Effective October 29, 2019, the Board of Directors (the “Board”) of Actuant Corporation (the “Company”) approved and adopted amendments to the existing Bylaws of the Company (as so amended, the “Bylaws”).
The amendments revise the deadline in the Bylaws for advance notice of business and nominations for an annual meeting of shareholders to generally not earlier than the close of business 120 days prior to the one-year anniversary of the preceding year’s annual meeting and not later than the close of business 90 days prior to such one-year anniversary, though such amendments do not affect the notice period applicable to notices to be delivered with respect to the upcoming annual meeting of shareholders scheduled to be held in January 2020. In addition, the amendments revise the deadline in the Bylaws for advance notice of director nominations for a special meeting of shareholders where directors will be elected to generally not earlier than the close of business 120 days prior to such special meeting and not later than the close of business 90 days prior to such special meeting, or, if later, the tenth day following public disclosure of the special meeting.
The amendments also revise the advance notice disclosure requirements contained in the Bylaws to require the shareholder (i) proposing business or nominating directors or (ii) demanding a record date to request a special meeting to provide additional information about the shareholder’s ownership of securities in the Company (including ownership of derivative securities) and material litigation, relationships and interests in material agreements with or involving the Company. The Bylaws also require the shareholder to provide information regarding the proposed business and any related agreements between the shareholder and any other beneficial holder. Further, the Bylaws require the shareholder to provide additional information regarding any candidate the shareholder proposes to nominate for election as a director, including all information with respect to such nominee that would be required to be set forth in a shareholder’s notice if such nominee were a shareholder delivering such notice and a description of any direct or indirect material interest in any material contract or agreement between or among the nominating shareholder and each nominee or his or her respective associates. Additionally, the Bylaws require any candidate for the Board, whether nominated by a shareholder or the Board, to provide certain background information and representations regarding disclosure of voting or compensation arrangements, compliance with the Company’s policies and guidelines and intent to serve the entire term. The amendments also prohibit shareholders from submitting more nominees than the number of directors up for election at the applicable meeting.
The amendments also add a forum selection provision, which provides that, unless the Company consents in writing to the selection of another forum, the Circuit Court for Waukesha County, Wisconsin or U.S. District Court for the Eastern District of Wisconsin - Milwaukee Division (the “Wisconsin Court”) will be the sole and exclusive forum for the following actions: (i) any derivative action or proceeding brought by or on behalf of the Company; (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s shareholders; (iii) any action asserting a claim against the Company, its directors, officers or employees arising pursuant to any provision of the Wisconsin Business Corporation Law or the Company’s Articles of Incorporation or the Bylaws, or (iv) any action asserting a claim against the Company, its directors, officers or employees governed by the internal affairs doctrine. Additionally, the amendments include language pursuant to which shareholders are deemed to have consented to personal jurisdiction in the Wisconsin Court and to service of process on their counsel in any action initiated in violation of the forum selection provision.
The amendments also revise the number of directors required to call a special meeting of the Board to a majority of directors then in office and include certain technical, conforming, modernizing and clarifying changes to the Bylaws.