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Item
5.03.
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Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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On
September 19, 2019, the Board of Directors of NeuBase Therapeutics, Inc. (the “Company”) adopted the Amended
and Restated Bylaws of the Company, effective as of such date (the “Restated Bylaws”). The Restated Bylaws
are intended primarily to update the Company’s prior bylaws (the “Prior Bylaws”) to include and update
provisions commonly found in the bylaws of public Delaware corporations similar to the Company. The Restated Bylaws also reflect
certain non-substantive changes that were made to improve style and readability. Set forth below is a summary of the material
amendments contained in the Restated Bylaws.
Advance
Notice Provisions
Article
III, Sections 5 and Section 6 of the Restated Bylaws (the “Advance Notice Provisions”) amend the Prior Bylaws
to describe the manner and timeframes in which a stockholder of the Company may properly bring business before, or nominate any
person for election to the Board of Directors of the Company (the “Board”) at, an annual or special meeting
of stockholders. The Advance Notice Provisions set forth the various eligibility requirements that must be met by (a) any stockholder
who wishes to bring such business before an annual or special meeting of stockholders and (b) any nominee for election to the
Board. The Advance Notice Provisions also describe the substantive and procedural requirements that a stockholder must comply
with in order to properly bring business, including the nomination of any person for election to the Board, before an annual or
special meeting of the Company.
Among
other requirements, the Advance Notice Provisions provide that: (i) a stockholder must provide to the secretary of the Company
timely notice of any business, including director nominations, proposed to be brought before the annual or special meeting, which
notice must conform to the substantive requirements set forth in the Restated Bylaws; (ii) a stockholder must deliver certain
information regarding the person making the proposal, and in the case of any nominee for election to the Board, information regarding
such nominee, in each case as set forth in the Restated Bylaws, and update and supplement such information as required; and (iii)
any nominee for election to the Board must provide both a written questionnaire regarding such nominee’s background and
qualifications, and a written representation and agreement regarding voting commitments, indemnification or similar arrangements
and compliance with Company policies applicable to members of the Board.
The
Prior Bylaws contained advance notice provisions and procedures for the Company’s stockholders to bring business before,
or nominate persons for election to the Board at, annual or special meetings of stockholders; however, they did not, among other
things: (A) require certain information or disclosures with respect to the proposing or nominating stockholder(s), stockholder
nominees and stockholder proposals; or (B) require updating of information or disclosures contained within the notice.
Written
Consent of Stockholders
Article
III, Section 15 of the Restated Bylaws provides that stockholder actions may only be taken by a vote of the stockholders at an
annual or special meeting. Accordingly, stockholders may not take any action by written consent in lieu of a meeting. The Prior
Bylaws permitted stockholders to take action by written consent in certain circumstances.
Removal
of Classified Board Structure Contained in Prior Bylaws
The
Restated Bylaws do not include provisions regarding a classified Board of Directors because these provisions are set forth in
the Company’s certificate of incorporation.
Indemnification
of Directors and Officers
Article
XI of the Restated Bylaws establishes the indemnification rights for certain individuals (the “Indemnification Provision”).
The Indemnification Provision permits the Company to (i) indemnify its directors and executive officers to the fullest extent
permitted by the General Corporation Law of the State of Delaware (the “DGCL”); and (ii) in its discretion,
indemnify its other officers, employees and agents as set forth in the DGCL or other applicable law.
The Indemnification Provision authorizes the Company to advance reasonable expenses, including attorneys’ fees, to its current
and former directors and executive officers, in connection with legal proceedings relating to their service for or on behalf of
the Company, subject to limited exceptions. The Prior Bylaws provided that the Company may indemnify its directors, officers,
employees and agents in accordance with the Company’s certificate of incorporation.
Amendment
to Restated Bylaws
Article
XII, Section 48 of the Restated Bylaws permits the Board to adopt, amend or repeal the Restated Bylaws without obtaining stockholder
approval, and requires that any amendment of the Restated Bylaws by the stockholders receive the affirmative vote of the holders
of a majority of the outstanding shares entitled to vote in the election of directors, voting together as a single class. Additionally,
under the Restated Bylaws, any amendment or repeal of certain provisions relating to powers of directors, Board meeting quorum
and director voting, Board committee and Board chairperson matters and officer matters set forth in the Restated Bylaws, among
others, require (i) the affirmative vote of a two-thirds of directors then in office and (ii) the affirmative vote of two-thirds
of the outstanding shares entitled to vote in the election of directors, voting together as a single class. The Prior Bylaws provided
that the Prior Bylaws may be amended, altered or repealed by the Board or the Company’s stockholders.
The
foregoing description of the Restated Bylaws does not purport to be complete and is qualified in its entirety by reference to
the full text of the Restated Bylaws, a copy of which is attached as Exhibit 3.1 to this Form 8-K and is incorporated herein by
reference.