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EX-3.1 - AMENDED AND RESTATED BYLAWS - AzurRx BioPharma, Inc. | ex3-1.htm |
8-K - PRIMARY DOCUMENT - AzurRx BioPharma, Inc. | azrx8k_aug52020.htm |
Exhibit
99.1
Set
forth in the table below is a summary of material differences
between the amended and restated Bylaws (the “2020 Amended
and Restated Bylaws”) of AzurRx BioPharma, Inc. (the
“Company”), which were approved and adopted by the
Company’s Board of Directors (the “Board”) on
August 5, 2020, as compared to the Company’s prior bylaws, as
amended and restated (the “Prior Bylaws”).
The
following summary of the 2020 Amended and Restated Bylaws and the
Prior Bylaws is qualified in its entirety by reference to the full
texts thereof, copies of which are filed with the U.S. Securities
and Exchange Commission, respectively, as Exhibit 3.1 to the
Company’s Current Report on Form 8-K, filed on August 5,
2020, and Exhibit 3.2 to the Company’s Registration Statement
on Form S-1, filed July 13, 2016, and which are incorporated herein
by reference.
Provision
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Prior Bylaws
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2020 Amended andRestated Bylaws
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Elections;
Voting; Procedural Matters
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Number
of Directors
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The
Prior Bylaws provided that the Board shall consist of one or more
members. The number of directors should be fixed by the Board and
could thereafter be changed from time to time by resolution of the
Board.
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The
2020 Amended and Restated Bylaws provide that, subject to the
rights of holders of any series of preferred stock to elect
directors, the number of the directors of the Company shall be
fixed from time to time solely by resolution of the
Board.
During
any period when the holders of any series of preferred stock have
the right to elect additional directors, then upon commencement and
for the duration of the period during which such right continues
the then otherwise total number of authorized directors of the
Company shall automatically be increased by such specified number
of directors, and the holders of such preferred stock shall be
entitled to elect the additional directors.
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Advance
Notice
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The
Prior Bylaws did not provide for stockholder director nominations
or advance notice of other stockholder
proposals.
The
General Corporation Law of the State of Delaware (the
“DGCL”) does not require stockholders to provide
advance notice to the company of a nomination for a person to the
Board or proposals of other business to be considered by the
stockholders at stockholder meeting.
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The
2020 Amended and Restated Bylaws provide that nominations for
persons to the Board and the proposal of other business to be
considered by the stockholders may be made by any stockholder of
the Company who was a stockholder of record at the time the
required notice is delivered by such stockholder to the secretary
of the Company, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in the 2020 Amended
and Restated Bylaws.
For any
nominations or other business to be properly brought before an
annual meeting by a stockholder, such stockholder must have given
timely notice in writing to the secretary of the Company and any
such proposed business (other than the nominations of persons for
election to the Board) must constitute a proper matter for
stockholder action. To be timely, the notice shall be delivered to
the secretary at the principal executive offices of the Company not
later than the close of business on the ninetieth (90th) day, nor
earlier than the close of business on the one hundred twentieth
(120th) day, prior to the first anniversary of the preceding
year’s annual meeting (provided, however, that in the event
that the date of the annual meeting is more than thirty (30) days
before or more than seventy (70) days after such anniversary date,
notice by the stockholder must be so delivered not earlier than the
close of business on the one hundred twentieth (120th) day prior to
such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or
the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made by the
Company).
Notwithstanding the
foregoing, in the event that the number of directors to be elected
to the Board at the annual meeting is increased effective after the
time period for which nominations would otherwise be due and there
is no public announcement by the Company naming the nominees for
the additional directorships at least one hundred (100) days prior
to the first anniversary of the preceding year’s annual
meeting, a stockholder’s notice shall also be considered
timely, but only with respect to nominees for the additional
directorships, if it shall be delivered to the secretary at the
principal executive offices of the Company not later than the close
of business on the tenth (10th) day following the day on which such
public announcement is first made by the Company.
In the
event the Company calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board, any such
stockholder entitled to vote in such election may nominate a person
or persons (as the case may be) for election to such position(s) as
specified in the Company’s notice of meeting, if the
stockholder’s notice is delivered to the secretary at the
principal executive offices of the Company not earlier than the
close of business on the one hundred twentieth (120th) day prior to
such special meeting and not later than the close of business on
the later of the ninetieth (90th) day prior to such special meeting
or the tenth (10th) day following the day on which the public
announcement is first made of the date of the special meeting and
of the nominees proposed by the Board to be elected at such
meeting.
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Notice
of Stockholder Meetings
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The
Prior Bylaws provided that written or printed notice of a meeting
of the stockholders stating the place, day and hour of the meeting
and, in case of a special meeting, stating the purpose or purposes
for which the meeting is called, and in case of a meeting held by
remote communication stating such means, should be delivered not
less than ten (10) nor more than sixty(60) days before the date of
the meeting, either personally, or by mail, or if prior consent
were been received by a stockholder by electronic transmission, by
or at the direction of the chairman or the president, the
secretary, or the persons calling the meeting, to each stockholder
of record entitled to vote at such meeting.
