On September 3, 2020, the Board adopted our Second Amended and Restated By-laws effective September 3, 2020. The following summarizes significant changes to the bylaws which had been in effect since 1999:
• We added a “forum selection clause” to require stockholder’s derivative lawsuits be brought in the State of Delaware.
• We revised the annual meeting and board meeting provisions to provide more flexibility, including holding such meetings via remote communications (such as virtual annual meetings).
• We updated and modernized the advance notice provision for stockholder meetings. Specifically, the changes bifurcate the advance notice procedures for nomination of directors and other stockholder proposals and impose additional requirements, including (i) narrower time frame for stockholders to submit nomination and proposals; (ii) more disclosures regarding beneficial ownership of shares and conflict of interest; and (iii) more detailed information on the proposed nominee for director.
• We added a provision imposing additional restrictions on stockholders who intend to submit a shareholder proposal at the annual meeting and special meeting, including more comprehensive and robust information about the identities of stockholders and more consistent with proxy rules under the Exchange Act
• We added “Chief Executive Officer” as one of the officers to be designated by the Board.
• We clarified and provided that stockholder actions cannot be taken by written consent and must be taken pursuant to a meeting of stockholders.
• We added a provision to clarify the Company’s ability to issue uncertificated shares instead of physical share certificate.
• We modernized and updated the indemnification provision to provide, among other things, (i) more flexibility for the company to indemnify persons for a wider scope of legal proceedings; (ii) more detailed procedure for advancement of legal fees; and (iii) clarification of legal standard for indemnification and exceptions and limitations to indemnified claims.