Current Report Filing (8-k)
March 24 2017 - 6:06AM
Edgar (US Regulatory)
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): March 23, 2017
SITO
MOBILE, LTD.
(Exact name of registrant as specified in its charter)
Delaware
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001-37535
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13-4122844
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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The Newport Corporate Center, 100 Town
Square Place, Suite 204, Jersey City, NJ
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07301
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant's
Telephone Number, Including Area Code:
(201) 275-0555
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N/A
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(Former
Name or Former Address, if Changed Since Last Report): Not Applicable
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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:
☐ 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
March 23, 2017, the Board of Directors (the “
Board
”) of SITO Mobile, Ltd., a Delaware Corporation (the “
Corporation
”)
approved amendments to amend and restate the Corporation’s bylaws, effective as of March 23, 2017 (the “
Bylaws
”).
The Bylaws have not been amended since May 5, 2016 when they were filed with the U.S. Securities and Exchange Commission (the
“
SEC
”) as an exhibit to a Current Report on Form 8-K on May 11, 2016.
The
amendments to the Bylaws are intended to conform the Bylaws to more current and customary public company practice. Among other
things, the amendments to the Bylaws:
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Amend
the provisions relating to how an annual meeting of the Corporation’s stockholders
is called to provide that the date, time and place of an annual meeting shall be fixed
by a resolution of the Board adopted by a majority of the total number of authorized
directors (whether or not there exists any vacancies in the previously authorized directorships
at the time any such resolution is presented to the Board);
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Specify
certain procedural matters relating to the requirements for any business to be brought
before an annual meeting of stockholders, including, but not limited to, the prerequisites
for a stockholder to bring any proposal before an annual meeting of stockholders including
that the making of such proposal must be permitted by applicable law, the Corporation’s
Certificate of Incorporation (the “
Certificate of Incorporation
”)
and the Bylaws and must comply with the notice and other procedures contained in the
Bylaws in all applicable respects;
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Add
provisions related to the advance notice of stockholder proposals required to be submitted
to the Corporation in connection with business intended to be brought before an annual
meeting of stockholders (the “
Proposal Notice
”), including, but not
limited to, provisions that:
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Specify
that, to be timely, a stockholder’s Proposal Notice must be delivered to, or mailed
and received by, the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the one hundred and twentieth (120th) calendar
day and not later than the close of business on the ninetieth (90th) calendar day prior
to the one-year anniversary date of the immediately preceding year’s annual meeting
of stockholders (the “
Anniversary Date
”);
provided, however
,
that in the event that the date of the annual meeting is more than thirty (30) calendar
days before or more than sixty (60) calendar days after the Anniversary Date, or if the
Corporation did not hold an annual meeting in the preceding fiscal year, notice by the
stockholder to be timely must be so delivered, or mailed and received, not later than
the later of (i) the close of business on the ninetieth (90th) calendar day prior to
such annual meeting or (ii) the close of business on the tenth (10th) calendar day following
the day on which public disclosure of the date of such annual meeting was first made;
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Provide
for a defined term, “
Stockholder Associated Person
,” to encompass
the individuals (in addition to the stockholder) for whom information will be required
to be included in a Proposal Notice or Nominating Notice (as defined below), as the case
may be, and defining “
Stockholder Associated Person
” to include: (i)
any “affiliate” or “associate” (as those terms are defined in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended the “
Exchange
Act
”)) of such stockholder, (ii) any beneficial or record owner of any capital
stock or other securities of the Corporation owned of record or beneficially by such
stockholder, (iii) any person directly or indirectly controlling, controlled by or under
common control with such stockholder or any Stockholder Associated Person referred to
in clause (i) or (ii) above, (iv) any person who is a member of a “group”
(for purposes of these Bylaws, as such term is used in Rule 13d-5 under the Exchange
Act) with any such stockholder or beneficial owner (or their respective affiliates and
associates), (v) any person “Acting in Concert” (as defined below) in respect
