Masimo Corporation
Extract: Bylaws Amended/Restated (Plain English Desc) from a 8-K on 10/30/2019   Download
SEC Document
SEC Filing
On October 24, 2019, the Board of Directors (the “Board”) of Masimo Corporation (the “Company”) adopted the Second Amended and Restated Bylaws of the Company, effective as of such date (the “Amended Bylaws”), to add the Proxy Access Bylaw and the Forum Provision, each as defined below.
Proxy Access Bylaw
The Amended Bylaws permit eligible stockholders to be able to nominate candidates for election to the Company’s Board in accordance with procedures providing for proxy access (the “Proxy Access Bylaw”). The Proxy Access Bylaw may be used by an eligible stockholder, or a group of up to 20 eligible stockholders, who has continuously owned at least 3% of the outstanding shares of the Company’s common stock for at least the three years before, and including the day of the submission of the proxy access notice, who continues to hold the qualifying minimum number of shares through the date of the applicable annual meeting of stockholders, provided that the eligible stockholder(s) and the director nominee(s) satisfy the requirements specified in the Proxy Access Bylaw. The Proxy Access Bylaw further provides that an eligible stockholder, or a group of eligible stockholders, may nominate up to the greater of (i) 25% of the total number of directors who are members of the Board as of the last day on which a proxy access notice may be submitted, or (ii) two directors, subject to reduction in the event a director has been elected to the Board through proxy access at one of the two immediately preceding annual meetings of the Company’s stockholders.
The Amended Bylaws also contain conforming and clarifying changes related to the notice requirements for director nominations by stockholders at meetings of stockholders.
The Proxy Access Bylaw will first become available in connection with the Company’s 2020 annual meeting of stockholders.
Exclusive Forum Provision
Pursuant to the exclusive forum provision (the “Forum Provision”), unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee or stockholder of the Company to the Company or the Company’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law of the State of Delaware (the “DGCL”), the certificate of incorporation or the Amended Bylaws or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, or (iv) any action asserting a claim governed by the internal affairs doctrine shall be a state or federal court located within the State of Delaware, in all cases subject to the court’s having personal jurisdiction over the indispensable parties named as defendants. However, the Forum Provision provides that, notwithstanding the foregoing, any action asserting claims under the Securities Act of 1933, as amended, may be brought in state or federal court, subject to applicable law.