Aspira Women's Health Inc 8-K, filed Feb 28, 2022
Aspira Women's Health Inc. (AWHL)
About this 8-K
Aspira Women's Health Inc filed this 8-K on February 28, 2022, reporting on events of February 23, 2022.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
CURRENT REPORT
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The Securities Exchange Act of 1934
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| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Appointment of Executive Chair
On February 23, 2022, the board of directors (the “Board”) of Aspira Women’s Health Inc. (the “Company”) appointed Valerie B. Palmieri as its Executive Chairperson, effective as of March 1, 2022.
In connection with Ms. Palmieri’s transition to Executive Chairperson, on February 24, 2022, the Company and Ms. Palmieri entered into an amended and restated employment agreement (the “Amended and Restated Employment Agreement”) effective March 1, 2022. Pursuant to the Amended and Restated Employment Agreement, the Company will employ Ms. Palmieri for a one-year term concluding on March 1, 2023 (the “Term”), and will pay Ms. Palmieri an annual base salary of $450,000. The Term may be extended by the Company for an additional year upon 30 days’ notice prior to the scheduled end of the Term. In addition, under the Amended and Restated Employment Agreement, Ms. Palmieri will be eligible for a bonus of up to 75% of her base salary payable on or before February 28, 2022, with the amount to be determined by mutual agreement of performance goals by Ms. Palmieri and the Board. Ms. Palmieri is required to provide the Company with at least 60 days’ notice of her resignation for any reason, and if Ms. Palmieri’s employment is terminated by the Company without cause (as defined in the Amended and Restated Employment Agreement), she is entitled to 60 days’ prior written notice of such termination. No notice is required if Ms. Palmieri’s employment concludes upon the expiration of the Term or if the Company terminates her employment for cause.
If Ms. Palmieri’s employment concludes before the end of the Term (other than a termination by the Company for cause), and provided that she complies with certain requirements (including signing a standard separation agreement) under the Amended and Restated Employment Agreement: (i) she will be entitled to continued payment of her base salary as then in effect for a period following the date of termination through March 1, 2023; (ii) she will be entitled to continued health and dental benefits through COBRA premiums paid by the Company until the earlier of March 1, 2023 or the time that she obtains employment with reasonably comparable or greater health and dental benefits; and (iii) she will have the right to exercise any and all of her options to purchase Company common stock that had vested upon termination of employment until March 1, 2024, unless, by mutual agreement of Ms. Palmieri and the Company, she is in position of material, non-public information, in which case the period to exercise such options shall be extended by an additional six months (in all cases, subject to earlier expiration at the end of the option’s original term or Ms. Palmieri’s breach of the Amended and Restated Employment Agreement or other agreement with the Company). If Ms. Palmieri’s employment ends due to her termination for cause or upon the expiration of the Term, Ms. Palmieri will not be entitled to any severance from the Company. Finally, the Amended and Restated Employment Agreement provides that if Ms. Palmieri resigns her employment or her employment is terminated without cause, in either case following a change of control (as defined in the Amended and Restated Employment Agreement) during the Term, then, in addition to the severance obligations due to Ms. Palmieri as described above, 100% of any then-unvested options to purchase Company common stock previously granted by the Company will vest upon the date of such termination (subject to earlier expiration at the end of the option’s original term).
Under the Amended and Restated Employment Agreement, Ms. Palmieri is subject to a non-competition and a non-solicitation covenant, in each case, for one year following termination of her employment.
The foregoing description of the Amended and Restated Employment Agreement is qualified in its entirety by reference to the full text of the Amended and Restated Employment Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Appointment of President and Chief Executive Officer
On February 23, 2022, the Board appointed Nicole Sandford, a current director on the Board, as the Company’s President and Chief Executive Officer, effective as of March 1, 2022. As such, Ms. Sandford will serve as principal executive officer, and she will continue to serve in her role as director on the Board.
There are no family relationships, as defined in Item 401 of Regulation S-K, between Ms. Sandford and any of the Company’s directors or executive officers, and there is no arrangement or understanding between Ms. Sandford and any other person pursuant to which she was appointed as an officer of the Company. Ms. Sandford does not have any direct or indirect material interest in any transaction or proposed transaction required to be reported under Item 404(a) of Regulation S-K.
Pursuant to the terms of an employment agreement, executed on February 24, 2022, and effective on March 1, 2022 (the “Employment Agreement”), between the Company and Ms. Sandford, the Company will employ Ms. Sandford for a one-year term concluding on February 28, 2023 (the “Employment Agreement Term”) and will pay Ms. Sandford an annual base salary of $500,000. In addition, Ms. Sandford will be eligible for a discretionary bonus payable no later than March 15, 2023, with the amount to be determined by the Board in its sole and absolute discretion, and during the term of her employment, Ms. Sandford will be entitled to the Company’s standard benefits covering employees at her level. Pursuant to the Employment Agreement, Ms. Sandford is required to provide the Company with at least 60 days’ notice of her resignation for any reason, and her resignation date must be no earlier than August 31, 2022. If Ms. Sandford’s employment is terminated by the Company without cause (as defined in the Employment Agreement), she is entitled to 60 days’ prior written notice of such termination and the termination date must be no earlier than August 31, 2022. No notice is required if Ms. Sandford’s employment concludes upon the expiration of the Employment Agreement Term or if the Company terminates her employment for cause. Other than the foregoing notice obligation, Ms. Sandford is not entitled to any severance payments under the Employment Agreement.
The Employment Agreement provides that Ms. Sandford will be granted a series of stock option awards, each with respect to 5,000 shares of Company common stock, on the first trading day of each calendar month during the Employment Agreement Term, subject to the terms and conditions of the Company’s 2019 Stock Incentive Plan and a stock option award agreement in a form substantially similar to that used by the Company for other senior executives of the Company (the “Options”). Each Option shall have a per share exercise price equal to the closing price per share of Company common stock as of the applicable grant date and shall become vested and exercisable on the last day of the calendar month in which the Option was granted, subject to Ms. Sandford’s continued employment by the Company as President and Chief Executive Officer through such vesting date. The Employment Agreement further provides that if her employment is terminated by the Company without cause, no Option shall expire earlier than the earliest to occur of (i) the first anniversary of the date of her termination of employment as President and Chief Executive Officer, (ii) the date on which such Option would have expired if her employment had continued through the full term of such Option set forth under the Company’s 2019 Stock Incentive Plan and (iii) the date on which she breaches the Employment Agreement or any other agreement between Ms. Sandford and the Company or any of its affiliates.
The Employment Agreement provides that, subject to re-election by the Company’s stockholders, Ms. Sandford shall remain a member of the Board and eligible to continue to serve on the Board upon the termination of her employment with the Company, provided that she meets any applicable independence and eligibility requirements as determined by Nasdaq listing standards or other regulatory or legal requirements.
Under the Employment Agreement, Ms. Sandford is subject to a non-competition covenant during the term of her employment with the Company and for one year following the termination of her employment with the Company. Ms. Sandford is also subject to a non-solicitation covenant for 12 months following the termination of the Employment Agreement.
The foregoing description of the Employment Agreement is qualified in its entirety by reference to the full text of the Employment Agreement, a copy of which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.
Appointment of Director
On February 23, 2022, the Board appointed Celeste Fralick, Ph.D. as a director, effective immediately, filling a vacant seat on the Board. Dr. Fralick will serve as a director until the Company’s 2023 annual meeting of stockholders. Dr. Fralick was also appointed to the Audit Committee of the Board. The Board has determined that Dr. Fralick meets the independence requirements of the Nasdaq listing standards and applicable Securities and Exchange Commission (“SEC”) regulations.
There are no arrangements or understandings between Dr. Fralick and any other person pursuant to which she was appointed to the Board. Dr. Fralick does not have a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Dr. Fralick will receive non-employee director compensation in accordance with the Company’s standard director compensation program.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On February 23, 2022, the Board adopted amended and restated bylaws of the Company (the bylaws, as so amended and restated, the “Amended and Restated Bylaws”), effective as of February 23, 2022. The Amended and Restated Bylaws modify Section 3.4 of the previous amended and restated bylaws of the Company to provide that if the chair of the Board is not one of the directors who has been determined by the Board to be an “independent director” (any such director, an “Independent Director”), the Independent Directors will select a lead director from among the Independent Directors.
The foregoing description of the Amended and
Restated Bylaws is qualified in its entirety by reference to the full text of the Amended and Restated Bylaws, a copy of which is attached
hereto as Exhibit 3.1 and is incorporated herein by reference.
| Item 7.01 | Regulation FD Disclosure. |
On February 28, 2022, the Company issued a press release to announce Dr. Fralick’s appointment to the Board. A copy of the press release is furnished as Exhibit 99.1 hereto.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. | Description |
| 3.1 | Amended and Restated Bylaws of Aspira Women’s Health Inc., effective February 23, 2022 |
| 10.1 | Amended and Restated Employment Agreement between Aspira Women’s Health Inc. and Valerie B. Palmieri effective March 1, 2022* |
| 10.2 | Employment Agreement between Aspira Women’s Health Inc. and Nicole Sandford effective March 1, 2022* |
| 99.1 | Press Release issued by Aspira Women’s Health Inc. on February 28, 2022 |
| 104 | Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document) |
* Portions of this exhibit have been omitted in accordance with SEC rules.
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.
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| | ASPIRA WOMEN’S HEALTH INC. | |
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| Date: February 28, 2022 | By: | /s/ Robert Beechey |
| | Robert Beechey | |
| | Chief Financial Officer |
Aspira Women’s Health Inc. 8-K
Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
ASPIRA WOMEN’S HEALTH INC.
AS OF FEBRUARY 23, 2022
TABLE OF CONTENTS
| ARTICLE I CORPORATE OFFICES | 1 |
| 1.1 REGISTERED OFFICE | 1 |
| 1.2 OTHER OFFICES | 1 |
| ARTICLE II MEETINGS OF STOCKHOLDERS | 1 |
| 2.1 PLACE OF MEETINGS | 1 |
| 2.2 ANNUAL MEETING | 1 |
| 2.3 SPECIAL MEETINGS | 1 |
| 2.4 NOTICE OF STOCKHOLDERS’ MEETINGS | 1 |
| 2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE | 1 |
| 2.6 QUORUM | 2 |
| 2.7 ADJOURNED MEETING; NOTICE | 2 |
| 2.8 VOTING | 2 |
| 2.9 WAIVER OF NOTICE | 2 |
| 2.10 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING | 3 |
| 2.11 PROXIES | 3 |
| 2.12 LIST OF STOCKHOLDERS ENTITLED TO VOTE | 3 |
| 2.13 ADVANCE NOTICE PROVISIONS FOR STOCKHOLDER PROPOSALS | 3 |
| 2.14 ADVANCE NOTICE PROVISIONS FOR STOCKHOLDER NOMINATIONS | 7 |
| 2.15 ORGANIZATION AND CONDUCT OF MEETINGS | 10 |
| 2.16 INSPECTOR OF ELECTION | 10 |
| ARTICLE III DIRECTORS | 11 |
| 3.1 POWERS | 11 |
| 3.2 NUMBER OF DIRECTORS | 11 |
| 3.3 CHAIR OF THE BOARD | 11 |
| 3.4 LEAD DIRECTOR | 11 |
| 3.5 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS | 11 |
| 3.6 RESIGNATION AND VACANCIES | 11 |
| 3.7 PLACE OF MEETINGS; MEETINGS BY TELEPHONE | 12 |
| 3.8 REGULAR MEETINGS | 12 |
| 3.9 SPECIAL MEETINGS; NOTICE | 12 |
| 3.10 QUORUM | 12 |
| 3.11 WAIVER OF NOTICE | 12 |
| 3.12 ADJOURNED MEETING; NOTICE | 12 |
| 3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING | 12 |
| 3.14 FEES AND COMPENSATION OF DIRECTORS | 13 |
| 3.15 REMOVAL OF DIRECTORS | 13 |
| ARTICLE IV COMMITTEES | 13 |
| 4.1 COMMITTEES OF DIRECTORS | 13 |
| 4.2 COMMITTEE MINUTES | 13 |
| 4.3 MEETINGS AND ACTION OF COMMITTEES | 13 |
| ARTICLE V OFFICERS | 14 |
| 5.1 OFFICERS | 14 |
| 5.2 ELECTION OF OFFICERS | 14 |
| 5.3 SUBORDINATE OFFICERS | 14 |
| 5.4 REMOVAL AND RESIGNATION OF OFFICERS | 14 |
| 5.5 VACANCIES IN OFFICES | 14 |
| 5.6 PRESIDENT | 14 |
| 5.7 VICE PRESIDENT | 14 |
| 5.8 SECRETARY | 15 |
| 5.9 TREASURER | 15 |
| 5.10 ASSISTANT SECRETARY | 15 |
| 5.11 ASSISTANT TREASURER | 15 |
| 5.12 AUTHORITY AND DUTIES OF OFFICERS | 15 |
| ARTICLE VI INDEMNITY | 16 |
| 6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS; ADVANCEMENT OF EXPENSES | 16 |
| 6.2 INDEMNIFICATION OF AND ADVANCEMENT OF EXPENSES TO OTHERS | 16 |
| 6.3 INSURANCE | 16 |
| 6.4 CLAIMS | 16 |
| 6.5 NON-EXCLUSIVITY OF RIGHTS | 17 |
| 6.6 CONTRACT RIGHTS; AMENDMENT OR REPEAL | 17 |
| ARTICLE VII GENERAL MATTERS | 17 |
| 7.1 CHECKS | 17 |
| 7.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS | 17 |
| 7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS | 17 |
| 7.4 STOCK CERTIFICATES | 17 |
| 7.5 LOST CERTIFICATES | 18 |
| 7.6 CONSTRUCTION; DEFINITIONS | 18 |
| 7.7 DIVIDENDS | 18 |
| 7.8 FISCAL YEAR | 18 |
| 7.9 SEAL | 18 |
| 7.10 REGISTERED STOCKHOLDERS | 18 |
| ARTICLE VIII AMENDMENTS | 18 |
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AMENDED AND RESTATED BYLAWS
OF
ASPIRA WOMEN’S HEALTH INC.
