false 0001220754 0001220754 2023-06-13 2023-06-13
--12-31
 
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 13, 2023
 
ModivCare Inc.
(Exact name of registrant as specified in its charter)
 
         
Delaware
  
001-34221
  
86-0845127
(State or other jurisdiction
of incorporation or organization)
  
(Commission File Number)
  
(I.R.S. Employer
Identification No.)
   
6900 Layton Avenue, 12th Floor
Denver, Colorado
  
80237
(Address of principal executive offices)
  
(Zip Code)
 
Registrant’s telephone number, including area code: 303-728-7030
 
N/A
(Former name or former address, if changed since last report)
 
Check the appropriate box if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
☐
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))
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, $0.001 Par Value
MODV
The NASDAQ Global Select Market
 
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 13, 2023, ModivCare Inc. (the “Company”) held its 2023 annual meeting of stockholders (the “2023 Annual Meeting”), at which the Company’s stockholders approved a proposal to amend the Company’s Second Amended and Restated Certificate of Incorporation, as amended (the “Charter”), to phase out the Company’s classified board structure and provide for the annual election of directors (the “Charter Amendment”). The Company’s Charter previously provided for the Board of Directors (the “Board”) to be divided into three classes of approximately equal size, with each class serving a staggered three-year term. Pursuant to the Charter Amendment, directors elected prior to the 2023 Annual Meeting will continue to serve the remainder of their staggered three-year terms. Commencing with the 2023 Annual Meeting, and at each annual meeting of stockholders thereafter, elections will be held to elect directors to serve one-year terms expiring at the next annual meeting of stockholders to replace those directors whose terms have expired. After the Company’s 2025 annual meeting of stockholders, the phase out of the classified board structure will be complete, and all directors will be subject to annual election for one-year terms.
 
The Board previously approved the Charter Amendment and its filing with the Secretary of State of the State of Delaware, subject to receipt of stockholder approval at the 2023 Annual Meeting. The Company filed the Charter Amendment with the Secretary of State of the State of Delaware following receipt of stockholder approval on June 13, 2023, for immediate effectiveness.
 
The Board also approved, conditioned and effective upon stockholder approval and filing of the Charter Amendment, conforming amendments to the Amended and Restated Bylaws of the Company (the “Bylaw Amendment”) to remove provisions relating to the classified board structure.
 
The foregoing descriptions are summaries only and are qualified in their entirety by reference to the complete text of the Charter Amendment and the Bylaw Amendment, which are filed as Exhibits 3.1 and 3.2, respectively, to this Form 8-K and incorporated herein by reference.
 
Item 5.07                   Submission of Matters to a Vote of Security Holders
 
At the 2023 Annual Meeting held by the Company on June 13, 2023, all proposed measures passed, and the director nominees recommended were elected. The final voting results for each of the matters and candidates submitted to a vote of stockholders at the Annual Meeting are as follows:
 
 
a)
The approval of the Charter Amendment to declassify the board:
 
Votes For:
     13,187,516  
Votes Against:
     110  
Abstentions:
     1,542  
Broker Non-Votes:
     493,754  
 
 
b)
The election of four directors, each to serve for a one-year term until the 2024 annual meeting of stockholders:
 
Name of Nominee
  
Votes For
    
Against
    
Abstentions
    
Broker
Non-Votes
  
David A. Coulter
     7,848,302       5,205,948       134,918       493,754  
Leslie V. Norwalk
     9,921,955       3,135,256       131,957       493,754  
Rahul Samant
     13,080,998       105,940       2,230       493,754  
L. Heath Sampson
     13,139,488       47,440       2,240       493,754  
 
 
c)
The non-binding advisory vote to approve the Company’s named executive officer compensation:
 
Votes For:
     13,010,916  
Votes Against:
     175,398  
Abstentions:
     2,854  
Broker Non-Votes:
     493,754  
 
 
 
 
 
d)
The non-binding advisory vote to indicate the desired frequency of future advisory votes on the Company’s named executive officer compensation:
 
Every One Year:
     12,714,662  
Every Two Years:
     521  
Every Three Years:
     471,816  
Abstentions:
     2,169  
Broker Non-Votes:
     493,754  
 
 
e)
The ratification of the appointment of KPMG LLP as the Company’s independent registered public accounting firm for the 2023 fiscal year:
 
Votes For:
     13,588,739  
Votes Against:
     91,703  
Abstentions:
     2,480  
Broker Non-Votes:
  
Not Applicable
  
 
Item 9.01                   Financial Statements and Exhibits
 
Exhibit No.
  
Exhibit Description
3.1
  
3.2
  
104
  
Cover Page Interactive Data File (embedded within Inline XBRL document).
 
 
 
 
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.
 
MODIVCARE INC.
Date: June 15, 2023
By:
/s/ Jonathan B. Bush
Name: 
Jonathan B. Bush
Title:
Senior Vice President, General Counsel & Secretary
 
 

Exhibit 3.1

 

THIRD AMENDMENT TO
THE SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MODIVCARE INC.