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The
2020 Amended and Restated Bylaws provide that, except as otherwise
provided by law, notice of each meeting of stockholders, whether
annual or special, shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting as of the record date
for determining the stockholders entitled to notice of the meeting.
The notices of all meetings shall state the place, if any, date and
time of the meeting, 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, and the record date for
determining the stockholders entitled to vote at the meeting (if
such date is different from the record date for stockholders
entitled to notice of the meeting). The notice of a special meeting
shall state, in addition, the purpose or purposes for which the
meeting is called.
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Action
at a Meeting
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The
Prior Bylaws provided if a quorum is present or represented, the
affirmative vote of a majority of the shares of stock present or
represented at the meeting, by ballot, proxy or electronic ballot,
should be the act of the stockholders unless the vote of a greater
number of shares of stock is required by law, by the Certificate of
Incorporation or by the Prior Bylaws.
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The
2020 Amended and Restated Bylaws provide that 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 express provision of applicable law,
regulation applicable to the Company or its securities, the rules
or regulations of any stock exchange applicable to the Company, the
Certificate of Incorporation, any preferred stock designation or
the Amended and Restated Bylaws, in which case such express
provisions shall govern.
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Postponement of
Stockholder Meetings
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The
Prior Bylaws did not provide for postponements of stockholder
meetings. The DGCL does not address postponements of stockholder
meetings.
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The
2020 Amended and Restated Bylaws provide that the Board may
postpone, recess, reschedule or cancel any previously scheduled
annual meeting or special meeting of stockholders.
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Adjournments of
Stockholder Meetings
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The
Prior Bylaws provided that, if quorum is not present or represented
at any meeting of the stockholders, the stockholders present in
person or represented by proxy should have power to adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum should be present or
represented. At such adjourned meeting at which a quorum
was present or represented any business could be transacted which
might have been transacted at the meeting as originally
notified.
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The
2020 Amended and Restated Bylaws provide that any meeting of
stockholders, annual or special, may be adjourned from time to time
to any other time and to any other place by the Board, the chairman
of the meeting or, if directed to be voted on by the chairman of
the meeting, by the stockholders present or represented at the
meeting and entitled to vote thereon, although less than a quorum.
Notice need not be given of the adjourned meeting other than an
announcement at the meeting at which the adjournment is taken of
the hour, date and place, if any, to which the meeting is adjourned
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 adjourned meeting; provided, however, that if the
adjournment is for more than thirty (30) days, a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. If after the adjournment a new
record date for determination of stockholders entitled to vote is
fixed for the adjourned meeting, the Board shall fix as the record
date for determining stockholders entitled to notice of such
adjourned meeting the same or an earlier date as that fixed for
determination of stockholders entitled to vote at the adjourned
meeting, and shall give notice of the adjourned meeting to each
stockholder of record as of the record date so fixed for notice of
such adjourned meeting. At the adjourned meeting, the Company may
transact any business which might have been transacted at the
original meeting.
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Stockholder Action
by Written Consent
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The
Prior Bylaws provided that whenever the stockholders are required
or permitted to take any action by vote, such action could be taken
without a meeting, without prior notice and without a vote, if a
written consent or electronic transmission, setting forth the
action so taken, were signed or e-mailed by the holders of
outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a
meeting called for such purpose.
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The
2020 Amended and Restated Bylaws provide that, except as otherwise
provided in the Certificate of Incorporation, whenever the
stockholders are required or permitted to take any action by vote,
such action may be taken without a meeting, without prior notice
and without a vote, if a written consent or electronic
transmission, setting forth the action so taken, shall be signed or
e-mailed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or
take such action at a meeting called for such purpose.
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Forum
Selection
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The
Prior Bylaws did not include a forum selection provision. The DGCL
permits corporations to have in their certificates of incorporation
or bylaws, consistent with applicable jurisdictional requirements,
provisions requiring that any or all internal corporate claims
shall be brought solely and exclusively in any or all of the courts
in Delaware. According to the DGCL, no provision of the certificate
of incorporation or the bylaws may prohibit bringing such claims in
the courts of Delaware.
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The
2020 Amended and Restated Bylaws provide that, unless the Company
consents in writing to the selection of an alternative forum, (A)
(i) any derivative action or proceeding brought on behalf of the
Company, (ii) any action asserting a claim of breach of a fiduciary
duty owed by any current or former director, officer, other
employee or stockholder of the Company to the Company or the
Company’s stockholders, (iii) any action asserting a claim
arising pursuant to any provision of the DGCL, the Certificate of
Incorporation or the 2020 Amended and Restated Bylaws or as to
which the DGCL confers jurisdiction on the Court of Chancery of the
State of Delaware or (iv) any action asserting a claim governed by
the internal affairs doctrine of the law of the State of Delaware
shall, to the fullest extent permitted by law, be exclusively
brought in the Court of Chancery of the State of Delaware or, if
such court does not have subject matter jurisdiction thereof, the
federal district court of the State of Delaware; and (B) the
federal district courts of the United States shall be the exclusive
forum for the resolution of any complaint asserting a cause of
action arising under the Securities Act of 1933, as
amended.
