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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): June 15, 2023
CAREDX, INC.
(Exact Name of Registrant as Specified in its Charter)
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| Delaware | | 001-36536 | | 94-3316839 |
(State or Other Jurisdiction of Incorporation) | | (Commission File Number) | | (IRS Employer Identification No.) |
8000 Marina Blvd, 4th Floor
Brisbane, California 94005
(Address of Principal Executive Offices) (Zip Code)
(415) 287-2300
Registrant’s telephone number, including area code
N/A
(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:
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| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Exchange Act:
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| (Title of each class) | | (Trading Symbol) | | (Name of exchange on which registered) |
| Common Stock, $0.001 Par Value | | CDNA | | The Nasdaq Stock Market LLC |
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 June 15, 2023, CareDx, Inc. (the “Company”) held its 2023 Annual Meeting of Stockholders (the “Annual Meeting”). At the Annual Meeting, the stockholders of the Company approved (i) an amendment to the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) to provide for the gradual declassification of the board of directors (the “Board of Directors”) of the Company (the “Declassification Amendment”) and (ii) an amendment to the Certificate of Incorporation to reflect new Delaware law provisions regarding officer exculpation (the “Officer Exculpation Amendment”). A description of the Declassification Amendment is provided in “Proposal No. 4 – Approval of Amendments to the Certificate of Incorporation to Provide for the Gradual Declassification of our Board of Directors” of the Company’s definitive proxy statement filed with the Securities and Exchange Commission on April 28, 2023 (the “Proxy Statement”), which description and text are incorporated herein by reference. A description of the Officer Exculpation Amendment is provided in “Proposal No. 5 – Approval of Amendments to the Certificate of Incorporation to Reflect New Delaware Law Provisions Regarding Officer Exculpation” of the Proxy Statement, which description and text are incorporated herein by reference.
The Declassification Amendment and the Officer Exculpation Amendment became effective upon the Company’s filing of a Certificate of Amendment to the Certificate of Incorporation with the Secretary of State of the State of Delaware on June 16, 2023 (the “Certificate of Amendment”). The foregoing description of the terms of the Declassification Amendment and the Officer Exculpation Amendment and the descriptions thereof incorporated by reference from the Proxy Statement do not purport to be complete and are qualified in their entireties by reference to the full text of the Certificate of Amendment, a copy of which is attached as Exhibit 3.1 hereto and is incorporated by reference herein.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On June 15, 2023, the Company held the Annual Meeting. Of the 53,790,008 shares of the Company’s common stock outstanding as of April 21, 2023, the record date for the Annual Meeting, 47,067,849 shares were represented at the Annual Meeting virtually or by proxy, constituting approximately 87.5% of the outstanding shares entitled to vote and constituting a quorum for the transaction of business.
At the Annual Meeting, the Company’s stockholders considered five proposals, each of which is described in more detail in the Proxy Statement.
Set forth below is a brief description of each proposal voted upon at the Annual Meeting and the voting results with respect to each proposal.
Proposal No. 1 – To elect four Class III directors to serve until the 2026 annual meeting of stockholders or until their successors are duly elected and qualified.
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| Nominee | | Votes For | | Votes Withheld | | Broker Non-Votes |
| Michael D. Goldberg | | 39,444,344 | | | 1,026,247 | | | 6,597,258 | |
Peter Maag, Ph.D. | | 40,152,497 | | | 318,094 | | | 6,597,258 | |
| Reginald Seeto, MBBS | | 40,095,619 | | | 374,972 | | | 6,597,258 | |
Arthur A. Torres | | 39,850,798 | | | 619,793 | | | 6,597,258 | |
As a result, the Company’s stockholders voted to elect each of Michael D. Goldberg , Peter Maag, Ph.D., Reginald Seeto, MBBS and Arthur A. Torres as Class III directors to serve until the Company’s 2026 annual meeting of stockholders or until his respective successor is duly elected and qualified.
Proposal No. 2 – To ratify the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for the Company’s fiscal year ending December 31, 2023.
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| Votes For | | Votes Against | | Abstentions | | Broker Non-Votes |
| 46,986,181 | | | 56,313 | | | 25,355 | | | — | |
As a result, the Company’s stockholders voted to ratify the selection of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for its fiscal year ending December 31, 2023.
Proposal No. 3 – To approve, on an advisory basis, the compensation of the Company’s named executive officers.
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| Votes For | | Votes Against | | Abstentions | | Broker Non-Votes |
| 38,609,980 | | | 1,801,445 | | | 59,166 | | | 6,597,258 | |
As a result, the Company’s stockholders voted to approve, on an advisory basis, the compensation of the Company’s named executive officers.
Proposal No. 4 – To approve an amendment to the Certificate of Incorporation to provide for the gradual declassification of the Company’s Board of Directors.
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| Votes For | | Votes Against | | Abstentions | | Broker Non-Votes |
| 40,276,022 | | | 180,459 | | | 14,110 | | | 6,597,258 | |
As a result, the Company’s stockholders voted to approve the amendment to the Certificate of Incorporation to provide for the gradual declassification of the Company’s Board of Directors.
