholder nominating a candidate for election as a director, including any other information regarding any Shareholder Associated Person (as defined in the Amended and Restated Bylaws) that would be required to be disclosed in a proxy statement or other filings required to be made in connection with a contested solicitation of proxies pursuant to SEC rules, and a representation whether the proposing shareholder or Shareholder Associated Person intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding shares required to approve the proposal and/or otherwise to solicit proxies from shareholders in support of the proposal or nominee.
· Article II, Section 2.1 (General Powers) has been revised to clarify that the Board of Directors may exercise all such powers of the Company and take any action that is not required to be taken by the shareholders.
· Article II, Section 2.5 (Meetings of Directors) has been revised to require special meetings of directors to be called by not less than a majority of directors then in office and to change the required notice of such meetings to 12 hours.
· Article VII, Section 7.3 (Exclusive Forum) has been added to provide for the designation of any state court located in Hancock County, Indiana or Marion County, Indiana or, if no such state court has jurisdiction, the United States District Court for the Southern District of Indiana as the exclusive forum for certain shareholder litigation such as derivative claims, breach of fiduciary duty claims, claims pursuant to the Indiana Business Corporation Law, the Articles of Incorporation or the Amended and Restated Bylaws, actions to interpret, enforce or determine the validity of the Articles of Incorporation or Amended and Restated Bylaws, or claims governed by the internal affairs doctrine, unless the Company otherwise consents to another jurisdiction.
In addition, the Amended and Restated Bylaws also include other technical, procedural, clarifying and conforming changes.