Item 3.03. Material Modification of Rights of Security Holders.
The information set forth in Item 5.03 below is incorporated by reference here.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On May 21, 2019, Everspin Technologies, Inc. filed a Certificate of Amendment to its Amended and Restated Certificate of Incorporation, which amended Article V.A.3. of its Amended and Restated Certificate of Incorporation to read as follows:
“3. Removal of Directors. Subject to any limitations imposed by applicable law, the Board of Directors or any individual director may be removed from office at any time with or without cause by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares of capital stock of the corporation entitled to vote generally at an election of directors.”
The amendment changed the voting standard by which the stockholders may,subject to any limitations imposed by applicable law, remove the Board of Directors or any individual director without cause, to be by the affirmative vote of the holders of a majority of the voting power of all of the then-outstanding shares of capital stock entitled to vote generally at an election of directors (rather than by a vote of 66 2/3% as was previously the standard in the Everspin Technologies, Inc. Amended and Restated Certificate of Incorporation). The amendment did not change the voting standard for which the Board of Directors or any individual director could be removed for cause, which remains by the affirmative vote of the holders of a majority of the voting power of all of the then-outstanding shares of capital stock entitled to vote generally at an election of directors. The amendment was approved by the Everspin stockholders at the 2019 Annual Meeting of Stockholders, as described below in Item 5.07.
Concurrent with the filing of the Certificate of Amendment, Section 20 of the Everspin Technologies, Inc. Bylaws was amended to be consistent with the amendment to the Amended and Restated Certificate of Incorporation described above, causing Section 20 of the Bylaws to read as follows:
“Section 20. Removal.
Subject to any limitations imposed by applicable law, the Board of Directors or any individual director may be removed from office at any time with or without cause by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares of capital stock of the corporation entitled to vote generally at an election of directors.”
The Certificate of Amendment to the Everspin Technologies, Inc. Amended and Restated Certificate of Incorporation is filed as Exhibit 3.1 hereto, and the Everspin Technologies, Inc. Bylaws, as amended and restated by amending Section 20 thereof, are filed as Exhibit 3.2 hereto.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On May 20, 2019, Everspin Technologies, Inc. held its 2019 Annual Meeting of Stockholders. The following is a brief description of each matter voted upon at the Annual Meeting, as well as the final tally of the number of votes cast: (a) for or withheld with respect to the election of directors; (b) for, against or abstain for the ratification of the appointment of Ernst & Young as Everspin’s independent registered public accounting firm for the fiscal year ending December 31, 2018; and (c) for, against or abstain for the approval of the proposed amendment to the Everspin Technologies, Inc. Amended and Restated Certificate of Incorporation. Broker non-votes are also reported. A more complete description of each matter is set forth in Everspin’s definitive proxy statement filed with the Securities and Exchange Commission on April 15, 2019.
