UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
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| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
As described in Item 5.07 below, on June 26, 2020, at the 2020 Annual Meeting of Shareholders of United Therapeutics Corporation (the “Company”), the Company’s shareholders approved an amendment and restatement (the “2020 Restatement”) of the United Therapeutics Corporation Amended and Restated 2015 Stock Incentive Plan (the “Plan”). The 2020 Restatement had previously been approved by the Company’s Board of Directors (the “Board”) upon the recommendation of its Compensation Committee. The effective date of the 2020 Restatement is June 26, 2020.
The Plan is administered by the Compensation Committee of the Board, which is comprised of independent directors. The purpose of the Plan is to stimulate the efforts of non-employee directors, officers, employees and other service providers, in each case who are selected to be participants in the Plan, by heightening the desire of such persons to continue working toward and contributing to the success and progress of the Company. The Plan allows grants of stock options, stock appreciation rights, restricted stock, restricted stock units, and stock awards, any of which may be performance-based, and for incentive bonuses.
The 2020 Restatement makes the following changes to the Plan:
| · | increases the maximum number of shares of the Company’s common stock that may be issued under the Plan by 500,000 shares; |
| · | changes the fungible share ratio to 1.35:1; |
| · | removes certain references to Section 162(m) of the Internal Revenue Code that are no longer relevant; and |
| · | extends the expiration date of the Plan to April 29, 2030. |
Additional details regarding the Plan are included in the Company’s 2020 Proxy Statement under the heading Proposal No. 4 — Approval of the Amendment and Restatement of the United Therapeutics Corporation Amended and Restated 2015 Stock Incentive Plan. The foregoing summary is qualified in its entirety by the full text of the Plan, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
As described in Item 5.07 below, at the 2020 Annual Meeting of Shareholders, the Company’s shareholders, upon the recommendation of the Board, approved amendments to the Company’s Amended and Restated Certificate of Incorporation (the “Certificate”) in order to phase out the classification of the Board and to provide for the annual election of all directors, as described below. The amendments to the Certificate (the “Declassification Amendment”) became effective upon filing with the Office of the Secretary of State of the State of Delaware (the “Delaware Secretary of State”) on June 26, 2020. The Board also adopted and filed with the Delaware Secretary of State a certificate of elimination to eliminate from the Certificate all matters set forth in the certificate of designation with respect to the Company’s Series A Junior Participating Preferred Stock (the “Certificate of Elimination”). The Certificate of Elimination also became effective upon filing with the Delaware Secretary of State on June 26, 2020.
Article VII, Section (c) of the Certificate provided that the Board was divided into three classes of approximately equal size, composed of directors each serving terms of office of three years. The Declassification Amendment amends Section (c) to provide for the annual election of directors and adds a new Section (d) on removal of directors to Article VII. Specifically, the Declassification Amendment provides for the annual election of directors beginning at the 2021 annual meeting of shareholders, and the declassification of the Board will be phased in over a period of three years. Beginning with the 2023 annual meeting of shareholders, the declassification of the Board will be complete and all directors will be subject to annual election for one-year terms. Consistent with Delaware law, the Declassification Amendment also provides that directors elected annually may be removed either for or without cause. Directors elected for and serving out the remainder of a three-year term would continue to be removable only for cause. Removal of directors will be governed by the default standard under the Delaware General Corporation Law, which requires approval by a majority of the shares entitled to vote thereon.
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Following shareholder approval of the Declassification Amendment, the Board also approved conforming amendments to Article III, Sections 3.1 and 3.2 of the Company’s Seventh Amended and Restated By-laws (the “By-laws”). The By-law amendments also clarify that any director elected to fill a new Board seat resulting from an increase in the number of directors after the effective date of the Declassification Amendment would be elected for a term expiring at the next succeeding annual meeting of shareholders. Directors elected by the Board to fill vacancies would have the same remaining terms as that of their predecessors. The amendments to the By-laws became effective upon filing of the Declassification Amendment with the Delaware Secretary of State on June 26, 2020.
Also on June 26, 2020, the Company filed with the Delaware Secretary of State a Restated Certificate of Incorporation, which incorporates the Declassification Amendment, the amendments resulting from the Certificate of Elimination and previous amendments to the Certificate, but does not further amend the Certificate (the “Restated Certificate”). A copy of the Restated Certificate and the Company’s Eighth Amended and Restated By-laws are attached hereto as Exhibits 3.1 and 3.2, respectively. The descriptions of the Declassification Amendment and the Certificate of Elimination, and the amendments to the By-laws are qualified in their entireties by reference to the full text contained in Exhibits 3.1 and 3.2, respectively.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
On June 26, 2020, the Company held its 2020 Annual Meeting of Shareholders. The Company’s shareholders considered five matters, each of which is described in more detail in the Company’s Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on April 29, 2020. The final voting results for the meeting are as follows:
| 1. | Election of Class III directors, each to serve a term of three years: |
| Nominee | Votes For | Votes Against | Abstentions | Broker Non-Votes | ||||||||||||
| Raymond Dwek | 32,958,024 | 1,953,572 | 28,218 | 1,782,141 | ||||||||||||
| Christopher Patusky | 31,381,144 | 3,534,487 | 24,183 | 1,782,141 | ||||||||||||
| Tommy Thompson | 31,127,600 | 3,785,547 | 26,667 | 1,782,141 | ||||||||||||
| 2. | An amendment to the Company’s Certificate in order to phase out the classification of the Board and to provide for the annual election of all directors: |
| Votes for: | 34,866,245 | |||
| Votes against: | 56,126 | |||
| Abstentions: | 17,443 | |||
| Broker non-votes: | 1,782,141 |
| 3. | An advisory resolution to approve executive compensation: |
| Votes for: | 11,959,439 | |||
| Votes against: | 22,909,955 | |||
| Abstentions: | 70,420 | |||
| Broker non-votes: | 1,782,141 |
| 4. | Approval of the amendment and restatement of the United Therapeutics Corporation Amended and Restated 2015 Stock Incentive Plan: |
| Votes for: | 27,669,975 | |||
| Votes against: | 7,213,501 | |||
| Abstentions: | 56,338 | |||
| Broker non-votes: | 1,782,141 |
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| 5. | Ratification of the appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for 2020: |
| Votes for: | 36,166,307 | |||
| Votes against: | 523,552 | |||
| Abstentions: | 32,096 | |||
| Broker non-votes: | — |
Item 9.01. Exhibits
| (d) | Exhibits |
| Exhibit No. | Description of Exhibit | |
| 3.1 | Restated Certificate of Incorporation of United Therapeutics Corporation | |
| 3.2 | Eighth Amended and Restated By-laws of United Therapeutics Corporation | |
| 10.1 | United Therapeutics Corporation Amended and Restated 2015 Stock Incentive Plan | |
| 104 | The cover page from this Current Report on Form 8-K, formatted in Inline XBRL |
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SIGNATURE
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.
| UNITED THERAPEUTICS CORPORATION | ||
| Dated: June 26, 2020 | By: | /s/ Paul A. Mahon |
| Name: | Paul A. Mahon | |
| Title: | General Counsel | |
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