Item 5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
On December 22, 2021 AVITA Medical, Inc. (the “Company”) held
its 2021 Annual Meeting of Stockholders (the “Annual Meeting”). At
the Annual Meeting, the Stockholders of the Company approved an
amendment to the Company’s Amended and Restated Bylaws that will
give the Company the right to sell on behalf of a Chess Depositary
Interest (“CDI”) holder the CDIs held by that CDI holder where the
holding constitutes less than a marketable parcel of CDIs for the
purposes of the Australian Stock Exchange (“ASX”) Listing Rules and
the ASX Settlement Operating Rules.
The Company has a large number of CDI holders on its register that
hold less than a “marketable parcel” of CDIs. A marketable parcel
is a CDI holding worth at least $500 Australian dollars. As at
October 18, 2021, 5,737 CDI holders held less than a
marketable parcel of CDIs. For a CDI holder that holds less than a
marketable parcel of the Company’s CDIs, it may be difficult and/or
expensive for them to sell those CDIs. It is also expensive and
inefficient for the Company to maintain these small holdings given
there are share registry fees and other administrative costs
associated with maintaining such small holdings on the Company’s
CDI register.
The specific amendment to the Company’s Bylaws is as follows
(inserting a new Section 7.10 after Section 7.9):
“Section 7.10. Small
holdings sale facility.
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(A) |
In this Section 7.10:
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“CDI” means a CHESS Depositary Interest, being a unit of beneficial
ownership in 1/5 of a share of common stock of the Corporation or
such other ratio as may be adopted by the Corporation from time to
time.
“CDI holder” means a holder of the Corporation’s CDIs.
“Marketable Parcel” means a number of CDIs equal to a marketable
parcel as defined in the ASX Listing Rules and the ASX Settlement
Operating Rules, calculated on the day before the Corporation gives
notice under Section 7.10(B).
“takeover” means a takeover bid (as that term is defined in section
9 of the Corporations Act
2001 (Cth)) or a similar bid under the laws of a
foreign jurisdiction outside of Australia.
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(B) |
For so long as the Corporation is admitted to the official list of
the ASX, the Corporation may sell the CDI holding of a CDI holder
who holds less than a Marketable Parcel of CDIs, provided that the
Corporation complies with each of the following: (i) the
Corporation may do so only once in any 12-month period;
(ii) the Corporation must notify the CDI holder in writing of
its intention to sell such CDIs in accordance with this
Section 7.10; (iii) the CDI holder must be given at least 6
weeks from the date the notice is sent in which to tell the
Corporation that the CDI holder wishes to retain its CDI holding;
(iv) if the CDI holder tells the Corporation in accordance
with Section 7.10(B)(iii) that the CDI holder wishes to retain
its CDI holding, the Corporation will not sell the holding;
(v) the power to sell lapses following the announcement of a
takeover but the procedure may be started again after the close of
the offers made under the takeover; (vi) the Corporation or
the purchaser must pay the costs of the sale; and (vii) the
proceeds of the sale will not be distributed until the Corporation
has received any certificate relating to the CDIs (or is satisfied
that the certificate has been lost or destroyed).
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(C) |
The Corporation may, before a sale is effected under this
Section 7.10, revoke a notice given or suspend or terminate
the operation of this Section 7.10 either generally or in
specific cases.
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(D) |
If a CDI holder is registered in respect of more than one parcel of
securities (whether CDIs or shares of common stock), the
Corporation may treat the CDI holder as a separate CDI holder in
respect of each of those parcels so that this Section 7.10
will operate as if each parcel was held by different CDI
holders.”
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Exhibit 3.2 sets forth the Company’s Amended and Restated Bylaws,
as amended by the Stockholders on December 22, 2021.
Item 5.07. Submission of Matters to a Vote of Security
Holders.
At the Annual Meeting, the total number of shares of common stock
eligible to vote as of the record date, October 26, 2021
(being October 27, 2021 Australian Eastern Daylight Time), was
24,925,118 and, pursuant to the Company’s Amended and Restated
Bylaws, majority shares were required to be present or represented
at the Annual Meeting to constitute a quorum. The total number of
shares of common stock present or represented at the Annual Meeting
was 12,994,665, and a quorum therefore existed.