Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal

Year.

On October 20, 2020, Eargo, Inc.'s (the "Company") amended and restated certificate of incorporation (the "Certificate of Incorporation"), filed with the Secretary of State of the State of Delaware on October 20, 2020, and its amended and restated bylaws (the "Bylaws") became effective in connection with the closing of the initial public offering of shares of the Company's common stock. As described in the Registration Statement on Form S-1 (File No. 333-249075), as amended, the Company's board of directors and stockholders previously approved the amendment and restatement of these documents to be effective immediately prior to the closing of the Company's initial public offering.

As amended and restated, the Certificate of Incorporation and the Bylaws contain provisions that, among other things:





  •   authorize 300,000,000 shares of common stock;




     •    delete all references to the various series of preferred stock that were
          previously authorized and instead create 5,000,000 shares of undesignated
          preferred stock with terms to be set by the board of directors, which
          rights could be senior to those of the common stock;




     •    do not provide for cumulative voting in the election of directors, which
          means that stockholders holding a majority of the shares of common stock
          outstanding will be able to elect all directors;




     •    require the advance notice of nominations for election to the board of
          directors or for proposing matters that can be acted upon at a
          stockholders' meeting;




     •    allow the board of directors to alter the bylaws without obtaining
          stockholder approval;




     •    eliminate the rights of stockholders to call a special meeting of
          stockholders and to take action by written consent in lieu of a meeting;




     •    require the approval of at least 66 2/3% of the shares entitled to vote
          to remove a director for cause;




     •    require the approval of at least 66 2/3% of the shares entitled to vote
          at an election to adopt, amend or repeal the bylaws or alter, amend or
          repeal the provisions of the Certificate of Incorporation regarding the
          election and removal of directors;




     •    unless the Company consents in writing to the selection of an alternative
          forum, designate the Court of Chancery of the State of Delaware (or, in
          the event that the Chancery Court does not have jurisdiction, the federal
          district court for the District of Delaware or other state courts of the
          State of Delaware) to be the sole and exclusive forum for (i) any
          derivative action, suit or proceeding brought on behalf of the Company;
          (ii) any action, suit or proceeding asserting a claim of breach of a
          fiduciary duty owed by any of the Company's directors, officers or
          stockholders to the Company or its stockholders; (iii) any action, suit
          or proceeding arising pursuant to any provision of the Delaware General
          Corporation Law or the Certificate of Incorporation or the Company's
          bylaws; or (iv) any action, suit or proceeding asserting a claim against
          the Company governed by the internal affairs doctrine; provided that, the
          exclusive forum provision will not apply to suits brought to enforce any
          liability or duty created by the Securities Exchange Act of 1934, as
          amended, or any other claim for which the federal courts of the United
          States have exclusive jurisdiction;




     •    designate the federal district courts of the United States as the
          exclusive forum for the resolution of any complaint asserting a cause of
          action arising under the Securities Act of 1933, as amended, unless the
          Company consents in writing to the selection of an alternative forum; and




     •    establish a classified board of directors, as a result of which the
          successors to the directors whose terms have expired will be elected to
          serve from the time of election and qualification until the third annual
          meeting following their election.

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The foregoing description of the Certificate of Incorporation and the Bylaws is qualified in its entirety by reference to (1) the Certificate of Incorporation filed as Exhibit 3.1 hereto and (2) the Bylaws filed as Exhibit 3.2 hereto, each of which is incorporated herein by reference.

Item 8.01 Other Events.

On October 20, 2020, the Company completed its initial public offering of 9,029,629 shares of its common stock, which includes an additional 1,177,777 shares of common stock purchased by the underwriters pursuant to their option to purchase additional shares, at a price to the public of $18.00 per share. The gross proceeds to the Company from the initial public offering were approximately $162.5 million, before deducting underwriting discounts and commissions and estimated offering expenses payable by the Company.

Item 9.01 Financial Statements and Exhibits.






Exhibit No.       Description

3.1                 Amended and Restated Certificate of Incorporation of Eargo, Inc.

3.2                 Amended and Restated Bylaws of Eargo, Inc.

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