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): May 20, 2019
NEVRO CORP.
(Exact name of registrant as specified in its charter)
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Delaware |
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001-36715 |
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56-2568057 |
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(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification Number) |
1800 Bridge Parkway
Redwood City, CA 94065
(Address of principal executive offices, including Zip Code)
Registrant’s telephone number, including area code: (650) 251-0005
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 Act:
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Title of each class |
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Trading Symbol |
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Name of each exchange on which registered |
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Common Stock, $0.001 par value per share |
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NVRO |
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The New York Stock Exchange |
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. ☐
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Item 5.03 |
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On May 23, 2019, Nevro Corp.’s (“Nevro” or the “Company”) amendment to its amended and restated certificate of incorporation (the “Charter Amendment”) was filed with the Secretary of State of the State of Delaware and became effective. Effective upon the filing of the Charter Amendment, an amendment to the Company’s amendment and restated bylaws also became effective (the “Bylaw Amendment”). As further described in Nevro’s definitive proxy statement for the 2019 Annual Meeting of Stockholders (the “Annual Meeting”), the Charter Amendment and Bylaw Amendment had two effects: (i) to phase in the declassification of Nevro’s Board of Directors to allow its stockholders to vote on the election of directors generally on an annual basis, rather than on a staggered basis (the “Declassification Amendment”) and (ii) to replace the provisions in Nevro’s amended and restated certificate of incorporation and amendment and restated bylaws (collectively, the “Organizational Documents”) that require the affirmative vote of sixty-six and two-thirds percent (66-2/3%) of Nevro’s voting stock (the “Supermajority Voting Requirement”) for stockholders to take action with a majority of Nevro’s voting stock (the “Supermajority Amendment”).
As a result of the Declassification Amendment, each director who stands for election or re-election at and after the 2020 annual meeting of stockholders following the completion of such director’s then-current three-year term will be elected for a one-year term, expiring at the next year’s annual stockholder meeting, and the Board of Directors structure will be completely declassified by the 2022 annual meeting of stockholders. Commencing with the 2022 annual meeting of stockholders, Nevro’s directors will no longer be divided into classes.
As a result of the Supermajority Amendment, the Supermajority Voting Requirement is eliminated and provisions of the Company's Organizational Documents that would have required supermajority stockholder approval under the Organizational Documents will instead require approval of the holders of a majority of the voting power of all then-outstanding shares of voting stock, voting together as a single class.
The foregoing description of the Charter Amendment and the Bylaw Amendment is qualified in its entirety by reference to (1) the Certificate of Amendment to the Amended and Restated Certificate of Incorporation filed as Exhibit 3.1 hereto, and (2) the Amendment to the Amended and Restated Bylaws filed as Exhibit 3.2 hereto, each of which is incorporated herein by reference.
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Item 5.07 |
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Submission of Matters to a Vote of Security Holders. |
On May 20, 2019, Nevro held its 2019 Annual Meeting. At the Annual Meeting, the Company’s stockholders voted on five proposals, 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 10, 2019. Only stockholders of record as of the close of business on April 2, 2019, the record date for the Annual Meeting, were entitled to vote at the Annual Meeting. As of the record date, 30,449,607 shares of the Company’s common stock were outstanding and entitled to vote at the Annual Meeting. The tabulation of the stockholder votes on each proposal brought before the Annual Meeting is as follows:
Proposal 1 . The election of three directors to hold office until the 2022 annual meeting of stockholders or until their respective successor is elected:
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Nominee |
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Votes For |
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Votes Withheld |
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Broker Non-Votes |
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D. Keith Grossman |
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23,156,673 |
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1,440,323 |
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1,781,249 |
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Wilfred E. Jaeger, M.D. |
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23,893,692 |
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703,304 |
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1,781,249 |
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Elizabeth Weatherman |
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24,290,315 |
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306,681 |
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1,781,249 |
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Proposal 2 . The ratification of the selection, by the Audit Committee of the Board of Directors of the Company, of PricewaterhouseCoopers LLP as the independent registered public accounting firm of the Company for the fiscal year ending December 31, 2019:
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Votes For |
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Votes Against |
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Abstentions |
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26,354,586 |
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21,072 |
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2,587 |
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As a routine proposal under applicable rules, no broker non-votes were recorded in connection with this proposal.
Proposal 3 . The approval, on a non-binding, advisory basis, of the compensation of the Company’s named executive officers:
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Votes For |
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Votes Against |
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Abstentions |
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Broker Non-Votes |
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20,131,096 |
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4,427,238 |
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38,662 |
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1,781,249 |
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Proposal 4. The approval of an amendment to the Company’s Amended and Restated Certificate of Incorporation to phase in the declassification of the Company’s Board of Directors.
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Votes For |
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Votes Against |
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Abstentions |
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Broker Non-Votes |
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24,590,451 |
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4,897 |
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1,648 |
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1,781,249 |
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Proposal 5. The approval of an amendment to the Company’s Amended and Restated Certificate of Incorporation to eliminate the supermajority voting requirements.
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Votes For |
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Votes Against |
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Abstentions |
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Broker Non-Votes |
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24,579,325 |
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16,166 |
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1,505 |
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1,781,249 |
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Item 9.01 |
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Financial Statements and Exhibits. |
(d) Exhibits.
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Exhibit No. |
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Description |
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3.1 |
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of Nevro Corp. |
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3.2 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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NEVRO CORP. |
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Date: May 24, 2019 |
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By: |
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/s/ Andrew H. Galligan |
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Andrew H. Galligan Chief Financial Officer |
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NEVRO CORP.