Proposal No. 5 – To approve an amendment to the Certificate of Incorporation to reflect new Delaware law provisions regarding officer exculpation.
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| Votes For | | Votes Against | | Abstentions | | Broker Non-Votes |
| 38,837,317 | | | 1,615,935 | | | 17,339 | | | 6,597,258 | |
As a result, the Company’s stockholders voted to approve the amendment to the Certificate of Incorporation to reflect new Delaware law provisions regarding officer exculpation.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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| Exhibit No. | | Description |
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| 3.1 | | |
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| 104 | | Cover Page Interactive Data File, formatted in Inline Extensible Business Reporting Language (iXBRL). |
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.
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| Date: June 20, 2023 | | | | CAREDX, INC. |
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| | | | By: | | /s/ Reginald Seeto, MBBS |
| | | | | | Reginald Seeto, MBBS |
| | | | | | President and Chief Executive Officer |
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CAREDX, INC. CareDx, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), certifies that:
A.The name of the Corporation is CareDx, Inc. The Corporation was originally incorporated under the name “Hippocratic Engineering, Inc.”, and the date of filing of the original Certificate of Incorporation of the Corporation with the Secretary of State of the State of Delaware is December 21, 1998.
B.This Certificate of Amendment to the Amended and Restated Certificate of Incorporation was adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware, and has been duly approved by the stockholders of the Corporation.
C.Article V of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to read as follows:
“ARTICLE V
5.1 General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
5.2 Number of Directors; Election; Terms.
(a) Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, the number of directors that constitutes the entire Board of Directors of the Corporation shall be fixed solely by resolution of the majority of the Whole Board. For purposes of this Certificate of Incorporation, the term “Whole Board” will mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships.
(b) Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, prior to the Corporation’s annual meeting of stockholders to be held in 2027, the directors of the Corporation shall be and is divided into three classes as nearly equal in size as is practicable, hereby designated Class I, Class II and Class III. Each director elected prior to the Corporation’s 2025 annual meeting of stockholders shall serve for a term ending on the date of the third annual meeting following the annual meeting at which such director was elected. Following the expiration of the terms of: (A) the Class II directors at the Corporation’s annual meeting of stockholders in 2025, (B) the Class III directors at the Corporation’s annual meeting of stockholders in 2026 and (C) the Class I directors at the annual meeting of stockholders in 2027, the directors whose terms expire at each such meeting shall be elected for a term of one year, expiring the earlier of (i) the succeeding annual meeting of stockholders or (ii) the election and qualification of such director’s successor or such director’s earlier death, resignation or removal. Each director elected as a successor to a director in office shall have the remaining term of office of the director he or she succeeded, except that, if such successor director is elected at an annual meeting of stockholders at which the term of the director succeeded by such successor director expired, such term shall extend until
the succeeding annual meeting of stockholders. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, if, prior to the Corporation’s annual meeting of stockholders to be held in 2027, the number of directors that constitutes the Board of Directors is changed, any newly created directorships or decrease in directorships shall be so apportioned by the Board of Directors among the classes as to make all classes as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
(c) Notwithstanding the foregoing provisions of this Section 5.2, and subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, each director shall serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation, or removal.
(d) Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.
5.3 Removals. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors:
(a) Prior to the Corporation’s annual meeting of stockholders to be held in 2027, a director may be removed from office by the stockholders of the Corporation only for cause and only by the affirmative vote of the holders of at least 66 2/3% in voting power of the stock of the Corporation entitled to vote thereon; and
(b) From and after the election of directors at the Corporation’s annual meeting of stockholders to be held in 2027, the Board of Directors shall cease to be classified and a director may be removed from office by the stockholders of the Corporation with or without cause by the affirmative vote of the holders of at least 66 2/3% in voting power of the stock of the Corporation entitled to vote thereon.
5.4 Vacancies and Newly Created Directorships. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, and except as otherwise provided in the DGCL, vacancies occurring on the Board of Directors for any reason and newly created directorships resulting from an increase in the authorized number of directors may be filled only by vote of a majority of the remaining members of the Board of Directors, although less than a quorum, or by a sole remaining director, at any meeting of the Board of Directors. Prior to the Corporation’s annual meeting of stockholders to be held in 2027, a person so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been assigned by the Board of Directors and until his or her successor shall be duly elected and qualified, or until his or her earlier death, resignation or removal. After the Corporation’s annual meeting of stockholders to be held in 2027, a person so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold office until the next annual meeting of stockholders of the Corporation held after such election by the Board of Directors and until his or her successor shall be duly elected and qualified, or until his or her earlier death, resignation or removal.”
D.Section 8.1 of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to read as follows:
“8.1 Limitation of Personal Liability.
(a) To the fullest extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
(b) To the fullest extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, an officer of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as an officer. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of officers, then the liability of an officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any amendment, modification or repeal of the foregoing sentences shall not adversely affect any right or protection of an officer of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.”
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to the Amended and Restated Certificate of Incorporation to be signed by Reginald Seeto, a duly authorized officer of the Corporation, on June 16, 2023.
/s/ Reginald Seeto, MBBS
Reginald Seeto
President and Chief Executive Officer