ARTICLE
I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. The name of the registered agent of the corporation at such location is corporation Trust Company.
1.2 OTHER OFFICES
The board of directors may at any time establish other offices at any place or places where the corporation is qualified to do business.
ARTICLE
II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any time and place, within or outside the State of Delaware, designated by the board of directors. The board of directors may, in its sole discretion, determine that a meeting shall not be held at any place, but may instead be held solely by means of remote communication in accordance with Section 211(a) of the General Corporation Law of the State of Delaware, as amended (the “DGCL”). In the absence of any such designation, stockholder meetings shall be held at the registered office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held on a date and at a time designated by the board of directors. At the meeting, directors shall be elected and any other business properly brought before the meeting in accordance with these bylaws may be transacted. The board of directors may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the board of directors.
2.3 SPECIAL MEETINGS
A special meeting of the stockholders may be called, at any time for any purpose or purposes, only by the board of directors. At a special meeting of stockholders, only such business shall be conducted as shall be specified in the notice of meeting. The board of directors may postpone, reschedule or cancel any special meeting of stockholders previously scheduled by the board of directors.
2.4 NOTICE OF STOCKHOLDERS’ MEETINGS
All notices of meetings with stockholders shall be in writing and shall be sent or otherwise given in accordance with Section 2.5 of these bylaws 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. The notice shall specify the place, if any, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Any stockholder may waive notice of any meeting before or after the meeting.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation. If notice is given by means of electronic transmission, such notice shall be deemed to be given at the times provided in the DGCL. For the purposes of these bylaws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
2.6 QUORUM
The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum.
2.7 ADJOURNED MEETING; NOTICE
If a quorum is not present or represented at any meeting of the stockholders, then the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. Any meeting of stockholders of the corporation may be adjourned or recessed from time to time to reconvene at the same or some other place, if any, by any officer entitled to preside at or to act as secretary of such meeting regardless of the presence of a quorum. When a meeting is adjourned to another time or place, if any, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place, if any, thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
2.8 VOTING
The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.10 of these bylaws, subject to the provisions of Sections 217 and 218 of the DGCL (relating to voting rights of fiduciaries, pledgors and joint owners of stock and to voting trusts and other voting agreements).
Except as may be otherwise provided in the certificate of incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.
Unless a greater number of affirmative votes is required by the certificate of incorporation, these bylaws or any law or regulation applicable to the corporation or its securities, if a quorum exists at any meeting of stockholders, stockholders shall have approved any matter if the matter receives a majority of the votes properly cast for such matter (i.e., if the number of votes properly cast “for” such matter exceeds the number of votes properly cast “against” such matter, with “abstentions” and “broker non-votes” not counted as a vote cast either “for” or “against” such matter), and directors shall be elected by the vote of the majority of the votes cast (meaning the number of shares voted “for” a nominee must exceed the number of shares voted “against” such nominee) with “abstentions” and “broker non-votes” not counted as a vote cast either “for” or “against” such nominee’s election; provided, however, that, if (a) the secretary receives a notice that a stockholder has nominated or intends to nominate one or more persons for election to the board of directors in compliance with the requirements set forth in these bylaws and (b) such nomination has not been withdrawn by such stockholder on or prior to the tenth (10th) day before the corporation first mails its notice of meeting for such meeting to stockholders, directors shall be elected by a plurality of the votes properly cast on the election of directors.
2.9 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the DGCL or of the certificate of incorporation or these bylaws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, and does so object, at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice.
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2.10 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other such action.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.
2.11 PROXIES
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by a written proxy, signed by such stockholder and filed with the secretary of the corporation, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A proxy shall be deemed signed if the stockholder’s name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission or otherwise) by the stockholder or the stockholder’s attorney-in-fact. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212(e) of the DGCL.
2.12 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Nothing in this Section 2.12 shall require the corporation to include electronic mail addresses or other electronic contact information on such list.
2.13 ADVANCE NOTICE PROVISIONS FOR STOCKHOLDER PROPOSALS
(a) At an annual meeting or at a special meeting of the stockholders, only such business shall be conducted as shall have been properly brought before such meeting. To be properly brought before a meeting, business (other than director nominations) must be (i) brought before the meeting by the corporation and specified in the notice of meeting (or any supplement thereto) given by or at the direction of the board of directors or any committee thereof, (ii) brought before the meeting by or at the direction of the board of directors or any committee thereof or (iii) solely in the case of an annual meeting of stockholders, otherwise properly brought before such annual meeting by a stockholder who (A) is a stockholder of record at the time of giving the notice provided for in this Section 2.13 through the time of the meeting, (B) is entitled to vote at the meeting and (C) has complied with this Section 2.13 as to such business. Except for proposals properly made in accordance with Rule 14a-8 (or any successor thereto) under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (as so amended and inclusive of such rules and regulations, the “Exchange Act”), and included in the notice of meeting given by or at the direction of the board of directors, the foregoing clause (iii) shall be the exclusive means for a stockholder to propose business (other than director nominations) to be brought before a meeting of the stockholders. Stockholders seeking to nominate a person or persons for election to the board of directors must comply with Section 2.14, and this Section 2.13 shall not be applicable to nominations except as expressly provided in Section 2.14.
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(b) Without qualification, for business to be properly brought before an annual meeting by a stockholder, the stockholder must (i) provide timely notice thereof in writing and in proper form (as set forth in Section 2.13(c)) to the secretary of the corporation and (ii) provide any updates to such notice at the times and in the forms required by this Section 2.13. To be timely, a stockholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the corporation not earlier than 5:00 p.m. Eastern Time on the one hundred twentieth (120th) day nor later than 5:00 p.m. Eastern Time on the ninetieth (90th) day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that if the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received, on or before the later of (x) 5:00 p.m. Eastern Time on the ninetieth (90th) day prior to such annual meeting or (y) 5:00 p.m. Eastern Time on the tenth (10th) day following the date on which Public Disclosure (as defined below) of the date of such annual meeting was first made. In no event shall any adjournment, rescheduling or postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of timely notice as described above.
(c) To be in proper form for purposes of this Section 2.13, a stockholder’s notice to the secretary shall set forth:
(i) As to each Proposing Person (as defined below), (A) the name and address of such Proposing Person (including the name and address that appear on the corporation’s books and records); (B) the class or series and number of shares of the corporation that are, directly or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Person, except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of the corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future; (C) the name of each nominee holder for such Proposing Person and any pledge by such Proposing Person with respect to any of such securities; (D) any derivative, swap or other transaction or series of transactions engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of which is to give such Proposing Person economic risk similar to ownership of shares of any class or series of the corporation, including due to the fact that the value of such derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any shares of any class or series of the corporation, or which derivative, swap or other transaction or series of transactions provides, directly or indirectly, the opportunity to profit from any increase in the price or value of shares of any class or series of the corporation (any such derivative, swap or other transaction or series of transactions as described in this clause (D) is referred to as a “Synthetic Equity Interest”), all of which Synthetic Equity Interests shall be disclosed without regard to whether (x) any such Synthetic Equity Interest conveys any voting rights in shares of any class or series of the corporation to such Proposing Person, (y) any such Synthetic Equity Interest is required to be, or is capable of being, settled through delivery of shares of any class or series of the corporation or (z) such Proposing Person may have entered into other transactions that hedge or mitigate the economic effect of such Synthetic Equity Interest; (E) any proxy (other than a revocable proxy given in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person has or shares a right to vote any shares of any class or series of the corporation; (F) any agreement, arrangement, understanding or relationship, including any repurchase or similar stock borrowing agreement or arrangement, engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of shares of any class or series of the corporation by, manage the risk of share price changes for, or increase or decrease the voting power of, such Proposing Person with respect to the shares of any class or series of the corporation, or which provides, directly or indirectly, the opportunity to profit from any decrease in the price or value of the shares of any class or series of the corporation (any such agreement, arrangement, understanding or relationship as described in this clause (F) is referred to as a “Short Interest”); (G) any rights to dividends on the shares of any class or series of the corporation owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the corporation, (I) any performance related fees (other than an asset based fee) that such Proposing Person is entitled to based on any increase or decrease in the price or value of shares of any class or series of the corporation, or any Synthetic Equity Interests or Short Interests, if any; (H) any proportionate interest in shares of the corporation or Synthetic Equity Interest held, directly or indirectly, by a general or limited partnership, limited liability company or similar entity in which such Proposing Person is (x) a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership or (y) the manager, managing member or, directly or indirectly, beneficially owns an interest in the manager or managing member of such limited liability company or similar entity; (I) any significant equity interests or any Synthetic Equity Interest or Short Interest in any principal competitor of the corporation held by such Proposing Person; (J) any direct or indirect interest of such Proposing Person in any contract with the corporation, any affiliate of the corporation or any principal competitor of the corporation (including, without limitation, any employment agreement, collective bargaining agreement or consulting agreement); (K) a complete and accurate description of any pending, or to such Proposing Person’s knowledge, threatened, legal proceeding in which such Proposing Person is a party or participant involving the corporation or, to such Proposing Person’s knowledge, any officer, director, affiliate or associate of the corporation; and (L) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with a contested solicitation of proxies by such Proposing Person in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (the disclosures to be made pursuant to the foregoing clauses (D) through (L) are referred to as “Disclosable Interests”); provided, however, that Disclosable Interests shall not include any such disclosures with respect to the ordinary course business activities of any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these bylaws on behalf of a beneficial owner (the disclosures to be made pursuant to the foregoing clauses (A) through (L) are referred to as “Stockholder Information”);
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(ii) as to each item of business that the stockholder proposes to bring before the meeting, (A) a reasonably brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of each Proposing Person, (B) 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 certificate of incorporation or these bylaws, the language of the proposed amendment), (C) a reasonably detailed description of all agreements, arrangements, understandings and relationships (x) between or among any of the Proposing Persons or (y) between or among any Proposing Person and any other person, including the name of such other person, in connection with the proposal of such business by such stockholder and (D) all other information relating to such business that would be required to be disclosed in a proxy statement or other filing required to be made by such Proposing Person in connection with the contested solicitation of proxies in support of such proposed business by such Proposing Person pursuant to Section 14(a) of the Exchange Act;
(iv) a representation that such Proposing Person intends to appear in person or by proxy at the meeting to bring such business before the meeting and an acknowledgment that, if such Proposing Person (or a Qualified Representative (as defined below) thereof) does not appear to present such business at such meeting, the corporation need not present such business for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received by the corporation; and
(v) a representation from such Proposing Person as to whether such Proposing Person intends or is part of a group that intends (A) to deliver a proxy statement and/or form of proxy to a number of holders of the corporation’s voting shares reasonably believed by such Proposing Person to be sufficient to approve or adopt the business to be proposed or (B) engage in a solicitation (within the meaning of Rule 14a-1(l) under the Exchange Act) with respect to the business, and if so, the name of each participant (as defined in Item 4 of Schedule 14A under the Exchange Act) in such solicitation.
