UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Emerging growth company
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| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
As noted below, on June 22, 2023, the stockholders of Day One Biopharmaceuticals, Inc. (the “Company”) approved an amendment to the Company’s Restated Certificate of Incorporation (the “Certificate of Amendment”) to permit the exculpation of officers as permitted pursuant to recent amendments to the Delaware General Corporation Law. On June 22, 2023, the Company filed the Certificate of Amendment with the Delaware Secretary of State to effect such amendment. A copy of the Certificate of Amendment is filed as Exhibit 3.1 to this Current Report on Form 8-K.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
On June 22, 2023, the Company held its 2023 Annual Meeting of Stockholders and the following proposals were adopted:
| 1. | Election of two Class II Directors, Scott Garland and John Josey, Ph.D., M.B.A., each to serve a three-year term, which will expire at the 2026 Annual Meeting of Stockholders and until such time as their respective successors have been duly elected and qualified or until such director’s earlier resignation or removal. The vote tally was as follows: |
| Nominees |
Shares For |
Shares Withheld |
Broker Non-Votes | |||
| Scott Garland |
63,229,607 | 394,746 | 2,758,766 | |||
| John Josey, Ph.D., M.B.A. |
52,093,255 | 11,531,098 | 2,758,766 |
| 2. | Ratification of appointment of Ernst & Young LLP as the independent registered public accounting firm of the Company for its fiscal year ending December 31, 2023. The vote tally was as follows: |
| Shares For |
Shares Against |
Shares Abstaining | ||
| 66,370,613 | 12,503 | 3 |
| 3. | Approval of an amendment to the Company’s Restated Certificate of Incorporation to limit the liability of certain officers of the Company as permitted pursuant to recent amendments to the Delaware General Corporation Law. The vote tally was as follows: |
| Shares For |
Shares Against |
Shares Abstaining |
Broker Non-Votes | |||
| 56,885,240 | 6,732,313 | 6,800 | 2,758,766 |
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit |
Description | |
| 3.1 | Certificate of Amendment to Restated Certificate of Incorporation, filed June 22, 2023. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| DAY ONE BIOPHARMACEUTICALS, INC. | ||||||
| Date: June 23, 2023 | By: | /s/ Charles N. York II, M.B.A. | ||||
| Charles N. York II, M.B.A. | ||||||
| Chief Operating Officer and Chief Financial Officer | ||||||
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
DAY ONE BIOPHARMACEUTICALS, INC.
Day One Biopharmaceuticals, Inc. (hereinafter called the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “General Corporation Law”), does hereby certify as follows:
1. That the name of this Corporation is Day One Biopharmaceuticals, Inc., and that this Corporation was originally incorporated pursuant to the General Corporation Law on May 26, 2021 under the name Day One Biopharmaceuticals, Inc. The Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on June 1, 2021, as amended (the “Restated Charter”).
2. Amendment to Article SEVENTH.
(a) Article SEVENTH of the Restated Charter is hereby amended and restated in its entirety as follows:
“ARTICLE VII: LIMITATION OF LIABILITY
1. Limitation of Liability. To the fullest extent permitted by law, neither a director of the Corporation nor an officer of the corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable. Without limiting the effect of the preceding sentence, if the General Corporation Law is hereafter amended to authorize the further elimination or limitation of the liability of a director or officer, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law, as so amended.
2. Change in Rights. Neither any amendment nor repeal of this Article VII, nor the adoption of any provision of this Restated Certificate of Incorporation inconsistent with this Article VII, shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of a director or officer of the Corporation existing at the time of such amendment, repeal or adoption of such an inconsistent provision.”
3. That the foregoing amendment was duly adopted by the Board of Directors of the Corporation in accordance with Sections 141 and 242 of the General Corporation Law and was approved by the holders of the requisite number of shares of capital stock of the Corporation acting by written consent in accordance with Sections 228 and 242 of the General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment on this 22nd day of June, 2023.
| By: |
/s/ Charles N. York II | |
| Name: |
Charles N. York II | |
| Title: |
Chief Financial Officer |