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Table of Contents
Filed pursuant to Rule 424(b)(3)
Registration No. 333-183602
PROSPECTUS SUPPLEMENT NO. 4
To Prospectus dated March 6, 2013
OvaScience, Inc.
7,630,683 Shares of Common Stock
This prospectus supplement no. 4 supplements the prospectus dated March 6, 2013, relating to the offering and resale by the selling stockholders of up to 7,630,683 shares of common stock, par value $0.001 per share. These shares were privately issued to the selling stockholders in connection with private placement transactions. We will not receive any proceeds from the sale of these shares by the selling stockholders.
This prospectus supplement incorporates into our prospectus the information contained in (i) our attached Definitive Proxy Statement for our 2013 Annual Meeting of Stockholders, which was filed with the Securities and Exchange Commission on April 26, 2013, (ii) our attached additional definitive proxy soliciting materials, which were filed with the Securities and Exchange Commission on April 30, 2013 and (iii) our attached current report on Form 8-K, which was filed with the Securities and Exchange Commission on April 30, 2013.
You should read this prospectus supplement in conjunction with the prospectus, including any supplements and amendments thereto. This prospectus supplement is qualified by reference to the prospectus except to the extent that the information in the prospectus supplement supersedes the information contained in the prospectus.
This prospectus supplement is not complete without, and may not be delivered or utilized except in connection with, the prospectus, including any supplements and amendments thereto.
Our common stock is listed on The NASDAQ Global Market under the symbol “OVAS.” On May 2, 2013, the last reported sale price of our common stock on The NASDAQ Global Market was $12.10.
Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 9 of the prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus supplement is May 3, 2013.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrantý | ||
Filed by a Party other than the Registranto | ||
Check the appropriate box: | ||
o | Preliminary Proxy Statement | |
o | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | |
ý | Definitive Proxy Statement | |
o | Definitive Additional Materials | |
o | Soliciting Material under §240.14a-12 |
OvaScience, Inc. | ||||
(Name of Registrant as Specified In Its Charter) | ||||
(Name of Person(s) Filing Proxy Statement, if other than the Registrant) | ||||
Payment of Filing Fee (Check the appropriate box): | ||||
ý | No fee required. | |||
o | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. | |||
(1) | Title of each class of securities to which transaction applies: | |||
(2) | Aggregate number of securities to which transaction applies: | |||
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): | |||
(4) | Proposed maximum aggregate value of transaction: | |||
(5) | Total fee paid: | |||
o | Fee paid previously with preliminary materials. | |||
o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. | |||
(1) | Amount Previously Paid: | |||
(2) | Form, Schedule or Registration Statement No.: | |||
(3) | Filing Party: | |||
(4) | Date Filed: |
OVASCIENCE, INC.
215 First Street, Suite 240
Cambridge, Massachusetts 02142
To our Stockholders:
You are cordially invited to attend our 2013 Annual Meeting of Stockholders. Our Annual Meeting will be held at our principal executive offices, 215 First Street, Suite 240, Cambridge, Massachusetts, on Friday, June 7, 2013, at 9:00 a.m., local time. The attached Notice of Annual Meeting of Stockholders and proxy statement contain details of the business to be conducted at our Annual Meeting. We urge you to review these proxy materials carefully and to use this opportunity to take part in the affairs of OvaScience, Inc. by voting on the matters described in the proxy statement.
We have elected to provide our proxy materials over the Internet under the Securities and Exchange Commission's "notice and access" rules. Providing our proxy materials to stockholders electronically allows us to conserve natural resources and reduce our printing and mailing costs related to the distribution of the proxy materials. If you wish to receive paper copies of the proxy materials you may do so by following the instructions contained in the Notice of Annual Meeting of Stockholders.
Your vote is important. Whether or not you plan to attend the Annual Meeting we hope you will vote as soon as possible. You may vote over the Internet, as well as by telephone, or, if you received printed proxy materials, by mailing a proxy or voting instruction card. Please review the instructions on each of your voting options described in this proxy statement, as well as in the Notice of Annual Meeting of Stockholders.
Thank you for your support of OvaScience, Inc. We look forward to seeing you at our Annual Meeting.
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Michelle Dipp, M.D., Ph.D. President and Chief Executive Officer |
OVASCIENCE, INC.
215 First Street, Suite 240
Cambridge, Massachusetts 02142
Notice of Annual Meeting of Stockholders
to be held on Friday, June 7, 2013
To our Stockholders:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders (the "Annual Meeting") of OvaScience, Inc., a Delaware corporation ("OvaScience" or the "Company"), will be held at OvaScience's principal executive offices, 215 First Street, Suite 240, Cambridge, Massachusetts, on Friday, June 7, 2013, at 9:00 a.m., local time, to consider and act upon the following matters:
- 1.
- To elect three class I directors nominated by our board of directors, each for a three-year term expiring at the 2016 annual meeting of stockholders;
- 2.
- To ratify the appointment of Ernst & Young LLP, an independent registered public accounting firm, as our independent auditors for the fiscal year ending December 31, 2013; and
- 3.
- To transact such other business as may properly come before the Annual Meeting or any adjournment or postponement thereof.
Stockholders of record at the close of business on April 15, 2013, the record date for the Annual Meeting, are entitled to notice of, and to vote at, the Annual Meeting or any adjournment thereof. Your vote is important regardless of the number of shares you own. If you are a stockholder of record, please vote in one of these ways:
- (1)
- Vote over the Internet. You may vote your shares by following the "Vote by Internet" instructions on the enclosed proxy card.
- (2)
- Vote by telephone. You may vote your shares by following the "Vote by Phone" instructions on the enclosed proxy card.
- (3)
- Vote by mail. If you received your proxy materials by mail, you may vote by completing and signing the proxy card delivered with those materials and returning it in the postage-paid envelope we provided.
If your shares are held in "street name," that is, held for your account by a broker or other nominee, you will receive instructions from the holder of record that you must follow for your shares to be voted.
We encourage all stockholders to attend the Annual Meeting in person. You may obtain directions to the location of the Annual Meeting on our website atwww.ovascience.com. Whether or not you plan to attend the Annual Meeting in person, we urge you to take the time to vote your shares.
By Order of the Board of Directors, | ||
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Michelle Dipp, M.D., Ph.D. President and Chief Executive Officer |
Cambridge, Massachusetts
April 25, 2013
| Page | |||
---|---|---|---|---|
Important Information About the Annual Meeting and Voting | 1 | |||
Householding of Annual Meeting Materials | 6 | |||
Corporate Governance | 7 | |||
General | 7 | |||
Our Board of Directors | 7 | |||
Board Leadership Structure | 11 | |||
Board Committees | 12 | |||
Board Meetings and Attendance | 13 | |||
Board Processes | 14 | |||
Certain Relationships and Related Transactions | 16 | |||
Policies and Procedures for Related Person Transactions | 16 | |||
Related Person Transactions | 17 | |||
Executive Compensation | 22 | |||
Overview | 22 | |||
Summary Compensation Table | 22 | |||
Outstanding Equity Awards at Year End Table | 23 | |||
Employment Agreements | 24 | |||
Potential Payments Upon Termination or Change of Control | 24 | |||
401(k) Retirement Plan | 25 | |||
Securities Authorized for Issuance Under our Equity Compensation Plans | 25 | |||
Tax Considerations | 25 | |||
Director Compensation | 27 | |||
Audit-Related Matters | 30 | |||
Audit Committee Report | 30 | |||
Audit Fees and Services | 30 | |||
Policy for Approval of Services | 31 | |||
Matters to be Voted On | 32 | |||
Proposal 1: Election of Class I Directors | 32 | |||
Proposal 2: Ratification of Appointment of Independent Auditors | 32 | |||
Ownership of Our Common Stock | 34 | |||
Security Ownership of Certain Beneficial Owners and Management | 34 | |||
Section 16(a) Beneficial Ownership Reporting Compliance | 38 | |||
Other Matters | 39 | |||
Stockholder Proposals | 39 | |||
Deadline for Submission of Stockholder Proposals for 2014 Annual Meeting | 39 |
OVASCIENCE, INC.
215 First Street, Suite 240
Cambridge, MA 02142
PROXY STATEMENT
for the 2013 Annual Meeting of Stockholders
to be held on June 7, 2013
This proxy statement and the enclosed proxy card are being furnished in connection with the solicitation of proxies by the board of directors of OvaScience, Inc. for use at the 2013 Annual Meeting of Stockholders to be held on Friday, June 7, 2013 at our principal executive offices, 215 First Street, Suite 240, Cambridge, Massachusetts, at 9:00 a.m., local time, and at any adjournment or postponement thereof.
All proxies will be voted in accordance with the instructions contained in those proxies. If no choice is specified, the proxies will be voted in favor of the matters set forth in the accompanying Notice of Annual Meeting of Stockholders.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS
For the Annual Meeting of Stockholders to be Held on June 7, 2013:
The proxy materials, which include our proxy statement for the annual meeting, our 2012 Annual Report, which includes our Annual Report on Form 10-K for the fiscal year ended December 31, 2012, and, if you received a paper copy of these materials, a proxy card or voting instruction card, are available for viewing, printing and downloading atwww.edocumentview.com/ovsc.
A copy of our proxy materials will be furnished without charge to any stockholder upon oral or written request to OvaScience, Inc., 215 First Street, Suite 240, Cambridge, Massachusetts 02492, Attention: Investor Relations, Telephone: (617) 500-2802.
This proxy statement and our Annual Report on Form 10-K for the fiscal year ended December 31, 2012 are also available on the Securities and Exchange Commission's website atwww.sec.gov.
IMPORTANT INFORMATION ABOUT THE ANNUAL MEETING AND VOTING
Q. | Why did I receive these proxy materials? | A. | We are providing these proxy materials to you in connection with the solicitation by our board of directors of proxies to be voted at our 2013 annual meeting of stockholders, or annual meeting, to be held at our offices at 215 First Street, Suite 240, Cambridge, Massachusetts, on June 7, 2013 at 9:00 a.m., local time. As a stockholder of OvaScience, you are invited to attend our annual meeting and are entitled and requested to vote on the proposals described in this proxy statement. |
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Q. | What is included in the proxy materials? | A. | The proxy materials include our proxy statement for the annual meeting, our 2012 annual report, which includes our Annual Report on Form 10-K for the fiscal year ended December 31, 2012, and, if you received a paper copy of these materials, a proxy card or voting instruction card. If you received a Notice of Internet Availability of Proxy Materials, please see "Why did I receive a Notice of Internet Availability of Proxy Materials instead of a paper copy of the proxy materials?" below. | |||||
Q. | Why did I receive a Notice of Internet Availability of Proxy Materials instead of a paper copy of the proxy materials? | A. | In accordance with rules adopted by the SEC, we may furnish proxy materials, including this proxy statement and our 2012 annual report to stockholders, to our stockholders by providing access to such documents on the Internet instead of mailing printed copies. Most stockholders will not receive printed copies of the printed proxy materials unless they request them. Instead, the Notice of Internet Availability of Proxy Materials, which was mailed to most of our stockholders commencing on or about April 25, 2013, will instruct you as to how you may access and review all of the proxy materials on the Internet. The Notice of Internet Availability of Proxy Materials also instructs you as to how you may submit your proxy on the Internet. If you would like to receive a paper copy of our proxy materials, you should follow the instructions for requesting such materials in the Notice of Internet Availability of Proxy Materials. | |||||
Q. | Who can vote at the annual meeting? | A. | To be entitled to vote, you must have been a stockholder of record at the close of business on April 15, 2013, the record date for our annual meeting. The holders of 18,192,318 shares of our common stock outstanding as of the record date are entitled to vote at the annual meeting. | |||||
If you were a stockholder of record on April 15, 2013, you are entitled to vote all of the shares that you held on that date at the annual meeting and at any postponement or adjournment thereof. | ||||||||
Q. | What are the voting rights of the holders of common stock? | A. | Each outstanding share of our common stock will be entitled to one vote on each matter considered at the annual meeting. | |||||
Q. | How do I vote? | A. | If your shares are registered directly in your name, you may vote: | |||||
(1) | Over the Internet: Go to the website of our tabulator, Computershare Trust Company, N.A., atwww.investorvote.com/ovsc. Use the vote control number printed on your enclosed proxy card to access your account and vote your shares. You must specify how you want your shares voted or your Internet vote cannot be completed and you will receive an error message. Your shares will be voted according to your instructions. You must submit your Internet proxy before 11:59 p.m., Eastern Time, on June 6, 2013, the day before the annual meeting, for your proxy to be valid and your vote to count. |
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(2) | By Telephone: Call 1-800-652-VOTE (8683), toll free from the United States, Canada and Puerto Rico, and follow the recorded instructions. You must specify how you want your shares voted and confirm your vote at the end of the call or your telephone vote cannot be completed. Your shares will be voted according to your instructions. You must submit your telephonic proxy before 11:59 p.m., Eastern Time, on June 6, 2013, the day before the annual meeting, for your proxy to be valid and your vote to count. | |||||||
(3) | By Mail: If you received your proxy materials by mail, complete and sign your proxy card and mail it to Computershare in the postage prepaid envelope we provided. Computershare must receive the proxy card not later than June 6, 2013, the day before the annual meeting, for your proxy to be valid and your vote to count. Your shares will be voted according to your instructions. If you do not specify how you want your shares voted, the persons named as proxies will follow our board's recommendations and vote your shares: | |||||||
• "FOR" the election of all director nominees; | ||||||||
• "FOR" the ratification of the appointment of Ernst & Young LLP as our independent auditors for the fiscal year ending December 31, 2013; and | ||||||||
• On any other matters properly brought before the annual meeting, in accordance with the best judgment of the named proxies. | ||||||||
(4) | In Person at the Meeting: If you attend the annual meeting, you may deliver your completed proxy card in person or you may vote by completing a ballot, which we will provide to you at the meeting. | |||||||
If your shares are held in "street name," meaning they are held for your account by a bank, broker or other nominee, you may vote: | ||||||||
(1) | Over the Internet or by Telephone: You will receive instructions from your bank, broker or other nominee if they permit Internet or telephone voting. You should follow those instructions. | |||||||
(2) | By Mail: You will receive instructions from your bank, broker or other nominee explaining how you can vote your shares by mail. You should follow those instructions. | |||||||
(3) | In Person at the Meeting: Contact your bank, broker or other nominee who holds your shares to obtain a broker's proxy card and bring it with you to the annual meeting. A broker's proxy isnot the form of proxy enclosed with this proxy statement.You will not be able to vote shares you hold in street name in person at the annual meeting unless you have a proxy from your bank, broker or other nominee issued in your name giving you the right to vote your shares. |
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Q. | Can I change my vote? | A. | If your shares are registered directly in your name, you may revoke your proxy and change your vote at any time before the annual meeting. To do so, you must do one of the following: | |||||
(1) | Vote over the Internet or by telephone as instructed above. Only your latest Internet or telephone vote is counted. You may not change your vote over the Internet or by telephone after 11:59 p.m., Eastern Time, on June 6, 2013. | |||||||
(2) | Sign a new proxy and submit it as instructed above. Only your latest dated proxy, received by Computershare not later than June 6, 2013, will be counted. | |||||||
(3) | Attend the annual meeting, request that your proxy be revoked and vote in person as instructed above. Attending the annual meeting will not revoke your Internet vote, telephone vote or proxy, as the case may be, unless you specifically request it. | |||||||
If your shares are held in street name, you may submit new voting instructions by contacting your bank, broker or other nominee. You may also vote in person at the annual meeting if you obtain a broker's proxy as described in the answer above. | ||||||||
Q. | Will my shares be voted if I do not return my proxy? | A. | If your shares are registered directly in your name, your shares will not be voted if you do not vote over the Internet, by telephone, by returning your proxy or by ballot at the annual meeting. | |||||
If your shares are held in street name, your bank, broker or other nominee may under certain circumstances vote your shares if you do not timely return your proxy. Banks, brokers or other nominees can vote their customers' unvoted shares on discretionary matters but cannot vote such shares on non-discretionary matters. If you do not timely return a proxy to your bank, broker or other nominee to vote your shares, your bank, broker or other nominee may, on discretionary matters, either vote your shares or leave your shares unvoted.Your bank, broker or other nominee cannot vote your shares on any non-discretionary matter. | ||||||||
The election of directors (Proposal 1) is a non-discretionary matter. The ratification of the appointment of our independent auditors (Proposal 2) is a discretionary matter. We encourage you to provide voting instructions to your bank, broker or other nominee by giving your proxy to them. This ensures that your shares will be voted at the annual meeting according to your instructions. You should receive directions from your bank, broker or other nominee about how to submit your proxy to them at the time you receive this proxy statement. |
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Q. | How many shares must be present to hold the annual meeting? | A. | A majority of our outstanding shares of common stock entitled to vote must be present to hold the annual meeting and conduct business. This is called a quorum. For purposes of determining whether a quorum exists, we count as present any shares that are voted over the Internet, by telephone, by completing and submitting a proxy or that are represented in person at the meeting. Further, for purposes of establishing a quorum, we will count as present shares that a stockholder holds even if the stockholder votes to abstain or only votes on one of the proposals. In addition, we will count as present shares held in street name by banks, brokers or nominees who indicate on their proxies that they do not have authority to vote those shares on Proposal 1. If a quorum is not present, we expect to adjourn the annual meeting until we obtain a quorum. | |||||
Q. | What vote is required to approve each matter and how are votes counted? | A. | Proposal 1—Election of Class I Directors The three nominees for director receiving the highest number of votes FOR election will be elected as directors. This is called a plurality.Proposal 1 is a non-discretionary matter. Therefore, if your shares are held by your bank, broker or other nominee in street name and you do not vote your shares, your bank, broker or other nominee cannot vote your shares on Proposal 1. Shares held in street name by banks, brokers or nominees who indicate on their proxies that they do not have authority to vote the shares on Proposal 1 will not be counted as votes FOR or WITHHELD from any nominee and will be treated as "broker non-votes." As a result, broker non-votes will have no effect on the voting on Proposal 1. With respect to Proposal 1, you may: | |||||
• vote FOR all nominees; | ||||||||
• vote FOR one or more nominee(s) and WITHHOLD your vote from the other nominee(s); or | ||||||||
• WITHHOLD your vote from all nominees. | ||||||||
Votes that are withheld will not be included in the vote tally for the election of directors and will not affect the results of the vote. | ||||||||
Proposal 2—Ratification of Appointment of Independent Auditors | ||||||||
To approve Proposal 2, stockholders holding a majority of the votes cast on the matter must vote FOR the proposal.Proposal 2 is a discretionary matter. If your shares are held by your bank, broker or other nominee in street name and you do not vote your shares, your bank, broker or other nominee may vote your unvoted shares on Proposal 2. If you vote to ABSTAIN on Proposal 2, your shares will not be voted FOR or AGAINST the proposal and will also not be counted as votes cast or shares voting on the proposal. As a result, voting to ABSTAIN will have no effect on the voting on Proposal 2. |
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Although stockholder approval of our audit committee's appointment of Ernst & Young LLP as our independent auditors for the year ended December 31, 2013 is not required, we believe that it is advisable to give stockholders an opportunity to ratify this appointment. If this proposal is not approved at the annual meeting, our audit committee may reconsider its appointment of Ernst & Young LLP as our independent auditors for the year ended December 31, 2013. | ||||||||
Q. | Are there other matters to be voted on at the annual meeting? | A. | We do not know of any matters that may come before the annual meeting other than the election of three class I directors and the ratification of the appointment of our independent auditors. If any other matters are properly presented at the annual meeting, the persons named in the accompanying proxy intend to vote, or otherwise act, in accordance with their judgment on the matter. | |||||
Q. | Where can I find the voting results? | A. | We will report the voting results in a Current Report on Form 8-K within four business days following the adjournment of our annual meeting. | |||||
Q. | What are the costs of soliciting these proxies? | A. | We will bear the cost of soliciting proxies. In addition to these proxy materials, our directors, officers and employees may solicit proxies by telephone, e-mail, facsimile and in person, without additional compensation. We may reimburse brokers or persons holding stock in their names, or in the names of their nominees, for their expenses in sending proxies and proxy material to beneficial owners. |
Householding of Annual Meeting Materials
Some banks, brokers and other nominee record holders may be participating in the practice of "householding" proxy statements and annual reports. This means that only one copy of our proxy statement and annual report to stockholders may have been sent to multiple stockholders in your household. We will promptly deliver a separate copy of either document to you upon written or oral request to OvaScience, Inc., 215 First Street, Suite 240, Cambridge, Massachusetts 02492, Attention: Investor Relations, Telephone: (617) 500-2802. If you want to receive separate copies of the proxy statement or annual report to stockholders in the future, or if you are receiving multiple copies and would like to receive only one copy per household, you should contact your bank, broker or other nominee record holder, or you may contact us at the above address and phone number.