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(d) A stockholder providing notice of business proposed to be brought before a meeting shall update such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.13 shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update shall be delivered to, or mailed and received by, the secretary at the principal executive offices of the corporation not later than five (5) business days after the record date for the meeting in the case of the update required to be made as of the record date, and not later than eight (8) business days, if practicable (or, if not practicable, on the first practicable date) prior to the date for the meeting or any adjournment or postponement thereof, in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof. For the avoidance of doubt, any information provided pursuant to this Section 2.13(d) shall not be deemed to cure any deficiencies in a notice previously delivered pursuant to this Section 2.13 and shall not extend the time period for the delivery of notice pursuant to this Section 2.13. If a Proposing Person fails to provide such written update within such period, the information as to which such written update relates may be deemed not to have been provided in accordance with this Section 2.13.
(e) If any information submitted pursuant to this Section 2.13 by any Proposing Person proposing business for consideration at a stockholder meeting shall be inaccurate in any respect, such information shall be deemed not to have been provided in accordance with this Section 2.13. Any such Proposing Person shall notify the secretary in writing at the principal executive offices of the corporation of any inaccuracy or change in any information submitted pursuant to this Section 2.13 within two (2) business days after becoming aware of such inaccuracy or change. Upon written request of the secretary on behalf of the board of directors (or a duly authorized committee thereof), any such Proposing Person shall provide, within seven (7) business days after delivery of such request (or such other period as may be specified in such request), (i) written verification, reasonably satisfactory to the board of directors, any committee thereof or any authorized officer of the corporation, to demonstrate the accuracy of any information submitted by such Proposing Person pursuant to this Section 2.13 and (ii) a written affirmation of any information submitted by such Proposing Person pursuant to this Section 2.13 as of an earlier date. If a Proposing Person fails to provide such written verification or affirmation within such period, the information as to which written verification or affirmation was requested may be deemed not to have been provided in accordance with this Section 2.13.
(f) Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at a meeting except in accordance with this Section 2.13. The board of directors, chair of the board, presiding officer of the meeting or president shall, if the facts warrant, determine that the business was not properly brought before the meeting in accordance with this Section 2.13, and if he or she should so determine, he or she shall so declare such determination to the meeting, and any such business not properly brought before the meeting shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.13, unless otherwise required by law, if the Proposing Person (or a Qualified Representative thereof) proposing business to be conducted at a meeting does not appear at the meeting to propose such business, such proposed business shall not be transacted and no vote shall be taken with respect to such proposed business, notwithstanding that proxies with respect to such vote may have been received by the corporation.
(g) Notwithstanding the foregoing provisions of this Section 2.13 or in limitation thereof, each Proposing Person shall comply with all applicable requirements of the Exchange Act and state law with respect to the matters set forth in this Section 2.13. Nothing in this Section 2.13 shall be deemed to affect the rights of stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act (or any successor thereto).
(h) For purposes of these bylaws:
(i) “affiliate” and “associate” each shall have the respective meanings set forth in Rule 12b-2 under the Exchange Act;
(ii) “Nominating Person” shall mean: (A) the stockholder providing the notice of nomination of any person for election or reelection as a director; (B) the beneficial owner or beneficial owners, if different from such stockholder, on whose behalf the notice of nomination is made; (C) any person directly or indirectly controlling, controlled by or under common control with the stockholder providing such notice (or, if different from such stockholder, the beneficial owner or beneficial owners on whose behalf such notice is made); (D) any member of the immediate family of any individual described in the foregoing clause (A) or (B) sharing the same household; (E) any affiliate or associate of any person described in any of the foregoing clauses of this Section 2.13(h)(ii); (F) any person who is a member of a “group” (as such term is used in Rule 13d-5 under the Exchange Act) with any person described in the foregoing clause (A), (B), (C) or (D); (E) any person with whom any person described in the foregoing clause (A), (B), (C) or (D) is acting in concert with respect to the stock of the corporation; and (F) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with any person described in the foregoing clause (A), (B), (C) or (D) with respect to any proposed nominations;
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(iii) “Proposing Person” shall mean: (A) the stockholder providing the notice of business proposed to be brought before a meeting; (B) the beneficial owner or beneficial owners, if different from such stockholder, on whose behalf the notice of the business proposed to be brought before the meeting is made; (C) any person directly or indirectly controlling, controlled by or under common control with the stockholder providing such notice (or, if different from such stockholder, the beneficial owner or beneficial owners on whose behalf such notice is made); (D) any member of the immediate family of any individual described in the foregoing clause (A) or (B) sharing the same household; (E) any affiliate or associate of any person described in any of the foregoing clauses of this Section 2.13(h)(iii); (F) any person who is a member of a “group” (as such term is used in Rule 13d-5 under the Exchange Act) with any person described in the foregoing clause (A), (B), (C) or (D); (E) any person with whom any person described in the foregoing clause (A), (B), (C) or (D) is acting in concert with respect to the stock of the corporation; and (F) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with any person described in the foregoing clause (A), (B), (C) or (D) with respect to any proposed business;
(iii) “Public Disclosure” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act; and
(iv) a “Qualified Representative” of a Proposing Person or Nominating Person shall mean (A) a duly authorized officer, manager or partner of such Proposing Person or Nominating Person or (B) a person authorized by a writing executed by such Proposing Person or Nominating Person (or a reliable reproduction or electronic transmission of such a writing) delivered by such Proposing Person or Nominating Person to the corporation prior to the making of any nomination or proposal at a stockholder meeting stating that such person is authorized to act for such Proposing Person or Nominating Person as proxy at the meeting of stockholders, which writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, must be produced at the meeting of stockholders.
2.14 ADVANCE NOTICE PROVISIONS FOR STOCKHOLDER NOMINATIONS
(a) Nominations of any person for election to the board of directors at an annual meeting or at a special meeting at which directors are to be elected pursuant to the corporation’s notice of meeting (or any supplement thereto) may be made at such meeting only (i) by or at the direction of the board of directors or any committee thereof or (ii) by a stockholder who (A) is a stockholder of record at the time of giving the notice provided for in this Section 2.14 through the time of the meeting, (B) is entitled to vote at the meeting and (C) has complied with this Section 2.14 as to such nomination. The foregoing clause (ii) shall be the exclusive means for a stockholder to make any nomination of a person or persons for election to the board of directors at an annual meeting or at a special meeting.
(b) Without qualification, for a stockholder to make any nomination of a person or persons for election to the board of directors at an annual meeting or at a special meeting at which directors are to be elected pursuant to the corporation’s notice of meeting (or any supplement thereto), the stockholder must (i) provide timely notice thereof in writing and in proper form (as set forth in Section 2.14(c)) to the secretary of the corporation and (ii) provide any updates to such notice at the times and in the forms required by this Section 2.14. To be timely, a stockholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the corporation: (1) in the case of an annual meeting, not earlier than 5:00 p.m. Eastern Time on the one hundred twentieth (120th) day nor later than 5:00 p.m. Eastern Time on the ninetieth (90th) day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that if the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received, on or before the later of (x) 5:00 p.m. Eastern Time on the ninetieth (90th) day prior to such annual meeting or (y) 5:00 p.m. Eastern Time on the tenth (10th) day following the date on which Public Disclosure of the date of such annual meeting was first made; or (2) in the case of a special meeting, not earlier than 5:00 p.m. Eastern Time on the one hundred twentieth (120th) day nor later than 5:00 p.m. Eastern Time on the ninetieth (90th) day prior to such special meeting or, if later, 5:00 p.m. Eastern Time on the tenth (10th) day following the date on which Public Disclosure of the date of such special meeting was first made. In no event shall any adjournment, rescheduling or postponement of an annual meeting or of a special meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
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(c) To be in proper form for purposes of this Section 2.14, a stockholder’s notice to the secretary shall set forth:
(i) as to each Nominating Person, the Stockholder Information, except that the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.13(c)(i) and the disclosure in clause (L) of Section 2.13(c)(i) shall be made with respect to the election of directors at the meeting rather than with respect to the business proposed to be brought before the meeting;
(ii) as to each person whom a Nominating Person proposes to nominate for election as a director (each, a “Proposed Nominee”), (A) all information with respect to such Proposed Nominee that would be required to be set forth in a stockholder’s notice pursuant to this Section 2.14 if such Proposed Nominee were a Nominating Person; (B) all information relating to such Proposed Nominee that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14(a) under the Exchange Act; (C) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among any Nominating Person, on the one hand, and such Proposed Nominee, such Proposed Nominee’s respective affiliates and associates, and any other persons with whom such Proposed Nominee (or any of such Proposed Nominee’s respective affiliates or associates) is acting in concert, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such Nominating Person were the “registrant” for purposes of such rule and the Proposed Nominee were a director or executive officer of such registrant; (D) a written questionnaire with respect to the background and qualification of such Proposed Nominee, completed by such Proposed Nominee in the form required by the corporation (which form such Noticing Stockholder shall request in writing from the secretary prior to submitting notice and which the secretary shall provide to such Noticing Stockholder within ten (10) days after receiving such request); and (E) a written representation and agreement completed by such Proposed Nominee in the form required by the corporation (which form such Noticing Stockholder shall request in writing from the secretary prior to submitting notice and which the secretary shall provide to such Noticing Stockholder within ten (10) days after receiving such request) providing that such Proposed Nominee: (I) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such Proposed Nominee, if elected as a director of the corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the corporation or any Voting Commitment that could limit or interfere with such Proposed Nominee’s ability to comply, if elected as a director of the corporation, with such Proposed Nominee’s fiduciary duties under applicable law; (II) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director or nominee that has not been disclosed to the corporation; (III) will, if elected as a director of the corporation, comply with all applicable rules of any securities exchanges upon which the corporation’s securities are listed, the certificate of incorporation, these bylaws and all applicable publicly disclosed corporate governance, ethics, conflict of interest, confidentiality and stock ownership and trading policies and other guidelines and policies of the corporation generally applicable to directors (which guidelines and policies that are not publicly disclosed will be provided to such Proposed Nominee within five (5) business days after the secretary receives any written request therefor from such Proposed Nominee), and all applicable fiduciary duties under state law; and (IV) consents to being named as a nominee in the corporation’s proxy statement and form of proxy for the meeting and to serving a full term as a director of the corporation, if elected;
(iii) a representation that such Nominating Person intends to appear in person or by proxy at the meeting to nominate any Proposed Nominees before the meeting and an acknowledgment that, if such Nominating Person (or a Qualified Representative thereof) does not appear to nominate such Proposed Nominee(s) at such meeting, the corporation need not present such Proposed Nominee(s) for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received by the corporation; and
(iv) a representation from such Nominating Person as to whether such Nominating Person intends or is part of a group that intends (A) to deliver a proxy statement and/or form of proxy to a number of holders of the corporation’s voting shares reasonably believed by such Nominating Person to be sufficient to elect the Proposed Nominee(s) or (B) engage in a solicitation (within the meaning of Rule 14a-1(l) under the Exchange Act) with respect to the election of such Proposed Nominee(s), and if so, the name of each participant (as defined in Item 4 of Schedule 14A under the Exchange Act) in such solicitation.
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(d) In addition to the information required above, the corporation may require any Nominating Person to furnish such other information as the corporation may reasonably require to determine the eligibility or suitability of a Proposed Nominee to serve as a director of the corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such Proposed Nominee, under the listing standards of each securities exchange upon which the corporation’s securities are listed, any applicable rules of the Securities and Exchange Commission, any publicly disclosed standards used by the board of directors in selecting nominees for election as a director and for determining and disclosing the independence of the corporation’s directors, including those applicable to a director’s service on any of the committees of the board of directors or the requirements of any other laws or regulations applicable to the corporation. If requested by the corporation, any supplemental information required under this paragraph shall be provided by a Nominating Person within five (5) business days after it has been requested by the corporation.
