Item 5.02.Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e) Amendment of 2017 Equity Incentive Plan
As reported in Item 5.07 below, at the 2021 Annual Meeting of Stockholders (the “Annual Meeting”) of the Company held on August 27, 2021, the Company’s stockholders approved an amendment (the “Amendment”) to the Company’s 2017 Equity Incentive Plan (the “Plan”) to increase the number of shares available thereunder by 500,000 shares. The Company’s Board of Directors previously approved the Amendment, subject to such stockholder approval.
A summary of the material terms of the Amendment and the Plan is set forth in the Company’s definitive proxy statement on Schedule 14A filed with the Securities and Exchange Commission on July 13, 2021. That summary and the above description of the Amendment do not purport to be complete and are qualified in their entirety by reference to the full text of the Amendment, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.
Item 5.03.Amendments to the Articles of Incorporation or Bylaws; Change in Fiscal Year.
On August 26, 2021, the Board of the Company determined that it was in the best interests of the Company and its stockholders to amend, and approved and adopted an amendment to, Section 9 of Article VII of its Fifth Amended and Restated Bylaws (the “Bylaws”), to provide that, unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for resolution of any claim arising under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations thereunder (such amendment of the Bylaws, the “Bylaw Amendment”). The Bylaw Amendment, which became effectively immediately, further provides that any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Company shall be deemed to have notice and consented to Section 9 of Article VII. The Board approved the Bylaw Amendment in part to reduce any potential expenses that the Company may incur in connection with actions arising under the Securities Act if the Company was required to defend any such potential actions or proceedings in multiple jurisdictions and in parallel proceedings in federal and state courts simultaneously.
The foregoing description of the Bylaw Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Bylaw Amendment, a copy of which is filed herewith as Exhibit 3.1 hereto and incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders
As described in Item 5.02 above, the Company held its Annual Meeting via webcast on August 27, 2021. According to the inspector of elections, the stockholders present in person or by proxy represented 15,126,044 shares of common stock (entitled to one vote per share), representing a majority of the outstanding shares of common stock. At the Annual Meeting, the stockholders voted on the following four proposals and cast their votes as follows:
Proposal 1: Election of Directors.
| | | | | | | |
Director | | Votes For | | Votes Withheld | | Broker Non-Votes | |
Paul DeWeese | | 3,635,685 | | 651,023 | | 5,610,102 | |
Robert C. Flexon | | 3,735,171 | | 551,537 | | 5,610,102 | |
Darren R. Jamison | | 3,346,610 | | 940,098 | | 5,610,102 | |
Yon Y. Jorden | | 3,646,649 | | 640,059 | | 5,610,102 | |
Robert F. Powelson | | 3,645,280 | | 641,428 | | 5,610,102 | |
Denise Wilson | | 3,648,454 | | 638,254 | | 5,610,102 | |
Ping Fu | | 3,681,811 | | 604,897 | | 5,610,102 | |
Each of the individuals listed above was elected as a director of the Company to serve until the next annual meeting or until his or her successor is elected and qualified.
