Item
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year
|
Restated
Certificate of Incorporation
On
September 28, 2021, the Board of Directors of PolarityTE, Inc. (the “Company”) approved the Restated Certificate of Incorporation
for the Company, which was filed with the Secretary of State of the State of Delaware on September 28, 2021. Sections 242 and 245 permit
the Board of Directors to approve the Restated Certificate of Incorporation without a stockholder vote when the restatement only includes
prior amendments and deletes amendments to effect a change, exchange, reclassification, subdivision, combination, or cancellation of
stock, if such change, exchange, reclassification, subdivision, combination, or cancellation has become effective. The Restated Certificate
of Incorporation updates and restates the second restatement of the Certificate of Incorporation dated June 13, 2005, by reflecting prior
amendments to change the corporate name to PolarityTE, Inc., and increase the authorized preferred shares to 25,000,000, and omit the
amendment for the 6-to-1 reverse stock split effectuated in July 2016. No other amendment or modification was made to the Company’s
Certificate of Incorporation.
Amended
and Restated Bylaws
On
September 28, 2021, the Board of Directors of the Company adopted and approved Restated Bylaws for the Company (the “Restated Bylaws”),
which had the effect of updating and amending certain provisions of the bylaws adopted June 13, 2005 (the “Prior Bylaws”).
Updates to the Prior Bylaws reflected in the Restated Bylaws include replacing the Company’s former name with “PolarityTE,
Inc.,” incorporating the previous amendment of the Prior Bylaws changing the fiscal year end to December 31, and renumbering Sections
in Article I. As a result, Article I, Section 7 of the Prior Bylaws became Article I, Section 6 of the Restated Bylaws. Amendments to
the Prior Bylaws contained in the Restated Bylaws include the following:
Quorum
Article
I, Section 4 of the Prior Bylaws fixed the quorum for any meeting of stockholders at a majority of all of the shares of the Company’s
stock entitled to vote at the meeting. The Restated Bylaws fix the quorum for any meeting of stockholders at 40% of all of the shares
of the Company’s stock entitled to vote at the meeting.
Stockholder
Advance Notice of Business to be Proposed or Director Nomination to be Made at an Annual Meeting
Article
I, Section 7.C(1) of the Prior Bylaws provided that in order for a stockholder to give timely notice of proposed business or director
nomination for an annual meeting of stockholders the notice had to be delivered to the Secretary at the principal executive offices of
the Company not less than 45 or more than 75 days prior to the first anniversary of the date on which the Company first mailed its proxy
materials for the preceding year’s annual meeting. Article I, Section 6.C(1) of the Restated Bylaws provides that in order for
a stockholder to give timely notice of a proposal or director nomination for an annual meeting of stockholders the notice has to be delivered
to the Secretary at the principal executive offices of the Company not less than 90 or more than one hundred twenty 120 days prior to
the first anniversary of the preceding year’s annual meeting.
Article
I, Section 7.C(1) of the Prior Bylaws provided that in the event that the date of the annual meeting is more than 30 days before or more
than 30 days after the anniversary date of the preceding year’s annual meeting, timely notice by a stockholder of a proposal or
director nomination for an annual meeting must be delivered not earlier than the close of business on the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th day prior to such annual meeting or the close of business on
the 10th day following the day on which public announcement of the date of such meeting is first made by the Company. Article I, Section
6.C(1) of the Restated Bylaws provides that in the event that the date of the annual meeting is more than 30 days before or more than
70 days after the anniversary date of the preceding year’s annual meeting, timely notice by a stockholder of a proposal or director
nomination for an annual meeting must be delivered not earlier than the close of business on the 120th day prior to such annual meeting
and not later than the close of business on the later of the 90th day prior to such annual meeting or the close of business on the 10th
day following the day on which public announcement of the date of such meeting is first made by the Company.
Article
I, Section 7.C(2) of the Prior Bylaws provided that in the event that the number of directors to be elected to the Board of Directors
of the Company is increased and there is no public announcement by the Company naming all of the nominees for director or specifying
the size of the increased Board of Directors at least 55 days prior to the first anniversary of the date on which the Company first mailed
its proxy materials for the preceding year’s annual meeting (or, if the annual meeting is held more than 30 days before or 60 days
after the first anniversary of the preceding year’s annual meeting, at least 70 days prior to such annual meeting), a stockholder’s
notice shall be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered
to the Company not later than the close of business on the 10th day following the day on which such public announcement is first made
by the Company. Article I, Section 6.C(2) of the Restated Bylaws provides that in the event that the number of directors to be elected
to the Board of Directors of the Company is increased effective after the time period for which nominations would otherwise be due under
Article I, Section 6.C(1) and there is no public announcement by the Corporation naming all of the nominees for director or specifying
the size of the increased Board of Directors at least 100 days prior to the first anniversary of the preceding year’s annual meeting,
a stockholder’s notice shall be considered timely, but only with respect to nominees for any new positions created by such increase,
if it shall be delivered to the Company not later than the close of business on the 10th day following the day on which such public announcement
is first made by the Company.
In
the Restated Bylaws the Company added provisions to Article I, Section 6.D(3) clarifying that any references in the Restated Bylaws
to the Securities Exchange Act of 1934, as amended (“Exchange Act”), or the rules and regulations promulgated thereunder
are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered
pursuant to Article I, Section 6, and compliance with clause (c), paragraph A of Section 6 and paragraph B of Section 6 of the Restated
Bylaws are the exclusive means for a stockholder to make nominations or submit other business, other than business brought properly under and in compliance with Rule 14a-8 of the Exchange Act.
The
foregoing description of amendments in the Restated Bylaws is qualified in its entirety by reference to the full text of the Restated
Bylaws, a copy of which is filed as an exhibit to this Current Report on Form 8-K and is incorporated by reference herein.
Stockholder
Proposals and Other Business at the 2022 Annual Meeting of Stockholders
We
expect the 2022 Annual Meeting of Stockholders to be held on or about June 16, 2022. To be considered for inclusion in our proxy materials
for the 2022 Annual Meeting pursuant to Rule 14a-8 adopted under Exchange Act, a stockholder proposal must be received at our principal
executive offices at 1960 S 4250 W, Salt Lake City, UT 84104 by December 31, 2021. Under the advance notice procedure in the Restated
Bylaws for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of persons for
election to the Board, a stockholder proposal or nomination intended to be brought before the 2022 Annual Meeting must be delivered to
the Corporate Secretary no earlier than February 15, 2022, and no later than March 17, 2022. All proposals and nominations should be
directed to our Corporate Secretary at PolarityTE, Inc., 1960 S 4250 W, Salt Lake City, UT 84104.