May 23, 2019
Nevro Corp., a corporation organized and existing under and by virtue of the Delaware General Corporation Law, hereby certifies the following:
1. The name of this corporation is Nevro Corp. The original Certificate of Incorporation of the corporation was filed with the Secretary of State of the State of Delaware on October 4, 2006 under the name NBI Development, Inc. The Certificate of Designations, Preferences and Rights of Series A Convertible Stock of NBI Development, Inc. was filed with the Secretary of State of the State of Delaware on October 6, 2006. A Certificate of Amendment to the Certificate of Incorporation of NBI Development, Inc. was filed with the Secretary of State of the State of Delaware on June 28, 2007. An Amended and Restated Certificate of Incorporation was filed on June 4, 2008. A subsequent Amended and Restated Certificate of Incorporation was filed on November 10, 2014.
2. The following amendments to the Amended and Restated Certificate of Incorporation are hereby adopted:
Article V, Section 1(b) shall be deleted in its entirety and replaced with the following:
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foregoing, c ommencing with the 2020 annual meeting of stockholders, each director who is elected at the annual meeting of stockholders , other than any directors elected by the separate vote of the holders of one or more series of Preferred Stock, shall hold office until the next annual meeting and until his or her successor shall be elected and qualified, subject, however, to such director’s prior death, resignation, retirement, disqualification or removal from office. Commencing with the 2022 annual meeting of stockholders, directors shall no longer be divided into classes. |
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Notwithstanding the foregoing provisions of this Article V Section 1(b), each director shall serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation, disqualification, retirement or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
Article V, Section 1(c) shall be deleted in its entirety and replaced with the following:
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(c)Subject to the special rights of the holders of one or more series of Preferred Stock to elect directors, the Board of Directors or any individual director may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of a majority of the voting power of all the then outstanding shares of voting stock of the Corporation with the power to vote at an election of directors (the “ Voting Stock ”). |
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Article V, Section 2(a) shall be deleted in its entirety and replaced with the following:
(a) In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal Bylaws of the Corporation. In addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by this Amended and Restated Certificate of Incorporation (including any Certificate of Designation in respect of one or more series of Preferred Stock), the adoption, amendment or repeal of the Bylaws of the Corporation by the stockholders of the Corporation shall require the affirmative vote of the holders of at least a majority of the voting power of all the then-outstanding shares of the Voting Stock, voting together as a single class.
Article IX shall be deleted in its entirety and replaced with the following:
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of Preferred Stock), the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of the Voting Stock, voting together as a single class, shall be required to alter, amend or repeal Articles V, VI, VII, VIII and this Article IX. |
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3. This Certificate of Amendment of the Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 242 of the General Corporation Law of the State of Delaware (as the same exists or may hereafter be amended).
4. This Certificate of Amendment of the Amended and Restated Certificate of Incorporation shall become effective immediately upon filing of this Certificate of Amendment with the Secretary of State of the State of Delaware.
(Signature Page Follows)
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be executed on its behalf on this 23rd day of May , 2019 .
NEVRO CORP.
By: /s/ Kashif Rashid
Name: Kashif Rashid
Title: General Counsel and Secretary
Signature Page to Certificate of Amendment of
Amended and Restated Certificate of Incorporation
of Nevro Corp.
Exhibit 3.2
AMENDMENT TO AMENDED AND RESTATED BYLAWS
OF
NEVRO CORP.
Effective as of May 23, 2019, the Amended and Restated Bylaws (the “Bylaws”) of Nevro Corp. (the “Company”), dated November 12, 2014, shall be amended as follows:
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The following sentence shall be added to the end of Article III, Section 3.3: |
Commencing with the 2022 annual meeting of stockholders, the directors of the Corporation shall no longer be divided into classes.
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The first sentence of Article III, Section 3.11 is amended and restated in its entirety as follows: |
Except as otherwise provided by the DGCL or the Certificate of Incorporation, the Board of Directors or any individual director may be removed from office at any time, but only with cause by the affirmative vote of the holders of at least a majority of the voting power of all the then outstanding shares of voting stock of the Corporation with the power to vote at an election of directors (the “ Voting Stock ”).
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Article X is amended and restated in its entirety as follows: |
Subject to the limitations set forth in Section 9.9 of these bylaws or the provisions of the Certificate of Incorporation, the Board is expressly empowered to adopt, amend or repeal the bylaws of the Corporation. Any adoption, amendment or repeal of the bylaws of the Corporation by the Board shall require the approval of a majority of the authorized number of directors. The stockholders also shall have power to adopt, amend or repeal the bylaws of the Corporation; provided , however , that, in addition to any vote of the holders of any class or series of stock of the Corporation required by law or by the Certificate of Incorporation, such action by stockholders shall require the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of the Voting Stock.
Nevro Corp.
Certificate of Amendment to Amended and Restated Bylaws
The undersigned hereby certifies that he or she is the duly elected, qualified, and acting Secretary of Nevro Corp., a Delaware corporation, and that the foregoing bylaws were amended effective on May 23, 2019 by the Corporation’s board of directors.
IN WITNESS WHEREOF, the undersigned has hereunto set his or hand this 23rd day of May, 2019.
/s/ Kashif Rashid
Name: Kashif Rashid
Title: General Counsel and Secretary
[Signature Page to Amendment to Amended and Restated Bylaws]