ITEM
5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN
FISCAL YEAR
On
October 31, 2007, the Board of
Directors (the “Board”) of Audible, Inc. (the “Company”) authorized the
amendment and restatement of the Company’s bylaws (as amended and restated, the
“Amended Bylaws”). The primary amendments relate to the
following:
• Section
1.3 was amended to set forth the procedure for calling a special meeting of
stockholders;
• As
amended, Section 1.4, Section 2.9, and Section 6.10 permit stockholders and
the
Board to receive notice of meetings by facsimile or other means of electronic
transmission;
• A
new Section 1.13 was added, and Section 2.10 was amended, to allow the Board,
and the stockholders if authorized by the Board, to participate in meetings
by
means of telephonic and other remote communication;
• As
amended, Section 1.10 provides that for a stockholder proposal to be properly
brought, it must be a proper matter and the stockholder must deliver notice
of
the proposal to the Company’s principal executive office not less than 120 days
prior to the first anniversary date the Company’s proxy statement was released
to stockholders for the previous year’s annual meeting. In the event
that no annual meeting was held, or is more than 30 days earlier than the date
contemplated at the time of the previous year’s proxy statement, stockholder
proposals must be received no later than the close of business on the 10th
day
following the day on which the date of the annual meeting is publicly announced.
These provisions do not affect any rights of stockholders to request inclusion
of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the
Securities Exchange Act of 1934, as amended;
• A
new Section 1.11 was added to provide for the conduct of stockholder
meetings;
• Article
III was amended to set forth the duties of the Chief Executive Officer, Chief
Financial Officer, and President of the Company;
• As
amended, Section 4.2 authorizes the Board to provide by resolution that some
or
all of any class or series of stock may be uncertificated shares. The amendments
are necessary in order to satisfy the requirements of The NASDAQ Global Market
that the Company’s shares be Direct Registration System (“DRS”) eligible by
January 1, 2008. The DRS allows investors to hold shares in book entry form
without the issuance of physical certificates;
• As
amended, Section 6.3 provides that attendance at any meeting will constitute
waiver of notice except if the sole purpose of attending the meetings is to
object to the timeliness of notice;
• A
new Section 6.11 provides that directors and officers of the Company will be
fully protected when relying in good faith upon books and records of the
Company;
• A
new Section 6.12 was added to establish guidelines for calculating time periods
in applying provisions in the Amended Bylaws that require an act to be done
within a specified number of days; and
• A
new Section 6.13 was added to provide for the use of facsimile signatures by
officers of the Company.
In
addition, the Amended Bylaws include
other non-substantive and technical edits and updates.
The
foregoing summary of the Amended Bylaws is not complete and is qualified in
its
entirety by reference to the full text of the Amended Bylaws, a copy of which
is
filed as Exhibit 3.4 to this report and incorporated herein by
reference.