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We believe that good corporate governance is important to ensure that OvaScience is managed for the long-term benefit of our stockholders. This section describes key corporate governance guidelines and practices that we have adopted.
We have adopted a written Code of Business Conduct and Ethics, which applies to all of our officers, directors and employees. We have also adopted charters for our audit committee, our compensation committee and our nominating and governance committee, and Corporate Governance Guidelines. We have posted copies of our Code of Business Conduct and Ethics, Corporate Governance Guidelines and committee charters on the Corporate Governance page of the Investors section of our website,ir.ovascience.com, which you can access free of charge. We intend to disclose on our website any amendments to, or waivers from, our Code of Business Conduct and Ethics required to be disclosed by law or by the exchange upon which our common stock is listed.
Members of the Board of Directors
Set forth below for each director, including the class I director nominees, is information as of April 1, 2013 with respect to his or her (a) name and age, (b) positions and offices at OvaScience, if any, (c) principal occupation and business experience for the past five years, (d) directorships, if any, of other publicly-held companies during the past five years, and (e) the year such person became a member of our board of directors. We have also included information below regarding each director's specific experience, qualifications, attributes and skills that led our board to conclude that he or she should serve as a director. In addition, we believe that all of our directors and nominees possess the attributes or characteristics described in "Board Processes—Director Nomination Process" on page 14 that we expect of each director.
Name | Age | Position | |||
---|---|---|---|---|---|
Michelle Dipp, M.D., Ph.D. | 36 | President, Chief Executive Officer, Director | |||
Richard Aldrich(3) | 58 | Director | |||
Jeffrey D. Capello(1) | 48 | Director | |||
Stephen Kraus(2)(3) | 36 | Director | |||
Thomas Malley(1)(2) | 44 | Director | |||
Harald Stock, Ph.D.(1)(2) | 44 | Director | |||
Jonathan Tilly, Ph.D. | 50 | Director, Scientific Advisory Board Member | |||
Christoph Westphal, M.D., Ph.D. | 45 | Director |
- (1)
- Member of the audit committee
- (2)
- Member of the compensation committee
- (3)
- Member of the nominating and corporate governance committee
Michelle Dipp, M.D., Ph.D. co-founded our company in April 2011. She has served as a member of our board of directors since July 2011, our chief executive officer since June 2011 and our president since September 2011. Dr. Dipp has served as a partner of Longwood Fund, LP, a venture capital investment fund, since 2010. Through Longwood, she co-founded Verastem, Inc., a biopharmaceutical company, in 2010. From 2008 to 2009, Dr. Dipp served as vice president and then, from 2009 to 2011, senior vice president and head of the Centre of Excellence For External Drug Discovery (CEEDD), a business development unit at GlaxoSmithKline, a pharmaceutical and healthcare company. Prior to that, she was a founding employee of Sirtris Pharmaceuticals, Inc., a pharmaceutical company, where
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she served as vice president of corporate development from 2005 to 2008. Dr. Dipp serves on the Beth Israel Deaconess Medical Center Board of Trustees. Dr. Dipp holds an M.D. from Oxford University Medical School and a Ph.D. in physiology from the University of Oxford. We believe that Dr. Dipp is qualified to serve on our board of directors due to her scientific expertise and her experience in the life sciences industry as an entrepreneur and venture capitalist.
Richard Aldrich co-founded our company in April 2011. He has served as a member of our board of directors since July 2011 and as the chairman of our board of directors since March 2012. Mr. Aldrich has served as a partner of Longwood Fund, LP, a venture capital investment fund, since 2010. He founded RA Capital Management LLC, a hedge fund, in 2001 and served as a managing member from 2004 to 2008 and as a co-founding member from 2008 to 2011. Mr. Aldrich co-founded Sirtris Pharmaceuticals, Inc., a pharmaceutical company, which was acquired by GlaxoSmithKline plc in 2008, and served on its board of directors from 2004 to 2008; co-founded Concert Pharmaceuticals, Inc., a pharmaceutical company, and has served as chairman of its board of directors since 2006; and co-founded Alnara Pharmaceuticals, Inc., a pharmaceutical company, and served on its board of directors from 2008 to 2010. Mr. Aldrich joined Vertex Pharmaceuticals, Inc., a pharmaceutical company, at its founding in 1989 and served as its senior vice president and chief business officer until 2001. Mr. Aldrich serves on the board of directors of Verastem, Inc., a publicly traded biopharmaceutical company. He holds an M.B.A from the Amos Tuck School at Dartmouth College and a B.S. from Boston College. We believe that Mr. Aldrich is qualified to serve on our board of directors due to his experience in the life sciences industry as an entrepreneur and venture capitalist and his service on the boards of directors of other life sciences companies.
Jeffrey D. Capello has served as a member of our board of directors since March 2012. Mr. Capello has served as executive vice president and chief financial officer of Boston Scientific Corporation, a medical device company, since March 2010. Mr. Capello joined Boston Scientific in June 2008 and served as senior vice president and chief accounting officer until March 2010. He previously served as the senior vice president and chief financial officer with responsibilities for business development at PerkinElmer, Inc., a technology company, from 2006 to June 2008. Prior to that, he served as PerkinElmer's vice president of finance, corporate controller and treasurer from 2002 to 2006 and vice president, finance, corporate controller, chief accounting officer and treasurer from 2001 to 2005. From 1991 to 2001, he held various positions at PricewaterhouseCoopers LLP, a public accounting firm, including partner from 1997 to 2001. Mr. Capello served as a member of the board of directors of Sirtris Pharmaceuticals, Inc. from January 2008 until its acquisition in June 2008 and served on its audit committee as both a member and its chair. He holds a B.S. degree in business administration from the University of Vermont and an M.B.A. degree from the Harvard Business School. Mr. Capello is also a certified public accountant. We believe that Mr. Capello is qualified to serve on our board of directors due to his experience in the medical device and healthcare technology industries, his accounting background and his service on the boards of directors of other life sciences companies.
Stephen Kraus has served as a member of our board of directors since July 2011. Mr. Kraus has served as an investment professional at Bessemer Venture Partners, a venture capital firm, since 2004 and has been a partner since 2010. He serves on the board of directors of a number of privately-held life sciences companies. He previously served as a member of the board of directors of Verastem, Inc. from November 2010 to November 2012, Sirtris Pharmaceuticals, Inc. from 2005 to 2007 and Restore Medical, Inc. from 2005 to 2008. He holds an M.B.A. from Harvard Business School and a B.A. from Yale University. We believe that Mr. Kraus is qualified to serve on our board of directors due to his experience in the life sciences industry as a venture capitalist and his service on the boards of directors of other life sciences companies.
Thomas Malley has served as a member of our board of directors since October 2012. Since May 2007, Mr. Malley has served as President of Mossrock Capital, LLC, a private investment firm. From April 1991 to May 2007, Mr. Malley served with Janus Mutual Funds as an analyst for eight years and
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as a vice president and portfolio manager for the Janus Global Life Sciences Fund for eight years. He serves on the board of directors of Puma Biotechnology, Inc. and Synageva BioPharma Corp. He previously served as a director of Cougar Biotechnology, Inc. from 2007 to 2009. Mr. Malley holds a B.S. in biology from Stanford University and has been a chartered financial analyst since 1994. We believe that Mr. Malley is qualified to serve on our board of directors due to his investment and financial experience in the biotechnology industry and his service on the boards of directors of other life sciences companies.
Harald F. Stock, Ph.D., has served as a member of our board of directors since February 2013. He has served as chief executive officer of the Grünenthal Group, a German pharmaceutical company, since 2009. Prior to joining Grünenthal, he served as chairman and managing director of the German DePuy Group, the orthopedics division of Johnson & Johnson, from 2006 until the end of 2008. Dr. Stock serves on the board of directors of the European Federation of Pharmaceutical Industries and Associations (efpia) and a privately-held pharmaceutical company. From May 2011 to October 2012, he was the vice-chairman of the supervisory board of PAION AG, a publicly-traded biopharmaceutical company. Dr. Stock studied chemistry and business administration in the United States, Great Britain and Germany and holds a Ph.D. in inorganic chemistry from the University of Heidelberg in 1997. We believe that Dr. Stock is qualified to serve on our board or directors due to his scientific expertise and his experience with global pharmaceutical companies.
Jonathan Tilly, Ph.D. co-founded the company in April 2011 and has served as a member of our board of directors since July 2011. Dr. Tilly has served as professor of obstetrics, gynecology and reproductive biology at Harvard Medical School since 2009. Dr. Tilly moved from John Hopkins University, where he served as assistant professor from 1993 to 1995, to join the faculty of Harvard Medical School as associate professor of obstetrics, gynecology and reproductive biology in 1995 and to direct the newly-created Vincent Center for Reproductive Biology at MGH. Dr. Tilly holds a Ph.D. from Rutgers University and undertook fellowship training at the University of California—San Diego School of Medicine and Stanford University Medical Center. We believe Dr. Tilly is qualified to serve on our board of directors due to his scientific expertise and extensive research experience in the field of reproductive biology.
Christoph Westphal, M.D., Ph.D. co-founded our company in April 2011 and has served as a member of our board of directors since July 2011. Dr. Westphal has served as the chief executive officer of Verastem, Inc., a biopharmaceutical company, since September 2011, and as a member and chairman of its board of directors since August 2010. He has served as a partner of Longwood Fund, LP, a venture capital investment fund, since 2010. He served as the president of SR One, the corporate venture capital arm of GlaxoSmithKline, from 2010 to 2011. Dr. Westphal has previously been involved in founding a number of biotechnology companies as chief executive officer. Dr. Westphal co-founded Sirtris Pharmaceuticals, Inc. and served as its chief executive officer from 2004 to 2010. He also co-founded Alnara Pharmaceuticals, Inc., Acceleron Pharma, Inc., serving as its chief executive officer in 2003, Alnylam Pharmaceuticals, Inc., serving as its chief executive officer in 2002, and Momenta Pharmaceuticals, Inc., serving as its chief executive officer in 2001. He has also served on the board of directors of numerous private biotechnology companies. Dr. Westphal serves on the Board of Fellows of Harvard Medical School and is a member of the Research Advisory Council at MGH. He holds an M.D. from Harvard Medical School, a Ph.D. in genetics from Harvard University and a B.A. from Columbia University. We believe that Dr. Westphal is qualified to serve on our board of directors due to his experience in the life sciences industry as an entrepreneur and venture capitalist and his service on the boards of directors of other life sciences companies.
There are no family relationships among any of our directors or executive officers.
9
Board Composition
In accordance with the terms of our certificate of incorporation and by-laws, our board of directors is divided into three classes, with each class having as near an equal number of directors as possible. The terms of service of the three classes are staggered so the term of one class of our board of directors expires each year. Upon the expiration of the term of a class of directors, directors in that class are eligible to be elected for a new three-year term at the annual meeting of stockholders in the year in which their term expires. Our board of directors currently consists of eight members, divided into three classes as follows:
- •
- class I consists of Drs. Stock, Tilly and Westphal, each with a term expiring at the 2013 annual meeting of stockholders;
- •
- class II consists of Messrs. Aldrich and Kraus, each with a term expiring at the 2014 annual meeting of stockholders; and
- •
- class III consists of Dr. Dipp and Messrs. Capello and Malley, each with a term expiring at the 2015 annual meeting of stockholders.
Our certificate of incorporation and by-laws provide that the authorized number of directors may be changed only by resolution of our board of directors. Our certificate of incorporation and by-laws also provide that our directors may be removed only for cause and only by the affirmative vote of the holders of at least 75% of the votes that all of our stockholders would be entitled to cast in an annual election of directors, and that any vacancy on our board of directors, including a vacancy resulting from an enlargement of our board of directors, may be filled only by vote of a majority of our directors then in office, subject to the rights of certain stockholders pursuant to a voting agreement between such stockholders and us.
Pursuant to a voting agreement dated March 29, 2012, by and among us and certain of our stockholders, holders of approximately 55% of our outstanding common stock as of April 1, 2013 have agreed to vote their shares in such a way as to ensure that one designee of each of our three lead investors, Bessemer Venture Partners, General Catalyst and Longwood Fund, L.P., will serve on our board for as long as the entity remains a significant investor, by which we mean each continues to hold at least 20% of the shares of our Series A or Series B preferred stock purchased by them, including any shares of common stock issued upon conversion of such shares. In August 2012, our Series A preferred stock and Series B preferred stock converted into common stock. Stephen Kraus and Richard Aldrich are our directors designated by Bessemer Venture Partners and Longwood Fund, L.P., respectively. The board member designated by General Catalyst resigned on February 21, 2013 and, as of April 25, 2013, General Catalyst has not designated a replacement. The voting agreement automatically and immediately terminates on the first day that our common stock is traded on a national securities exchange. Upon termination, the obligations to vote as described above cease to apply with respect to any stockholder meeting held on or after the date of such termination.
Pursuant to the voting agreement, until such time as our common stock is traded on a national securities exchange, we have agreed to use our reasonable best efforts to include each lead investor designee in our slate of nominees to the stockholders for each election of directors and to include each such designee in our proxy statement, subject to certain limitations.
Board Determination of Independence
We determine whether our board members and committee members are independent according to the standards set forth in the Nasdaq Listing Rules. Although our securities are not currently listed on The NASDAQ Stock Market, our common stock has been approved for listing on The NASDAQ Stock Market and is expected to begin trading on NASDAQ on April 30, 2013, and therefore we have adopted the NASDAQ definitions of independence.
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Rule 5605 of the Nasdaq Listing Rules requires a majority of a listed company's board of directors to be comprised of independent directors within one year of listing. In addition, the Nasdaq Listing Rules require that, subject to specified exceptions, each member of a listed company's audit, compensation and nominating and corporate governance committees be independent and that audit committee members also satisfy independence criteria set forth in Rule 10A-3 under the Securities Exchange Act of 1934, as amended. Under Rule 5605(a)(2), a director will only qualify as an "independent director" if, in the opinion of our board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In order to be considered independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors, or any other board committee: (1) accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries; or (2) be an affiliated person of the listed company or any of its subsidiaries.
Based upon information requested from and provided by each director concerning his or her background, employment and affiliations, including family relationships, our board of directors determined that none of Messrs. Aldrich, Capello, Kraus and Malley and Drs. Stock and Westphal has a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors is "independent" as that term is defined under Rule 5605(a)(2) of the Nasdaq Listing Rules. Our board of directors also determined that John Simon, a former member of our board of directors who resigned in February 2012, was independent under the same definition. In making its determination, our board of directors considered the relationships that each such non-employee director has with our company, their beneficial ownership of our outstanding capital stock and all other facts and circumstances our board of directors deemed relevant in determining their independence. In addition, our board of directors determined that all of the members of our board's three standing committees described below are independent, as defined under applicable Nasdaq Listing Rules and, in the case of all members of our audit committee, the independence requirements contemplated by Rule 10A-3 under the Securities and Exchange Act of 1934, as amended.
Our board of directors has determined that the roles of chairman of the board and chief executive officer should be separated at the current time. Mr. Aldrich, an independent director, serves as the chairman of the board, and Dr. Dipp has served as our chief executive officer and a director since 2011. Mr. Aldrich's duties as chairman of the board include the following:
- •
- chairing meetings of the independent directors in executive session;
- •
- meeting with any director who is not adequately performing his or her duties as a member of our board or any committee;
- •
- facilitating communications between other members of our board and the chief executive officer;
- •
- preparing or approving the agenda for each board meeting;
- •
- determining the frequency and length of board meetings and recommending when special meetings of our board should be held; and
- •
- reviewing and, if appropriate, recommending action to be taken with respect to written communications from stockholders submitted to our board (see "Board Processes—Communications with Stockholders" below).
Our board decided to separate the roles of chairman and chief executive officer because it believes that leadership structure offers the following benefits.
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- •
- increasing the independent oversight of OvaScience and enhancing our board's objective evaluation of our chief executive officer;
- •
- providing the chief executive officer with an experienced sounding board;
- •
- providing greater opportunities for communication between stockholders and our board; and
- •
- enhancing the independent and objective assessment of risk by our board.
Our board of directors has established an audit committee, a compensation committee and a nominating and corporate governance committee. Each committee operates under a charter that has been approved by our board of directors. Copies of the committee charters are posted on the Investor Relations section of our website,ir.ovascience.com.
Audit Committee
The responsibilities of the audit committee include:
- •
- appointing, approving the compensation of and assessing the independence of our registered public accounting firm;
- •
- overseeing the work of our registered public accounting firm, including through the receipt and consideration of reports from such firm;
- •
- reviewing and discussing with management and the registered public accounting firm our annual and quarterly financial statements and related disclosures;
- •
- monitoring our internal control over financial reporting, disclosure controls and procedures and code of business conduct and ethics;
- •
- overseeing our internal audit function;
- •
- overseeing our risk assessment and risk management policies;
- •
- establishing policies and procedures for the receipt and retention of accounting related complaints and concerns;
- •
- meeting independently with our internal auditing staff, registered public accounting firm and management;
- •
- reviewing and approving or ratifying any related person transactions; and
- •
- preparing the audit committee report required by SEC rules.