of any matter involving the Corporation or its securities with either such stockholder
or any beneficial or record owner of any capital stock or other securities of the Corporation
owned of record or beneficially by such stockholder (or their respective affiliates and
associates), and (vi) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction
3 to Item 4 of Schedule 14A, or any successor instructions) with such stockholder or
beneficial owner in the solicitation of proxies in respect of any nominations or other
business proposed to be brought before the stockholders of the Corporation;
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Provide
that a person shall be deemed to be “
Acting in Concert
” with another
person if such person knowingly acts (whether or not pursuant to an express agreement,
arrangement or understanding) in concert with, or towards a common goal relating to the
management, governance or control of the Corporation in parallel with, such other person
where (A) each person is conscious of the other person’s conduct or intent and
this awareness is an element in their decision-making processes and (B) at least one
additional factor suggests that such persons intend to act in concert or in parallel,
which such additional factors may include, without limitation, exchanging information
(whether publicly or privately), attending meetings, conducting discussions, or making
or soliciting invitations to act in concert or in parallel;
provided, however
,
that a person shall not be deemed to be Acting in Concert with any other person solely
as a result of the solicitation or receipt of revocable proxies, or special meeting demands
from such other person in response to a solicitation made pursuant to, and in accordance
with, Section 14(a) of the Exchange Act by way of a proxy statement filed on Schedule
14A;
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Specify
the information required to be provided by the stockholder giving the Proposal Notice,
and the beneficial owner, if any, on whose behalf the Proposal Notice is made, in respect
of the business proposed in its Proposal Notice, including, but not limited to, the following
information regarding such proposing stockholder and Stockholder Associated Persons:
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the
name and address of such stockholder or any Stockholder Associated Person as they appear
on the Corporation’s books, and of such beneficial owner;
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the
class (and, if applicable, series) and number of shares of the Corporation which are
owned, directly or indirectly, beneficially and of record by such stockholder or any
Stockholder Associated Person (including any shares of any class or series of the Corporation
as to which such stockholder or any Stockholder Associated Person has a right to acquire
beneficial ownership at any time in the future, whether such right is exercisable immediately,
only after the passage of time or only upon the satisfaction of certain conditions precedent),
the dates on which such shares were acquired and the investment intent of such acquisition
of shares at the time they were acquired;
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a
description in reasonable detail of any option, warrant, convertible security, stock
appreciation right or similar right with an exercise or conversion privilege or a settlement
payment or mechanism at a price related to any class (or, if applicable, series) of shares
of stock of the Corporation or with a value derived in whole or in part from the value
of any class (or, if applicable, series) of shares of stock of the Corporation, whether
or not such instrument or right shall be subject to settlement in the underlying class
or series of capital stock of the Corporation or otherwise (each, a “
Derivative
Instrument
”) directly or indirectly owned beneficially or of record by such
stockholder or any Stockholder Associated Person and any other direct or indirect opportunity
to profit or share in any profit derived from any increase or decrease in the value of
shares of stock of the Corporation of the stockholder or any Stockholder Associated Person;
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a
description in reasonable detail of any proxy, contract, arrangement, understanding or
relationship (whether written or oral and whether formal or informal) between such stockholder
or any Stockholder Associated Person and any other person or entity (naming each such
person or entity) pursuant to which such stockholder or any Stockholder Associated Person
has a right to vote any securities of the Corporation;
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a
description in reasonable detail of any plans or proposals, that would be required to
be disclosed by such stockholder or any Stockholder Associated Person or any other person
or entity pursuant to Item 4 of a Schedule 13D that would be filed pursuant to the Exchange
Act and the rules and regulations promulgated thereunder (regardless of whether the requirement
to file a Schedule 13D is applicable to such stockholder or any Stockholder Associated
Person or other person or entity) together with a description of any agreements, arrangements
or understandings (whether written or oral and whether formal or informal) that relate
to such plans or proposals;
