UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
January 16, 2019
MINDBODY, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-37453 | 20-1898451 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
4051 Broad Street, Suite 220
San Luis Obispo, California 93401
(Address of principal executive offices, including zip code)
(877) 755-4279
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
| ☐ | Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On January 16, 2019, the Board of Directors of MINDBODY, Inc. (the “Company”) approved the adoption of Amendment No. 1 to the Amended and Restated Bylaws of the Company (the “Bylaws Amendment”), which became effective immediately. The Bylaws Amendment includes a new Section 9.5 under Article IX that designates the Court of Chancery of the State of Delaware, or if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware, as the sole and exclusive forum for certain legal actions, unless the Company consents in writing to the selection of an alternative forum. The foregoing description of the Bylaws Amendment does not purport to be complete and is qualified in its entirety by reference to the Bylaws Amendment, which is filed herewith as Exhibit 3.3 and is incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit |
Description | |
| 3.3 | Amendment No. 1 to Amended and Restated Bylaws of the Registrant. | |
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.
| MINDBODY, INC. | ||
| By: | /s/ Kimberly G. Lytikainen | |
| Kimberly G. Lytikainen Chief Legal Officer and Secretary | ||
Date: January 16, 2019
Exhibit 3.3
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED BYLAWS OF
MINDBODY, INC.
This Amendment No. 1 to the Amended and Restated Bylaws (the “Bylaws”) of MINDBODY, Inc., a Delaware corporation, is made as of this 16th day of January, 2019.
1. The Bylaws are hereby amended by the addition thereto of a new Section 9.5 under Article IX, which reads in its entirety as follows:
“9.5 FORUM SELECTION
(i) Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, another state court located within the State of Delaware or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee or agent of the corporation to the corporation or the corporation’s stockholders, including any claim alleging aiding and abetting of such breach of a fiduciary duty, (c) any action asserting a claim arising pursuant to any provision of the DGCL, the certificate of incorporation or the bylaws of the corporation, (d) any action asserting a claim against the corporation or any director or officer or other employee of the corporation governed by the internal affairs doctrine or (e) any other action asserting an “internal corporate claim” (as that term is defined in Section 115 of the DGCL). Any person or entity owning, purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this bylaw.
(ii) If any action or proceeding the subject matter of which is within the scope of paragraph (i) above is filed in a court other than in accordance with the above provision (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (a) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce paragraph (i) above (an “FSC Enforcement Action”) and (b) having service of process made upon such stockholder in any such FSC Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.”
2. Except as specifically amended herein, the Bylaws of the corporation shall remain unchanged and in full force and effect.
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MINDBODY, INC.
CERTIFICATE OF AMENDMENT OF BYLAWS
The undersigned hereby certifies that she is the duly elected, qualified, and acting Secretary of MINDBODY, Inc., a Delaware corporation, and that the foregoing Amendment No. 1 to the Amended and Restated Bylaws was duly adopted on January 16, 2019 by the corporation’s board of directors.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand this 16th day of January, 2019.
| /s/ Kimberly G. Lytikainen |
| Kimberly G. Lytikainen, Secretary |