The members of the audit committee are Messrs. Capello (Chair) and Malley and Dr. Stock. Our board of directors has determined that each member of the audit committee meets the financial literacy requirement under the applicable Nasdaq Listing Rules and that Mr. Capello is an "audit committee financial expert" as defined in Item 407(d)(5) of Regulation S-K. The audit committee met four times during 2012.
All audit and non-audit services, other than de minimis non-audit services, to be provided to us by our independent registered public accounting firm must be approved in advance by our audit committee.
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Compensation Committee
The responsibilities of the compensation committee include:
- •
- annually reviewing and approving corporate goals and objectives relevant to our chief executive officer's compensation;
- •
- determining our chief executive officer's compensation;
- •
- reviewing and approving, or making recommendations to our board with respect to, the compensation of our other executive officers;
- •
- overseeing an evaluation of our senior executives;
- •
- overseeing and administering our equity incentive plans;
- •
- reviewing and making recommendations to our board with respect to director compensation;
- •
- reviewing and discussing annually with management our "Compensation Discussion and Analysis;" and
- •
- if applicable, preparing the annual compensation committee report required by SEC rules.
The members of the compensation committee are Messrs. Kraus and Malley (Chair) and Dr. Stock. Mr. Simon, our former director, served on the compensation committee until February 6, 2013, and Dr. Westphal served on the compensation committee until December 10, 2012. Each of Mr. Simon and Dr. Westphal were independent as defined under the Nasdaq Listing Rules applicable to compensation committee members. The compensation committee met once during 2012.
Nominating and Corporate Governance Committee
The responsibilities of the nominating and corporate governance committee include:
- •
- identifying individuals qualified to become board members;
- •
- recommending to our board the persons to be nominated for election as directors and to each of the board's committees;
- •
- reviewing and making recommendations to the board with respect to management succession planning;
- •
- developing and recommending to the board corporate governance guidelines; and
- •
- overseeing an annual evaluation of the board.
The members of the nominating and corporate governance committee are Messrs. Aldrich (Chair) and Kraus. The nominating and corporate governance committee met once during 2012.
Our board of directors met four times during 2012. During 2012, each director attended at least 75% of the aggregate of the number of board meetings and the number of meetings held by all committees on which he or she then served.
Our corporate governance guidelines provide that directors are expected to attend annual meetings. We did not hold an annual meeting of stockholders as a public company in 2012.
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Oversight of Risk
Our board manages its risk oversight function directly and through its committees. Our management is responsible for risk management on a day to day basis. The role of our board and its committees is to oversee the risk management activities of management. They fulfill this duty by discussing with management the policies and practices utilized by management in assessing and managing risks and providing input on those policies and practices. In general, our board oversees risk management activities relating to business strategy, acquisitions, capital allocation, organizational structure and certain operational risks; our audit committee oversees risk management activities related to financial controls and legal and compliance risks; our compensation committee oversees risk management activities relating to our compensation policies and practices; and our nominating and corporate governance committee oversees risk management activities relating to board composition and management succession planning. Each committee reports to our board on a regular basis, including reports with respect to the committee's risk oversight activities as appropriate. In addition, since risk issues often overlap, committees from time to time request that that the full board discuss particular risks.
Our compensation committee has discussed the concept of risk as it relates to our compensation programs, including our executive compensation program. Our compensation committee believes that our compensation programs do not encourage excessive or inappropriate risk taking and that any risks arising from our employee compensation policies and practices are not reasonably likely to have a material adverse effect on our company. Our compensation committee believes that any such risks are mitigated by:
- •
- The multiple elements of our compensation packages, including base salary, our annual cash incentive bonus program and, for most of our employees, equity awards that vest over multiple years and are intended to motivate employees to take a long-term view of our business.
- •
- The structure of our annual cash incentive bonus program, which is based on (i) multiple performance measures to avoid employees placing undue emphasis on any particular performance metric at the expense of other aspects of our business, and (ii) performance targets that we believe are somewhat aggressive yet reasonable and should not require undue risk-taking to achieve.
Director Nomination Process
The process followed by our nominating and corporate governance committee to identify and evaluate director candidates may include requests to board members and others for recommendations, evaluation of the performance on our board and its committees of any existing directors being considered for nomination, consideration of biographical information and background material relating to potential candidates and, particularly in the case of potential candidates that are not then serving on our board, interviews of selected candidates by members of the committee and our board.
In considering whether to recommend any particular candidate for nomination as a director, our nominating and corporate governance committee applies the criteria set forth in our Corporate Governance Guidelines. Consistent with these criteria, our nominating and corporate governance committee expects every nominee to have the following attributes or characteristics, among others: integrity, honesty, adherence to high ethical standards, business acumen, good judgment, and a commitment to understand our business and industry.
The nominee biographies under "Matters to be Voted On—Proposal 1: Election of Class I Directors" indicate the experience, qualifications, attributes and skills of each of our current nominees for director that led our nominating and corporate governance committee and our board to conclude
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he should continue to serve as a director of OvaScience. Our nominating and corporate governance committee and our board believe that each of the nominees has the individual attributes and characteristics required of each of our directors, and the nominees as a group possess the skill sets and specific experience desired of our board as a whole.
Our nominating and corporate governance committee does not have a policy (formal or informal) with respect to diversity, but believes that our board, taken as a whole, should embody a diverse set of skills, experiences and backgrounds and consequently considers the value of diversity when selecting nominees. The nominating and corporate governance committee does not make any particular weighting of diversity or any other characteristic in evaluating nominees and directors.
Stockholders may recommend individuals for consideration as potential director candidates by submitting their names, together with appropriate biographical information and background materials, and information with respect to the stockholder or group of stockholders making the recommendation, including the number of shares of common stock owned by such stockholder or group of stockholders, to OvaScience, Inc., 215 First Street, Suite 240, Cambridge, Massachusetts 02142, Attention: Nominating and Corporate Governance Committee. The specific requirements for the information that is required to be provided for such recommendations to be considered are specified in our by-laws. Assuming that appropriate biographical and background material has been provided on a timely basis, the nominating and corporate governance committee will evaluate stockholder-recommended candidates by following substantially the same process, and applying substantially the same criteria, as it follows for candidates submitted by others.
Communications with Stockholders
Our board will give appropriate attention to written communications that are submitted by stockholders, and will respond if and as appropriate. Stockholders may communicate with the Company through its Investor Relations Department by writing to OvaScience, Inc., 215 First Street, Suite 240, Cambridge, Massachusetts 02142, Attention: Investor Relations, by calling Investor Relations at 617-500-2802, or by sending an e-mail toir@ovascience.com. Additional information about contacting OvaScience is available on the Investor Relations section of our website, which is located atir.ovascience.com.
Stockholders and other persons interested in communicating directly with the chairman of the board or with the non-management directors as a group may do so by writing to the OvaScience, Inc., 215 First Street, Suite 240, Cambridge, Massachusetts 02142, Attn: Chairman of the Board.
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Policies and Procedures for Related Person Transactions
Our board of directors has adopted written policies and procedures for the review of any transaction, arrangement or relationship in which we are a participant, the amount involved exceeds $120,000, and one of our executive officers, directors, director nominees or 5% stockholders (or their immediate family members), each of whom we refer to as a related person, has a direct or indirect material interest.
If a related person proposes to enter into such a transaction, arrangement or relationship, which we refer to as a "related person transaction," the related person must report the proposed related person transaction to our chief legal officer or, in the event we do not have a chief legal officer, to our principal financial officer. The policy calls for the proposed related person transaction to be reviewed and, if deemed appropriate, approved by the audit committee of our board of directors. Whenever practicable, the reporting, review and approval will occur prior to entry into the transaction. If advance review and approval is not practicable, the committee will review, and, in its discretion, may ratify the related person transaction. The policy also permits the chairman of the committee to review and, if deemed appropriate, approve proposed related person transactions that arise between committee meetings, subject to ratification by the committee at its next meeting. Any related person transactions that are ongoing in nature will be reviewed annually.
A related person transaction reviewed under the policy will be considered approved or ratified if it is authorized by the committee after full disclosure of the related person's interest in the transaction. As appropriate for the circumstances, the committee will review and consider:
- •
- the related person's interest in the related person transaction;
- •
- the approximate dollar value of the amount involved in the related person transaction;
- •
- the approximate dollar value of the amount of the related person's interest in the transaction without regard to the amount of any profit or loss;
- •
- whether the transaction was undertaken in the ordinary course of our business;
- •
- whether the terms of the transaction are no less favorable to us than terms that could have been reached with an unrelated third party;
- •
- the purpose of, and the potential benefits to us of, the transaction; and
- •
- any other information regarding the related person transaction or the related person in the context of the proposed transaction that would be material to investors in light of the circumstances of the particular transaction.
The committee may approve or ratify the transaction only if the committee determines that, under all of the circumstances, the transaction is not inconsistent with our best interests. The committee may impose any conditions on the related person transaction that it deems appropriate.
In addition to the transactions that are excluded by the instructions to the SEC's related person transaction disclosure rule, our board of directors has determined that the following transactions do not create a material direct or indirect interest on behalf of related persons and, therefore, are not related person transactions for purposes of this policy:
- •
- interests arising solely from the related person's position as an executive officer of another entity (whether or not the person is also a director of such entity), that is a participant in the transaction, where (a) the related person and all other related persons own in the aggregate less than a 10% equity interest in such entity, (b) the related person and his or her immediate family members are not involved in the negotiation of the terms of the transaction and do not receive
16
- •
- a transaction that is specifically contemplated by provisions of our charter or by-laws.
any special benefits as a result of the transaction and (c) the amount involved in the transaction equals less than the greater of $200,000 or 5% of the annual consolidated gross revenues of the other entity that is a party to the transaction; and
The policy provides that transactions involving compensation of executive officers shall be reviewed and approved by the compensation committee in the manner specified in its charter.
Private Placements of Common Stock
In March 2013, we issued and sold in a private placement an aggregate of 3,888,880 shares of our common stock at a price per share of $9.00 for an aggregate purchase price of approximately $35,000,000. In connection with the private placement, we entered into a registration rights agreement with the purchasers, pursuant to which we agreed to file a resale registration statement on Form S-1 to register such purchaser's shares for resale. The following table sets forth the number of shares of our common stock that we issued to our directors, executive officers, 5% stockholders and their affiliates in this private placement:
Name | Shares of Common Stock | |||
---|---|---|---|---|
Longwood Fund, LP(1) | 419,444 | |||
RA Capital Healthcare Fund, LP(2) | 132,332 | |||
Thomas Malley | 50,000 | |||
Jeffrey Capello | 11,111 |
- (1)
- Richard Aldrich, Michelle Dipp, M.D., Ph.D. and Christoph Westphal, M.D., Ph.D., members of our board of directors and holders of more than 5% of our voting securities, are members of the general partner of Longwood Fund, LP.
- (2)
- Richard Aldrich, a member of our board of directors and a holder of more than 5% of our voting securities, is a limited partner in RA Healthcare Fund, LP and a non-voting member of RA Capital Management, which is the general partner and manager of RA Capital Healthcare Fund, LP.
In August 2012, we issued and sold in a private placement an aggregate of 897,554 shares of our common stock at a price per share of $5.50 for an aggregate purchase price of $4,936,547. In connection with the private placement, we entered into a registration rights agreement with the purchasers, pursuant to which we agreed to file a registration statement on Form S-1, which was declared effective by the SEC on September 13, 2012, to register such purchasers' shares for resale. In the private placement, we sold 162,137 shares to RA Capital Healthcare Fund, LP. Richard Aldrich, a member of our board of directors and a holder of more than 5% of our voting securities, is a limited partner in RA Healthcare Fund, LP and a non-voting member of RA Capital Management, which is the general partner and manager of RA Capital Healthcare Fund, LP.
Series B Preferred Stock Financing
In March 2012, we issued and sold an aggregate of 6,770,563 shares of our Series B preferred stock at a price per share of $5.50 for an aggregate purchase price of $37,238,096. On August 13, 2012, our Series B preferred stock converted into common stock on a one-for-one basis. The following table
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sets forth the number of shares of our Series B preferred stock that we issued to our directors, executive officers, 5% stockholders and their affiliates.
Name | Shares of Series B Preferred Stock | |||
---|---|---|---|---|
Longwood Fund, LP(1) | 1,818,181 | |||
Entities affiliated with Fidelity Investments | 1,316,000 | (2) | ||
Entities affiliated with General Catalyst Partners | 1,090,908 | (3) | ||
Entities affiliated with Bessemer Venture Partners(4) | 909,090 | (5) | ||
RA Capital Healthcare Fund, LP(6) | 272,728 | |||
Thomas Malley(7) | 31,819 |
- (1)
- Richard Aldrich, Michelle Dipp, M.D., Ph.D. and Christoph Westphal, M.D., Ph.D., members of our board of directors and holders of more than 5% of our voting securities, are members of the general partner of Longwood Fund, LP.
- (2)
- Consists of (a) 1,090,900 shares purchased by Fidelity Contrafund: Fidelity Advisor New Insights Fund, (b) 212,300 shares purchased by Fidelity Select Portfolios: Biotechnology Portfolio and (c) 12,800 shares purchased by Fidelity Advisor Series VII: Fidelity Advisor Biotechnology Fund.
- (3)
- Consists of (a) 1,068,602 shares purchased by General Catalyst Group V, L.P. and (b) 22,306 shares purchased by GC Entrepreneurs Fund V, L.P.
- (4)
- Stephen Kraus, a member of our board of directors, is employed by Bessemer Venture Partners and has no voting or dispositive power with respect to the shares held by entities affiliated with Bessemer Venture Partners.
- (5)
- Consists of (a) 290,909 shares purchased by Bessemer Venture Partners VII L.P., (b) 127,273 shares purchased by Bessemer Venture Partners VII Institutional L.P. and (c) 490,908 shares purchased by BVP VII Special Opportunity Fund L.P.
- (6)
- Richard Aldrich, a member of our board of directors and a holder of more than 5% of our voting securities, is a limited partner in RA Healthcare Fund, LP and a non-voting member of RA Capital Management, which is the general partner and manager of RA Capital Healthcare Fund, LP.
- (7)
- Thomas Malley became a member of our board of directors on October 24, 2012.
Series A Preferred Stock Financing
In July 2011, we issued and sold an aggregate of 6,200,000 shares of our Series A preferred stock at a price per share of $1.00 for an aggregate purchase price of $6,200,000. On August 13, 2012, our Series A preferred stock converted into common stock on a one-for-2.023 basis. The following table
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sets forth the number of shares of our Series A preferred stock that we issued to our directors, executive officers, 5% stockholders and their affiliates.
Name | Shares of Series A Preferred Stock | |||
---|---|---|---|---|
Entities affiliated with Bessemer Venture Partners(1) | 3,000,000 | (2) | ||
Longwood Fund, LP(3) | 3,000,000 |
- (1)
- Stephen Kraus, a member of our board of directors, is employed by Bessemer Venture Partners and has no voting or dispositive power with respect to the shares held by entities affiliated with Bessemer Venture Partners.
- (2)
- Consists of (a) 960,000 shares purchased by Bessemer Venture Partners VII L.P., (b) 420,000 shares purchased by Bessemer Venture Partners VII Institutional L.P. and (c) 1,620,000 shares purchased by BVP VII Special Opportunity Fund L.P.
- (3)
- Richard Aldrich, Michelle Dipp, M.D., Ph.D. and Christoph Westphal, M.D., Ph.D., members of our board of directors and holders of more than 5% of our voting securities, are members of the general partner of Longwood Fund, LP.
Option Grant and Restricted Stock Unit Award to Co-Founder
In December 2012, we granted to Dr. Dipp, one of our co-founders, an option to purchase 339,313 shares of our common stock at a price per share of $7.80 and restricted stock units in the aggregate amount of 192,308 shares of our common stock, pursuant to the terms of an employment agreement that we entered into with her for her service as our president and chief executive officer.
Restricted Stock Grants to Co-Founders
In April 2011, in connection with our formation, we issued and sold an aggregate of 3,509,634 shares of our common stock at a price per share of $0.002 for an aggregate purchase price of $7,100 to our co-founders pursuant to restricted stock agreements.
Subsequently, in March 2012, we amended and restated these restricted stock agreements with our co-founders. The shares issued pursuant to these restricted stock agreements are subject to repurchase by us. The shares issued to Dr. Dipp, Mr. Aldrich and Dr. Westphal vested with respect to 25% of the shares on the grant date and with respect to the remaining shares in approximately equal quarterly installments through the fourth anniversary of the grant date. The shares issued to Dr. Tilly and Dr. Sinclair vest in approximately equal quarterly installments from and after the grant date. Additionally, 25% of the then-unvested shares issued to Dr. Tilly and Dr. Sinclair vested in July 2011 in connection with our sale of 6,200,000 shares of Series A preferred stock.
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The following table sets forth the number of shares of common stock that we issued to our founders.
Name | Shares of Common Stock | |||
---|---|---|---|---|
Richard Aldrich(1) | 701,926 | (2) | ||
Michelle Dipp, M.D., Ph.D.(1) | 701,927 | |||
David Sinclair, Ph.D. | 701,927 | |||
Jonathan Tilly, Ph.D.(1) | 701,927 | |||
Christoph Westphal, M.D., Ph.D.(1) | 701,927 |
- (1)
- Richard Aldrich, Michelle Dipp, M.D., Ph.D., Jonathan Tilly, Ph.D. and Christoph Westphal, M.D., Ph.D. are members of our board of directors and 5% stockholders.
- (2)
- 175,481 of these shares were subsequently transferred to the Richard H. Aldrich Irrevocable Trust of 2011.
In November 2011, we issued and sold 19,772 shares of our common stock pursuant to our 2011 Plan, at a price per share of $0.002 for an aggregate purchase price of $40, to Paul Brannelly, who served as an executive officer at the time of our incorporation. These shares have fully vested.
Scientific Advisory Board Agreements with Co-Founders
Two of our co-founders, Drs. Tilly and Sinclair, are also members of our scientific advisory board and receive compensation for their participation pursuant to our scientific advisory board agreements with them. The following table sets forth the amount of cash compensation paid to each of these co-founders, as of April 1, 2013, for their membership on our scientific advisory board since July 15, 2011.
Name | Amount | |||
---|---|---|---|---|
Jonathan Tilly, Ph.D.(1) | $ | 108,106 | ||
David Sinclair, Ph.D.(2) | $ | 40,167 |
- (1)
- Jonathan Tilly, Ph.D. is a member of our board of directors. We entered into a scientific advisory board agreement with Dr. Tilly in July 2011.
- (2)
- We entered into a scientific advisory board agreement with Dr. Sinclair in September 2011.
