Item 5. Other Information
Item 5. Other Information
(a) Amended and Restated Bylaws
On November 2, 2023, in connection with the effectiveness of new SEC rules regarding universal proxy cards, certain recent changes to the Delaware General Corporation Law (the “DGCL”), and a periodic review of the bylaws of the Company, the Board of Directors approved and adopted an amendment and restatement of the Company’s amended and restated bylaws (as so amended, the “A&R Bylaws”). The A&R Bylaws became effective immediately upon approval by the Board of Directors.
Among other things, the amendments effected by the A&R Bylaws:
• clarify the notice procedures for adjournments of virtual meetings of stockholders and eliminate the requirement that the list of stockholders be open to examination at meetings of stockholders, in each case in accordance with the DGCL;
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• update certain procedural requirements related to director nominations by stockholders in light of the recently adopted Rule 14a-19 under the Exchange Act and reflect certain other related changes, including requiring: (1) additional background information and disclosures regarding stockholders proposing director nominations and other business, director nominees proposed by stockholders, and other persons related to a stockholder’s solicitation of proxies; and (2) any stockholder submitting a nomination notice to make a representation and provide confirmation as to whether such stockholder intends to solicit proxies in support of director nominees other than the Company’s nominees in accordance with Rule 14a-19 under the Exchange Act and the A&R Bylaws and to provide evidence that the stockholder has complied with such requirements;
• add a new Section 2.9, which requires any director nominee to provide certain consents and representations related to voting, certain third-party arrangements and compliance with certain policies and procedures and a written questionnaire with respect to the nominee’s background and qualifications as well as to provide any other questionnaires or information that may be necessary to assess the nominee’s qualifications and eligibility for board service;
• require that a stockholder directly or indirectly soliciting proxies from other stockholders use a proxy card color other than white, which is reserved solely for use for solicitation by the Board of Directors;
• opt out of Section 116 of the DGCL by requiring that certain notices and other information or documents provided by stockholders to the Company pursuant to the A&R Bylaws be delivered in writing;
• require that a quorum cannot be readily convened for a meeting of the Board of Directors in order for the emergency bylaws described in Section 3.13 of the A&R Bylaws to become operative;
• provide that “officers” for purposes of the indemnification provisions set forth in Article VI include any individual designated by the Board of Directors as an officer of the Company pursuant to Article V of the A&R Bylaws;
• clarify the indemnification rights for a successful defense of any proceeding and the right of an indemnitee to bring suit if a request for indemnification is not paid in accordance with the A&R bylaws;
• eliminate inoperative provisions regarding the personal liability of directors and officers; and
• incorporate other non-substantive, ministerial, clarifying and conforming changes, including clarifying certain officer provisions to provide additional flexibility.
The foregoing description of the A&R Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the A&R Bylaws, a copy of which is filed as Exhibit 3.2 to this Quarterly Report on Form 10-Q and incorporated herein by reference.
Executive Employment Agreement
On September 15, 2023, the Company disclosed that the Board of Directors appointed Lee Bienstock as the Chief Executive Officer of the Company.
On November 2, 2023, the Company and Mr. Bienstock entered into an Executive Employment Agreement (the “Bienstock Agreement”), which provides for an initial three-year term and automatic annual renewals thereafter unless either party provides 60 days’ notice of non-renewal. The Bienstock Agreement provides for an annual base salary of $785,000 (effective retroactive to September 15, 2023), a target annual bonus of 100% of base salary, a signing bonus of $500,000 (subject to repayment if Mr. Bienstock is terminated for “Cause” or resigns without “Good Reason” prior to November 2, 2024), a top-up equity grant in December 2023 with a targeted grant date value of $1,038,000 consisting 50% of restricted stock units and 50% of stock options, and eligibility to receive annual equity grants consisting 50% of restricted stock units and 50% of stock options, with the annual equity grant for December 2023 having a targeted grant date value of $6,000,000.