Such
forum selection provision shall not apply to claims seeking to
enforce any liability or duty created by the Securities Exchange
Act of 1934, as amended. To the fullest extent permitted by law,
any person or entity purchasing or otherwise acquiring or holding
any interest in shares of capital stock of the Company shall be
deemed to have notice of and consented to the such forum selection
provision.
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Indemnification
of Officers and Directors and Advancement of Expenses
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Indemnification
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The
Prior Bylaws provided that the company should indemnify any person
who was or is a party or is 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 Company), by reason of the
fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe his 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, would not, of itself, create a presumption that the
person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests
of the Company and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
The
Company should indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the Company or is or
was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys’ fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company and except
that no indemnification should be made in respect of any claim,
issue or matter as to which such person has been adjudged to be
liable to the Company unless and only to the extent that the Court
of Chancery of the State of Delaware or the court in which such
action or suit was brought should determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person be fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery
of the State of Delaware or such other court should deem
proper.
Any
indemnification under the Prior Bylaws (unless ordered by a court)
should be made by the Company only as authorized in the specific
case upon a determination that indemnification of the director,
officer, employee or agent be proper in the circumstances because
he has met the applicable standard of conduct set forth in the
Prior Bylaws. Such determination should be made (1) by
the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the
stockholders.
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The
2020 Amended and Restated Bylaws provide that the Company shall
indemnify any person who was or is a party or is 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
Company) by reason of the fact that such person is or was a
director or officer of the Company, or, while a director or officer
of the Company, is or was serving at the request of the Company as
a director, officer, employee or agent of another Company,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
such person’s 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, in and of itself, create a presumption that the person
did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such
person’s conduct was unlawful.
The
Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to
procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Company, or, while a
director or officer of the Company, is or was serving at the
request of the Company as a director, officer, employee or agent of
another Company, partnership, joint venture, trust, employee
benefit plan or other enterprise against expenses (including
attorneys’ fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action
or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best
interests of the Company; except that no indemnification shall be
made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the Company unless
and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
Any
indemnification under the 2020 Amended and Restated Bylaws (unless
ordered by a court) shall be made by the Company only as authorized
in the specific case upon a determination that indemnification of
the director or officer is proper in the circumstances because such
person has met the applicable standard of conduct set forth the
2020 Amended and Restated Bylaws. Such determination shall be made,
with respect to a person who is a director or officer at the time
of such determination, (i) by a majority vote of the directors who
are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors
designated by a majority vote of such directors, even though less
than a quorum, or (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written
opinion or (iv) by the stockholders.
To the
extent that a present or former director or officer of the Company
has been successful on the merits or otherwise in defense of any
action, suit or proceeding or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred
by such person in connection therewith, without the necessity of
authorization in the specific case.
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Advancement of
Expenses
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The
Prior Bylaws provided that expenses
incurred by a director, officer, employee or agent in defending a
civil or criminal action, suit or proceeding could be paid by the
Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it should ultimately be
determined that he not be entitled to be indemnified by the Company
as authorized by the Prior Bylaws. Such expenses
incurred by other employees and agents could be so paid upon such
terms and conditions, if any, as the Board deemed
appropriate.
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The
2020 Amended and Restated Bylaws provide that expenses, including
without limitation attorneys’ fees, incurred by a current or
former director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding that is
subject to the 2020 Amended and Restated Bylaws shall be paid by
the Company in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such current or former director or officer to repay such amount
if it shall ultimately be determined that such person is not
entitled to be indemnified by the Company as authorized in the 2020
Amended and Restated Bylaws.
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Amendments
to Bylaws
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General
Provisions
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The
Prior Bylaws provided that they could be altered, amended,
supplemented or repealed or new by-laws may be adopted (a) at any
regular or special meeting of stockholders at which a quorum is
present or represented, by the affirmative vote of the holders of a
majority of the shares entitled to vote, provided notice of the
proposed alteration, amendment or repeal be contained in the notice
of such meeting, or (b) by a resolution adopted by a majority of
the whole board of directors at any regular or special meeting of
the board. The stockholders had authority to change or
repeal any bylaws adopted by the directors.
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The
2020 Amended and Restated Bylaws may be altered, amended or
repealed, in whole or in part, or new bylaws may be adopted by the
Board or by the stockholders as expressly provided in the
Certificate of Incorporation. In addition, notwithstanding any
other provision of Certificate of Incorporation or any provision of
law that might otherwise permit a lesser vote, but in addition to
any affirmative vote of the holders of any series of preferred
stock required by law, by the Certificate of Incorporation or any
preferred stock designation, the 2020 Amended and Restated Bylaws
may also be amended, altered or repealed and new bylaws may be
adopted by the stockholders of the Company by the affirmative vote
of the holders of at least a majority in voting power of the
outstanding stock of the Company entitled to vote
thereon.
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