Agreement with Individuals and Entities Affiliated with Directors and Executive Officers
From our formation in April 2011 through April 2012, we rented office space from Longwood Fund, LP, an entity affiliated with our chief executive officer and director, Michelle Dipp, M.D., Ph.D., and two of our other directors, Richard Aldrich and Christoph Westphal, M.D., Ph.D. We paid Longwood Fund, LP an aggregate of approximately $83,000 for rent, utilities and reimbursement of certain expenses.
Investor Rights Agreement
We are a party to an amended and restated investor rights agreement dated March 29, 2012, which we refer to as the investor rights agreement, with certain holders of our common stock, including some of our directors, executive officers and 5% stockholders and their affiliates and entities affiliated with our directors. The investor rights agreement provides these holders various rights, including the right to
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have us file registration statements covering their shares of common stock issued upon conversion of their preferred stock or request that such shares be covered by a registration statement that we are otherwise filing, the right to receive certain financial information and the right to participate in future equity offerings.
Voting Agreement
We entered into an amended and restated voting agreement on March 29, 2012, with certain holders of our common stock, including some of our directors, executive officers and 5% stockholders and their affiliates and entities affiliated with our directors. Pursuant to the voting agreement, holders of approximately 55% of our outstanding common stock as of April 1, 2013 have agreed to vote their shares in such a way as to ensure that one designee of each of our lead investors will serve on our board for so long as the entity remains a significant investor, by which we mean an investor who initially purchased at least 270,000 shares of our Series A or Series B preferred stock and continues to hold at least 20% of such shares, including any shares of common stock issued upon conversion of such shares. The voting agreement automatically and immediately terminates on the first day that our common stock is traded on a national securities exchange. Upon termination, the obligations to vote as described above cease to apply with respect to any stockholder meeting held on or after the date of such termination. Our common stock has been approved for listing on The NASDAQ Stock Market, which is a national securities exchange, and is expected to begin trading on NASDAQ on April 30, 2013.
Pursuant to the voting agreement, until such time as our common stock is traded on a national securities exchange, we have agreed to use our reasonable best efforts to include each lead investor designee in our slate of nominees to the stockholders for each election of directors and to include each such designee in our proxy statement, subject to certain limitations.
Indemnification
Our certificate of incorporation provides that we must indemnify our directors and officers to the fullest extent permitted by Delaware law and must advance expenses, including attorneys' fees, to our directors and officers in connection with legal proceedings, subject to very limited exceptions. In addition, we have entered into indemnification agreements with our directors.
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For 2012, our "named executive officers" were Michelle Dipp, M.D., Ph.D., our president and chief executive officer; Christopher Bleck, our chief commercial officer, our principal financial and accounting officer and our former chief operating officer; and Scott Chappel, Ph.D., our chief scientific officer.
We commenced operations in April 2011 and hired Dr. Dipp, Mr. Bleck and Dr. Chappel in 2011. In 2011, Dr. Dipp did not receive compensation from us for her service as our chief executive officer because of her service as a member of the general partner of Longwood Fund, LP, a venture capital investment fund and one of our principal stockholders. In December 2012, our compensation committee recommended to our board of directors, and our board of directors granted to Dr. Dipp, stock awards designed to align Dr. Dipp's interests with those of our stockholders and incent Dr. Dipp to continue to serve as our chief executive officer. We may in the future determine to compensate her with cash or other compensation for her service as our chief executive officer. The compensation of each of our other named executive officers is based on individual terms approved by our board of directors.
The following table sets forth the total compensation awarded to, earned by or paid to our named executive officers during 2011 and 2012:
Name and Principal Position | Year | Salary ($) | Bonus ($) | Stock Awards ($) | Option Awards ($)(1) | All Other Compensation ($)(2) | Total ($) | |||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Michelle Dipp, M.D., Ph.D. | 2012 | — | — | 1,500,000 | (3) | 1,942,618 | — | 3,442,618 | ||||||||||||||
Chief Executive Officer | 2011 | (4) | — | — | 1,420 | (5) | — | — | 1,420 | |||||||||||||
Christopher Bleck | 2012 | 240,000 | 70,000 | — | 298,331 | 10,890 | 619,221 | |||||||||||||||
Chief Commercial Officer(6) | 2011 | 27,692 | — | — | 255,953 | — | 283,645 | |||||||||||||||
Scott Chappel, Ph.D. | 2012 | 300,000 | 108,000 | — | — | 16,158 | 424,158 | |||||||||||||||
Chief Scientific Officer | 2011 | 136,157 | 129,462 | (7) | — | 215,002 | 248 | 480,869 |
- (1)
- The amounts in the "Option Awards" column reflect the aggregate grant date fair value of stock options granted during the year computed in accordance with the provisions of ASC 718, excluding the impact of estimated forfeitures related to service-based vesting conditions (which in our case were none). The assumptions that we used to calculate these amounts are discussed in Note 7 to our financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2012.
- (2)
- The amounts in the "All Other Compensation" column reflect the value of a long term disability premium and the 401(k) company match contributions.
- (3)
- This amount reflects the grant date fair value of restricted stock units granted to Dr. Dipp in 2012 computed in accordance with the provisions of ASC 718. The assumptions that we used to calculate this amount are discussed in Note 7 to our financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2012.
- (4)
- Dr. Dipp did not receive any compensation from us for her service as our chief executive officer in 2011. We issued and sold to Dr. Dipp 701,927 shares of our common stock in April 2011 in connection with her role as a founder of our company for an aggregate purchase price of $1,420. These shares are subject to repurchase by us pursuant to the terms of a restricted stock agreement. The restricted stock award vested with respect to 25% of the shares on the grant date, which was April 5, 2011, and vests with respect to the remaining shares in approximately equal quarterly installments through the fourth anniversary of the grant date.
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- (5)
- This amount reflects the grant date fair value of restricted stock granted to Dr. Dipp in 2011 computed in accordance with the provisions of ASC 718, excluding the impact of estimated repurchases by us related to service-based vesting conditions (which in our case were none). The assumptions that we used to calculate this amount are discussed in Note 7 to our financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2012.
- (6)
- Mr. Bleck has served as our chief commercial officer since January 2013 and served as our chief operating officer from November 2011 to January 2013.
- (7)
- The bonus amount for Dr. Chappel includes a signing bonus of $75,000 paid upon the commencement of his employment with us.
Outstanding Equity Awards at Year End Table
The following table sets forth information regarding outstanding equity awards held by our named executive officers as of December 31, 2012.
| Option Awards | Stock Awards | |||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Number of Securities Underlying Unexercised Options (#) | Number of Securities Underlying Unexercised Options (#) | | | Number of Shares or Units of Stock That Have Not Vested (#) | | |||||||||||||
| | | Market Value of Shares or Units of Stock That Have Not Vested ($)(1) | ||||||||||||||||
| Option Exercise Price ($/Sh) | | |||||||||||||||||
| Option Expiration Date | ||||||||||||||||||
Name | Exercisable | Unexercisable | |||||||||||||||||
Michelle Dipp, M.D., Ph.D. | — | 339,313 | (2) | 7.80 | 12/4/2022 | 329,030 | (3) | 2,753,981 | |||||||||||
— | — | — | — | 128,205 | (4) | 1,073,076 | |||||||||||||
— | — | — | — | 64,103 | (5) | 536,542 | |||||||||||||
Christopher Bleck | 28,175 | 84,528 | (6) | 0.04 | 12/6/2021 | ||||||||||||||
— | 52,000 | (7) | 7.80 | 12/4/2022 | — | — | |||||||||||||
Scott Chappel, Ph.D. | 82,179 | 180,796 | (6) | 0.04 | 9/28/2021 | — | — |
- (1)
- The market value of the stock awards are based on the fair value price of our common stock of $8.37 per share at December 31, 2012. For a discussion of our methodology for determining the fair value of our common stock, see "Management's Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies and Significant Judgments and Estimates" in our Annual Report on Form 10-K for the year ended December 31, 2012.
- (2)
- This option award has a vesting commencement date of December 31, 2012 and vests in approximately equal quarterly installments through December 31, 2016.
- (3)
- This stock award vested with respect to 25% of the shares on the grant date, which was April 5, 2011, and vests with respect to the remaining shares in approximately equal quarterly installments through the fourth anniversary of the grant date.
- (4)
- This restricted stock unit award vests with respect to 12.5% of the shares on March 31, 2013 and with respect to the remaining shares in approximately equal quarterly installments through the second anniversary of the grant date.
- (5)
- This restricted stock unit award vests in equal annual installments on the first and second anniversary of the grant date upon meeting certain performance-based vesting conditions.
- (6)
- These option awards vest with respect to 25% of the shares on the first anniversary of the date of hire, which was July 13, 2011 for Dr. Chappel and November 14, 2011 for Mr. Bleck, and with respect to the remaining shares in approximately equal quarterly installments through the fourth anniversary of their date of hire.
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- (7)
- This option award vests with respect to 25% of the shares on December 31, 2013, and with respect to the remaining shares in approximately equal quarterly installments through December 31, 2016.
In connection with the commencement of their employment with us, we entered into employment agreements with each of Mr. Bleck, Dr. Chappel and Ms. Lawton, our chief operating officer whose employment with us began in January 2013. In December 2012, in connection with Dr. Dipp's continued employment with us, we entered into an employment agreement with Dr. Dipp. Each of these agreements provides for at will employment. In addition, each of these executive officers is bound by the terms of agreements covering non-solicitation, non-competition, confidential information and inventions assignment which, among other things, prevents the executive from competing with us during the term of his or her employment and for a specified time thereafter.
Mr. Bleck's 2012 base salary was $240,000 pursuant to the terms of our employment agreement with him. Dr. Chappel's 2012 base salary was $300,000 pursuant to the terms of our employment agreement with him.
Dr. Dipp does not receive cash compensation from us. Pursuant to the terms of our employment agreement with her, in December 2012 we granted Dr. Dipp an option to purchase 339,313 shares of our common stock, all of which vest over time, and restricted stock units in the aggregate amount of 192,308 shares of our common stock, 128,205 of which vest over time and 64,103 of which vest based on the achievement of performance metrics.
Under their respective employment agreements, Mr. Bleck, Dr. Chappel and Ms. Lawton are each eligible for an annual performance bonus, as determined by our board of directors in its sole discretion based on the achievement of performance goals determined by our chief executive officer in consultation with the board.
Potential Payments upon Termination or Change in Control
Upon execution and effectiveness of a release of claims, each of Dr. Dipp, Mr. Bleck, Dr. Chappel and Ms. Lawton will be entitled to severance benefits if we terminate her or his employment without cause, as defined in the employment agreements described above, or Dr. Dipp, Mr. Bleck, Dr. Chappel or Ms. Lawton terminates employment with us for good reason, as defined in the employment agreements. If Mr. Bleck's, Dr. Chappel's or Ms. Lawton's employment terminates under these circumstances, in each case absent a change in control, as defined in the employment agreements, we will be obligated for a period of six months, in the case of Mr. Bleck, and 12 months, in the case of Dr. Chappel or Ms. Lawton, (1) to pay such executive officer his or her base salary, (2) to pay the monthly premiums for COBRA coverage equal to the amount paid for similarly situated employees and (3) to the extent allowed by applicable law and the applicable plan documents, to continue to provide to such executive officer all company employee benefit plans and arrangements that he or she was receiving at the time of termination. In addition, in the case of Dr. Chappel and Ms. Lawton, the vesting of any equity award he or she then holds that vests solely on the passage of time shall be accelerated by 12 months. If Dr. Dipp's employment terminates under these circumstances, we will be obligated to provide that the stock option and restricted stock unit award subject to time-based vesting granted to her on December 5, 2012 will vest, on the date of such termination, as to the amount that would have vested over the six-month period following such termination.
If Mr. Bleck's, Dr. Chappel's or Ms. Lawton's employment terminates under these circumstances, in each case within 12 months following a change in control, as defined in the employment agreement, in addition to the severance described above, we will be obligated to accelerate in full the vesting of all outstanding equity awards.
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Upon a change of control, as defined in the employment agreement, the stock option and restricted stock unit award subject to time-based vesting granted to Dr. Dipp on December 5, 2012 will immediately vest on the date of such change of control.
Executive and Compensation Processes
Our executive compensation program is administered by the compensation committee of our board of directors, subject to the oversight and approval of our full board of directors. Our compensation committee reviews our executive compensation practices on an annual basis and based on this review approves or makes recommendations to our board of directors for approval.
In designing our executive compensation program, our compensation committee and board of directors have historically engaged, and we expect will in the future engage, the services of a compensation consulting firm to provide input regarding the executive compensation practices of comparable public software and technology companies. In 2012 our compensation committee and board of directors engaged Pearl Meyer and Partners as a compensation consultant to review and evaluate the elements of our executive compensation program, including base salaries, cash incentive bonuses, equity ownership and severance benefits, in connection with the evaluation of executive compensation levels for 2012 by our compensation committee and board of directors.
We maintain a defined contribution employee retirement plan for our employees. Our 401(k) plan is intended to qualify as a tax-qualified plan under Section 401 of the Code, so that contributions to our 401(k) plan, and income earned on such contributions, are not taxable to participants until withdrawn or distributed from the 401(k) plan. Our 401(k) plan provides that each participant may contribute up to 100% of his or her pre-tax compensation, up to a statutory limit, which is $17,500 for 2013. Participants who are at least 50 years old can also make "catch-up" contributions, which in 2013 may be up to an additional $5,500 above the statutory limit. Under our 401(k) plan, each employee is fully vested in his or her deferred salary contributions. Employee contributions are held and invested by the plan's trustee. Our 401(k) plan also permits us to make discretionary contributions and matching contributions, subject to established limits and a vesting schedule. Beginning in January 2012, we made an employer matching contribution equal to (1) 100% of employee deferral contributions up to a deferral rate of 3% of compensation plus (2) 50% of employee deferral contributions up to an deferral rate of an additional 2% of compensation.
Securities Authorized for Issuance Under Our Equity Compensation Plans
The following table sets forth information regarding our equity compensation plans as of December 31, 2012. There are no equity compensation plans that have not been approved by our security holders.
Plan Category | Number of Securities to Be Issued upon Exercise of Outstanding Options, Warrants and Rights | Weighted Average Exercise Price of Outstanding Options, Warrants and Rights ($) | Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans | |||||||
---|---|---|---|---|---|---|---|---|---|---|
Equity compensation plans approved by security holders | 1,410,461 | 3.30 | 716,622 |
The Internal Revenue Service, pursuant to Section 162(m) of the Code, generally disallows a tax deduction for compensation in excess of $1.0 million paid by a public company to its chief executive
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officer and to each other officer (other than its chief financial officer) whose compensation is required to be reported to stockholders by reason of being among the three other must highly paid executive officers. We will periodically review the potential consequences of Section 162(m) on the various elements of our executive compensation program. Our board of directors or compensation committee may, in its judgment, authorize compensation payments that do not comply with the exemptions in Section 162(m) when it believes such payments are appropriate and in the best interests of the company and its stockholders, after taking into consideration changing business conditions and the performance of its employees.
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Our director compensation program is administered by our board of directors with the assistance of the compensation committee. The compensation committee conducts an annual review of director compensation and makes recommendations to the board with respect thereto.
During 2012, we did not have a non-employee director compensation policy and we did not pay cash compensation to any director for his service as a director, except Jeffrey Capello and Thomas Malley, each an independent, non-employee director. Each of Messrs. Capello and Malley received an annual fee of $30,000 relating to his service on the board of directors. In addition, Mr. Capello received an additional annual fee of $15,000 for his service as chair of our audit committee and Mr. Malley received additional annual fees of $8,000 for his service on our audit committee and $5,000 for his service on our compensation committee. All such fees were prorated for the portion of 2012 in which Messrs. Capello and Malley served on our board of directors. During 2012, we did not grant equity awards as compensation to any of our non-employee directors, except Messrs. Capello and Malley. On June 27, 2012, we granted to Mr. Capello stock options to purchase 13,098 shares of our common stock under the 2012 Plan at an exercise price of $5.40 per share, the fair market value of our common stock on the date of grant. On October 24, 2012, we granted Mr. Malley stock options to purchase 13,098 shares of our common stock under the 2012 Plan at an exercise price of $5.50 per share, the fair market value of our common stock on the date of grant. These options vest in equal monthly installments at the end of each month of service from the date of grant through March 6, 2013, in the case of Mr. Capello, and October 24, 2013, in the case of Mr. Malley.
The following table sets forth information regarding the total compensation awarded to, earned by or paid to each of our non-employee directors during the year ended December 31, 2012 for their service on our board of directors. Dr. Dipp, our chief executive officer, did not receive any additional compensation for her service as a director during 2012. The compensation that we pay to Dr. Dipp is discussed under "Executive Compensation" above.
Name | Fees Earned or Paid in Cash ($) | Stock Awards ($)(4) | Option Awards ($)(5)(6) | All Other Compensation ($) | Total ($) | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Richard Aldrich(1) | — | — | — | — | — | |||||||||||
Jeffrey D. Capello | 36,875 | — | 48,181 | — | 85,056 | |||||||||||
Stephen Kraus | — | — | — | — | — | |||||||||||
Thomas Malley | 9,941 | — | 49,454 | — | 59,395 | |||||||||||
John Simon(2) | — | — | — | — | — | |||||||||||
Harald Stock, Ph.D.(3) | — | — | — | — | — | |||||||||||
Jonathan Tilly, Ph.D.(1) | — | — | — | 69,533 | (7) | 69,533 | ||||||||||
Christoph Westphal, M.D., Ph.D.(1) | — | — | — | — | — |
- (1)
- Mr. Aldrich and Drs. Tilly and Westphal did not receive any compensation for their service as directors during the year ended December 31, 2012. The restricted stock awards that Mr. Aldrich and Dr. Tilly and Westphal received during the year ended December 31, 2011 in their role as our founders are discussed under "Certain Relationships and Related Transactions—Restricted Stock Grants."
- (2)
- Mr. Simon resigned from our board on February 21, 2013.
- (3)
- Dr. Stock was elected to our board on February 8, 2013.
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- (4)
- As of December 31, 2012, our non-employee directors held the following aggregate number of shares under outstanding stock awards (representing both vested and unvested stock awards):
Name | Number of Shares Underlying Outstanding Stock Awards for Board Service | Number of Shares Underlying Outstanding Stock Awards for Non-Board Service | |||||
---|---|---|---|---|---|---|---|
Richard Aldrich | — | 701,926 | (1)(2) | ||||
Jeffrey D. Capello, Stephen Kraus, Thomas Malley, John Simon(3) and Harald Stock, Ph.D.(4) | — | — | |||||
Jonathan Tilly, Ph.D. | — | 701,926 | (1) | ||||
Christoph Westphal, M.D., Ph.D. | — | 701,926 | (1) |
- (1)
- The restricted stock awards that Mr. Aldrich and Dr. Tilly and Westphal received in their role as our founders are discussed under "Certain Relationships and Related Transactions—Restricted Stock Grants."