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In the event of a termination of the Bienstock Agreement by the Company without “Cause” or by Mr. Bienstock for “Good Reason” (each a “Covered Termination” and as defined in the Bienstock Agreement) that does not occur during the period beginning three months prior to a “Change in Control” (as defined in the Company’s 2021 Stock Incentive Plan) and ending 12 months after a Change in Control, the Bienstock Agreement provides for the following severance payments and benefits: (i) a cash payment equal to 12 months of Mr. Bienstock’s base salary payable in equal installments over 12 months, (ii) a pro rata portion of his annual bonus for the fiscal year of termination based on actual achievement of the bonus objectives and the number of days he was employed during the fiscal year, and (iii) payment or reimbursement for the premium for Mr. Bienstock and his covered dependents to maintain continued health coverage pursuant to the provisions of COBRA through the earlier of (A) the 12-month anniversary of the date of such termination of employment and (B) the date Mr. Bienstock and his covered dependents, if any, become eligible for healthcare coverage under another employer’s plan(s).
If the Covered Termination occurs during the period beginning three months prior to a Change in Control and ending 12 months after a Change in Control, then the Bienstock Agreement instead provides for the following severance payments and benefits: (i) a lump sum cash payment equal to the sum of (A) Mr. Bienstock’s base salary and (B) his target bonus, (ii) a pro rata portion of his annual bonus for the fiscal year of termination based on actual achievement of the bonus objectives and the number of days he was employed during the fiscal year, (iii) the amount of any annual bonus earned, but not yet paid, for the fiscal year prior to such termination, and (iv) payment or reimbursement for the premium for Mr. Bienstock and his covered dependents to maintain continued health coverage pursuant to the provisions of COBRA through the earlier of (A) the 12-month anniversary of the date of such termination of employment and (B) the date Mr. Bienstock and his covered dependents, if any, become eligible for healthcare coverage under another employer’s plan(s). The Bienstock Agreement provides for a “best net” after-tax 280G provision where Mr. Bienstock will receive the best after-tax result but is not eligible to receive any tax gross-ups, to the extent any payments made pursuant to the Bienstock Agreement or otherwise would constitute a “parachute payment” under Section 280G of the Internal Revenue Code.
The severance payments and benefits under the Bienstock Agreement are subject to Mr. Bienstock’s execution of a general release of all claims against the Company and its affiliates. In addition, the Bienstock Agreement includes standard covenants regarding confidentiality and proprietary information, non-disparagement, non-competition and non-interference.
The foregoing summary of the Bienstock Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Bienstock Agreement, a copy of which is filed as Exhibit 10.2 to this Quarterly Report on Form 10-Q and incorporated herein by reference.
(c) Trading Plans
In the third quarter of 2023, (i) none of our directors or officers (as defined in Rule 16a-1 under the Exchange Act) adopted, modified or terminated a “Rule 10b5-1 trading arrangement” or “non-Rule 105b-1 trading arrangement” (as those terms are defined in Item 408 of Regulation S-K); and (ii) the Company did not adopt any Rule 10b5–1 trading arrangement.
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Item 6. Exhibits
Exhibit
Number Description
3.1 Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the Company ’s Current Report on Form 8-K, filed with the SEC on November 12, 2021).
3.2*
Amended and Restated Bylaws .
10.1 Separation and Transition Services Agreement, dated October 11, 2023, by and between the Company and Anthony Capone (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, filed with the SEC on October 13, 2023).
10.2*
E xecutive Employment Agreement, dated November 2 , 2023, by and between the Company and Lee Bienstock.
31.1* Certification of the Principal Executive Officer P ursuant to Rules 13a-14(a) and 15d-14(a) of the Exchange Act .
31.2* Certification of the Principal Financial Officer P ursuant to Rules 13a-14(a) and 15d-14(a) of the Exchange Act .
32.1** Certification of the Principal Executive Officer P ursuant to Rule 13a-14(b) of the Exchange Act and 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 .
32.2** Certification of the Principal Financial Officer P ursuant to Rule 13a-14(b) of the Exchange Act and 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.
101.SCH* Inline XBRL Taxonomy Extension Schema Document.
101.CAL* Inline XBRL Taxonomy Extension Calculation Linkbase Document.
101.DEF* Inline XBRL Taxonomy Extension 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 XBRL and contained in Exhibit 101).
* Filed herewith.
** Furnished herewith.
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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.
DocGo Inc.
Date: November 6, 2023
By: /s/ Lee Bienstock
Lee Bienstock
Chief Executive Officer
Date: November 6, 2023
By: /s/ Norman Rosenberg
Norman Rosenberg
Chief Financial Officer and Treasurer
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Text extracted from the filing as submitted to EDGAR. Formatting, tables and exhibits are simplified for reading; the original document is authoritative for anything you rely on.