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a
description in reasonable detail of any agreements, arrangements or understandings that
would be required to be disclosed by such stockholder or any Stockholder Associated Person
or any other person or entity pursuant to Item 5 or Item 6 of a Schedule 13D that would
be filed pursuant to the Exchange Act and the rules and regulations promulgated thereunder
(regardless of whether the requirement to file a Schedule 13D is applicable to such stockholder
or any Stockholder Associated Person or other person or entity);
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a
description in reasonable detail of any proportionate interest in shares of the Corporation
or Derivative Instruments held, directly or indirectly, by a general or limited partnership
in which such stockholder or any Stockholder Associated Person is a general partner or
beneficially owns, directly or indirectly, an interest in a general partner;
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a
description in reasonable detail of any performance-related fees (other than an asset-based
fee) that such stockholder or any Stockholder Associated Person is entitled to attributable
to any increase or decrease in the value of the shares of stock of the Corporation or
Derivative Instruments;
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a
description in reasonable detail of any pending, or to such stockholder’s knowledge,
threatened legal proceeding in which such stockholder or any Stockholder Associated Person
is a party or participant involving the Corporation or any officer, director affiliate,
or associate of the Corporation;
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a
description in reasonable detail of any relationship (including any direct or indirect
interest in any agreement, arrangement or understanding, whether written or oral and
whether formal or informal) between such stockholder or any Stockholder Associated Person
and the Corporation or any director, officer, affiliate or associate of the Corporation
(naming such officer, director affiliate, or associate), including, but not limited to,
a description in reasonable detail of any discussions between such stockholder or any
Stockholder Associated Person and any officer, director affiliate, or associate of the
Corporation (naming such officer, director affiliate, or associate) with respect to (1)
the proposal of any business or the proposal of any nominees sought to be brought before
an annual meeting by a stockholder, (2) any changes sought to be made to the composition
of the Board or the Corporation’s strategic direction, or (3) any plans or proposals
for the Corporation to be potentially pursued by the stockholder or any Stockholder Associated
Person if any proposed business was approved, or any proposed nominees were elected,
at the annual meeting;
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a
description in reasonable detail of any direct or indirect interest of such stockholder
or any Stockholder Associated Person in any current or proposed contract or agreement
or existing, pending or proposed transaction with the Corporation, or any affiliate or
associate of the Corporation (naming such affiliate or associate);
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any
other information relating to such stockholder or any Stockholder Associated Person required
to be disclosed in a proxy statement or other filing if such a filing was to be made
in connection with solicitations of proxies for, as applicable, the proposal and/or for
the election of directors in an election contest (even if a contested solicitation is
not involved) pursuant to, and in accordance with, Section 14(a) of the Exchange Act
and the rules and regulations of the SEC promulgated thereunder;
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a
representation that the stockholder is a holder of record of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the meeting to
propose such business or nomination (unless such meeting is held by means of remote communication
and, in such case, a representation that the stockholder shall appear at the meeting
by means of remote communication);
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a
certification that the stockholder and all Stockholder Associated Persons have complied
with all applicable federal, state and other legal requirements, including, but not limited
to, Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
in connection with the stockholder’s and each Stockholder Associated Person’s
acquisition and record and/or beneficial ownership of shares of capital stock or other
securities of the Corporation; and
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whether
either the stockholder intends to deliver a proxy statement and form of proxy to holders
of, in the case of a proposal, at least the percentage of the Corporation’s voting
shares required under the Certificate of Incorporation, the Bylaws and applicable law
to carry the proposal or, in the case of a nomination or nominations, a sufficient number
of holders of the Corporation’s voting shares reasonably believed by such stockholder
to be sufficient to elect such nominee(s) or otherwise to solicit proxies or votes from
stockholders in support of such proposal or nomination.