- (2)
- 175,481 of these shares were subsequently transferred to the Richard H. Aldrich Irrevocable Trust of 2011.
- (3)
- Mr. Simon resigned from our board on February 21, 2013.
- (4)
- Dr. Stock was elected to our board on February 8, 2013.
- (5)
- The amounts in the "Option Awards" column reflect the aggregate grant date fair value of stock options granted during the year computed in accordance with the provisions of ASC 718, excluding the impact of estimated forfeitures related to service-based vesting conditions (which in our case were none). The assumptions that we used to calculate these amounts are discussed in Note 7 to our financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2012.
- (6)
- As of December 31, 2012, our non-employee directors held the following aggregate number of shares under outstanding option awards (representing both exercisable and unexercisable option awards, none of which have been exercised):
Name | Number of Shares Underlying Outstanding Stock Options for Board Service | Number of Shares Underlying Outstanding Stock Options for Non-Board Service | |||||
---|---|---|---|---|---|---|---|
Richard Aldrich, Stephen Kraus, John Simon(1), Harald Stock, Ph.D.(2), Jonathan Tilly, Ph.D. and Christoph Westphal, M.D., Ph.D. | — | — | |||||
Jeffrey D. Capello | 13,098 | — | |||||
Thomas Malley | 13,098 | — |
- (1)
- Mr. Simon resigned from our board on February 21, 2013.
- (2)
- Dr. Stock was elected to our board on February 8, 2013.
- (7)
- This amount reflects compensation paid to Dr. Tilly for service on our scientific advisory board during 2012.
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Based on the recommendation of our compensation committee, our board of directors has adopted a non-employee director compensation policy. Beginning in 2013 our non-employee directors will be compensated for service on our board of directors as follows:
- •
- an annual retainer for our non-employee directors for service on our board of directors of $30,000;
- •
- for members of the audit committee, an annual fee of $8,000 ($15,000 for the chair);
- •
- for members of the nominating and corporate governance committee, an annual fee of $3,750 ($7,500 for the chair);
- •
- for members of the compensation committee, an annual fee of $5,000 ($10,000 for the chair);
- •
- to each newly elected director, an initial grant of a stock option to purchase 8,650 shares of our common stock, at an exercise price to the fair market value of our common stock on the date of grant, which option shall vest monthly over one year; and
- •
- for continuing service on our board of directors, an annual grant of a stock option to purchase 4,448 shares of our common stock, at an exercise price equal to the fair market value of our common stock on the date of grant, which option shall vest monthly over one year.
Subject to the director's continued service as a director, the initial and annual stock option grants will vest in approximately equal monthly installments through the first anniversary of the date the director first joins the board of directors, in the case of the initial stock option grant, and the first anniversary of the grant date, in the case of the annual stock option grant.
We have historically reimbursed our non-employee directors for their reasonable expenses incurred in connection with attending our board of director and committee meetings and we intend to continue such reimbursements in 2013.
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The audit committee of the board of directors of OvaScience, Inc. has reviewed OvaScience's audited financial statements for the fiscal year ended December 31, 2012 and discussed them with management and the Company's independent auditors, Ernst & Young LLP, an independent registered public accounting firm.
The audit committee has received from, and discussed with, Ernst & Young LLP various communications that Ernst & Young LLP is required to provide to the audit committee, including the matters required to be discussed by the statement on Auditing Standards No. 61, as amended (AICPA,Professional Standards, Vol. 1, AU section 380), as adopted by the Public Company Accounting Oversight Board in Rule 3200T.
The audit committee has received the written disclosures and the letter from Ernst & Young LLP required by applicable requirements of the Public Company Accounting Oversight Board regarding the independent registered public accounting firm's communications with the audit committee concerning independence, and has discussed with the Company's independent registered public accounting firm its independence.
Based on the review and discussions referred to above, the audit committee recommended to the OvaScience board of directors that the audited financial statements referred to above be included in the OvaScience's Annual Report on Form 10-K for the fiscal year ended December 31, 2012.
By the audit committee of the board of directors of OvaScience, Inc.
Jeffrey D. Capello (Chair) Thomas Malley Harald Stock, Ph.D. |
The following table summarizes the fees of Ernst & Young LLP, our independent registered public accounting firm, billed to us for each of the last two fiscal years.
Fee Category | 2012 | 2011 | |||||
---|---|---|---|---|---|---|---|
Audit Fees | $ | 511,350 | — | ||||
Audit-Related Fees | — | — | |||||
Tax Fees | — | — | |||||
All Other Fees | — | — | |||||
Total Fees | $ | 511,350 | — |
Audit Fees
Audit fees are fees related to professional services rendered in connection with the audit of our annual financial statements, the reviews of the interim financial statements included in each of our quarterly reports on Form 10-Q, the reviews of financial statements included in any registrations statements we file with the SEC and other professional services provided by our independent registered public accounting firm in connection with statutory or regulatory filings or engagements.
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Audit-Related Fees
Audit-related fees are fees for assurance and related services that are reasonably related to performance of the audit and review of financial statements, and which are not reported under "Audit Fees."
Tax Fees
Tax fees are fees for professional services for tax compliance, tax advice and tax planning services.
All of the foregoing accountant services and fees were pre-approved by our audit committee in accordance with the policies and procedures described under "—Policy for Approval of Services" below.
Policy for Approval of Services
The audit committee of our board of directors has adopted policies and procedures for the pre-approval of audit and non-audit services for the purpose of maintaining the independence of our independent auditor. We may not engage our independent auditor to render any audit or non-audit service unless the service is approved in advance by the audit committee. Notwithstanding the foregoing, pre-approval is not required with respect to the provision of services, other than audit, review or attest services, by the independent auditor if the aggregate amount of all such services is no more than 5% of the total amount paid by us to the independent auditor during the fiscal year in which the services are provided, such services were not recognized by us at the time of the engagement to be non-audit services, and such services are promptly brought to the attention of the audit committee and approved prior to completion of the audit by the audit committee.
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Proposal 1: Election of Class I Directors
At the Annual Meeting, stockholders will vote to elect three class I directors, each to serve a three-year term beginning at the Annual Meeting and ending at our 2015 annual meeting of stockholders. Our board of directors has nominated Harald F. Stock, Ph.D., Jonathan Tilly, Ph.D., and Christoph Westphal, M.D., Ph.D., for election as class I directors at the Annual Meeting.
Pursuant to our certificate of incorporation and by-laws, our board of directors is divided into three classes, with each class having as nearly as possible an equal number of directors. The term of service of each class of directors is staggered so that the term of one class expires at each annual meeting of the stockholders. Upon the expiration of the term of a class of directors, directors in that class are eligible to be elected for a new three-year term at the annual meeting of stockholders in the year in which their term expires. Our board of directors currently consists of eight members, divided into three classes as follows:
- •
- class I is comprised of Drs. Stock, Tilly and Westphal, each with a term ending at the 2013 annual meeting;
- •
- class II is comprised of Messrs. Aldrich and Kraus, each with a term ending at the 2014 annual meeting of stockholders; and
- •
- class III is comprised of Dr. Dipp and Messrs. Capello and Malley, each with a term ending at the 2015 annual meeting of stockholders.
Drs. Stock, Tilly and Westphal are current directors whose terms expire at the 2013 annual meeting. Drs. Stock, Tilly and Westphal are each nominated for re-election as a class I director, with a term ending in 2016. A brief biography of each director nominee is set forth on page 9 of this proxy statement. You will find information about their stock holdings in OvaScience below under "Ownership of Our Common Stock—Security Ownership of Certain Beneficial Owners and Management."
Unless contrary instructions are provided, the persons named as proxies will, upon receipt of a properly executed proxy, vote for the election of Drs. Stock, Tilly and Westphal as class I directors for a term expiring at our 2016 annual meeting of stockholders. Proxies cannot be voted for a greater number of persons than the number of nominees named. Each of the nominees is currently a member of our board. Each of the nominees has indicated his willingness to serve on our board of directors, if elected. If any nominee should be unable to serve, proxies may be voted for a substitute nominee designated by our board. We do not contemplate that any of the nominees will be unable to serve if elected.
Our board of directors recommends that you voteFOR the election of each of the nominees as a class I director.
Proposal 2: Ratification of Appointment of Independent Auditors
The audit committee of our board has appointed the firm of Ernst & Young LLP, an independent registered public accounting firm, as our independent auditors for the current fiscal year. Ernst & Young LLP has served as our independent auditors since January 2012. Although stockholder approval of the appointment of Ernst & Young LLP is not required by law, our audit committee believes it is advisable and has decided to give our stockholders the opportunity to ratify this appointment. If this proposal is not approved at the Annual Meeting, our audit committee may reconsider this appointment.
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Representatives of Ernst & Young LLP are expected to be present at the Annual Meeting and will have the opportunity to make a statement if they desire to do so. It is also expected that they will be available to respond to appropriate questions from stockholders.
Our board of directors recommends that you voteFOR the ratification of Ernst & Young LLP as our independent auditors for the fiscal year ending December 31, 2013.
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Security Ownership of Certain Beneficial Owners and Management
The following table sets forth, as of April 1, 2013, certain information concerning the beneficial ownership of our capital stock by:
- •
- each director;
- •
- each named executive officer;
- •
- all of our executive officers and directors as a group; and
- •
- each person, or group of affiliated persons, who is known by us to beneficially own more than 5% of any class of our outstanding stock.
Beneficial ownership is determined in accordance with the rules and regulations of the SEC and includes voting or investment power with respect to our common stock. Shares of our common stock subject to options that are currently exercisable or exercisable within 60 days of April 1, 2013 and restricted stock units that will vest within 60 days of April 1, 2013 are considered outstanding and beneficially owned by the person holding the options or restricted stock units, as applicable, for the purpose of calculating the percentage ownership of that person but not for the purpose of calculating the percentage ownership of any other person. Except as otherwise noted, we believe the persons and entities in this table have sole voting and investing power with respect to all of the shares of our common stock beneficially owned by them, subject to community property laws, where applicable. The
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inclusion of any shares in this table does not constitute an admission of beneficial ownership by the person named below.
Name and Address of Beneficial Owner(1) | Shares of Common Stock Beneficially Owned(2) | Percentage of Common Stock Beneficially Owned(3) | |||||
---|---|---|---|---|---|---|---|
Directors and Executive Officers | |||||||
Michelle Dipp, M.D., Ph.D. | 4,453,867 | (4) | 24.5 | % | |||
Christopher A. Bleck | 42,263 | (5) | * | ||||
Scott Chappel, Ph.D. | 115,051 | (6) | * | ||||
Alison F. Lawton | — | — | |||||
Richard Aldrich | 4,422,497 | (7) | 24.3 | % | |||
Christoph Westphal, M.D., Ph.D. | 4,422,498 | (8) | 24.3 | % | |||
Stephen Kraus(9) | — | — | |||||
Jonathan Tilly, Ph.D.(10) | 701,927 | 3.9 | % | ||||
Jeffrey D. Capello | 24,209 | (11) | * | ||||
Thomas Malley | 89,459 | (12) | * | ||||
Harald Stock, Ph.D. | 2,162 | (13) | * | ||||
All officers and directors as a group (11 persons) | 6,832,791 | (14) | 37.1 | % | |||
5% Stockholders | |||||||
Longwood Fund, L.P. | 3,720,571 | (15) | 20.5 | % | |||
Entities affiliated with Bessemer Venture Partners | 2,392,034 | (16) | 13.1 | % | |||
Entities affiliated with Fidelity Investments | 1,316,000 | (17) | 7.2 | % | |||
Entities affiliated with General Catalyst Partners | 1,090,908 | (18) | 6.0 | % |
- *
- Less than 1%.
- (1)
- Unless otherwise indicated, the address of such individual is c/o OvaScience, Inc., 215 First Street, Suite 240, Cambridge, Massachusetts 02142.
- (2)
- Applicable number of shares of stock beneficially owned is calculated as of April 1, 2013.
- (3)
- Applicable percentage ownership is based on 18,191,159 shares of our common stock outstanding as of April 1, 2013.
- (4)
- Consists of (a) 712,089 shares of common stock held by Dr. Dipp, (b) 3,720,571 shares of common stock held by Longwood Fund, L.P. and (c) options to purchase an aggregate of 21,207 shares of common stock held by Dr. Dipp that are exercisable within 60 days of April 1, 2013. The general partner of Longwood Fund, L.P. is Longwood Fund GP, LLC. Voting and investment power with respect to the shares held by Longwood Fund, L.P. are vested in Richard Aldrich, Michelle Dipp, M.D., Ph.D., and Christoph Westphal, M.D., Ph.D., the managers of Longwood Fund GP, LLC. In addition, Longwood Fund, L.P. and Dr. Dipp are subject to a voting agreement as discussed above under "Certain Relationships and Related Transactions—Related Person Transactions—Voting Agreement."
- (5)
- Consists of options to purchase shares of common stock held by Mr. Bleck that are exercisable within 60 days of April 1, 2013.
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- (6)
- Consists of options to purchase shares of common stock held by Dr. Chappel that are exercisable within 60 days of April 1, 2013.
- (7)
- Consists of (a) 526,445 shares of common stock held directly by Mr. Aldrich, (b) 175,481 shares of common stock held by Richard H. Aldrich Irrevocable Trust of 2011 and (c) 3,720,571 shares of common stock held by Longwood Fund, L.P. The trustee of the Richard H. Aldrich Irrevocable Trust of 2011 is Mr. Aldrich's wife, Nicole Aldrich, and she exercises sole voting and investment power over the shares of record held by the trust. The general partner of Longwood Fund, L.P. is Longwood Fund GP, LLC. Voting and investment power with respect to the shares held by Longwood Fund, L.P are vested in Richard Aldrich, Michelle Dipp, M.D., Ph.D., and Christoph Westphal, M.D., Ph.D., the managers of Longwood Fund GP, LLC. In addition, Longwood Fund, L.P., Mr. Aldrich and Richard H. Aldrich Irrevocable Trust of 2011 are subject to a voting agreement as discussed above under "Certain Relationships and Related Transactions—Related Person Transactions—Voting Agreement."
- (8)
- Consists of (a) 701,927 shares of common stock held by Dr. Westphal and (b) 3,720,571 shares of common stock held by Longwood Fund, L.P. The general partner of Longwood Fund, L.P. is Longwood Fund GP, LLC. Voting and investment power with respect to the shares held by Longwood Fund, L.P. are vested in Richard Aldrich, Michelle Dipp, M.D., Ph.D., and Christoph Westphal, M.D., Ph.D., the managers of Longwood Fund GP, LLC. In addition, Dr. Westphal and Longwood Fund, L.P. are subject to a voting agreement as discussed above under "Certain Relationships and Related Transactions—Related Person Transactions—Voting Agreement."
- (9)
- Mr. Kraus serves as an employee of Bessemer Venture Partners, the management company affiliate of the Bessemer Venture Partner Entities (as defined below) that hold 2,392,034 shares of common stock, as described below. Mr. Kraus has no voting or dispositive power with respect to the shares held by the Bessemer Venture Partner Entities and disclaims beneficial ownership of such shares except to the extent of his pecuniary interest therein. In addition, the Bessemer Venture Partner Entities are subject to a voting agreement as discussed above under "Certain Relationships and Related Transactions—Related Person Transactions—Voting Agreement."
- (10)
- Dr. Tilly is subject to a voting agreement discussed above under "Certain Relationships and Related Transactions—Related Person Transactions—Voting Agreement."
- (11)
- Consists of (i) 11,111 shares of common stock held by Mr. Capello and (ii) options to purchase an aggregate of 13,098 shares of common stock held by Mr. Capello that are exercisable within 60 days of April 1, 2013.
- (12)
- Consists of (a) 81,819 shares of common stock held by Mr. Malley and (b) options to purchase an aggregate of 7,640 shares of common stock held by Mr. Malley that are exercisable within 60 days of April 1, 2013.
- (13)
- Consists of options to purchase shares of common stock held by Dr. Stock that are exercisable within 60 days of April 1, 2013.
- (14)
- For the purposes of calculating the shares beneficially owned by all directors and officers as a group, the 3,720,571 shares of common stock held by Longwood Fund, L.P, which are reported as beneficially owned by each of Dr. Dipp, Mr. Aldrich and Dr. Westphal, have been included in the calculation only once.
- (15)
- Longwood Fund GP, LLC (the "General Partner") is the general partner of Longwood Fund, L.P. and exercises voting and investment power with respect to securities owned directly by Longwood Fund, L.P. Richard Aldrich, Michelle Dipp, M.D., Ph.D., and Christoph Westphal, M.D., Ph.D., are the managers of the General Partner and share voting and dispositive power with respect to the securities held by Longwood Fund, L.P. The General Partner disclaims beneficial ownership of the securities owned directly by Longwood Fund, L.P. and this proxy statement and annual report shall not be deemed an admission that the General Partner is the beneficial owner of such securities,
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except to the extent of its pecuniary interest therein. In addition, Longwood Fund, L.P. is subject to a voting agreement as discussed above Certain Relationships and Related Transactions—Related Person Transactions—Voting Agreement."
- (16)
- Consists of (a) 765,451 shares of common stock held by Bessemer Venture Partners VII L.P. ("BVP VII"), (b) 334,885 shares of common stock held by Bessemer Venture Partners VII Institutional L.P. ("BVP Institutional") and (c) 1,291,698 shares of common stock held by BVP Special Opportunity Fund L.P. ("BVP Special Opportunity" and together with BVP Institutional and BVP VII, the "Bessemer Venture Partner Entities"). Deer VII & Co. L.P. ("Deer L.P.") is the general partner of the Bessemer Venture Partner Entities. Deer VII & Co. Ltd. is the general partner of Deer L.P. J. Edmund Colloton, David J. Cowan, Byron B. Deeter, Robert P. Goodman, Jeremy S. Levine and Robert M. Stavis are the directors of Deer VII & Co. Ltd. and share voting and dispositive power over the shares of stock held by the Bessemer Venture Partner Entities. Each of Mr. Colloton, Mr. Cowan, Mr. Deeter, Mr. Goodman, Mr. Levine and Mr. Stavis disclaims beneficial ownership of the shares identified in this footnote except as to his or her respective pecuniary interest in such shares. In addition, the Bessemer Venture Partner Entities are subject to a voting agreement as discussed above under "Certain Relationships and Related Transactions—Related Person Transactions—Voting Agreement."