(e) A stockholder providing notice of any nomination proposed to be made at a meeting shall update such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.14 shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update shall be delivered to, or mailed and received by, the secretary at the principal executive offices of the corporation not later than five (5) business days after the record date for the meeting in the case of the update required to be made as of the record date, and not later than eight (8) business days, if practicable (or, if not practicable, on the first practicable date) prior to the date for the meeting or any adjournment or postponement thereof, in the case of the update required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof. For the avoidance of doubt, any information provided pursuant to this Section 2.14(d) shall not be deemed to cure any deficiencies in a notice previously delivered pursuant to this Section 2.14 and shall not extend the time period for the delivery of notice pursuant to this Section 2.14. If a Nominating Person fails to provide such written update within such period, the information as to which such written update relates may be deemed not to have been provided in accordance with this Section 2.14.
(f) If any information submitted pursuant to this Section 2.14 by any Nominating Person proposing a nominee for consideration at a stockholder meeting shall be inaccurate in any respect, such information shall be deemed not to have been provided in accordance with this Section 2.14. Any such Nominating Person shall notify the secretary in writing at the principal executive offices of the corporation of any inaccuracy or change in any information submitted pursuant to this Section 2.14 within two (2) business days after becoming aware of such inaccuracy or change. Upon written request of the secretary on behalf of the board of directors (or a duly authorized committee thereof), any such Nominating Person shall provide, within seven (7) business days after delivery of such request (or such other period as may be specified in such request), (i) written verification, reasonably satisfactory to the board of directors, any committee thereof or any authorized officer of the corporation, to demonstrate the accuracy of any information submitted by such Nominating Person pursuant to this Section 2.14 and (ii) a written affirmation of any information submitted by such Nominating Person pursuant to this Section 2.14 as of an earlier date. If a Nominating Person fails to provide such written verification or affirmation within such period, the information as to which written verification or affirmation was requested may be deemed not to have been provided in accordance with this Section 2.14.
(g) Notwithstanding anything in these bylaws to the contrary, no person shall be eligible for election as a director of the corporation unless nominated in accordance with this Section 2.14. The board of directors, chair of the board, presiding officer of the meeting or president shall, if the facts warrant, determine that a nomination was not properly made in accordance with this Section 2.14, and if he or she should so determine, he or she shall so declare such determination to the meeting, and any such nomination not properly made shall be disregarded. Notwithstanding the foregoing provisions of this Section 2.14, unless otherwise required by law, if the Nominating Person (or a Qualified Representative thereof) proposing a nominee for consideration at a stockholder meeting does not appear at the meeting to propose such nomination, such nomination shall not be transacted and no vote shall be taken with respect to such nomination, notwithstanding that proxies with respect to such vote may have been received by the corporation.
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(h) Notwithstanding the foregoing provisions of this Section 2.14 or in limitation thereof, each Nominating Person shall comply with all applicable requirements of the Exchange Act and state law with respect to the matters set forth in this Section 2.14.
2.15 ORGANIZATION AND CONDUCT OF MEETINGS.
The chair of the board, or in his or her absence or nonexistence the president, shall act as chairperson of meetings of stockholders of the corporation. The board of directors may designate any other director or officer of the corporation to act as chairperson of any meeting in the absence of the chair of the board of directors and the president. The board of directors may adopt by resolution such rules and regulations for the conduct of any meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the board of directors, the chairperson of any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess or adjourn the meeting to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the board of directors or prescribed by the chairperson of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (c) rules and procedures for maintaining order at the meeting and the safety of those present; (d) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized proxies or such other persons as the chairperson of the meeting shall determine; (e) restrictions on entry to the meeting after the time fixed for the commencement of the meeting; (f) limitations on the time allotted to questions or comments by participants; (g) removal of any stockholder or any other individual who refuses to comply with meeting procedures, rules or guidelines; (h) conclusion, recess or adjournment of the meeting, regardless of whether a quorum is present, to a later date and time and at a place, if any, announced at the meeting; (i) restrictions on the use of audio and video recording devices, cell phones and other electronic devices; (j) rules, regulations or procedures for compliance with any state and local laws and regulations concerning safety, health and security; (k) procedures (if any) requiring attendees to provide the corporation advance notice of their intent to attend the meeting; and (l) any guidelines and procedures as the chairperson may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting, whether such meeting is to be held at a designated place or solely by means of remote communication. The chairperson of a stockholder meeting, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall determine and declare to the meeting that a matter or business was not properly brought before the meeting, and, if the chairperson should so determine, the chairperson shall so declare to the meeting and any such matter of business not properly brought before the meeting shall not be transacted or considered. Except to the extent determined by the board of directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
2.16 INSPECTOR OF ELECTION
In advance of any meeting of stockholders of the corporation, the board of directors, by resolution, or the president shall appoint one or more inspectors to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the chairperson of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by applicable law, inspectors may be officers, employees or agents of the corporation. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as may be required by applicable law.
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ARTICLE
III
DIRECTORS
3.1 POWERS
Subject to the provisions of the DGCL and any limitations in the certificate of incorporation or these bylaws relating to action required to be approved by the stockholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the board of directors.
3.2 NUMBER OF DIRECTORS
The board of directors shall consist of not less than five nor more than nine directors, the specific number to be set by resolution of the board of directors. No reduction of the authorized number of directors shall have the effect of removing or shortening the term of any director before that director’s term of office expires.
3.3 CHAIR OF THE BOARD
The chair of the board shall be chosen from among the directors and may be the chief executive officer. Except as otherwise provided by law or Section 3.4 of these bylaws, the chair of the board shall preside at all meetings of the stockholders and of the board of directors. The chair of the board shall exercise and perform such other powers and duties as may from time to time be assigned to such chair by the board of directors or as may be prescribed by these bylaws.
3.4 LEAD DIRECTOR
If the chair of the board is not one of the directors who has been determined by the board to be an “independent director” (any such director, an “Independent Director”), the Independent Directors shall select a lead director from among the Independent Directors. The lead director shall preside at all meetings of the board at which the chair of the board is not present, preside over the executive sessions of the Independent Directors, serve as a liaison between the chair of the board and the board and have such other responsibilities, and perform such duties, as may from time to time be assigned to him or her by the board. The lead director shall be elected by a majority of the Independent Directors.
3.5 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.6 of these bylaws, directors shall be elected at each annual meeting of stockholders to hold office until the next annual meeting. Directors need not be stockholders. Each director, including a director elected to fill a vacancy, shall hold office until such director’s successor is elected and qualified or until such director’s earlier resignation or removal. Elections of directors need not be by written ballot.
3.6 RESIGNATION AND VACANCIES
Any director of the corporation may resign at any time by giving notice in writing or by electronic transmission to the chair of the board, the president or the secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the occurrence of some other event, and, unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective. When one or more directors so resigns and the resignation is effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in this section in the filling of other vacancies.
Unless otherwise provided in the certificate of incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
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3.7 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors of the corporation may hold meetings, both regular and special, either within or outside the State of Delaware. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
3.8 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board.
3.9 SPECIAL MEETINGS; NOTICE
Special meetings of the board may be called by at least two (2) members of the board, the chair of the board or the president on 48 hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate under the circumstances, to each director, either personally or by mail, overnight courier, telephone or electronic transmission. If mailed or sent by overnight courier, such notice shall be deemed to be given at the time when it is deposited in the United States mail with first class postage prepaid or deposited with the overnight courier. Notice by telephone or electronic transmission shall be deemed given when the notice is transmitted.
3.10 QUORUM
At all meetings of the board of directors, a majority of the authorized number of directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum is not present at any meeting of the board of directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
3.11 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the DGCL, the certificate of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, or a waiver by electronic transmission by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, and does so object, at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board, or meetings of a committee of the board, need be specified in any written waiver of notice unless so required by the certificate of incorporation.
3.12 ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the board of directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission are filed with the minutes of proceedings of the board or committee.
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3.14 FEES AND COMPENSATION OF DIRECTORS
The board of directors shall have the authority to fix the compensation of directors. The directors shall be paid their reasonable expenses, if any, of attendance at each meeting of the board or any committee thereof and may be paid a fixed sum for attendance at each such meeting and an annual retainer or salary for service as director or committee member, payable in cash or securities. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Directors who are full-time employees of the corporation shall not receive any compensation for their service as director.
3.15 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute or the certificate of incorporation, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.
ARTICLE
IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, with each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (i) amend the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) of the DGCL, fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation), (ii) adopt an agreement of merger or consolidation under Section 251 or 252 of the DGCL, (iii) recommend to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, (iv) recommend to the stockholders a dissolution of the corporation or a revocation of a dissolution or (v) amend the bylaws of the corporation; and, unless the board resolution establishing the committee expressly so provides, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the DGCL.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of Article III of these bylaws, Section 3.7 (place of meetings and meetings by telephone), Section 3.8 (regular meetings), Section 3.9 (special meetings and notice), Section 3.10 (quorum), Section 3.11 (waiver of notice), Section 3.12 (adjournment and notice of adjournment) and Section 3.13 (action without a meeting), with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the board of directors and its members; provided, however, that the time of regular meetings of committees may also be called by resolution of the board of directors and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The board of directors may adopt rules for the government of any committee not inconsistent with the provisions of these bylaws.
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ARTICLE
V
OFFICERS
5.1 OFFICERS
The officers of the corporation shall be a president, one or more vice presidents, a secretary and a treasurer. The corporation may also have, at the discretion of the board of directors, one or more assistant vice presidents, assistant secretaries, assistant treasurers and any such other officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws. Any number of offices may be held by the same person.
5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Sections 5.3 or 5.5 of these bylaws, shall be chosen by the board of directors, subject to the rights, if any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or empower the president to appoint, such other officers and agents as the business of the corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in these bylaws or as the board of directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the board of directors at any regular or special meeting of the board or, except in the case of an officer chosen by the board of directors, by any officer upon whom such power of removal may be conferred by the board of directors.
Any officer may resign at any time upon notice given in writing or electronic transmission to the president or the secretary. Such resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation shall be filled by the board of directors.
5.6 PRESIDENT
Subject to such supervisory powers, if any, as may be given by the board of directors to the chair of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall, subject to the control of the board of directors, have general supervision, direction and control of the business and the officers of the corporation. In the absence or nonexistence of a chair of the board, the president shall preside at all meetings of the stockholders and, in the absence or nonexistence of a chair of the board or a lead director, the president shall preside at all meetings of the board of directors. The president shall have the general powers and duties of management usually vested in the office of president of a corporation and shall have such other powers and duties as may be prescribed by the board of directors or these bylaws.
5.7 VICE PRESIDENT
In the absence or disability of the president, the vice presidents, if any, in order of their rank as fixed by the board of directors or, if not ranked, a vice president designated by the board of directors, shall perform all the duties of the president and when so acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the board of directors, these bylaws or the president.
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5.8 SECRETARY
The secretary shall keep or cause to be kept, at the principal executive office of the corporation or such other place as the board of directors may direct, a book of minutes of all meetings and actions of the board, committees of the board and stockholders. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at board meetings or meetings of committees of the board, the number of shares present or represented at stockholders’ meetings and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office of the corporation or at the office of the corporation’s transfer agent or registrar, a share register, or a duplicate share register, showing the names of all stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates evidencing such shares, and the number and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the board of directors required to be given by law or by these bylaws. The secretary shall keep the seal of the corporation, if one be adopted, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the board of directors or by these bylaws.
5.9 TREASURER
The treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The books of account shall at all reasonable times be open to inspection by any director.
The treasurer shall deposit all money and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the board of directors. The secretary shall disburse the funds of the corporation as may be ordered by the board of directors, shall render to the president and directors, whenever they request it, an account of all of his or her transactions as treasurer and of the financial condition of the corporation and shall have such other powers and perform such other duties as may be prescribed by the board of directors or these bylaws.
5.10 ASSISTANT SECRETARY
The assistant secretary, or, if there is more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.