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Specify,
as to each item of business that the stockholder giving the Proposal Notice proposes
to bring before the annual meeting, the information required to be provided about such
proposed business, including, but not limited to the following:
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a
description of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting, the text of the proposal or business (including
the text of any resolutions proposed for consideration and in the event that such business
includes a proposal to amend the Bylaws of the Corporation, the language of the proposed
amendment); and
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any
interest in such business of such stockholder or any Stockholder Associated Person, individually
or in the aggregate, including any anticipated benefit to the stockholder or any Stockholder
Associated Person therefrom and the names and addresses of other stockholders known by
the stockholder proposing such business to support such proposal, and the class and number
of shares of the Corporation’s capital stock beneficially owned by such other stockholders/
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Require
the proposing stockholder to, from time to time, update and supplement the information
provided by such stockholder in its Proposal Notice such that the information contained
in the Proposal Notice is true, correct and complete in all respects;
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Include
a provision that allows the Corporation, the Board or any duly authorized committee thereof
to request the proposing stockholder to provide written verification of the accuracy
of the information contained in the Proposal Notice;
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Require
a stockholder to specifically identify in the Proposal Notice by way of an express reference
how the information being provided is intended to comply with a specific advance notice
requirement of the Bylaws;
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Specify
that a stockholder must set forth in writing directly within the body of the Proposal
Notice (as opposed to being incorporated by reference from any other document or writing
not included with, and made a part of, the Proposal Notice) all the information required
to be included in the Proposal Notice pursuant to the Bylaws;
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Provide
that the advance notice requirements for a Proposal Notice are not intended to require
a broker, dealer, commercial bank, trust company or other nominee to include any information
relating to their ordinary course business activities when they are directed to prepare
and submit a Proposal Notice on behalf of an unaffiliated beneficial owner of the Corporation’s
shares;
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Specify
that a
stockholder submitting the Proposal Notice,
by its delivery to the Corporation, represents and warrants that all information contained
therein is true, accurate and complete in all respects, contains no false and misleading
statements or statements that violate the Exchange Act or other applicable law and such
stockholder acknowledges that it intends for the Corporation and the Board to rely on
such information as (i) being true, accurate and complete in all respects, without regard
to what other information may be publicly available but not contained in the Proposal
Notice, and (ii) not containing any false and misleading statements or any statements
that violate the Exchange Act or other applicable law;
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Require
that, notwithstanding any notice of the annual meeting sent to stockholders on behalf
of the Corporation, a stockholder must separately provide a Proposal Notice in accordance
with the Bylaws to conduct business at any stockholder meeting and further clarifying
that, if the stockholder’s proposed business is the same or relates to business
brought by the Corporation and included in the Corporation’s annual meeting notice,
the stockholder is nevertheless still required to comply with the advance notice of business
provisions of the Bylaws and give its own separate and timely Proposal Notice to the
Secretary of the Corporation which complies in all respects with the applicable requirements
of the Bylaws;
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Provide
that, in addition to the requirements contained in the Bylaws, a proposing stockholder
must also comply with all applicable requirements of the Exchange Act and Delaware law
with respect to any business that may be sought to be brought before an annual meeting
of stockholders and any solicitations of proxies in connection therewith;
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Provide
that in no event shall any adjournment or postponement of an annual meeting or the announcement
thereof commence a new time period for the giving of a Proposal Notice;
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Provide
that the Bylaws’ advance notice provisions shall be the exclusive means for any
stockholder of the Corporation to propose business to be brought before an annual meeting
of stockholders; and
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Provide
that the Bylaws’ advance notice provisions shall not be deemed to affect the rights
of stockholders to submit proposals pursuant to, and in compliance with, Rule 14a-8 of
the Exchange Act.
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Specify
certain procedural matters relating to the requirements for any director nominations
to be brought before a stockholders’ meeting, including, but not limited to, the
prerequisites for a stockholder to bring a proposed director nomination before a stockholders’
meeting;
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Add
provisions related to the advance notice of proposed director nominations, including,
but not limited to, provisions to:
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Specify
that, to be timely, a stockholder’s notice of nomination, shall be made in writing
and delivered to, or mailed and received by, the Secretary of the Corporation at the
principal office of the Corporation (i) not earlier than the close of business on the
one hundred and twentieth (120th) calendar day and not later than the close of business
on the ninetieth (90th) calendar day prior to the Anniversary Date, or (ii) in the case
of a special meeting of stockholders called in accordance with the Bylaws for the purpose
of electing directors, or in the event that the annual meeting of stockholders is called
for a date that is more than thirty (30) calendar days before or more than sixty (60)
calendar days after the Anniversary Date, or if the Corporation did not hold an annual
meeting in the preceding fiscal year, notice by the stockholder to be timely must be
so delivered, or mailed and received, not later than the later of (i) the close of business
on the ninetieth (90th) calendar day prior to such meeting or (ii) the close of business
on the tenth (10th) calendar day following the day on which public disclosure of the
date of such meeting was first made;
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Specify
the information required to be provided by a proposing stockholder in its advance notice
of proposed nominations of candidates for election to the Board (the “
