| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Second Amended and Restated Bylaws
On August 22, 2022, the Board of Directors (the “Board”) of UpHealth, Inc. (the “Company”) amended and restated the Company’s Amended and Restated Bylaws, as amended (the “Bylaws”), effective as of August 22, 2022. The Bylaws include the following amendments:
Article II, Section 2.2 of the existing Bylaws has been amended to provide that the place, time and date of special meetings of stockholders shall be determined by the Board and stated by the Board in the Company’s notice of the meeting. The amendment further provides that any special meeting previously called may be cancelled upon the affirmative vote of two-thirds of the total number of authorized directors, whether or not there are any vacancies in previously authorized directorships or unfilled newly created directorships (the “Whole Board”).
Article II, Section 2.3 of the existing Bylaws has been amended to provide that written notice of each stockholders meeting shall be given by the Company, and may not be given by any other person. The amendment further provides that the purposes or purposes for which any special meeting is called shall be determined by the Board in its sole discretion pursuant to a resolution adopted by two-thirds of the Whole Board, and the business transacted at such meeting shall be limited to the matters so stated by the Board in the Company’s notice of meeting (or any supplement thereto).
Article II, Section 2.7(a) of the existing Bylaws has been amended to update the advance notice and related procedural and disclosure requirements by which a stockholder (the “Proposing Stockholder”) may propose business in connection with an annual meeting of stockholders, and to provide additional requirements for the valid proposal of business. The amendment requires the Proposing Stockholder to give timely notice of the proposed business, even if such matter is already the subject of any notice to the stockholders or public announcement from the Board, and further provides that the public announcement of an adjournment or postponement of an annual meeting shall not commence a new time period, or extend any time period, for the giving of a stockholder’s notice. The amendment also requires the Proposing Stockholder to set forth in such stockholder’s notice (a) information regarding (i) the Proposing Stockholder, (ii) the Proposing Stockholder’s ownership of securities in the Company, (iii) the proposed business and related information, (iv) certain agreements, arrangements or understandings entered into by the Proposing Stockholder, (v) certain material interests and (vi) other stockholders (including beneficial and record owners) known by the Proposing Stockholder to support the proposal, and to make written representations with respect to certain of the foregoing matters, and (b) a representation that the Proposing Stockholder is a holder of record of shares of the Company entitled to vote at the meeting and the Proposing Stockholder (or a qualified representative) intends to appear at the annual meeting to bring such business before the meeting.
Article II, Section 2.7(b) of the existing Bylaws has been amended to provide that the only business to be conducted at a special meeting of stockholders shall be as determined by two-thirds of the Whole Board in its sole discretion in accordance with Section 2.3 of the Bylaws, and in addition, that nominations of persons for election to the Board may be made at a special meeting of stockholders only at which two-thirds of the Whole Board, in its sole discretion has provided that directors are to be elected pursuant to the Company’s notice of meeting pursuant to Section 3.2 of the Bylaws.
Article II, Section 2.8 of the existing Bylaws has been amended to provide that, with respect to an annual or special meeting of stockholders, in the event of the absence, inability or refusal to act of the Chairman of the Board, the chairman of such meeting shall be elected by a majority of the directors present at the meeting from the majority of the independent directors as determined by the listing standards of the New York Stock Exchange present at the meeting.
Article III, Section 3.2(a) of the existing bylaws has been amended to provide that having as a purpose at a special meeting of stockholders the election of directors requires two-thirds of the Whole Board, in its sole discretion, making such determination in accordance with Section 2.3 of the Bylaws.
Article III, Section 3.2(d) of the existing Bylaws has been amended to update the notice and related procedural and disclosure requirements by which a stockholder (the “Nominating Stockholder”) may nominate a director for election to the Board at an annual or special meeting of stockholders, and to provide additional requirements for the valid nomination of a person for director. The amendment requires the Nominating Stockholder to set forth in such stockholder’s notice (a) as to each proposed nominee, (i) information regarding the proposed nominee, (ii) a written questionnaire with respect to the background and qualification of such proposed nominee, and a written statement and agreement that includes representations regarding voting and compensation arrangements and compliance with the Company’s policies and guidelines, in each case executed by the proposed nominee, and (iii) any other information relating to the proposed nominee 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 election of directors in an election contest (even if an election contest is not involved), and (b) as to the Nominating Stockholder, (i) the information and representations required to be noticed or otherwise provided by a Proposing Stockholder with respect to proposed business pursuant to the aforementioned amendment to Article III, Section 2.7(a) of the existing Bylaws, in each case to be provided pursuant to Section 3.2(d) with respect to the Nominating Stockholder and/or the proposed nomination, as applicable, and (ii) a representation of the Nominating Stockholder’s intentions regarding the solicitation of proxies from stockholders in support of the nomination. The amendment also provides that the Company may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as an independent director or that could be material to a reasonable stockholder’s understanding of such proposed nominee’s independence.