- (17)
- Consists of (a) 1,090,900 shares of common stock held by Fidelity Contrafund: Fidelity Advisor New Insights Fund, (b) 212,300 shares of common stock held by Fidelity Select Portfolios: Biotechnology Portfolio and (c) 12,800 shares of common stock held by Fidelity Advisor Series VII: Fidelity Advisor Biotechnology Fund. Fidelity Management & Research Company, a wholly-owned subsidiary of FMR LLC and an investment adviser registered under Section 203 of the Investment Advisers Act of 1940, is the beneficial owner of 1,316,000 shares as a result of acting as investment adviser to various investment companies registered under Section 8 of the Investment Company Act of 1940. Edward C. Johnson 3d, FMR LLC, through its control of Fidelity Management & Research Company, and the funds each have sole power to dispose of the 1,316,000 shares owned by the funds. Members of the family of Edward C. Johnson 3d, chairman of FMR LLC, are the predominant owners, directly or through trusts, of Series B voting common shares of FMR LLC, representing 49% of the voting power of FMR LLC. The Johnson family group and all other Series B shareholders have entered into a shareholders' voting agreement under which all Series B voting common shares will be voted in accordance with the majority vote of Series B voting common shares. Accordingly, through their ownership of voting common shares and the execution of the shareholders' voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940, to form a controlling group with respect to FMR LLC. Neither FMR LLC nor Edward C. Johnson 3d has the sole power to vote or direct the voting of the shares owned directly by the funds, which power resides with the funds' Boards of Trustees. Fidelity Management & Research Company carries out the voting of the shares under written guidelines established by the funds' Boards of Trustees.
- (18)
- Consists of (a) 1,068,602 shares of common stock held by General Catalyst Group V, L.P. ("GCG V") and (b) 22,306 shares of common stock held by GC Entrepreneurs Fund V, L.P. ("GCEF V"). General Catalyst GP V, LLC ("GP V LLC") is the general partner of General Catalyst Partners V, L.P. ("GP V LP"), which is the general partner of each of GCEF V and GCG V. Each of Joel Cutler, David Fialkow and David Orfao is a Managing Director of GP V LLC. Each of GP V LLC, GP V LP, Joel Cutler, David Fialkow and David Orfao may be deemed to share voting and investment power over the shares held of record by each of GCEF V and GCG V. Each of GP V LLC, GP V LP, Joel Cutler, David Fialkow and David Orfao disclaims beneficial ownership of all shares held by GCEF V and GCG V except to the extent of their pecuniary interest therein, if any. In addition, GCG V and GCEF V are subject to a voting agreement as discussed above under "Certain Relationships and Related Transactions—Related Person Transactions—Voting Agreement."
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Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act requires our directors and officers and holders of more than 10% of our common stock to file with the SEC initial reports of ownership of our common stock and other equity securities on a Form 3 and reports of changes in such ownership on a Form 4 or Form 5. Directors and officers and holders of 10% of our common stock are required by SEC regulations to furnish us with copies of all Section 16(a) forms they file. To our knowledge, based solely on a review of our records and representations made by our directors and officers regarding their filing obligations, all Section 16(a) filing requirements were satisfied with respect to 2012.
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Our board of directors does not know of any other matters that may come before the Annual Meeting. However, if any other matters are properly presented to the Annual Meeting, it is the intention of the persons named in the accompanying proxy to vote, or otherwise act, in accordance with their judgment on such matters.
Deadline for Submission of Stockholder Proposals for 2014 Annual Meeting
Proposals of stockholders intended to be presented at the 2014 annual meeting of the stockholders, pursuant to Rule 14a-8 promulgated under the Exchange Act, and stockholder-submitted nominees for directors, must be received by our Secretary in writing at our principal offices, OvaScience, Inc., 215 First Street, Suite 240, Cambridge, Massachusetts 02142, Attention: Investor Relations, no later than December 26, 2013, in order to be included in the proxy statement and proxy card relating to that meeting.
If a stockholder wishes to present a proposal at our 2014 annual meeting of stockholders, but does not wish to have the proposal considered for inclusion in our proxy statement and proxy card, such stockholder must give written notice to the Secretary of the Company at our principal executive offices at the address noted above. The Secretary must receive such notice no earlier than February 7, 2014 and no later than March 9, 2014, provided that if the date of the 2014 annual meeting is advanced by more than 20 days, or delayed by more than 60 days, from the first anniversary of the Annual Meeting, such notice must instead be received by the Secretary no earlier than the 120th day prior to the 2014 annual meeting and not later than the later of (i) the 90th day prior to the 2014 annual meeting and (ii) the tenth day following the day on which notice of the date of the 2014 annual meeting was mailed or public disclosure of the date of the 2014 annual meeting was made, whichever occurs first.
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Using a black ink pen, mark your votes with an X as shown in this example. Please do not write outside the designated areas. X 01N87D 1 U P X + Annual Meeting Proxy Card . Authorized Signatures — This section must be completed for your vote to be counted. — Date and Sign Below C Please sign exactly as name(s) appears hereon. Joint owners should each sign. When signing as attorney, executor, administrator, corporate officer, trustee, guardian, or custodian, please give full title. Signature 1 — Please keep signature within the box. Signature 2 — Please keep signature within the box. Date (mm/dd/yyyy) — Please print date below. + Change of Address — Please print your new address below. Comments — Please print your comments below. B Non-Voting Items A Proposals — The Board of Directors recommends that you vote FOR each of the Director nominees and FOR Proposal 2. For Against Abstain 2. To ratify the appointment of Ernst & Young LLP, an independent registered public accounting firm, as the independent auditors of OvaScience for the fiscal year ending December 31, 2013. Meeting Attendance Mark the box to the right if you plan to attend the Annual Meeting. 01 - Harald F. Stock, Ph.D. 02 - Jonathan Tilly, Ph.D. 03 - Christoph Westphal, M.D., Ph.D. 1. To elect the following nominees as Class I Directors of OvaScience, Inc.: For Withhold For Withhold For Withhold IMPORTANT ANNUAL MEETING INFORMATION MMMMMMMMMMMM MMMMMMMMMMMMMMM 000000000.000000 ext 000000000.000000 ext 000000000.000000 ext 000000000.000000 ext 000000000.000000 ext 000000000.000000 ext 000004 MR A SAMPLE DESIGNATION (IF ANY) ADD 1 ADD 2 ADD 3 ADD 4 ADD 5 ADD 6 ENDORSEMENT_LINE______________ SACKPACK_____________ 1234 5678 9012 345 MMMMMMM 1 6 3 3 1 8 1 MR A SAMPLE (THIS AREA IS SET UP TO ACCOMMODATE 140 CHARACTERS) MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND MMMMMMMMM C 1234567890 J N T C123456789 qIF YOU HAVE NOT VOTED VIA THE INTERNET OR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.q Electronic Voting Instructions Available 24 hours a day, 7 days a week! Instead of mailing your proxy, you may choose one of the voting methods outlined below to vote your proxy. VALIDATION DETAILS ARE LOCATED BELOW IN THE TITLE BAR. Proxies submitted by the Internet or telephone must be received by 11:59 p.m., Eastern Time, on June 6, 2013. Vote by Internet • Go to www.envisionreports.com/OVSC • Or scan the QR code with your smartphone • Follow the steps outlined on the secure website Vote by telephone • Call toll free 1-800-652-VOTE (8683) within the USA, US territories & Canada on a touch tone telephone • Follow the instructions provided by the recorded message |
2013 Annual Meeting of Stockholders To be held on Friday, June 7, 2013 at 9:00 a.m., Eastern Time This Proxy is solicited on behalf of the Board of Directors of OvaScience, Inc. (“OvaScience”). The undersigned, having received notice of the annual meeting of stockholders and the proxy statement therefor and revoking all prior proxies, hereby appoints each of Michelle Dipp, M.D., Ph.D., Christopher Bleck and Alison Lawton (each with full power of substitution), as Proxies of the undersigned, to attend the annual meeting of stockholders of OvaScience to be held at 9:00 a.m., Eastern Time, on Friday, June 7, 2013, at the offices of OvaScience, 215 First Street, Suite 240, Cambridge, Massachusetts 02142, and any adjourned or postponed session thereof, and there to vote and act as indicated upon the matters on the reverse side in respect of all shares of common stock which the undersigned would be entitled to vote or act upon, with all powers the undersigned would possess if personally present. You can revoke your proxy at any time before it is voted at the annual meeting (i) by submitting another properly completed proxy bearing a later date; (ii) by giving written notice of revocation to the Secretary of OvaScience; (iii) if you submitted a proxy through the Internet or by telephone, by submitting a proxy again through the Internet or by telephone prior to the close of the Internet voting facility or the telephone voting facility; or (iv) by voting in person at the annual meeting. If you hold any of the shares of common stock in a fiduciary, custodial or joint capacity or capacities, this proxy is signed by you in every such capacity as well as individually. The shares of common stock of OvaScience represented by this proxy will be voted as directed by you for the proposals herein proposed by OvaScience. If no direction is given with respect to any proposal specified herein, this proxy will be voted FOR the proposal. In their discretion, the Proxies are authorized to vote upon any other business that may properly come before the annual meeting or any adjournment(s) thereof. Please vote, date and sign on reverse side and return promptly in the enclosed pre-paid envelope. Your vote is important. Please vote immediately. Proxy — OVASCIENCE, INC. qIF YOU HAVE NOT VOTED VIA THE INTERNET OR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.q |
UNITED STATES | |||
SECURITIES AND EXCHANGE COMMISSION | |||
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o | Preliminary Proxy Statement | ||
o | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | ||
o | Definitive Proxy Statement | ||
x | Definitive Additional Materials | ||
o | Soliciting Material under §240.14a-12 | ||
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o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. | ||
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OVASCIENCE, INC.
PROXY STATEMENT RELATING TO 2013 ANNUAL MEETING OF STOCKHOLDERS
SUPPLEMENTAL INFORMATION REGARDING PROPOSAL 1
On April 30, 2013, the common stock of OvaScience, Inc. (the “Company”) began trading on the NASDAQ Global Market, a national securities exchange. Pursuant to the terms of the Company’s amended and restated voting agreement dated March 29, 2012, by and among the Company and certain holders of the Company’s common stock, the voting agreement terminated on April 30, 2013, the first day on which the Company’s common stock was traded on a national securities exchange. Upon the termination of the voting agreement, the obligations to vote pursuant to the terms of the voting agreement, as described in the Company’s Definitive Proxy Statement, filed with the Securities and Exchange Commission on April 26, 2013 (the “Proxy Statement”), ceased to apply with respect to any stockholder meeting held after the date of such termination.
The information set forth herein supplements the Proxy Statement and is being furnished to holders of the Company’s common stock in connection with the solicitation of proxies on behalf of the Board of Directors of the Company for use at the 2013 Annual Meeting of Stockholders to be held on June 7, 2013, or any adjournment or postponement thereof.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): April 30, 2013
OvaScience, Inc.
(Exact Name of Registrant as Specified in Charter)
Delaware |
| 000-54647 |
| 45-1472564 |
(State or Other Jurisdiction |
| (Commission |
| (IRS Employer |
215 First Street, Suite 240, Cambridge, MA |
| 02142 |
(Address of Principal Executive Offices) |
| (Zip Code) |
Registrant’s telephone number, including area code: (617) 500-2802
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On April 30, 2013, OvaScience, Inc. (the “Company”) filed a restated certificate of incorporation (the “Restated Certificate”) with the Secretary of State of the State of Delaware in connection with listing of the Company’s common stock on the NASDAQ Global Market (“NASDAQ”). The Company’s board of directors and stockholders previously approved the Restated Certificate to become effective upon the listing of the Company’s common stock on NASDAQ, which occurred on April 30, 2013. The Restated Certificate amends and restates the Company’s certificate of incorporation in its entirety to, among other things, prohibit stockholders from taking any action by written consent in lieu of a meeting. The foregoing description of the Restated Certificate is qualified by reference to the Restated Certificate, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Also on April 30, 2013, the second amended and restated by-laws of the Company (the “Amended and Restated By-Laws”), previously approved by the Company’s board of directors to become effective immediately upon the listing of the Company’s common stock on NASDAQ, became effective. The Amended and Restated By-Laws amend and restate the Company’s by-laws in their entirety to, among other things prohibit stockholders from taking any action by written consent in lieu of a meeting. The foregoing description of the Amended and Restated By-Laws is qualified by reference to the Amended and Restated By-Laws, a copy of which is attached hereto as Exhibit 3.2 and is incorporated herein by reference.
8.01 Other Events.
On April 30, 2013 the Company’s common stock began trading on NASDAQ, a national securities exchange. Pursuant to the terms of the Company’s amended and restated voting agreement dated March 29, 2012, by and among the Company and certain holders of the Company’s common stock, the voting agreement terminated on April 30, 2013, the first day on which the Company’s common stock traded on a national securities exchange. Upon the termination of the voting agreement, the obligations to vote pursuant to the terms of the voting agreement ceased to apply with respect to any stockholder meeting held after the date of such termination.
Item 9.01 Financial Statements and Exhibits.
See the Exhibit Index attached hereto.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| OVASCIENCE, INC. |
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Date: April 30, 2013 | /s/ Michelle Dipp, M.D., Ph.D. |
| Michelle Dipp, M.D., Ph.D. |
| President and Chief Executive Officer |
EXHIBIT INDEX
Exhibit No. |
| Description |
3.1 |
| Restated Certificate of Incorporation |
3.2 |
| Amended and Restated By-laws |
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
OVASCIENCE, INC.
OvaScience, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows:
The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on April 5, 2011 under the name OvaStem, Inc.
A resolution was duly adopted by the Board of Directors of the Corporation pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware setting forth this Restated Certificate of Incorporation and declaring such Restated Certificate of Incorporation advisable. The stockholders of the Corporation duly approved and adopted this Restated Certificate of Incorporation by written consent in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware.
Accordingly, the Certificate of Incorporation of this Corporation, as previously amended and restated, is hereby further amended and restated in its entirety to read as follows:
FIRST: The name of the Corporation is OvaScience, Inc.
SECOND: The address of the Corporation’s registered office in the State of Delaware is 901 N. Market Street, Suite 705, in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at that address is Delaware Corporate Services Inc.
THIRD: The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is 105,000,000 shares, consisting of (i) 100,000,000 shares of Common Stock, $0.001 par value per share (“Common Stock”), and (ii) 5,000,000 shares of Preferred Stock, $0.001 par value per share (“Preferred Stock”).
The following is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation.
A COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any series as may be designated by the Board of Directors upon any issuance of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock shall have voting rights at all meetings of stockholders, each such holder being entitled to one vote for each share thereof held by such holder; provided, however, that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (which, as used herein, shall mean the certificate of incorporation of the Corporation, as amended from time to time, including the terms of any certificate of designations of any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation. There shall be no cumulative voting.
The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of the State of Delaware.
3. Dividends. Dividends may be declared and paid on the Common Stock from funds lawfully available therefor as and when determined by the Board of Directors and subject to any preferential dividend or other rights of any then outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the Corporation, whether voluntary or involuntary, holders of Common Stock will be entitled to receive all assets of the Corporation available for distribution to its stockholders, subject to any preferential or other rights of any then outstanding Preferred Stock.
B PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series, each of such series to have such terms as stated or expressed herein and in the resolution or resolutions providing for the issue of such series adopted by the Board of Directors of the Corporation as hereinafter provided. Any shares of Preferred Stock which may be redeemed, purchased or acquired by the Corporation may be reissued except as otherwise provided by law.
Authority is hereby expressly granted to the Board of Directors from time to time to issue the Preferred Stock in one or more series, and in connection with the creation of any such series, by adopting a resolution or resolutions providing for the issuance of the shares thereof and by filing a certificate of designations relating thereto in accordance with the General Corporation Law of the State of Delaware, to determine and fix the number of shares of such series and such voting powers, full or limited, or no voting powers, and such designations, preferences and
relative participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation preferences, as shall be stated and expressed in such resolutions, all to the full extent now or hereafter permitted by the General Corporation Law of the State of Delaware. Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law.
The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares then outstanding) by the affirmative vote of the holders of a majority of the voting power of the capital stock of the Corporation entitled to vote thereon, voting as a single class, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of the State of Delaware.
FIFTH: Except as otherwise provided herein, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation.
SIXTH: In furtherance and not in limitation of the powers conferred upon it by the General Corporation Law of the State of Delaware, and subject to the terms of any series of Preferred Stock, the Board of Directors shall have the power to adopt, amend, alter or repeal the By-laws of the Corporation by the affirmative vote of a majority of the directors present at any regular or special meeting of the Board of Directors at which a quorum is present. The stockholders may not adopt, amend, alter or repeal the By-laws of the Corporation, or adopt any provision inconsistent therewith, unless such action is approved, in addition to any other vote required by this Certificate of Incorporation, by the affirmative vote of the holders of at least seventy-five percent (75%) of the votes that all the stockholders would be entitled to cast in any annual election of directors or class of directors. Notwithstanding any other provisions of law, this Certificate of Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in any annual election of directors or class of directors shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article SIXTH.
SEVENTH: Except to the extent that the General Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. If the General Corporation Law of the State of Delaware is amended to permit further elimination or limitation of the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware as so amended.
EIGHTH: The Corporation shall provide indemnification as follows:
1. Actions, Suits and Proceedings Other than by or in the Right of the Corporation. The Corporation shall indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he or she is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to hereafter as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), liabilities, losses, judgments, fines (including excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974), and amounts paid in settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with such action, suit or proceeding and any appeal therefrom, if Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
2. Actions or Suits by or in the Right of the Corporation. The Corporation shall indemnify any Indemnitee who was or is a party to or threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with such action, suit or proceeding and any appeal therefrom, if Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made under this Section 2 in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Corporation, unless, and only to the extent, that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses (including attorneys’ fees) which the Court of Chancery of Delaware or such other court shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding any other provisions of this Article EIGHTH, to the extent that an Indemnitee has been successful, on the merits or otherwise, in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this Article EIGHTH, or in defense of any claim, issue or matter therein, or on appeal from any such action, suit or proceeding, Indemnitee shall be indemnified against all expenses (including attorneys’ fees) actually and reasonably incurred by or on behalf of Indemnitee in connection therewith. Without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Corporation, (iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an adjudication that Indemnitee did not act in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and (v) with respect to any criminal proceeding, an adjudication that Indemnitee had reasonable cause to believe his or her conduct was unlawful, Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto.
4. Notification and Defense of Claim. As a condition precedent to an Indemnitee’s right to be indemnified, such Indemnitee must notify the Corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving such Indemnitee for which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to Indemnitee. After notice from the Corporation to Indemnitee of its election so to assume such defense, the Corporation shall not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with such action, suit, proceeding or investigation, other than as provided below in this Section 4. Indemnitee shall have the right to employ his or her own counsel in connection with such action, suit, proceeding or investigation, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by the Corporation, (ii) counsel to Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on any significant issue between the Corporation and Indemnitee in the conduct of the defense of such action, suit, proceeding or investigation or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, suit, proceeding or investigation, in each of which cases the fees and expenses of counsel for Indemnitee shall be at the expense of the Corporation, except as otherwise expressly provided by this Article EIGHTH. The Corporation shall not be entitled, without the consent of Indemnitee, to assume the defense of any claim brought by or in the right of the Corporation or as to which counsel for Indemnitee shall have reasonably made the conclusion provided for in clause (ii) above. The Corporation shall not be required to indemnify Indemnitee under this Article EIGHTH for any amounts paid in settlement of any action, suit, proceeding or investigation effected without its written consent. The Corporation shall not settle any action, suit, proceeding or investigation in any manner which would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Corporation nor Indemnitee will unreasonably withhold or delay its consent to any proposed settlement.