Nominating
Notice
”) which includes, as to each proposing stockholder, substantially the
same information about such proposing stockholder or Stockholder Associated Person that
is required to be included in a Proposal Notice, as more fully discussed above, except
that
any reference to “
business
”
or “
proposal
” therein will be deemed to refer to the “
nomination
”
of a director or directors by a stockholder which is proposed in a Nominating Notice
;
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Specify
the information required to be provided in the Nominating Notice about each person being
proposed as a nominee for election to the Board, including, but not limited to, the following:
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all
information relating to a proposed nominee that would be required to be disclosed in
a proxy statement or other filing if such a filing was to be made in connection with
a solicitation of proxies for the election of a proposed nominee in an election contest
(even if a contested solicitation is not involved), or is otherwise required, in each
case pursuant to and in accordance with Regulation 14A under the Exchange Act and the
rules and regulations of the SEC promulgated thereunder (including such person’s
written consent to being named in the proxy statement as a nominee and to serving as
a director of the Corporation if elected);
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a
description in reasonable detail of all direct and indirect compensation, reimbursement,
indemnification or other benefit (whether monetary or non-monetary) arrangements, agreements
or understandings, written or oral, during the past three years, and any other material
relationship, if any, between or concerning such stockholder, any Stockholder Associated
Person (as defined below) or any of their respective affiliates or associates, on the
one hand, and the proposed nominee or any of his or her affiliates or associates, on
the other hand;
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a
description in reasonable detail of any and all agreements, arrangements and/or understandings
(whether written or oral and whether formal or informal), between a proposed nominee
and any person or entity (naming each such person or entity) with respect to any direct
or indirect compensation, reimbursement, indemnification or other benefit (whether monetary
or non-monetary) in connection with or related to a proposed nominee’s service
on the Board if elected as a member of the Board;
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all
information that would be required to be disclosed pursuant to Items 403 and 404 under
Regulation S-K if the stockholder providing the notice or any Stockholder Associated
Person were the “registrant” for purposes of such rule and the proposed nominee
were a director or executive officer of such registrant;
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all
information with respect to a proposed nominee that would be required to be set forth
in a stockholder’s Nominating Notice if a proposed nominee was the proposing stockholder
or a Stockholder Associated Person;
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to
the extent that a proposed nominee has entered into (a) any agreement, arrangement or
understanding (whether written or oral and whether formal or informal) with, or has given
any commitment or assurance to, any person or entity as to the positions that a proposed
nominee, if elected as a director of the Corporation, would take in support of or in
opposition to any issue or question that may be presented to him or her for consideration
in his or her capacity as a director of the Corporation, (b) any agreement, arrangement
or understanding (whether written or oral and whether formal or informal) with, or has
given any commitment or assurance to, to any person or entity as to how a proposed nominee,
if elected as a director of the Corporation, would act or vote with respect to any issue
or question presented to him or her for consideration in his or her capacity as a director
of the Corporation, (c) any agreement, arrangement or understanding (whether written
or oral, formal or informal) with any person or entity that could potentially limit or
interfere with the proposed nominee’s ability to comply, if elected as a director
of the Corporation, with his or her fiduciary duties, as a director of the Corporation,
to the Corporation or its stockholders, or (d) any agreement, arrangement or understanding
(whether written or oral and whether formal or informal) with any person or entity that
could be reasonably interpreted as having been or being intended to require a proposed
nominee to consider the interests of a person or entity (other than the Corporation and
its stockholders) in complying with his or her fiduciary duties, as a director of the
Corporation, to the Corporation or its stockholders, a description in reasonable detail
of each such agreement, arrangement or understanding (whether written or oral and whether
formal or informal) or commitment or assurance (whether written or oral and whether formal
or informal);
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to
the extent that a proposed nominee has been determined by any governmental authority
or self-regulatory organization to have violated any federal or state securities or commodities
laws, including but not limited to, the Securities Act of 1933, as amended, the Exchange
Act or the Commodity Exchange Act, a description in reasonable detail of such violation
and all legal proceedings relating thereto;
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to
the extent that a proposed nominee has been convicted of any past criminal offenses involving
dishonesty or a breach of trust or duty, a description in reasonable detail of such offense
and all legal proceedings relating thereto;
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to
the extent that a proposed nominee has ever been suspended or barred by any governmental
authority or self-regulatory organization from engaging in any profession or participating
in any industry, or has otherwise been subject to a disciplinary action by a governmental
authority or self-regulatory organization that provides oversight over the proposed nominee’s
current or past profession or an industry that the proposed nominee has participated
in, a description in reasonable detail of such action and the reasons therefor; and
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a
proposed nominee’s executed written undertaking agreeing to comply, if elected
as a director of the Corporation, with all corporate governance, conflicts of interest,
code of conduct and ethics, confidentiality and stock ownership and trading policies
and guidelines of the Corporation, as the same shall be amended from time to time by
the Board and further agreeing not to become, a party to any agreement, arrangement or
understanding with any person or entity other than the Corporation in connection with
service or action as a member of the Board that has not been disclosed to the Corporation
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Require
the proposing stockholder to, from time to time, update and supplement the information
provided by such stockholder in its Nominating Notice such that the information contained
in the Nominating Notice is true, correct and complete in all respects.