5.11 ASSISTANT TREASURER
The assistant treasurer, or, if there is more than one, the assistant treasurers, in the order determined by the board of directors (or if there be no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.
5.12 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing authority and duties, all officers of the corporation shall respectively have such authority and perform such duties in the management of the business of the corporation as may be designated from time to time by the board of directors or the stockholders.
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ARTICLE
VI
INDEMNITY
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS; ADVANCEMENT OF EXPENSES
The corporation shall, to the maximum extent and in the manner permitted by the DGCL, indemnify each of its directors and officers against expenses (including attorneys’ fees), judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of the corporation. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a director or officer in defending or otherwise participating in any such proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the director or officer to repay all amounts advanced if it should be ultimately determined that the director or officer is not entitled to be indemnified under this Article VI or otherwise. For purposes of this Article VI, a “director” or “officer” of the corporation includes any person (a) who is or was a director or officer of the corporation, (b) who is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise or (c) who was a director or officer of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.
6.2 INDEMNIFICATION OF AND ADVANCEMENT OF EXPENSES TO OTHERS
The corporation shall have the power, to the extent and in the manner permitted by the DGCL, to indemnify each of its employees and agents (other than directors and officers) against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of the corporation. The corporation shall also have the power to pay employees and agents the expenses incurred by them in defending or otherwise participating in any such proceeding in advance of its final disposition, provided that such employee or agent presents to the corporation a written undertaking to repay any and all amounts paid to him or her hereunder if it shall ultimately be determined that such employee or agent is not entitled to be indemnified by the corporation. For purposes of this Section 6.2, an “employee” or “agent” of the corporation (other than a director or officer) includes any person (a) who is or was an employee or agent of the corporation, (b) who is or was serving at the request of the corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise or (c) who was an employee or agent of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.
6.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of the DGCL.
6.4 CLAIMS
If a claim for indemnification (following the final disposition of the proceeding with respect to which indemnification is sought, including any settlement of such proceeding) or advancement of expenses under this Article VI is not paid in full within thirty (30) days after a written claim therefor by the director or officer has been received by the corporation, the director or officer may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by applicable law. In any such action, the corporation shall have the burden of proving that the director or officer is not entitled to the requested indemnification or advancement of expenses under this Article VI and applicable law.
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6.5 NON-EXCLUSIVITY OF RIGHTS
The rights conferred on any officer or director by this Article VI shall not be exclusive of any other rights that such officer or director may have or hereafter acquire under any statute, the certificate of incorporation, these bylaws or any agreement, vote of stockholders or disinterested directors or otherwise.
6.6 CONTRACT RIGHTS; AMENDMENT OR REPEAL
The rights to indemnification and advancement of expenses conferred by this Article VI shall be deemed to be separate contract rights between the corporation and each director and officer, and the rights to indemnification and advancement of expenses of any director or officer arising hereunder shall not be eliminated or impaired by an amendment to or repeal of this Article VI after the occurrence of the act or omission that is the subject of the proceeding for which indemnification or advancement of expenses is sought.
ARTICLE
VII
GENERAL MATTERS
7.1 CHECKS
From time to time, the board of directors shall determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign or endorse those instruments.
7.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The board of directors, except as otherwise provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the board of directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The president, any vice president, the treasurer, the secretary or assistant secretary of this corporation, or any other person authorized by the board of directors or the president or a vice president, is authorized to vote, represent and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
7.4 STOCK CERTIFICATES
Unless otherwise provided by resolution of the board of directors, each class or series of shares of the corporation’s capital stock shall be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form; provided, however, that every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by the chair or vice-chair of the board, or the president or vice-president, and by the treasurer or an assistant treasurer or the secretary or an assistant secretary of the corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.
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7.5 LOST CERTIFICATES
Except as provided in this Section 7.5, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the corporation and cancelled at the same time. The corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
7.6 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise or as specifically provided otherwise, the general provisions, rules of construction and definitions in the DGCL shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a natural person and a legally created entity, such as but not limited to a corporation. If any provision of these bylaws shall be held to be invalid, illegal or unenforceable as applied to any person, entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provision in any other circumstance and of the remaining provisions of these bylaws, and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.
7.7 DIVIDENDS
The directors of the corporation, subject to any restrictions contained in the certificate of incorporation, may declare and pay dividends upon the shares of the corporation’s capital stock pursuant to the DGCL. Dividends may be paid in cash, in property or in shares of the corporation’s capital stock
7.8 FISCAL YEAR
The fiscal year of the corporation shall end on the 31st day of December in each year or on such other day as may be fixed from time to time by resolution of the board of directors.
7.9 SEAL
The seal of the corporation shall be such as from time to time may be approved by the board of directors.
7.10 REGISTERED STOCKHOLDERS
The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner, shall be entitled to hold liable for calls and assessments the person registered on its books as the owner of shares and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE
VIII
AMENDMENTS
These bylaws may be adopted, amended or repealed by the board of directors or by the stockholders of the corporation by the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class.
Adopted: February 23, 2022
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Aspira Women’s Health Inc. 8-K
Exhibit 10.1
AMENDED & RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED & RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) between Aspira Women’s Health Inc., a Delaware corporation (the “Company”), and Valerie B. Palmieri (“Executive,” and together with the Company, the “Parties”) is effective as of March 1, 2022 (the “Effective Date”). This Agreement amends and restates the Employment Agreement between the Parties, dated January 1, 2015.
WHEREAS, the Parties mutually desire to enter into this Agreement in order to establish the terms and conditions of the Executive’s employment with the Company on and after the Effective Date.
NOW, THEREFORE, the Parties agree as follows:
1. Position. The Company will continue to employ Executive on the terms contained herein, with a change in position from President and Chief Executive Officer to Executive Chairperson. The change in position is not intended, and shall not be construed, as a separation of service or separation of employment for any reason, including but not limited to any equity incentive plans of the Company. In the position of Executive Chairperson, Executive may devote time to outside board or advisory positions as pre-approved by the Company’s Board of Directors.
2. Compensation. The Company will pay Executive a base salary of $450,000 (“Base Salary”) on an annualized basis, payable in accordance with the Company’s standard payroll policies, including compliance with applicable tax withholding requirements. In addition, Executive will be eligible for a discretionary bonus of up to 75% of Executive’s base salary as may be determined by mutual agreement of performance goals by the Company’s Board of Directors and Executive, with any bonus paid by February 28th following the year in which it relates. For the avoidance of doubt, nothing herein shall be construed to amend or otherwise alter the terms and condition of any stock options, equity awards, RSUs or other deferred compensation previously granted to Executive.
3. Benefits. During the term of Executive’s employment, Executive will be entitled to the Company’s standard benefits covering employees at Executive’s level, including the Company’s group health, life, short- and long-term disability, 401(k) and other employee benefit plans, as such plans may be in effect from time to time, subject to the Company’s right to cancel or change the benefit plans and programs it offers to its employees at any time.
4. Term of Employment. Executive’s employment with the Company is for a term concluding on March 1, 2023 (the “Term”), provided that either party may terminate Executive’s employment earlier in accordance with the provisions of Section 5, and, further provided that the Company may, in its sole discretion, elect to extend the Term by an additional year by providing Executive with written notice of such extension at least thirty (30) days prior to the expiration of the Term.
Certain identified information has been excluded from this exhibit because it is both (1) not material and (2) is the type that the registrant treats as private or confidential.
5. Termination. The Company may terminate Executive’s employment for Cause at any time, with or without prior notice. The Company may terminate Executive’s employment without Cause upon written notice delivered at least sixty (60) days’ prior to the intended termination date. Executive may resign her employment at any time during the Term upon at least sixty (60) days’ prior written notice prior to the intended termination date. In the event that the Company terminates Executive’s employment for reasons other than for Cause (as defined below) or the Executive terminates her employment at any time following the Effective Date, and provided that Executive signs and does not revoke a standard separation agreement releasing all claims against the Company, in a form reasonably satisfactory to the Company, does not breach any provision of this Agreement (including but not limited to Section 10, Section 11 and Section 12 hereof), and continues to comply with the Proprietary Information & Inventions Agreement (“PIIA”), as hereinafter defined, Executive shall be entitled to receive, subject to Section 14 below:
| (i) | continued payment of Executive’s Base Salary as then in effect for the remainder of the Term following the date of termination (the “Severance Period”), to be paid periodically in accordance with the Company’s standard payroll practices, provided that Executive shall immediately repay to the Company any amounts that she receives hereunder if within sixty (60) days following termination of her employment she either has failed to execute the standard release described above or has revoked the general release after she executes it; |
| (ii) | continuation of Company health and dental benefits through COBRA premiums paid by the Company directly to the COBRA administrator during the Severance Period; provided, however, that such premium payments shall cease prior to the end of the Severance Period if Executive commences other employment with reasonably comparable or greater health and dental benefits; |
| (iii) | any vested and exercisable options to purchase common stock of the Company that are held by Executive as of the date of termination shall expire upon the earliest to occur of (A) the two-year anniversary of the date of Executive’s termination of employment as President and Chief Executive Officer (March 1, 2024), unless by mutual agreement of Executive and Company or Board, Executive is in position of material, non-public information, then the Parties agree to extend the date of termination of the exercise by an additional six (6) months, (B) the date on which such options would have expired if Executive’s employment had continued through the full term of such option and (C) the date on which Executive breaches this Agreement, the PIIA or any other agreement between Executive and the Company or any of its affiliates; and |
| (iv) | if Executive’s resignation or termination by the Company without Cause follows a Change of Control (as defined below) during the Term, then one-hundred percent (100%) of any then-unvested Company stock options then held by Executive will vest upon the date of such termination and the period of time for their exercise will be at the discretion of the Company, provided that no option shall be exercisable after expiration of its original term. To the extent it is necessary for the Executive to exercise such options upon or before such Change of Control, the Company shall use its best efforts to provide Executive with a reasonable period of advance written notice of such requirement. |
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If the Company terminates Executive’s employment for Cause, Executive shall have no entitlement to any further payments from the Company other than Executive’s base salary accrued through the termination date together with any vested employee benefits, and any stock options, equity awards, RSUs or other deferred compensation shall be treated in accordance with the governing plan documents and award agreements.
Upon the expiration of the Term, Executive’s agreement shall be deemed to terminate by mutual agreement of the parties. For the avoidance of doubt, Executive will not be eligible for any payments or other benefits not described above after termination or upon the expiration of the Term, except as may be required by law.
In the event Executive’s employment ends for any reason, Executive shall be deemed to, automatically and without any further action of Executive or the Company, have resigned from and relinquished any and all titles, offices, directorships, and authority related to her employment with the Company, in each case effective as of the date her employment ends. Further, by signing this Agreement, Executive irrevocably tenders her resignation from the Company’s Board of Directors effective as of the date her service as Executive Chair ends, which tender of resignation the Board of Directors may or may not accept in its discretion should the Executive be willing to continue as a Board member. Further, if the Executive is willing to continue as a Board member, the Executive will be considered by the Nominating and Governance Committee for the role of Board Chair.
6. Limited Release by Executive. In exchange for the mutual promises and covenants set forth in this Agreement, Executive, for herself and anyone claiming through her, forever waives, releases and discharges the Company and its affiliates and their respective current and former directors, officers, employees, and agents from all claims, charges, liabilities, expenses or demands, in law or in equity, whether known or unknown, that Executive ever had, now has or may have, against any of them by reason of any actual or alleged act, omission, transaction, practice, conduct or occurrence, or other matter arising from the beginning of time to the date of this Agreement, related to Executive’s compensation from the Company prior to the date hereof, the change in role effected by this Agreement, the defined term of employment established by this Agreement and the termination of Executive’s employment upon the expiration of the Term, or claims Executive may have under any federal, state, city or local laws prohibiting discrimination on the basis of age, sex, race, disability, religion, national origin, sexual orientation or any other proscribed basis, including pursuant to Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, the Family and Medical Leave Act of 1993, Section 1981 of the Civil Rights Act of 1866, the Employee Retirement Income Security Act of 1974, the Connecticut Fair Employment Practices Act, the Texas Commission on Human Rights Act, any federal, state or local laws against discrimination, or any other federal, state or local statute or common law relating to employment, wages, hours, bonus, compensation or benefits or any other terms and conditions of employment. For the avoidance of doubt, Executive is not releasing any claim to her entitlements under or expressly preserved by this Agreement, including any employee benefits, vested or unvested equity awards, stock options or other deferred compensation previously granted to her, or her rights to indemnification as a director or officer of the Company. As a material inducement to Executive to enter into this Agreement and provide the foregoing limited release of claims, the Company represents and warrants that its Board of Directors is not aware of any facts or circumstances that could reasonably be expected to give rise to any claims against Executive and the Company hereby releases and forever discharges the Executive from any claims, known or unknown, that Company may have against Executive arising from or relating to events arising on or before the date of this Agreement.