5. Advance of Expenses. Subject to the provisions of Section 6 of this Article EIGHTH, in the event of any threatened or pending action, suit, proceeding or investigation of which the Corporation receives notice under this Article EIGHTH, any expenses (including attorneys’ fees) incurred by or on behalf of Indemnitee in defending an action, suit, proceeding or investigation or any appeal therefrom shall be paid by the Corporation in advance of the final disposition of such matter; provided, however, that the payment of such expenses incurred by or on behalf of Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined by final judicial decision from which there is no further right to appeal that Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Article EIGHTH; and provided further that no such advancement of expenses shall be made under this Article EIGHTH if it is determined (in the manner described in Section 6) that (i) Indemnitee did not act in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, or (ii) with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe his or her conduct was unlawful. Such undertaking shall be accepted without reference to the financial ability of Indemnitee to make such repayment.
6. Procedure for Indemnification and Advancement of Expenses. In order to obtain indemnification or advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article EIGHTH, an Indemnitee shall submit to the Corporation a written request. Any such advancement of expenses shall be made promptly, and in any event within 60 days after receipt by the Corporation of the written request of Indemnitee, unless (i) the Corporation has assumed the defense pursuant to Section 4 of this Article EIGHTH (and none of the circumstances described in Section 4 of this Article EIGHTH that would nonetheless entitle the Indemnitee to indemnification for the fees and expenses of separate counsel have occurred) or (ii) the Corporation determines within such 60-day period that Indemnitee did not meet the applicable standard of conduct set forth in Section 1, 2 or 5 of this Article EIGHTH, as the case may be. Any such indemnification, unless ordered by a court, shall be made with respect to requests under Section 1 or 2 only as authorized in the specific case upon a determination by the Corporation that the indemnification of Indemnitee is proper because Indemnitee has met the applicable standard of conduct set forth in Section 1 or 2, as the case may be. Such determination shall be made in each instance (a) by a majority vote of the directors of the Corporation consisting of persons who are not at that time parties to the action, suit or proceeding in question (“disinterested directors”), whether or not a quorum, (b) by a committee of disinterested directors designated by majority vote of disinterested directors, whether or not a quorum, (c) if there are no disinterested directors, or if the disinterested directors so direct, by independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to the Corporation) in a written opinion, or (d) by the stockholders of the Corporation.
7. Remedies. The right to indemnification or advancement of expenses as granted by this Article EIGHTH shall be enforceable by Indemnitee in any court of competent jurisdiction. Neither the failure of the Corporation to have made a determination prior to the commencement of such action that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Corporation pursuant to Section 6 of this Article EIGHTH that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. In any suit brought by Indemnitee to enforce a right to indemnification, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall have the burden of proving that Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article EIGHTH. Indemnitee’s expenses (including attorneys’ fees) reasonably incurred in connection with successfully establishing Indemnitee’s right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the Corporation. Notwithstanding the foregoing, in any suit brought by Indemnitee to enforce a right to indemnification hereunder it shall be a defense that the Indemnitee has not met any applicable standard for indemnification set forth in the General Corporation Law of the State of Delaware.
8. Limitations. Notwithstanding anything to the contrary in this Article EIGHTH, except as set forth in Section 7 of this Article EIGHTH, the Corporation shall not indemnify an Indemnitee pursuant to this Article EIGHTH in connection with a proceeding (or part thereof) initiated by such Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation. Notwithstanding anything to the contrary in this Article EIGHTH, the Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the event the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee is subsequently reimbursed from the proceeds of insurance, such Indemnitee shall promptly refund indemnification payments to the Corporation to the extent of such insurance reimbursement.
9. Subsequent Amendment. No amendment, termination or repeal of this Article EIGHTH or of the relevant provisions of the General Corporation Law of the State of Delaware or any other applicable laws shall adversely affect or diminish in any way the rights of any Indemnitee to indemnification under the provisions hereof with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the final adoption of such amendment, termination or repeal.
10. Other Rights. The indemnification and advancement of expenses provided by this Article EIGHTH shall not be deemed exclusive of any other rights to which an Indemnitee seeking indemnification or advancement of expenses may be entitled under any law (common or statutory), agreement or vote of stockholders or disinterested directors or otherwise, both as to action in Indemnitee’s official capacity and as to action in any other capacity while holding office for the Corporation, and shall continue as to an Indemnitee who has ceased to be a director or officer, and shall inure to the benefit of the estate, heirs, executors and administrators of Indemnitee. Nothing contained in this Article EIGHTH shall be deemed to prohibit, and the Corporation is specifically authorized to enter into, agreements with officers and directors providing indemnification rights and procedures different from those set forth in this Article EIGHTH. In addition, the Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article EIGHTH.
11. Partial Indemnification. If an Indemnitee is entitled under any provision of this Article EIGHTH to indemnification by the Corporation for some or a portion of the expenses (including attorneys’ fees), liabilities, losses, judgments, fines (including excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974) or amounts paid in settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with any action, suit, proceeding or investigation and any appeal therefrom but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of such expenses (including attorneys’ fees), liabilities, losses, judgments, fines (including excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974) or amounts paid in settlement to which Indemnitee is entitled.
12. Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) against any expense, liability or loss incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware.
13. Savings Clause. If this Article EIGHTH or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each Indemnitee as to any expenses (including attorneys’ fees), liabilities, losses, judgments, fines (including excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974) and amounts paid in settlement in connection with any action, suit, proceeding or investigation, whether civil, criminal or administrative, including an action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article EIGHTH that shall not have been invalidated and to the fullest extent permitted by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h) and Section 145(i) of the General Corporation Law of the State of Delaware shall have the respective meanings assigned to such terms in such Section 145(h) and Section 145(i).
NINTH: This Article NINTH is inserted for the management of the business and for the conduct of the affairs of the Corporation.
1. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
2. Number of Directors; Election of Directors. Subject to the rights of holders of any series of Preferred Stock to elect directors, the number of directors of the Corporation shall be established by the Board of Directors. Election of directors need not be by written ballot, except as and to the extent provided in the By-laws of the Corporation.
3. Classes of Directors. Subject to the rights of holders of any series of Preferred Stock to elect directors, the Board of Directors shall be and is divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. The Board of Directors is authorized to assign members of the Board of Directors already in office to Class I, Class II or Class III at the time such classification becomes effective.
4. Terms of Office. Subject to the rights of holders of any series of Preferred Stock to elect directors, each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting of stockholders at which such director was elected; provided that each director initially assigned to Class I shall serve for a term expiring at the Corporation’s first annual meeting of stockholders held after December 31, 2012; each director initially assigned to Class II shall serve for a term expiring at the Corporation’s second annual meeting of stockholders held after December 31, 2012; and each director initially assigned to Class III shall serve for a term expiring at the Corporation’s third annual meeting of stockholders held after December 31, 2012; provided further, that the term of each director shall continue until the election and qualification of his or her successor and be subject to his or her earlier death, resignation or removal.
5. Quorum. The greater of (a) a majority of the directors at any time in office and (b) one-third of the number of directors fixed pursuant to Section 2 of this Article NINTH shall constitute a quorum of the Board of Directors. If at any meeting of the Board of Directors there shall be less than such a quorum, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present.
6. Action at Meeting. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors unless a greater number is required by law or by this Certificate of Incorporation.
7. Removal. Subject to the rights of holders of any series of Preferred Stock, directors of the Corporation may be removed only for cause and only by the affirmative vote of the holders of at least seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in any annual election of directors or class of directors.
8. Vacancies. Subject to the rights of holders of any series of Preferred Stock, any vacancy or newly created directorship in the Board of Directors, however occurring, shall be filled only by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. A director elected to fill a vacancy shall hold office until the next election of the class for which such director shall have been chosen, subject to the election and qualification of a successor and to such director’s earlier death, resignation or removal.
9. Stockholder Nominations and Introduction of Business, Etc. Advance notice of stockholder nominations for election of directors and other business to be brought by stockholders before a meeting of stockholders shall be given in the manner provided by the By-laws of the Corporation.
10. Amendments to Article. Notwithstanding any other provisions of law, this Certificate of Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in any annual election of directors or class of directors shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article NINTH.
TENTH: Stockholders of the Corporation may not take any action by written consent in lieu of a meeting. Notwithstanding any other provisions of law, this Certificate of Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in any annual election of directors or class of directors shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article TENTH.
ELEVENTH: Special meetings of stockholders for any purpose or purposes may be called at any time by only the Board of Directors, the Chairman of the Board or the Chief Executive Officer, and may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. Notwithstanding any other provisions of law, this Certificate of Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in any annual election of directors or class of directors shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article ELEVENTH.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which restates, integrates and amends the certificate of incorporation of the Corporation, and which has been duly adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware, has been executed by its duly authorized officer this 30th day of April, 2013.
| OVASCIENCE, INC. | |
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| By: | /s/ Michelle Dipp, M.D., Ph.D. |
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| Michelle Dipp, M.D., Ph.D. |
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| President and Chief Executive Officer |
Exhibit 3.2
SECOND
AMENDED AND RESTATED BY-LAWS
OF
OVASCIENCE, INC.
TABLE OF CONTENTS
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ARTICLE I |
| STOCKHOLDERS |
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1.1 |
| Place of Meetings |
| 1 |
1.2 |
| Annual Meeting |
| 1 |
1.3 |
| Special Meetings |
| 1 |
1.4 |
| Notice of Meetings |
| 1 |
1.5 |
| Voting List |
| 2 |
1.6 |
| Quorum |
| 2 |
1.7 |
| Adjournments |
| 3 |
1.8 |
| Voting and Proxies |
| 3 |
1.9 |
| Action at Meeting |
| 3 |
1.10 |
| Nomination of Directors |
| 4 |
1.11 |
| Notice of Business at Annual Meetings |
| 8 |
1.12 |
| Conduct of Meetings |
| 11 |
1.13 |
| No Action by Consent in Lieu of a Meeting |
| 12 |
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ARTICLE II |
| DIRECTORS |
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2.1 |
| General Powers |
| 13 |
2.2 |
| Number, Election and Qualification |
| 13 |
2.3 |
| Chairman of the Board; Vice Chairman of the Board |
| 13 |
2.4 |
| Classes of Directors |
| 13 |
2.5 |
| Terms of Office |
| 13 |
2.6 |
| Quorum |
| 14 |
2.7 |
| Action at Meeting |
| 14 |
2.8 |
| Removal |
| 14 |
2.9 |
| Vacancies |
| 14 |
2.10 |
| Resignation |
| 15 |
2.11 |
| Regular Meetings |
| 15 |
2.12 |
| Special Meetings |
| 15 |
2.13 |
| Notice of Special Meetings |
| 15 |
2.14 |
| Meetings by Conference Communications Equipment |
| 15 |
2.15 |
| Action by Consent |
| 16 |
2.16 |
| Committees |
| 16 |
2.17 |
| Compensation of Directors |
| 17 |
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ARTICLE III |
| OFFICERS |
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3.1 |
| Titles |
| 17 |
3.2 |
| Election |
| 17 |
3.3 |
| Qualification |
| 17 |
3.4 |
| Tenure |
| 17 |
3.5 |
| Resignation and Removal |
| 17 |
3.6 |
| Vacancies |
| 18 |
3.7 |
| President; Chief Executive Officer |
| 18 |
3.8 |
| Vice Presidents |
| 18 |
3.9 |
| Secretary and Assistant Secretaries |
| 19 |
3.10 |
| Treasurer and Assistant Treasurers |
| 19 |
3.11 |
| Salaries |
| 20 |
3.12 |
| Delegation of Authority |
| 20 |
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ARTICLE IV |
| CAPITAL STOCK |
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4.1 |
| Issuance of Stock |
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4.2 |
| Stock Certificates; Uncertificated Shares |
| 20 |
4.3 |
| Transfers |
| 21 |
4.4 |
| Lost, Stolen or Destroyed Certificates |
| 22 |
4.5 |
| Record Date |
| 22 |
4.6 |
| Regulations |
| 22 |
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ARTICLE V |
| GENERAL PROVISIONS |
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5.1 |
| Fiscal Year |
| 23 |
5.2 |
| Corporate Seal |
| 23 |
5.3 |
| Waiver of Notice |
| 23 |
5.4 |
| Voting of Securities |
| 23 |
5.5 |
| Evidence of Authority |
| 24 |
5.6 |
| Certificate of Incorporation |
| 24 |
5.7 |
| Severability |
| 24 |
5.8 |
| Pronouns |
| 24 |
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ARTICLE VI |
| AMENDMENTS |
| 24 |
ARTICLE I
STOCKHOLDERS
1.1 Place of Meetings. All meetings of stockholders shall be held at such place as may be designated from time to time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President or, if not so designated, at the principal office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly be brought before the meeting shall be held on a date and at a time designated by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President (which date shall not be a legal holiday in the place where the meeting is to be held).
1.3 Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by only the Board of Directors, the Chairman of the Board or the Chief Executive Officer, and may not be called by any other person or persons. The Board of Directors may postpone or reschedule any previously scheduled special meeting of stockholders. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, notice of each meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. Without limiting the manner by which notice otherwise may be given to stockholders, any notice shall be effective if given by a form of electronic transmission consented to (in a manner consistent with the General Corporation Law of the State of Delaware) by the stockholder to whom the notice is given. The notices of all meetings shall state the place, date and time of the meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If notice is given by mail, such notice shall be deemed given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation. If notice is given by electronic transmission, such notice shall be deemed given at the time specified in Section 232 of the General Corporation Law of the State of Delaware.
1.5 Voting List. The Secretary shall prepare, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the corporation. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the holders of a majority in voting power of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at the meeting, present in person, present by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion, or represented by proxy, shall constitute a quorum for the transaction of business; provided, however, that where a separate vote by a class or classes or series of capital stock is required by law or the Certificate of Incorporation, the holders of a majority in voting power of the shares of such class or classes or series of the capital stock of the corporation issued and outstanding and entitled to vote on such matter, present in person, present by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion, or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on such matter. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum.
1.7 Adjournments. Any meeting of stockholders may be adjourned from time to time to any other time and to any other place at which a meeting of stockholders may be held under these By-laws by the chairman of the meeting or by the stockholders present or represented at the meeting and entitled to vote, although less than a quorum. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting.
1.8 Voting and Proxies. Each stockholder shall have one vote for each share of stock entitled to vote held of record by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided by law or the Certificate of Incorporation. Each stockholder of record entitled to vote at a meeting of stockholders may vote in person (including by means of remote communications, if any, by which stockholders may be deemed to be present in person and vote at such meeting) or may authorize another person or persons to vote for such stockholder by a proxy executed or transmitted in a manner permitted by the General Corporation Law of the State of Delaware by the stockholder or such stockholder’s authorized agent and delivered (including by electronic transmission) to the Secretary of the corporation. No such proxy shall be voted upon after three years from the date of its execution, unless the proxy expressly provides for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting, any matter other than the election of directors to be voted upon by the stockholders at such meeting shall be decided by the vote of the holders of shares of stock having a majority in voting power of the votes cast by the holders of all of the shares of stock present or represented at the meeting and voting affirmatively or negatively on such matter (or if there are two or more classes or series of stock entitled to vote as separate classes, then in the case of each such class or series, the holders of a majority in voting power of the shares of stock of that class or series present or represented at the meeting and voting affirmatively or negatively on such matter), except when a different vote is required by law, the Certificate of Incorporation or these By-laws. When a quorum is
present at any meeting, any election by stockholders of directors shall be determined by a plurality of the votes cast by the stockholders entitled to vote on the election.
1.10 Nomination of Directors.
(a) Except for (1) any directors entitled to be elected by the holders of preferred stock, (2) any directors elected in accordance with Section 2.9 hereof by the Board of Directors to fill a vacancy or newly-created directorship or (3) as otherwise required by applicable law or stock exchange regulation, at any meeting of stockholders, only persons who are nominated in accordance with the procedures in this Section 1.10 shall be eligible for election as directors. Nomination for election to the Board of Directors at a meeting of stockholders may be made (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the corporation who (x) timely complies with the notice procedures in Section 1.10(b), (y) is a stockholder of record on the date of the giving of such notice and on the record date for the determination of stockholders entitled to vote at such meeting and (z) is entitled to vote at such meeting.
(b) To be timely, a stockholder’s notice must be received in writing by the Secretary at the principal executive offices of the corporation as follows: (i) in the case of an election of directors at an annual meeting of stockholders, not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that (x) in the case of the annual meeting of stockholders of the corporation to be held in 2013 or (y) in the event that the date of the annual meeting in any other year is advanced by more than 20 days, or delayed by more than 60 days, from the first anniversary of the preceding year’s annual meeting, a stockholder’s notice must be so received not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of (A) the 90th day prior to such annual meeting and (B) the tenth day following the day on which notice of the date of such annual meeting was mailed or public disclosure of the date of such annual meeting was made, whichever first occurs; or (ii) in the case of an election of directors at a special meeting of stockholders, provided that the Board of Directors, the Chairman of the Board or the Chief Executive Officer has determined, in accordance with Section 1.3, that directors shall be elected at such special meeting and provided further that the nomination made by the
stockholder is for one of the director positions that the Board of Directors, the Chairman of the Board or the Chief Executive Officer, as the case may be, has determined will be filled at such special meeting, not earlier than the 120th day prior to such special meeting and not later than the close of business on the later of (x) the 90th day prior to such special meeting and (y) the tenth day following the day on which notice of the date of such special meeting was mailed or public disclosure of the date of such special meeting was made, whichever first occurs. In no event shall the adjournment or postponement of a meeting (or the public disclosure thereof) commence a new time period (or extend any time period) for the giving of a stockholder’s notice.