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Include
a provision that allows the Corporation, the Board or any duly authorized committee thereof
to request the proposing stockholder to provide written verification of the accuracy
of the information contained in the Nominating Notice;
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Require
a stockholder to specifically identify in the Nominating Notice by way of an express
reference how the information being provided is intended to comply with a specific advance
notice requirement of the Bylaws;
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Specify
that a proposing stockholder must set forth in writing directly within the body of the
Nominating Notice (as opposed to being incorporated by reference from any other document
or writing not included with, and made a part of, the Nominating Notice) all the information
required to be included in the Nominating Notice pursuant to the Bylaws;
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Provide
that the advance notice requirements for a Nominating Notice are not intended to require
a broker, dealer, commercial bank, trust company or other nominee to include any information
relating to their ordinary course business activities when they are directed to prepare
and submit a Nominating Notice on behalf of an unaffiliated beneficial owner of the Corporation’s
shares;
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Specify
that a
p
roposing stockholder
submitting
the Nominating Notice, by its delivery to the Corporation, represents and warrants that
all information contained therein is true, accurate and complete in all respects, contains
no false and misleading statements or statements that violate the Exchange Act or other
applicable law and such p
roposing stockholder
acknowledges
that it intends for the Corporation and the Board to rely on such information as (i)
being true, accurate and complete in all respects, without regard to what other information
may be publicly available but not contained in the Nominating Notice, and (ii) not containing
any false and misleading statements
or any statements that violate the Exchange
Act or other applicable law
;
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|
|
|
|
o
|
Provide
that, n
otwithstanding any notice of stockholders’
meeting sent to stockholders on behalf of the Corporation, a p
roposing stockholder
must separately comply with the advance notice
of nominations provisions of the Bylaws to propose director nominations at any stockholders’
meeting and would still be required to give its own separate and timely Nominating Notice
to the Secretary of the Corporation which complies in all respects with the applicable
requirements of the Bylaws;
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|
|
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o
|
Provide
that in the event that the number of directors to be elected to the Board of the Corporation
is increased and there is no public disclosure naming all of the proposed nominees for
director or specifying the size of the increased Board made by the Corporation at least
one hundred (100) calendar days prior to the first anniversary of the immediately preceding
year’s annual meeting, a Nominating Notice required by the Bylaws shall also be
considered timely, but only with respect to proposed nominees for any new positions created
by such increase, and only with respect to a stockholder who had, prior to such increase
in the size of the Board, previously submitted a Nominating Notice that complied with
the Bylaws prior to the deadline for submitting director nominations, if such Nominating
Notice is delivered to, or mailed and received by, the Secretary of the Corporation at
the principal office of the Corporation not later than the close of business on the tenth
(10th) calendar day following the day on which such public disclosure is first made by
the Corporation;
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o
|
Provide
that, in addition to the requirements contained in the Bylaws, a proposing stockholder
must also comply with all applicable requirements of the Exchange Act and Delaware law
with respect to any nominations of directors for election at an annual meeting of stockholders
and any solicitations of proxies in connection therewith;
|
|
|
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o
|
Provide
that in no event shall any adjournment or postponement of an annual meeting or the announcement
thereof commence a new time period for the giving of a Nominating Notice; and
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o
|
Provide
that the Bylaws’ advance notice of nomination provisions shall be the exclusive
means for any stockholder of the Corporation to propose nominees for election to the
Board to be brought before an annual meeting of stockholders.