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7. Definitions. For purposes of this Agreement:
| (a) | “Cause” means termination of employment by reason of Executive’s: |
| (i) | material breach of this Agreement, the PIIA or any other confidentiality, invention assignment or similar agreement with the Company; |
| (ii) | repeated negligence in the performance of duties or nonperformance or misperformance of such duties that in the good faith judgment of the Board of Directors of the Company adversely affects the operations or reputation of the Company, which actions or inactions continue for a period of at least ten (10) days after written notice from the Company or Board; |
| (iii) | refusal to abide by or comply with the good faith directives of the Company’s Board of Directors or the Company’s standard policies and procedures, which actions continue for a period of at least ten (10) days after written notice from the Company or Board; |
| (iv) | violation or breach of the Company’s Code of Ethics, Financial Information Integrity Policy, Insider Trading Compliance Program, or any other similar code or policy adopted by the Company and generally applicable to the Company’s employees, as then in effect; |
| (v) | willful dishonesty, fraud, or misappropriation of trade secrets, proprietary or confidential information, funds, or property of the Company; |
| (vi) | conviction by or entry of a plea of guilty or nolo contendere, in a court of competent and final jurisdiction, for any crime which constitutes a misdemeanor or felony in the jurisdiction involved; or |
| (vii) | abuse of alcohol or drugs (legal or illegal) that, in the Board of Director’s reasonable judgment, materially impairs Executive’s ability to perform Executive’s duties. |
(b) “Change of Control” means:
| (i) | after the date hereof, any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding voting securities; or |
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| (ii) | the date of the consummation of a merger or consolidation of the Company with any other corporation or entity that has been approved by the stockholders of the Company, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent more than fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; or |
| (iii) | the date of the consummation of the sale or disposition of all or substantially all of the Company’s assets. |
| (c) | “Separation from Service” or “Separates from Service” shall mean Executive’s termination of employment, as determined in accordance with Treas. Reg. § 1.409A-1(h). Executive shall be considered to have experienced a termination of employment when the facts and circumstances indicate that Executive and the Company reasonably anticipate that either (i) no further services will be performed for the Company after a certain date, or (ii) that the level of bona fide services Executive will perform for the Company after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed by Executive (whether as an employee or independent contractor) over the immediately preceding thirty-six (36) month period (or the full period of services to the Company if Executive has been providing services to the Company for less than thirty-six (36) months). If Executive is on military leave, sick leave, or other bona fide leave of absence, the employment relationship between Executive and the Company shall be treated as continuing intact, provided that the period of such leave does not exceed six (6) months, or if longer, so long as Executive retains a right to reemployment with the Company under an applicable statute or by contract. If the period of a military leave, sick leave, or other bona fide leave of absence exceeds six (6) months and Executive does not retain a right to reemployment under an applicable statute or by contract, the employment relationship shall be considered to be terminated for purposes of this Agreement as of the first (1st) day immediately following the end of such six (6) month period. In applying the provisions of this Section, a leave of absence shall be considered a bona fide leave of absence only if there is a reasonable expectation that Executive will return to perform services for the Company. |
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8. Employment, Confidential Information and Invention Assignment Agreement. Executive understands and agrees that the Company and its affiliates have legitimate interests in protecting their goodwill, relationships with customers, and in maintaining their trade secrets and other proprietary and confidential information, which are valuable assets of the Company and its affiliates. As a condition of Executive’s continued employment, Executive hereby reaffirms her commitment to her obligations under the PIIA and represents and warrants that she has not breached the same. Executive acknowledges and agrees that the PIIA and the provisions of Sections 10-12 of this Agreement are necessary and appropriate to protect the Company’s and its affiliates’ legitimate interests and are narrowly tailored to provide such protection. Executive agrees and acknowledges that, in connection with Executive’s prior service to the Company, and her employment and unique relationship with the Company and its affiliates, Executive has had access to and become familiar with, and will continue to have access to and become familiar with, confidential and proprietary information and trade secrets belonging to the Company and its affiliates which Executive would not have otherwise had but for Executive’s employment with, or other service to, the Company or its affiliates.
9. Non Contravention. Executive represents to the Company that Executive’s signing of this Agreement, the PIIA, the issuance of stock options to Executive, and Executive’s commencement of employment with the Company do not violate any agreement Executive has with any of Executive’s previous employers and Executive’s signature confirms this representation.
10. Non-Competition. Except as set forth in Section 1 of this Agreement, Executive agrees that, during the term of Executive’s employment with the Company and for one (1) year following the termination of her employment, Executive will not engage in any other employment, occupation, consulting or other business activity competitive with or directly related to the business in which the Company is now involved or becomes involved , nor will Executive engage in any other activities that conflict with Executive’s obligations to the Company. Executive acknowledges that compliance with the obligations of this Agreement is a condition to Executive’s right to receive the severance payments set forth in Section 5 above.
11. Nonsolicitation. Executive agrees that, during the term of Executive’s employment with the Company and for one (1) year following the termination of her employment (the “Restricted Period”), Executive will not, directly or indirectly, solicit or encourage any employee or contractor of the Company or its affiliates to affect, terminate employment with, or cease providing services to, the Company or its affiliates. During the Restricted Period, Executive will not, whether for Executive’s own account or for the account of any other person, firm, corporation or other business organization, solicit or interfere with any person who is or during the period of Executive’s engagement by the Company was a collaborator, partner, licensor, licensee, vendor, supplier, customer or client of the Company or its affiliates to the Company’s detriment. Executive acknowledges that compliance with the obligations of this Section is a condition to Executive’s right to receive and retain the severance payments set forth in Section 5 above.
12. Nondisparagement. From the Effective Date of this Agreement and surviving any termination for any reason, Executive will not disparage or defame, whether orally or in writing, whether directly or indirectly, whether truthfully or falsely, and whether acting alone or through any other person, the Company or its affiliates or their respective current or former directors, officers, employees, agents, successors or assigns (both individually or in their official capacities with the Company or its affiliates). Executive acknowledges that compliance with the obligations of this Section is a condition to Executive’s right to receive and retain the severance payments set forth in Section 5 above. Notwithstanding the foregoing, nothing in this Agreement shall be construed to prohibit or limit Executive from reporting suspected violations of law to any governmental authority or from providing truthful testimony when compelled to do so by valid legal process.
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13. Arbitration and Equitable Relief.
| (a) | In consideration of Executive’s employment with the Company, its promise to arbitrate all employment related disputes and Executive’s receipt of the compensation and other benefits paid to Executive by the Company, at present and in the future, EXECUTIVE AGREES THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE, OFFICER, DIRECTOR, STOCKHOLDER OR BENEFIT PLAN OF THE COMPANY IN THEIR CAPACITY AS SUCH OR OTHERWISE) ARISING OUT OF, RELATING TO, OR RESULTING FROM EXECUTIVE’S EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF EXECUTIVE’S EMPLOYMENT WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION PURSUANT TO CONNECTICUT LAW. Disputes which Executive agrees to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, and claims of harassment, discrimination or wrongful termination. Executive further understands that this agreement to arbitrate also applies to any disputes that the Company may have with Executive. |
| (b) | Executive agrees that any arbitration will be administered by the American Arbitration Association (“AAA”) and that the neutral arbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes; provided, however, that the arbitrator shall be either a retired judge or an attorney with at least fifteen (15) years of experience in employment law who is currently licensed to practice law in the state in which the arbitration is convened. Executive agrees that the arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. Executive also agrees that the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. Executive understands the Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that Executive shall pay the first $125.00 of any filing fees associated with any arbitration that Executive initiates. Executive agrees that the arbitrator shall administer and conduct any arbitration in a manner consistent with the Rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the Rules, the Rules shall take precedence. Executive agrees that the decision of the arbitrator shall be in writing. |
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| (c) | Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any dispute between Executive and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither Executive nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not otherwise required by law which the Company has not adopted. |
| (d) | In addition to the right under the Rules to petition the court for provisional relief, Executive agrees that any party may also petition the court for injunctive relief where either party alleges or claims a violation of the PIIA between Executive and the Company or any other agreement regarding trade secrets, confidential information, nonsolicitation, or nondisparagement. Executive understands that any breach or threatened breach of such an agreement will cause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance of an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’ fees. |
| (e) | Executive understands that this Agreement does not prohibit Executive from pursuing an administrative claim with a local, state or federal administrative body such as the Equal Employment Opportunity Commission or the Workers’ Compensation Board. This Agreement does, however, preclude Executive from pursuing court action regarding any such claim. |
| (f) | Executive acknowledges and agrees that Executive is executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else. Executive further acknowledges and agrees that Executive has carefully read this Agreement and that Executive has asked any questions needed for Executive to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that Executive is waiving Executive’s right to a jury trial. Finally, Executive agrees that Executive has been provided an opportunity to seek the advice of an attorney of Executive’s choice before signing this Agreement. |
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14. Taxes. All payments made pursuant to this Agreement will be subject to withholding of applicable taxes. Notwithstanding the foregoing, Executive is solely responsible and liable for the satisfaction of any federal, state, province or local taxes that may arise with respect to this Agreement (including any taxes arising under Section 409A of the Internal Revenue Code (“IRC”)). Neither the Company nor any of its employees, officers, directors, or service providers shall have any obligation whatsoever to pay such taxes, to prevent Executive from incurring them, or to mitigate or protect Executive from any such tax liabilities. Notwithstanding anything in this Agreement to the contrary, if any amounts that become due under this Agreement on account of Executive’s termination of employment constitute “nonqualified deferred compensation” within the meaning of IRC Section 409A, payment of such amounts shall not commence until Executive incurs a Separation from Service. If, at the time of Executive’s termination of employment under this Agreement, Executive is a “specified employee” (within the meaning of IRC Section 409A), any amounts that constitute “nonqualified deferred compensation” within the meaning of IRC Section 409A that become payable to Executive on account of Executive’s Separation from Service (including any amounts payable pursuant to the preceding sentence) will not be paid until after the end of the sixth (6th) calendar month beginning after Executive’s Separation from Service (the “409A Suspension Period”). Within fourteen (14) calendar days after the end of the 409A Suspension Period, Executive shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence. Thereafter, Executive shall receive any remaining benefits as if there had not been an earlier delay. Each payment due under this Agreement is treated as a separate payment for purposes of Treasury Regulations Sections 1.409A-1(b)(4)(F) and 1.409A-2(b)(2).
15. Liability Insurance. To the extent that the Company maintains liability insurance applicable to directors, officers, employees, agents or fiduciaries, Executive shall be covered by such policies in such a manner as to provide to Executive the same rights and benefits as are provided to the most favorably insured of the Company’s officers.
16. Successors of the Company. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company. This Agreement shall be assignable by the Company in the event of a merger or similar transaction in which the Company is not the surviving entity, or of a sale of all or substantially all of the Company’s assets.
17. Enforceability; Severability; Survival. If any provision of this Agreement shall be invalid or unenforceable, in whole or in part, such provision shall be deemed to be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law as if such provision had been originally incorporated herein as so modified or restricted, or as if such provision had not been originally incorporated herein, as the case may be. Sections 5-7, 10-14, 16-22 and 24 of this Agreement shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of Executive’s employment (without regard to the reason(s) for such termination).
18. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Connecticut without giving effect to its choice of law rules. This Agreement is deemed to be entered into entirely in the State of Connecticut. This Agreement shall not be strictly construed for or against either party.
19. No Waiver. No waiver of any term of this Agreement constitutes a waiver of any other term of this Agreement.
20. Amendment To This Agreement. This Agreement may be amended only in writing by an agreement specifically referencing this Agreement, which is signed by both Executive and an executive officer or member of the Board of Directors of the Company authorized to do so by the Board by resolution.
