Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in Item 5.03 below is incorporated by reference herein.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On May 23, 2019, Exelixis, Inc. (Exelixis) filed a Certificate of Amendment to its Amended and Restated Certificate of Incorporation to change Exelixis' Board of Directors from a classified board (i.e. directors are elected for three-year terms, with approximately one third of the directors being elected each year), to a declassified board (i.e. all directors are elected each year for a one-year term). In addition,
the
Certificate of Amendment
provides that directors may be removed at any time, either with or without cause.
Specifically, the Certificate of Amendment amended Article V.A. of Exelixis' Amended and Restated Certificate of Incorporation as follows:
Article V.A., Section 3, of the
Amended and Restated
Certificate of Incorporation of Exelixis, Inc. was amended to read in its entirety as follows:
“
3. Election of Directors.
Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances and the remaining provisions of this section 3, until the Corporation’s 2020 annual meeting of stockholders, the directors shall be divided into three classes designated as Class I, Class II and Class III, respectively. At each annual meeting of stockholders held following the closing of the initial public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock to the public (the Initial Public Offering) and prior to or at the Corporation’s 2019 annual meeting of stockholders, each director was elected for a three year term, expiring at the third annual meeting of stockholders following his or her election. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, the term of each director then in office shall expire at the Corporation’s 2020 annual meeting of stockholders, notwithstanding that such director may have been elected for a term that extended beyond the date of such annual meeting. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, commencing at the Corporation’s 2020 annual meeting of stockholders, each director elected at such meeting and at each annual meeting of stockholders thereafter to succeed those directors whose terms then expire shall be elected for a term expiring at the next annual meeting of stockholders following their election.
Notwithstanding the foregoing provisions of this section, each director shall serve until his or her successor is duly elected and qualified or until his or her death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.”
And Article V.A., Section 4, of the
Amended and Restated
Certificate of Incorporation of Exelixis, Inc. was amended to read in its entirety as follows:
“
4. Removal of Directors.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director or the entire Board of Directors may be removed by the holders of a majority of the shares then entitled to vote at an election of directors.”
The amendment to Article V.A. was approved by the Exelixis stockholders at the 2019 Annual Meeting of Stockholders, as described below in Item 5.07.
Concurrent with the filing of the Certificate of Amendment, Sections 17 and 20 of Exelixis' Bylaws were amended to be consistent with Article V.A. of Exelixis' Amended and Restated Certificate of Incorporation, as amended as described above, causing Sections 17 and 20 of Exelixis' Bylaws to read as follows:
“
Section 17. Term of Office.
The term of office of each director shall be as provided in the Certificate of Incorporation.”
“
Section 20.
Intentionally Omitted.”
The Certificate of Amendment to Exelixis' Amended and Restated Certificate of Incorporation is filed as Exhibit 3.1 hereto, and Exelixis' Bylaws, as amended and restated by amending Sections 17 and 20 thereof, are filed as Exhibit 3.2 hereto.