 

The undersigned, desiring to amend the certificate of incorporation of a Delaware corporation pursuant to Section 242 of the Delaware General Corporation Law (the “Act”), hereby certifies as follows:

 

FIRST. The name of the corporation (hereinafter called the “Corporation”) is ModivCare Inc.

 

SECOND. The Corporation’s Second Amended and Restated Certificate of Incorporation (the “Certificate”) was filed with the Secretary of State of the State of Delaware on August 22, 2003 and was amended by the Amendment to the Certificate on May 6, 2015 and the Second Amendment to the Certificate on January 6, 2021.

 

THIRD. The SIXTH Article of the Certificate, which Article sets forth the structure of the Board of Directors of the Corporation, is hereby amended and restated in its entirety as follows:

 

“SIXTH: Directors. The number of Directors shall consist of not less than four (4) and not more than eleven (11) directors. The number of directors to be elected, subject to the foregoing limits, shall be determined by resolution of the Board of Directors.

 

Until the election of directors at the 2023 annual meeting of stockholders, the Board of Directors shall be divided into three classes (Class 1, Class 2 and Class 3), as nearly equal in number as the then total number of directors constituting the whole Board of Directors permits. The directors elected prior to the 2023 annual meeting of stockholders shall serve staggered three-year terms with the term of office of one class expiring at an annual meeting of stockholders each year.

 

Commencing with the 2023 annual meeting of stockholders, and at each annual meeting of stockholders thereafter, elections shall be held to elect directors to serve one-year terms expiring at the next annual meeting of stockholders to replace those directors whose terms have expired. The term of office for all directors elected at each annual meeting of stockholders held at or after the 2023 annual meeting of stockholders shall be a one-year term expiring at the next annual meeting of stockholders after the date of their election, with the effect that the Board of Directors will cease being classified at the 2025 annual meeting of stockholders. All directors shall continue in office for their elected terms and after the expiration of their elected terms until their successors are elected or appointed and have qualified, except in the event of earlier resignation, removal or disqualification.

 

A director may be removed from office at any time prior to the 2025 annual meeting of stockholders only for cause, and from and after the 2025 annual meeting of stockholders with or without cause, and only by the affirmative vote of the holders of a majority of the voting power of all the then outstanding shares of capital stock of the Corporation entitled to vote at any annual or regular election of directors voting together as a single class. The term “cause” shall mean willful and continuous failure of a director to substantially perform such director’s duties to the Corporation or the willful engaging by a director in gross misconduct materially and demonstrably injurious to the Corporation.”

 

FOURTH. The amendment herein certified has been duly adopted in accordance with Section 242 of the Act.

 

FIFTH. This Amendment shall become effective immediately upon filing with the Secretary of State of the State of Delaware.

 

IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by its duly authorized officer as of June 13, 2023.

 

 

MODIVCARE INC.
 

Date: June 13, 2023
     
 

By:

/s/ Jonathan Bush                  
 

Name:

Jonathan Bush
 

Title:

Senior Vice President, General Counsel and Secretary

 

 

Exhibit 3.2

 

 

AMENDMENT

TO THE

AMENDED AND RESTATED BYLAWS

OF

MODIVCARE INC.

 

This Amendment (“Amendment”) to the Amended and Restated Bylaws (the “Bylaws”) of ModivCare Inc., a Delaware corporation (the “Corporation”), amends the Bylaws as follows:

 

1.    Amendment to Section 1.03. The first sentence of clause (a) of Section 1.03 of Article I of the Bylaws is hereby amended and restated in its entirety to read as follows:

 

“Except as otherwise required by the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”), and the Second Amended and Restated Certificate of Incorporation of the Corporation, as amended from time to time (the “Certificate”), special meetings of the stockholders may be called at any time by a majority of the entire Board or the Chief Executive Officer.”

 

2.    Amendment to Section 2.05. The last sentence of Section 2.05 of Article II of the Bylaws is hereby amended and restated in its entirety to read as follows:

 

“Any director elected in accordance with the preceding sentence of this Section 2.05 shall hold office for a term that shall coincide with the term for which such director shall have been elected or appointed and until his or her successor shall have been duly elected and qualified, except in the event of his or her earlier death, resignation or removal.”

 

3.    Amendment to Section 2.06. Clause (a) of Section 2.06 of Article II of the Bylaws is hereby amended and restated in its entirety to read as follows:

 

“(a) Removal. A director may be removed from office at any time pursuant to, and in accordance with, the Company’s Certificate by the affirmative vote of the holders of a majority of the voting power of all the then outstanding shares of capital stock of the Corporation entitled to vote at any annual or regular election of directors voting together as a single class. The term “cause” shall mean willful and continuous failure of a director to substantially perform such director’s duties to the Corporation or the willful engaging by a director in gross misconduct materially and demonstrably injurious to the Corporation.”

 

4.    Miscellaneous. Except to the extent expressly amended pursuant to this Amendment, the Bylaws shall remain in full force and effect.