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21. Headings. Section headings in this Agreement are for convenience only and shall be given no effect in the construction or interpretation of this Agreement.
22. Notice. All notices made pursuant to this Agreement, shall be given in writing, delivered by a generally recognized overnight express delivery service, and shall be made to the following addresses, or such other addresses as the Parties may later designate in writing:
If
to the Company:
Aspira Women’s Health Inc.
12117 Bee Caves Road
Building Three, Suite 100
Austin, TX 78738
Cc: legal@aspirawh.com
If
to Executive:
Valerie B. Palmieri
[omitted]
[omitted]
23. Expense Reimbursement. The Company shall promptly reimburse Executive for reasonable and actual business expenses incurred by Executive in furtherance of or in connection with the performance of Executive’s duties hereunder, including expenditures for travel, in accordance with the Company’s expense reimbursement policy as in effect from time to time; provided that any and all reimbursements hereunder shall be requested timely, and preferably within 30 days of being incurred, and no later than within one (1) year after being incurred. In addition, the Company shall reimburse Executive for her legal fees and expenses incurred related to the negotiation of this Agreement up to a maximum amount of $5,000, which shall be payable within 30 days following Executive’s submission of appropriate documentation substantiating the expense.
24. General; Conflict. This Agreement and the PIIA, when signed by Executive, set forth the terms of Executive’s employment with the Company and supersede any and all prior representations and agreements, whether written or oral.
[Signature Page Follows]
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| ASPIRA WOMEN’S HEALTH INC. | ||
| a Delaware corporation | ||
| By: | /s/ James LaFrance | |
| Name: James LaFrance | ||
| Title: Chair | ||
| ACCEPTED AND AGREED TO | |
| this 24th day of February, 2022 | |
| /s/ Valerie B. Palmieri | |
| Valerie B. Palmieri |
Aspira Women’s Health Inc. 8-K
Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) between Aspira Women’s Health Inc., a Delaware corporation (the “Company”), and Nicole Sandford (“Executive,” and together with the Company, the “Parties”) is effective as of March 1, 2022 (the “Effective Date”).
WHEREAS, the Parties mutually desire to enter into this Agreement in order to establish the terms and conditions of the Executive’s employment with the Company on and after the Effective Date.
NOW, THEREFORE, the Parties agree as follows:
1. Position. The Company will employ Executive as its President and Chief Executive Officer. In these positions, Executive will be expected to devote Executive’s full business time, attention and energies to the performance of Executive’s duties with the Company. Executive may devote time to outside board or advisory positions as pre-approved by the Company’s Board of Directors. Executive will render such business and professional services in the performance of such duties, consistent with Executive’s positions within the Company, as shall be reasonably assigned to Executive by the Company’s Board of Directors. Executive may perform her duties and responsibilities from Stamford, Connecticut, but shall travel as needed, including to Austin, Texas and Trumbull, Connecticut, and to collaborator and partner locations, academic medical centers, banking and other conferences, and other locations as necessary or advisable in performance of Executive’s duties.
2. Compensation.
(a) The Company will pay Executive a base salary of $500,000 on an annualized basis, payable in accordance with the Company’s standard payroll policies, including compliance with applicable tax withholding requirements.
(b) Executive will be eligible for a discretionary bonus upon the completion of the Term (as defined below), as may be determined by the Company’s Board of Directors, in its sole and absolute discretion, payable no later than March 15th following the year in which the Term is completed.
(c) On the first trading day of each calendar month of the Term, the Company shall grant to Executive a stock option award with respect to 5,000 shares of common stock of the Company, in each case, subject to the terms and conditions of the Company’s 2019 Stock Incentive Plan (the “Stock Incentive Plan”) and a stock option award agreement in a form substantially similar to that used by the Company for other senior executives of the Company (the “Options”). The Options shall be granted as incentive stock options to the maximum extent possible in accordance with the limitations set forth in Section 422 of the Internal Revenue Code, and the remainder of the Options shall be granted as nonqualified stock options. Each Option shall have a per share exercise price equal to the closing price of a share of common stock of the Company as of the date of each grant and, except as otherwise provided in the Stock Incentive Plan or the stock option award agreement, the shares subject to such Option shall become vested and exercisable on the last day of the calendar month in which the Option was granted, subject to Executive’s continued employment by the Company as President and Chief Executive Officer through each such vesting date. To the extent any Option is vested and exercisable as of the date of Executive’s termination of employment as President and Chief Executive Officer, the Option shall remain exercisable for the period prescribed by the terms of the stock option award agreement; provided that if Executive’s employment is terminated by the Company without Cause, the Option shall not expire earlier than the earliest to occur of (i) the first anniversary of the date of Executive’s termination of employment as President and Chief Executive Officer, (ii) the date on which the Options would have expired if Executive’s employment had continued through the full term of the Option set forth under the Stock Option Plan and (iii) the date on which Executive breaches this Agreement, the Proprietary Information and Inventions Agreement (“PIIA”) or any other agreement between Executive and the Company or any of its affiliates.
Certain identified information has been excluded from this exhibit because it is both (1) not material and (2) is the type that the registrant treats as private or confidential.
3. Benefits. During the term of Executive’s employment, Executive will be entitled to the Company’s standard benefits covering employees at Executive’s level, including (i) the Company’s group health, life, short- and long-term disability, 401(k) and other employee benefit plans, as such plans may be in effect from time to time, subject to the Company’s right to cancel or change the benefit plans and programs it offers to its employees at any time, and (ii) paid time off in addition to standard holidays, in accordance with the Company’s policies in effect from time to time.
4. Term of Employment. Executive’s employment with the Company is for a term concluding on February 28, 2023 (the “Term”), unless extended by agreement of the Parties, provided that either party may terminate Executive’s employment earlier in accordance with the provisions of Section 5.
5. Termination. The Company may terminate Executive’s employment for Cause at any time, with or without prior notice. The Company may terminate Executive’s employment without Cause after August 31, 2022 upon at least sixty (60) days’ prior written notice prior to the intended termination date (i.e. first notification can be provided no sooner than July 1, 2022). The Executive will continue to receive compensation and benefits through the Termination date.
Executive may resign her employment at any time during the Term after August 31, 2022 upon at least sixty (60) days’ prior written notice prior to the intended termination date (i.e. first notification can be provided no sooner than July 1, 2022). The Executive will continue to receive compensation and benefits through the Termination date.
Upon the expiration of the Term, Executive’s employment shall be deemed to terminate by mutual agreement of the parties. Executive will not be eligible for any payments or other benefits not described above after termination upon the expiration of the Term, except as may be required by law.
6. Executive’s Role on the Company’s Board. During the Term and subject to re-election by the Company’s shareholders at the Company’s annual meeting of shareholders, Executive shall remain a member of the Company’s Board of Directors and shall be eligible to continue to serve on the Board of Directors upon the termination of her employment, provided that Executive meets any applicable independence and eligibility requirements as determined by NASDAQ listing standards or other regulatory or legal requirements. Further, if the Board conducts a search for a Chief Executive Officer during the Term, the Executive shall be fairly assessed along with other candidates upon notice by Executive that she wishes to be considered.
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7. Definitions. For purposes of this Agreement:
(a) “Cause” means termination of employment by reason of Executive’s:
| (i) | material breach of this Agreement, the PIIA or any other confidentiality, invention assignment or similar agreement with the Company; |
| (ii) | repeated negligence in the performance of duties or nonperformance or misperformance of such duties that in the good faith judgment of the Board of Directors of the Company adversely affects the operations or reputation of the Company, which actions or inactions continue for a period of at least ten (10) days after written notice from the Company or Board; |
| (iii) | refusal to abide by or comply with the good faith directives of the Company’s Board of Directors or the Company’s standard policies and procedures, which actions continue for a period of at least ten (10) days after written notice from the Company or Board; |
| (iv) | violation or breach of the Company’s Code of Ethics, Financial Information Integrity Policy, Insider Trading Compliance Program, or any other similar code or policy adopted by the Company and generally applicable to the Company’s employees, as then in effect; |
| (v) | willful dishonesty, fraud, or misappropriation of funds or property with respect to the business or affairs of the Company; |
| (vi) | conviction by or entry of a plea of guilty or nolo contendere, in a court of competent and final jurisdiction, for any crime which constitutes a misdemeanor or felony in the jurisdiction involved; or |
| (vii) | abuse of alcohol or drugs (legal or illegal) that, in the Board of Director’s reasonable judgment, materially impairs Executive’s ability to perform Executive’s duties. |
(b) “Separation from Service” or “Separates from Service” shall mean Executive’s termination of employment, as determined in accordance with Treas. Reg. § 1.409A-1(h). Executive shall be considered to have experienced a termination of employment when the facts and circumstances indicate that Executive and the Company reasonably anticipate that either (i) no further services will be performed for the Company after a certain date, or (ii) that the level of bona fide services Executive will perform for the Company after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed by Executive (whether as an employee or independent contractor) over the full period of services to the Company. If Executive is on military leave, sick leave, or other bona fide leave of absence, the employment relationship between Executive and the Company shall be treated as continuing intact, provided that the period of such leave does not exceed six (6) months, or if longer, so long as Executive retains a right to reemployment with the Company under an applicable statute or by contract. If the period of a military leave, sick leave, or other bona fide leave of absence exceeds six (6) months and Executive does not retain a right to reemployment under an applicable statute or by contract, the employment relationship shall be considered to be terminated for purposes of this Agreement as of the first (1st) day immediately following the end of such six (6) month period. In applying the provisions of this Section, a leave of absence shall be considered a bona fide leave of absence only if there is a reasonable expectation that Executive will return to perform services for the Company.
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8. Employment, Confidential Information and Invention Assignment Agreement. Executive understands and agrees that the Company and its affiliates have legitimate interests in protecting their goodwill and relationships with customers, and in maintaining their trade secrets and other proprietary and confidential information, which are valuable assets of the Company and its affiliates. As a condition of Executive’s employment, Executive shall complete, sign and return the Company’s standard form of PIIA. Executive acknowledges and agrees that the PIIA and the provisions of Sections 10-12 of this Agreement are necessary and appropriate to protect the Company’s and its affiliates’ legitimate interests and are narrowly tailored to provide such protection. Executive agrees and acknowledges that, in connection with Executive’s prior service to the Company, and her employment and unique relationship with the Company and its affiliates, Executive has had access to and become familiar with, and will continue to have access to and become familiar with, confidential and proprietary information and trade secrets belonging to the Company and its affiliates which Executive would not have otherwise had but for Executive’s employment with, or other service to, the Company or its affiliates.
9. Non Contravention. Executive represents to the Company that Executive’s signing of this Agreement, the PIIA, the issuance of stock options to Executive, and Executive’s commencement of employment with the Company do not violate any agreement Executive has with any of Executive’s previous employers, and Executive’s signature confirms this representation.
10. Non-Competition. Except as set forth in Section 1 of this Agreement, Executive agrees that, during the term of Executive’s employment with the Company and for one (1) year following the termination of her employment, Executive will not engage in any other employment, occupation, consulting or other business activity competitive with or directly related to the business in which the Company is now involved or becomes involved , nor will Executive engage in any other activities that conflict with Executive’s obligations to the Company.
11. Nonsolicitation. From the Effective Date of this Agreement until twelve (12) months after the termination of this Agreement (the “Restricted Period”), Executive will not, directly or indirectly, affect, solicit, or encourage any employee or contractor of the Company or its affiliates to terminate employment with, or cease providing services to, the Company or its affiliates. During the Restricted Period, Executive will not, whether for Executive’s own account or for the account of any other person, firm, corporation or other business organization, affect, solicit or interfere with any person who is or during the period of Executive’s engagement by the Company was a collaborator, partner, licensor, licensee, vendor, supplier, customer or client of the Company or its affiliates to the Company’s detriment.
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12. Nondisparagement. From the Effective Date of this Agreement and surviving any termination for any reason, Executive will not disparage or defame, whether orally or in writing, whether directly or indirectly, whether truthfully or falsely, and whether acting alone or through any other person, the Company or its affiliates or their respective current or former directors, officers, employees, agents, successors or assigns (both individually or in their official capacities with the Company or its affiliates). Notwithstanding the foregoing, nothing in this Agreement shall be construed to prohibit or limit Executive from reporting suspected violations of law to any governmental authority or from providing truthful testimony when compelled to do so by valid legal process.