The stockholder’s notice to the Secretary shall set forth: (A) as to each proposed nominee (1) such person’s name, age, business address and, if known, residence address, (2) such person’s principal occupation or employment, (3) the class and series and number of shares of stock of the corporation that are, directly or indirectly, owned, beneficially or of record, by such person, (4) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among (x) the stockholder, the beneficial owner, if any, on whose behalf the nomination is being made and the respective affiliates and associates of, or others acting in concert with, such stockholder and such beneficial owner, on the one hand, and (y) each proposed nominee, and his or her respective affiliates and associates, or others acting in concert with such nominee(s), on the other hand, including all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made or any affiliate or associate thereof or person acting in concert therewith were the “registrant” for purposes of such Item and the proposed nominee were a director or executive officer of such registrant, and (5) any other information concerning such person that must be disclosed as to nominees in proxy solicitations pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (B) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is being made (1) the name and address of such stockholder, as they appear on the corporation’s books, and of such beneficial owner, (2) the class and series and number of shares of stock of the corporation that are, directly or indirectly, owned, beneficially or of record, by such stockholder and such beneficial owner, (3) a
description of any agreement, arrangement or understanding between or among such stockholder and/or such beneficial owner and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are being made or who may participate in the solicitation of proxies in favor of electing such nominee(s), (4) a description of any agreement, arrangement or understanding (including any derivative or short positions, swaps, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into by, or on behalf of, such stockholder or such beneficial owner, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner with respect to shares of stock of the corporation, (5) any other information relating to such stockholder and such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (6) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the person(s) named in its notice and (7) a representation whether such stockholder and/or such beneficial owner intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the corporation’s outstanding capital stock reasonably believed by such stockholder or such beneficial owner to be sufficient to elect the nominee (and such representation shall be included in any such proxy statement and form of proxy) and/or (y) otherwise to solicit proxies from stockholders in support of such nomination (and such representation shall be included in any such solicitation materials). Not later than 10 days after the record date for the meeting, the information required by Items (A)(1)-(5) and (B)(1)-(5) of the prior sentence shall be supplemented by the stockholder giving the notice to provide updated information as of the record date. In addition, to be effective, the stockholder’s notice must be accompanied by the written consent of the proposed nominee to serve as a director if elected. The corporation may require any proposed nominee to furnish such other information as the corporation may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the corporation or whether such nominee would be independent under applicable Securities and Exchange Commission and stock exchange rules and the corporation’s publicly disclosed
corporate governance guidelines. A stockholder shall not have complied with this Section 1.10(b) if the stockholder (or beneficial owner, if any, on whose behalf the nomination is made) solicits or does not solicit, as the case may be, proxies in support of such stockholder’s nominee in contravention of the representations with respect thereto required by this Section 1.10.
(c) The chairman of any meeting shall have the power and duty to determine whether a nomination was made in accordance with the provisions of this Section 1.10 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s nominee in compliance with the representations with respect thereto required by this Section 1.10), and if the chairman should determine that a nomination was not made in accordance with the provisions of this Section 1.10, the chairman shall so declare to the meeting and such nomination shall not be brought before the meeting.
(d) Except as otherwise required by law, nothing in this Section 1.10 shall obligate the corporation or the Board of Directors to include in any proxy statement or other stockholder communication distributed on behalf of the corporation or the Board of Directors information with respect to any nominee for director submitted by a stockholder.
(e) Notwithstanding the foregoing provisions of this Section 1.10, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the meeting to present a nomination, such nomination shall not be brought before the meeting, notwithstanding that proxies in respect of such nominee may have been received by the corporation. For purposes of this Section 1.10, to be considered a “qualified representative of the stockholder”, a person must be authorized by a written instrument executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such written instrument or electronic transmission, or a reliable reproduction of the written instrument or electronic transmission, at the meeting of stockholders.
(f) For purposes of this Section 1.10, “public disclosure” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
1.11 Notice of Business at Annual Meetings.
(a) At any annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (1) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (2) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (3) properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, (i) if such business relates to the nomination of a person for election as a director of the corporation, the procedures in Section 1.10 must be complied with and (ii) if such business relates to any other matter, the business must constitute a proper matter under Delaware law for stockholder action and the stockholder must (x) have given timely notice thereof in writing to the Secretary in accordance with the procedures in Section 1.11(b), (y) be a stockholder of record on the date of the giving of such notice and on the record date for the determination of stockholders entitled to vote at such annual meeting and (z) be entitled to vote at such annual meeting.
(b) To be timely, a stockholder’s notice must be received in writing by the Secretary at the principal executive offices of the corporation not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that (x) in the case of the annual meeting of stockholders of the corporation to be held in 2013 or (y) in the event that the date of the annual meeting in any other year is advanced by more than 20 days, or delayed by more than 60 days, from the first anniversary of the preceding year’s annual meeting, a stockholder’s notice must be so received not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of (A) the 90th day prior to such annual meeting and (B) the tenth day following the day on which notice of the date of such annual meeting was mailed or public disclosure of the date of such annual meeting was made, whichever first occurs. In no event shall the adjournment or postponement of an
annual meeting (or the public disclosure thereof) commence a new time period (or extend any time period) for the giving of a stockholder’s notice.
The stockholder’s notice to the Secretary shall set forth: (A) as to each matter the stockholder proposes to bring before the annual meeting (1) a brief description of the business desired to be brought before the annual meeting, (2) the text of the proposal (including the exact text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend the By-laws, the exact text of the proposed amendment), and (3) the reasons for conducting such business at the annual meeting, and (B) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is being made (1) the name and address of such stockholder, as they appear on the corporation’s books, and of such beneficial owner, (2) the class and series and number of shares of stock of the corporation that are, directly or indirectly, owned, beneficially or of record, by such stockholder and such beneficial owner, (3) a description of any material interest of such stockholder or such beneficial owner and the respective affiliates and associates of, or others acting in concert with, such stockholder or such beneficial owner in such business, (4) a description of any agreement, arrangement or understanding between or among such stockholder and/or such beneficial owner and any other person or persons (including their names) in connection with the proposal of such business or who may participate in the solicitation of proxies in favor of such proposal, (5) a description of any agreement, arrangement or understanding (including any derivative or short positions, swaps, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into by, or on behalf of, such stockholder or such beneficial owner, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner with respect to shares of stock of the corporation, (6) any other information relating to such stockholder and such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the business proposed pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (7) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting and (8) a representation whether such stockholder and/or such beneficial owner intends or is part of a group which intends (x) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the corporation’s outstanding capital stock required to approve or adopt the proposal (and such representation shall be included in any such proxy statement and form of proxy) and/or (y) otherwise to solicit proxies from stockholders in support of such proposal (and such representation shall be included in any such solicitation materials). Not later than 10 days after the record date for the meeting, the information required by Items (A)(3) and (B)(1)-(6) of the prior sentence shall be supplemented by the stockholder giving the notice to provide updated information as of the record date. Notwithstanding anything in these By-laws to the contrary, no business shall be conducted at any annual meeting of stockholders except in accordance with the procedures in this Section 1.11; provided that any stockholder proposal which complies with Rule 14a-8 of the proxy rules (or any successor provision) promulgated under the Exchange Act and is to be included in the corporation’s proxy statement for an annual meeting of stockholders shall be deemed to comply with the notice requirements of this Section 1.11. A stockholder shall not have complied with this Section 1.11(b) if the stockholder (or beneficial owner, if any, on whose behalf the proposal is made) solicits or does not solicit, as the case may be, proxies in support of such stockholder’s proposal in contravention of the representations with respect thereto required by this Section 1.11.
(c) The chairman of any annual meeting shall have the power and duty to determine whether business was properly brought before the annual meeting in accordance with the provisions of this Section 1.11 (including whether the stockholder or beneficial owner, if any, on whose behalf the proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s proposal in compliance with the representation with respect thereto required by this Section 1.11), and if the chairman should determine that business was not properly brought before the annual meeting in accordance with the provisions of this Section 1.11, the chairman shall so declare to the meeting and such business shall not be brought before the annual meeting.
(d) Except as otherwise required by law, nothing in this Section 1.11 shall obligate the corporation or the Board of Directors to include in any proxy statement or other stockholder communication distributed on behalf of the corporation or the Board of Directors information with respect to any proposal submitted by a stockholder.
(e) Notwithstanding the foregoing provisions of this Section 1.11, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting to present business, such business shall not be considered, notwithstanding that proxies in respect of such business may have been received by the corporation.
(f) For purposes of this Section 1.11, the terms “qualified representative of the stockholder” and “public disclosure” shall have the same meaning as in Section 1.10.
1.12 Conduct of Meetings.
(a) Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the Chairman’s absence by the Vice Chairman of the Board, if any, or in the Vice Chairman’s absence by the Chief Executive Officer, or in the Chief Executive Officer’s absence, by the President, or in the President’s absence by a Vice President, or in the absence of all of the foregoing persons by a chairman designated by the Board of Directors. The Secretary shall act as secretary of the meeting, but in the Secretary’s absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
(b) The Board of Directors may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the corporation as it shall deem appropriate including, without limitation, such guidelines and procedures as it may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting. Except to the extent inconsistent with such rules, regulations and procedures as adopted by the Board of Directors, the chairman of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as
shall be determined; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
(c) The chairman of the meeting shall announce at the meeting when the polls for each matter to be voted upon at the meeting will be opened and closed. After the polls close, no ballots, proxies or votes or any revocations or changes thereto may be accepted.
(d) In advance of any meeting of stockholders, the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President shall appoint one or more inspectors of election to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is present, ready and willing to act at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by law, inspectors may be officers, employees or agents of the corporation. Each inspector, before entering upon the discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as may be required by law. Every vote taken by ballots shall be counted by a duly appointed inspector or duly appointed inspectors.
1.13 No Action by Consent in Lieu of a Meeting. Stockholders of the corporation may not take any action by written consent in lieu of a meeting.
ARTICLE II
DIRECTORS
2.1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the corporation except as otherwise provided by law or the Certificate of Incorporation.
2.2 Number, Election and Qualification. Subject to the rights of holders of any series of Preferred Stock to elect directors, the number of directors of the corporation shall be established by the Board of Directors. Election of directors need not be by written ballot. Directors need not be stockholders of the corporation.
2.3 Chairman of the Board; Vice Chairman of the Board. The Board of Directors may appoint from its members a Chairman of the Board and a Vice Chairman of the Board, neither of whom need be an employee or officer of the corporation. If the Board of Directors appoints a Chairman of the Board, such Chairman shall perform such duties and possess such powers as are assigned by the Board of Directors and, if the Chairman of the Board is also designated as the corporation’s Chief Executive Officer, shall have the powers and duties of the Chief Executive Officer prescribed in Section 3.7 of these By-laws. If the Board of Directors appoints a Vice Chairman of the Board, such Vice Chairman shall perform such duties and possess such powers as are assigned by the Board of Directors. Unless otherwise provided by the Board of Directors, the Chairman of the Board or, in the Chairman’s absence, the Vice Chairman of the Board, if any, shall preside at all meetings of the Board of Directors.
2.4 Classes of Directors. Subject to the rights of holders of any series of Preferred Stock to elect directors, the Board of Directors shall be and is divided into three classes: Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. The allocation of directors among classes shall be determined by resolution of the Board of Directors.
2.5 Terms of Office. Subject to the rights of holders of any series of Preferred Stock to elect directors, each director shall serve for a term ending on the date of the third annual
meeting of stockholders following the annual meeting of stockholders at which such director was elected; provided that each director initially assigned to Class I shall serve for a term expiring at the corporation’s first annual meeting of stockholders held after December 31, 2012; each director initially assigned to Class II shall serve for a term expiring at the corporation’s second annual meeting of stockholders held after December 31, 2012; and each director initially assigned to Class III shall serve for a term expiring at the corporation’s third annual meeting of stockholders held after December 31, 2012; provided further, that the term of each director shall continue until the election and qualification of his or her successor and be subject to his or her earlier death, resignation or removal.
2.6 Quorum. The greater of (a) a majority of the directors at any time in office and (b) one-third of the number of directors established by the Board of Directors pursuant to Section 2.2 of these By-laws shall constitute a quorum of the Board of Directors. If at any meeting of the Board of Directors there shall be less than such a quorum, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present.
2.7 Action at Meeting. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number is required by law or by the Certificate of Incorporation.
2.8 Removal. Subject to the rights of holders of any series of Preferred Stock, directors of the corporation may be removed only for cause and only by the affirmative vote of the holders of at least 75% of the votes which all the stockholders would be entitled to cast in any annual election of directors or class of directors.
2.9 Vacancies. Subject to the rights of holders of any series of Preferred Stock, any vacancy or newly-created directorship on the Board of Directors, however occurring, shall be filled only by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. A director elected to fill a vacancy shall hold office until the next election of the class for which such director shall have
been chosen, subject to the election and qualification of a successor or until such director’s earlier death, resignation or removal.
2.10 Resignation. Any director may resign by delivering a resignation in writing or by electronic transmission to the corporation at its principal office or to the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event.
2.11 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and place as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders.
2.12 Special Meetings. Special meetings of the Board of Directors may be held at any time and place designated in a call by the Chairman of the Board, the Chief Executive Officer, the President, two or more directors, or by one director in the event that there is only a single director in office.
2.13 Notice of Special Meetings. Notice of the date, place and time of any special meeting of directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (a) in person or by telephone at least 24 hours in advance of the meeting, (b) by sending written notice by reputable overnight courier, telecopy, facsimile or electronic transmission, or delivering written notice by hand, to such director’s last known business, home or electronic transmission address at least 48 hours in advance of the meeting, or (c) by sending written notice by first-class mail to such director’s last known business or home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting.
2.14 Meetings by Conference Communications Equipment. Directors may participate in meetings of the Board of Directors or any committee thereof by means of conference
telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.
2.15 Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent to the action in writing or by electronic transmission, and the written consents or electronic transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
2.16 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation with such lawfully delegable powers and duties as the Board of Directors thereby confers, to serve at the pleasure of the Board of Directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these By-laws for the Board of Directors. Except as otherwise provided in the Certificate of Incorporation, these By-laws, or the resolution of the Board of Directors designating the committee, a committee may create one or more subcommittees, each
subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
2.17 Compensation of Directors. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors may from time to time determine. No such payment shall preclude any director from serving the corporation or any of its parent or subsidiary entities in any other capacity and receiving compensation for such service.
ARTICLE III
OFFICERS
3.1 Titles. The officers of the corporation shall consist of a Chief Executive Officer, a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate.
3.2 Election. The Chief Executive Officer, President, Treasurer and Secretary shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders. Other officers may be appointed by the Board of Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws, each officer shall hold office until such officer’s successor is elected and qualified, unless a different term is specified in the resolution electing or appointing such officer, or until such officer’s earlier death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering a written resignation to the corporation at its principal office or to the Chief Executive Officer, the
President or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some later time or upon the happening of some later event. Any officer may be removed at any time, with or without cause, by vote of a majority of the directors then in office. Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following such officer’s resignation or removal, or any right to damages on account of such removal, whether such officer’s compensation be by the month or by the year or otherwise, unless such compensation is expressly provided for in a duly authorized written agreement with the corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of Chief Executive Officer, President, Treasurer and Secretary. Each such successor shall hold office for the unexpired term of such officer’s predecessor and until a successor is elected and qualified, or until such officer’s earlier death, resignation or removal.
3.7 President; Chief Executive Officer. Unless the Board of Directors has designated another person as the corporation’s Chief Executive Officer, the President shall be the Chief Executive Officer of the corporation. The Chief Executive Officer shall have general charge and supervision of the business of the corporation subject to the direction of the Board of Directors, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board of Directors. The President shall perform such other duties and shall have such other powers as the Board of Directors or the Chief Executive Officer (if the President is not the Chief Executive Officer) may from time to time prescribe. In the event of the absence, inability or refusal to act of the Chief Executive Officer or the President (if the President is not the Chief Executive Officer), the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the duties of the Chief Executive Officer and when so performing such duties shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer.
3.8 Vice Presidents. Each Vice President shall perform such duties and possess such powers as the Board of Directors or the Chief Executive Officer may from time to time
prescribe. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors.
3.9 Secretary and Assistant Secretaries. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the Chief Executive Officer or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the chairman of the meeting shall designate a temporary secretary to keep a record of the meeting.
3.10 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board of Directors or the Chief Executive Officer. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the corporation, to deposit funds of the corporation in depositories selected in accordance with these By-laws, to disburse such funds as ordered by the Board of Directors, to make proper accounts of such funds, and to render as required by the Board of Directors statements of all such transactions and of the financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such powers as the Board of Directors, the Chief Executive Officer or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Treasurer.
3.11 Salaries. Officers of the corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors.
3.12 Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof.
ARTICLE IV
CAPITAL STOCK
4.1 Issuance of Stock. Subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of any shares of the authorized capital stock of the corporation held in the corporation’s treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such lawful consideration and on such terms as the Board of Directors may determine.
4.2 Stock Certificates; Uncertificated Shares. The shares of the corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the corporation’s stock shall be uncertificated shares. Every holder of stock of the corporation represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board of Directors, representing the number of shares held by such holder registered in certificate form. Each such certificate shall be signed in a manner that complies with Section 158 of the General Corporation Law of the State of Delaware.
Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these By-laws, applicable securities laws or any agreement among any number of stockholders or among such holders and the corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction.
If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests a copy of the full text of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Within a reasonable time after the issuance or transfer of uncertificated shares, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 202(a) or 218(a) of the General Corporation Law of the State of Delaware or, with respect to Section 151 of General Corporation Law of the State of Delaware, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
4.3 Transfers. Shares of stock of the corporation shall be transferable in the manner prescribed by law and in these By-laws. Transfers of shares of stock of the corporation shall be made only on the books of the corporation or by transfer agents designated to transfer shares of stock of the corporation. Subject to applicable law, shares of stock represented by certificates shall be transferred only on the books of the corporation by the surrender to the corporation or its
transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these By-laws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the corporation in accordance with the requirements of these By-laws.
4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new certificate of stock in place of any previously issued certificate alleged to have been lost, stolen or destroyed, upon such terms and conditions as the Board of Directors may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity and posting of such bond as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date as a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders, or entitled to receive payment of any dividend or other distribution or allotment of any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action. Such record date shall not precede the date on which the resolution fixing the record date is adopted, and such record date shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. If no record date is fixed, the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
4.6 Regulations. The issue, transfer, conversion and registration of shares of stock of the corporation shall be governed by such other regulations as the Board of Directors may establish.
ARTICLE V
GENERAL PROVISIONS
5.1 Fiscal Year. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the corporation shall begin on the first day of January of each year and end on the last day of December in each year.
5.2 Corporate Seal. The corporate seal shall be in such form as shall be approved by the Board of Directors.
5.3 Waiver of Notice. Whenever notice is required to be given by law, by the Certificate of Incorporation or by these By-laws, a written waiver signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before, at or after the time of the event for which notice is to be given, shall be deemed equivalent to notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in any such waiver. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
5.4 Voting of Securities. Except as the Board of Directors may otherwise designate, the Chief Executive Officer, the President or the Treasurer may waive notice of, vote, or appoint any person or persons to vote, on behalf of the corporation at, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporation (with or without power of
substitution) at, any meeting of stockholders or securityholders of any other entity, the securities of which may be held by this corporation.
5.5 Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
5.6 Certificate of Incorporation. All references in these By-laws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the corporation, as amended and in effect from time to time.
5.7 Severability. Any determination that any provision of these By-laws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these By-laws.
5.8 Pronouns. All pronouns used in these By-laws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.
ARTICLE VI
AMENDMENTS
These By-laws may be altered, amended or repealed, in whole or in part, or new By-laws may be adopted by the Board of Directors or by the stockholders as provided in the Certificate of Incorporation.