Item 5. Other Information
Item 5. Other Information
On October 28, 2022, the Company’s Board of Directors (the “Board”) adopted and approved, effective immediately, the amended and restated bylaws (as amended and restated, the “Amended and Restated Bylaws”) of the Company. The Amended and Restated Bylaws, among other things:
• revise procedures and disclosure requirements for shareholders to provide notice of the nomination of directors (outside of “proxy access”) and the submission of proposals for consideration at meetings of the shareholders of the Company;
33
Table of Contents
• clarify the power of the Board to set rules and procedures for, postpone, reschedule or cancel any meeting of shareholders previously scheduled, and clarify the power of the chair of a shareholder meeting to adjourn any meeting of stockholders;
• clarify the powers of the Board and the chair of a shareholder meeting to establish rules for the conduct of any meeting of shareholders;
• clarify that for the applicability of the plurality voting standard to an election of directors, an election remains “contested” (and the plurality voting standard continues to apply) even if the Board determines that a shareholder’s nomination notice does not comply with the advance notice bylaws;
• provide that the size of the Board can be fixed from time to time by resolution of the Board;
• adopt a forum selection bylaw to provide that (i) shareholder suits and other derivative actions asserted against the Company or its directors and officers be brought only before the United States District Court for the Eastern District of Virginia and (ii) the U.S. federal district courts shall be the exclusive forum for the resolution of claims under the Securities Act of 1933, as amended; and
• make certain other administrative, modernizing, clarifying and conforming changes.
The foregoing description of the Amended and Restated Bylaws is not complete and is qualified in its entirety by reference to the complete text of the Amended and Restated Bylaws, which is filed as Exhibit 3.1 hereto and is incorporated herein by reference.
Item 6. Exhibits
(a) Exhibits
2.1 Agreement and Plan of Merger, dated as of January 7, 2022, by and among Owens & Minor, Inc., StoneOak Merger Sub Inc. and Apria, Inc. (incorporated by reference to Exhibit 2.1 to Current Report on Form 8-K filed with the SEC on January 10, 2022, File No. 001-09810).
3.1 Amended and Restated Bylaws of the Company effective October 28, 2022
4.1 Indenture dated March 29, 2022 by and among the Company, the guarantors named therein and Regions Bank, as trustee (incorporated herein by reference to the Company’s Current Report on Form 8-K, Exhibit 4.1, dated March 29, 2022)
4.2 Form of Global Note for the 6.625% Senior Notes due 2030 (incorporated herein by reference to the Company’s Current Report on Form 8-K, Exhibit 4.2, dated March 29, 2022)
4.3 Seventh Supplemental Indenture dated as of March 29, 2022, by and among the Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated herein by reference to the Company’s Current Report on Form 8-K, Exhibit 4.3, dated March 29, 2022)
4.4 First Supplemental Indenture dated as of March 29, 2022, by and among the Company, the guarantors named therein and Regions Bank, as trustee, to the Indenture dated as of March 10, 2021 (incorporated herein by reference to the Company’s Current Report on Form 8-K, Exhibit 4.4, dated March 29, 2022)
4.5 First Supplemental Indenture dated as of March 29, 2022, by and among the Company, the guarantors named therein and Regions Bank, as trustee, to the Indenture dated of March 29, 2022 (incorporated herein by reference to the Company’s Current Report on Form 8-K, Exhibit 4.5, dated March 29, 2022)
10.1 Amendment No. 3 to the Owens & Minor, Inc. 2018 Stock Incentive Plan - (incorporated herein by reference to our Form 10-Q, Exhibit 10.7, dated May 3, 2022)**
10.2 Executive Separation Agreement and General Release, dated as of October 12, 2022, by and between Jeffrey T. Jochims and Owens & Minor, Inc. **
22.1 List of Guarantor Subsidiaries
34
Table of Contents
22.2 List of Subsidiaries Pledged as Collateral
31.1 Certification of Chief Executive Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of Chief Financial Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2 Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101.INS Inline XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.
101.SCH Inline XBRL Taxonomy Extension Schema Document
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF Inline XBRL Taxonomy Definition Linkbase Document
101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document
104 Cover Page Interactive Data File (formatted as inline iXBRL and contained in Exhibit 101)
* Certain exhibits and schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. We hereby undertake to furnish copies of such omitted materials supplementally upon request by the SEC.
** Management contract or compensatory plan or arrangement
35
Table of Contents
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 thereunto duly authorized.
Owens & Minor, Inc.
(Registrant)
Date: November 2, 2022 /s/ Edward A. Pesicka
Edward A. Pesicka
President, Chief Executive Officer & Director
Date: November 2, 2022 /s/ Alexander J. Bruni
Alexander J. Bruni
Executive Vice President & Chief Financial Officer
36