13. Arbitration and Equitable Relief.
(a) In consideration of Executive’s employment with the Company, its promise to arbitrate all employment related disputes and Executive’s receipt of the compensation and other benefits paid to Executive by the Company, at present and in the future, EXECUTIVE AGREES THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE, OFFICER, DIRECTOR, STOCKHOLDER OR BENEFIT PLAN OF THE COMPANY IN THEIR CAPACITY AS SUCH OR OTHERWISE) ARISING OUT OF, RELATING TO, OR RESULTING FROM EXECUTIVE’S EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF EXECUTIVE’S EMPLOYMENT WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION PURSUANT TO CONNECTICUT LAW. Disputes which Executive agrees to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, and claims of harassment, discrimination or wrongful termination. Executive further understands that this agreement to arbitrate also applies to any disputes that the Company may have with Executive.
(b) Executive agrees that any arbitration will be administered by the American Arbitration Association (“AAA”) and that the neutral arbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes; provided, however, that the arbitrator shall be either a retired judge or an attorney with at least fifteen (15) years of experience in employment law who is currently licensed to practice law in the state in which the arbitration is convened. Executive agrees that the arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. Executive also agrees that the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. Executive understands the Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that Executive shall pay the first $125.00 of any filing fees associated with any arbitration that Executive initiates. Executive agrees that the arbitrator shall administer and conduct any arbitration in a manner consistent with the Rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the Rules, the Rules shall take precedence. Executive agrees that the decision of the arbitrator shall be in writing.
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(c) Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any dispute between Executive and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither Executive nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not otherwise required by law which the Company has not adopted.
(d) In addition to the right under the Rules to petition the court for provisional relief, Executive agrees that any party may also petition the court for injunctive relief where either party alleges or claims a violation of the PIIA between Executive and the Company or any other agreement regarding trade secrets, confidential information, nonsolicitation, or nondisparagement. Executive understands that any breach or threatened breach of such an agreement will cause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance of an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’ fees.
(e) Executive understands that this Agreement does not prohibit Executive from pursuing an administrative claim with a local, state or federal administrative body such as the Equal Employment Opportunity Commission or the Workers’ Compensation Board. This Agreement does, however, preclude Executive from pursuing court action regarding any such claim.
(f) Executive acknowledges and agrees that Executive is executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else. Executive further acknowledges and agrees that Executive has carefully read this Agreement and that Executive has asked any questions needed for Executive to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that Executive is waiving Executive’s right to a jury trial. Finally, Executive agrees that Executive has been provided an opportunity to seek the advice of an attorney of Executive’s choice before signing this Agreement.
14. Taxes. All payments made pursuant to this Agreement will be subject to withholding of applicable taxes. Notwithstanding the foregoing, Executive is solely responsible and liable for the satisfaction of any federal, state, province or local taxes that may arise with respect to this Agreement (including any taxes arising under Section 409A of the Internal Revenue Code (“IRC”)). Neither the Company nor any of its employees, officers, directors, or service providers shall have any obligation whatsoever to pay such taxes, to prevent Executive from incurring them, or to mitigate or protect Executive from any such tax liabilities. Notwithstanding anything in this Agreement to the contrary, if any amounts that become due under this Agreement on account of Executive’s termination of employment constitute “nonqualified deferred compensation” within the meaning of IRC Section 409A, payment of such amounts shall not commence until Executive incurs a Separation from Service. If, at the time of Executive’s termination of employment under this Agreement, Executive is a “specified employee” (within the meaning of IRC Section 409A), any amounts that constitute “nonqualified deferred compensation” within the meaning of IRC Section 409A that become payable to Executive on account of Executive’s Separation from Service (including any amounts payable pursuant to the preceding sentence) will not be paid until after the end of the sixth (6th) calendar month beginning after Executive’s Separation from Service (the “409A Suspension Period”). Within fourteen (14) calendar days after the end of the 409A Suspension Period, Executive shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence. Thereafter, Executive shall receive any remaining benefits as if there had not been an earlier delay. Each payment due under this Agreement is treated as a separate payment for purposes of Treasury Regulations Sections 1.409A-1(b)(4)(F) and 1.409A-2(b)(2).
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15. Liability Insurance. To the extent that the Company maintains liability insurance applicable to directors, officers, employees, agents or fiduciaries, Executive shall be covered by such policies in such a manner as to provide to Executive the same rights and benefits as are provided to the most favorably insured of the Company’s officers.
16. Successors of the Company. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company. This Agreement shall be assignable by the Company in the event of a merger or similar transaction in which the Company is not the surviving entity, or of a sale of all or substantially all of the Company’s assets.
17. Enforceability; Severability; Survival. If any provision of this Agreement shall be invalid or unenforceable, in whole or in part, such provision shall be deemed to be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law as if such provision had been originally incorporated herein as so modified or restricted, or as if such provision had not been originally incorporated herein, as the case may be. Sections 5-7, 10-14, 16-22 and 24 of this Agreement shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of Executive’s employment (without regard to the reason(s) for such termination).
18. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Connecticut without giving effect to its choice of law rules. This Agreement is deemed to be entered into entirely in the State of Connecticut. This Agreement shall not be strictly construed for or against either party.
19. No Waiver. No waiver of any term of this Agreement constitutes a waiver of any other term of this Agreement.
20. Amendment To This Agreement. This Agreement may be amended only in writing by an agreement specifically referencing this Agreement, which is signed by both Executive and an executive officer or member of the Board of Directors of the Company authorized to do so by the Board by resolution.
21. Headings. Section headings in this Agreement are for convenience only and shall be given no effect in the construction or interpretation of this Agreement.
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22. Notice. All notices made pursuant to this Agreement, shall be given in writing, delivered by a generally recognized overnight express delivery service, and shall be made to the following addresses, or such other addresses as the Parties may later designate in writing:
If
to the Company:
Aspira Women’s Health Inc.
12117 Bee Caves Road
Building Three, Suite 100
Austin, TX 78738
Cc: legal@aspirawh.com
If
to Executive:
Nicole Sandford
[omitted]
[omitted]
23. Expense Reimbursement. The Company shall promptly reimburse Executive for actual and reasonable business expenses incurred by Executive in furtherance of or in connection with the performance of Executive’s duties hereunder, including expenditures for travel, in accordance with the Company’s expense reimbursement policy as in effect from time to time; provided that any and all reimbursements hereunder shall be requested and made within one (1) year after being incurred. In addition, the Company shall reimburse Executive for her legal fees and expenses incurred related to the negotiation of this Agreement up to a maximum amount of $5,000 and payable within 30 days following the Effective Date.
24. General; Conflict. This Agreement and the PIIA, when signed by Executive, set forth the terms of Executive’s employment with the Company and supersede any and all prior representations and agreements, whether written or oral.
[Signature Page Follows]
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| ASPIRA WOMEN’S HEALTH INC. | ||
| a Delaware corporation | ||
| By: | /s/ James LaFrance | |
| Name: | James LaFrance | |
| Title: | Chair | |
| ACCEPTED AND AGREED TO | ||
| this 24 day of February, 2022 | ||
| /s/ Nicole Sandford | ||
| Nicole Sandford | ||
Aspira Women’s Health Inc. 8-K
Exhibit 99.1
Aspira Women’s Health Announces Appointment of
Celeste Fralick, Ph.D., to its Board of Directors
AUSTIN, Texas —Feb. 28, 2022 — Aspira Women’s Health Inc. (Nasdaq: AWH), a bioanalytical-based women’s health company, today announced the appointment of Celeste Fralick, Ph.D., to its Board of Directors, effective February 23, 2022.
Dr. Fralick is an accomplished executive with over four decades of data strategy experience. She brings to the Board a broad background in technology and specifically healthcare in several markets with both customer and industry-facing experience. She has expertise in statistics, cybersecurity, system engineering, disability analyses, risk management, operations, quality systems, global regulatory affairs, clinical management, biotechnology, reliability and data management. She has been recognized globally and cross-industry for leading edge analytics, ideation, strategic leadership and results-oriented competencies. Dr. Fralick was named to Forbes’ inaugural 2018 list of “Top 50 Women in Technology.”
“We warmly welcome Celeste to our Board of Directors. She is an accomplished senior executive with exceptional leadership qualities. She will be a tremendous asset to our Board, and we look forward to her insights,” said James LaFrance, Chair of Aspira’s Board.
Valerie Palmieri, President and CEO of Aspira added, “Celeste brings diverse data strategy expertise to the Board. As we expand our portfolio and incorporate additional data variables, her guidance and knowledge will be invaluable to the company.”
Dr. Fralick noted, “I am excited to join this dynamic company’s Board of Directors. I look forward to working with this team, which has been passionately committed to making a difference in women’s lives.”
Dr. Fralick recently retired as Chief Data Scientist at McAfee where she was responsible for developing enterprise and consumer product analytics and the data ecosystem. Prior to that, she was the Senior Principal Engineer, Chief Technology Officer of Analytics at Intel where she spent 22 years leading, developing, and implementing analytic strategy across various departments in the company, including a corporate-wide Analytic Center of Excellence. Prior to Intel , Dr. Fralick managed over 50 custom and module programs at Medtronic, and was a divisional Product Assurance Manager at National Semiconductor/Fairchild Semiconductor. She began her career at Texas Instruments where she was a Quality/Reliability Engineering Manager. Dr. Fralick earned a Ph.D. in Biomedical Engineering (focused on analytics, neural networks, neuroscience, and bioelectricity) from Arizona State University, an MSE in Biomedical Engineering (focused on cardiomyopathy and neurostimulation ) from Arizona State University, and a BS in Microbiology/Chemistry from Texas Tech University.
About Aspira Women’s Health Inc.
Aspira Women’s Health Inc. is transforming women’s health with the discovery, development, and commercialization of innovative testing options and bio-analytical solutions that help physicians assess risk, optimize patient management, and improve gynecologic health outcomes for women. Aspira Women’s Health is particularly focused on closing the ethnic disparity gap in ovarian cancer risk assessment and developing solutions for pelvic diseases such as pelvic mass risk assessment and endometriosis. OVA1plusTM combines our FDA-cleared products, OVA1® and OVERA®, to detect risk of ovarian malignancy in women with adnexal masses. Aspira GenetiXTM testing offers both targeted and comprehensive genetic testing options with a gynecologic focus. With over 10 years of expertise in ovarian cancer risk assessment, Aspira Women’s Health is working to deliver a portfolio of pelvic mass products over a patient’s lifetime with our cutting-edge research. The next generation of products in development include OVAWatchTM and EndoCheckTM. To improve patient accessibility, Aspira Women’s Health has recently launched our Aspira Synergy technology transfer platform to empower health systems, academics, regional labs, and physician group labs to conduct genetic and specialty tests in-house. Visit our website for more information at www.aspirawh.com.
Forward-Looking Statements
This press release contains forward-looking statements, as defined in the Private Securities Litigation Reform Act of 1995. These statements involve a number of risks and uncertainties. All statements other than statements of historical facts contained in this press release are forward-looking statements. Words such as “may,” “expects,” “intends,” “anticipates,” “believes,” “estimates,” “plans,” “seeks,” “could,” “should,” “continue,” “will,” “potential,” “projects” and similar expressions are intended to identify forward-looking statements. These forward-looking statements speak only as of the date of this press release and are subject to a number of risks, uncertainties, and assumptions, including the risks and uncertainties described in the section entitled “Risk Factors” in Aspira Women’s Health’s Annual Report on Form 10-K for the year ended December 31, 2020 and Quarterly Reports on Form 10-Q for the quarters ended June 30, 2021 and September 30, 2021. The events and circumstances reflected in Aspira Women’s Health’s forward-looking statements may not be achieved or occur and actual results could differ materially from those projected in the forward-looking statements. Aspira Women’s Health expressly disclaims any obligation to update, amend or clarify any forward-looking statements to reflect events, new information or circumstances occurring after the date of this press release, except as required by law.
Investor Relations Contact:
Ashley R. Robinson
LifeSci Advisors, LLC
Tel 617-430-7577
Arr@lifesciadvisors.com