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●
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Provide
maximum flexibility and discretion to the chairman of the meeting to set rules for the
conduct of any stockholders’ meeting.
|
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●
|
Provide
more detailed procedural provisions with respect to stockholders’ meetings, including,
but not limited to, the organization and conduct of the meeting, meeting protocol, the
retention of inspectors of election for such meetings, proxies for such meetings, the
appointment of a presiding officer for such meetings, and the appointment of a secretary
for such meetings.
|
|
|
|
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●
|
Provide
that for business to be properly brought before a special meeting of stockholders, it
must be (i) specified in the Corporation’s notice of meeting (or any supplement
thereto) given by or at the direction of the Board (or any duly authorized committee
thereof), (ii) if not specified in the notice of meeting (or any supplement thereto)
provided by or at the direction of the Board (or any duly authorized committee thereof),
otherwise properly brought before the special meeting by or at the direction of the Board
(or any duly authorized committee of the Board) or the Chairman of the Board (if any),
or (iii) with respect to the election of directors, provided that the Board has called
a special meeting of stockholders for the purpose of electing one or more directors to
the Board, by any stockholder of the Corporation who complies in all respects with the
requirements of the advance notice provisions of the Bylaws.
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●
|
Provide
procedures for actions taken by written consent including procedures for stockholders
to request that the Board set a record date for determining stockholders entitled to
take action by written consent.
|
|
|
|
|
●
|
Require
that any stockholder proposed bylaw amendments must be specifically identified in a notice
of stockholder meetings provided in the notice of the stockholders’ meeting along
with the text of any such proposed amendment and/or any resolution calling for any such
amendment.
|
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●
|
Add
provisions relating to electronic transmissions and communications, including permitting
the participation by directors and stockholders in meetings by means of remote communications.
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●
|
Provide
for the ability of the Board to postpone or cancel any previously scheduled annual or
special meeting of the stockholders by resolution of the Board upon public notice given
prior to the time previously scheduled for such meeting of stockholders.
|
|
|
|
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●
|
Revise
the section of the Bylaws regarding the indemnification that the Corporation provides
to its directors, officers and other agents to clarify the type of proceedings that are
indemnified, the expenses that are reimbursable, the persons who are indemnifiable, the
capacity that the person needs to be acting in to be indemnified, and the process that
needs to be followed in determining whether indemnification is proper in a particular
circumstance. In addition, the rights granted to indemnified persons to be advanced expenses
incurred in defending a proceeding in advance of its final disposition have also been
clarified to provide a specific time period by which the advancement needs to be made
and to provide that advancement cannot be conditioned on the ability to repay, must be
unsecured and must be interest-free and cannot be otherwise conditioned unless applicable
Delaware law provides otherwise. Additional provisions have been added to avoid duplicate
payments to indemnified persons, provide that the Corporation shall be subrogated to
all rights of recovery of any person entitled to indemnification and provide that the
conduct of one indemnified person will not be imputed to another.
|
The
foregoing description of various amendments included in the Bylaws does not purport to be complete and is qualified in its entirety
by reference to the complete text of the Bylaws adopted by the Board on March 23, 2017, a copy of which is attached to this Current
Report on Form 8-K as Exhibit 3.1 and incorporated by reference in this Item 5.03 in its entirety.
Item
9.01
|
Financial
Statements and Exhibits.
|
(d)
Exhibits
.
Exhibit
No.
|
|
Exhibit
Title
|
|
|
|
3.1
|
|
Amended
and Restated Bylaws of SITO Mobile, Ltd., as adopted on March 23, 2017
|
SIGNATURES
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.
|
SITO Mobile, Ltd.
|
|
|
|
Date:
March 24, 2017
|
By:
|
/s/
Richard O’Connell Jr.
|
|
|
Name:
Richard O’Connell Jr.
|
|
|
Title:
Interim CEO
|
EXHIBIT
INDEX
Exhibit
No.
|
|
Exhibit
Title
|
|
|
|
3.1
|
|
Amended
and Restated Bylaws of SITO Mobile, Ltd., as adopted on March 23, 2017
|
16
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