UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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| Item 3.03 | Material Modification to Rights of Security Holders. |
The information set forth in Item 5.03 of this Current Report on Form 8-K (this “Current Report”) is incorporated herein by reference.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Appointment and Compensation of D. Brent Shafer and Peter M. Wilver as Directors.
On May 3, 2022, Baxter International Inc. (the “Company”) appointed each of D. Brent Shafer and Peter M. Wilver to its Board of Directors (the “Board”), with such appointments to become effective on May 10, 2022. Upon their appointment to the Board on May 10, 2022, the number of directors constituting the Board will increase to thirteen directors. Upon their appointment to the Board, Mr. Shafer will be appointed to serve on the Audit Committee and Compensation Committee and Mr. Wilver will be appointed to serve on the Compensation Committee.
Mr. Shafer, 64, previously served as the Chairman of the Board and Chief Executive Officer of Cerner Corporation from 2018 to 2021. Prior to Cerner, Mr. Shafer held a number of roles at Koninklijke Philips NV, including Chief Executive Officer of Philips North America and Chief Executive Officer of Philips Home Healthcare Solutions business. Before joining Philips, Mr. Shafer was vice president and general manager of Hillrom’s Patient Care Environment Division and worked at GE Medical Systems where he served in key positions in sales, marketing, and general management. Mr. Shafer has also held senior roles at Hewlett Packard’s Medical Products Group and Johnson & Johnson. He currently serves as a director of Tactile Systems Technology.
Mr. Wilver, 62, previously served as the Executive Vice President and Chief Administrative Officer of Thermo Fisher Scientific, Inc. from 2015 until his retirement in 2017. Mr. Wilver also served as Thermo Fisher’s chief financial officer, a position he held from 2004 to 2015. Prior to Thermo Fisher, Mr. Wilver was the chief financial officer for Honeywell’s Electronic Materials Division. Before joining Honeywell, he held various finance roles at Grimes Aerospace Company and General Electric Company. Mr. Wilver currently serves as a director of Shoals Technologies Group Inc. and Evoqua Water Technologies Corporation.
Mr. Shafer and Mr. Wilver will each be compensated for his service as a director pursuant to the Company’s Non-Employee Director Compensation Plan filed as Exhibit 10.26 to the Company’s Annual Report on Form 10-K filed on February 23, 2022 (the “2022 Form 10-K”), and will be eligible to participate in the Company’s Directors’ Deferred Compensation Plan filed as Exhibit 10.18 to the Company’s 2022 Form 10-K. In connection with joining the Board, Mr. Shafer and Wilver will each be granted equity awards as compensation for a portion of their 2022 service (representing the period between May 10, 2022 and the 2023 Annual Meeting) in an amount consistent with the awards granted annually to non-employee directors, prorated for the full calendar months to be served during such period in accordance with the terms of the Company’s Non-Employee Director Compensation Plan. A description of the Company’s non-employee director compensation arrangements can be found in the section titled “Proposal 1. Election of Directors-Director Compensation” in the Company’s definitive proxy statement for its 2022 Annual Meeting filed on March 21, 2022 (and amended on March 28, 2022) and is incorporated herein by reference.
Retirement of Mr. Peter S. Hellman.
On May 4, 2022, Peter S. Hellman notified the Company of his decision to retire from the Board, effective as of June 30, 2022. Following Mr. Hellman’s retirement on June 30, 2022, the number of directors constituting the Board will decrease to twelve directors.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
On May 3, 2022, the Company held its annual meeting of stockholders (the “2022 Annual Meeting”) at which the stockholders approved the following two amendments to the Company’s Amended and Restated Certificate of Incorporation (as further described under Item 5.07 of this Current Report):
| • | An amendment to add a new Article ELEVENTH to permit stockholder action by written consent following a request by record holders who have beneficially owned shares representing a “net long position” of at least 25% of the Company’s common stock entitled to vote on the matter for at least one year so long as such action is approved by holders of shares representing not less than the minimum number of shares required to take such action at an annual or special meeting, subject to the satisfaction of certain procedural safeguards set forth therein (the “Written Consent Charter Amendment”). A stockholder’s “net long position” is generally defined as those shares of common stock as to which a |
| stockholder possesses both (i) the full voting and investment rights pertaining to the shares and (ii) the full economic interest in (including the opportunity for profit from and risk of loss on) such shares; provided, that Net Long Beneficial Ownership does not include any shares as to which such person does not have the right to vote or direct the vote, or as to which such person has entered into a derivative or other agreement, arrangement or understanding that hedges or transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of such shares. |
| • | An amendment to Article TWELFTH to change the stock ownership threshold required for stockholders to request a special meeting from record holders of at least 25% of the Company’s outstanding common stock entitled to vote on the matter(s) to be brought before the proposed special meeting to record holders who have beneficially owned shares representing a “net long position” of at least 15% of the outstanding shares of Common Stock entitled to vote on the matter(s) to be brought before the proposed special meeting for at least one year (the “Special Meeting Charter Amendment” and, together with the Written Consent Charter Amendment, the “Charter Amendments”) |
On May 5, 2022, the Company filed its Amended and Restated Charter (the “Amended and Restated Charter”), reflecting the Charter Amendments, with the Secretary of State of the State of Delaware, with such Amended and Restated Charter becoming effective immediately upon filing.
On February 15, 2022, in connection with the Charter Amendments, the Board approved a corresponding amendment and restatement of the Company’s Amended and Restated Bylaws (the “Amended and Restated Bylaws”) to reflect the new special meeting ownership threshold, with such Amended and Restated Bylaws becoming effective immediately upon the filing of the Amended and Restated Charter.
The foregoing description of the Amended and Restated Charter and Amended and Restated Bylaws is qualified in its entirety by reference to the text of the Amended and Restated Charter and Amended and Restated Bylaws, copies of which are attached hereto as Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders |
On May 3, 2022, the Company held its 2022 Annual Meeting in a virtual format. Of the 503,197,000 shares outstanding and entitled to vote, 447,845,077 shares were represented at the meeting, constituting a quorum of approximately 89%. The following is a summary of the matters voted on at the 2022 Annual Meeting.
| (a) | The eleven nominees for director were elected as follows: |
| Nominee | For | Against | Abstain | Broker Non-Votes | ||||||||||||
| José (Joe) E. Almeida |
384,473,820 | 27,138,213 | 2,192,265 | 34,040,779 | ||||||||||||
| Thomas F. Chen |
397,665,546 | 9,870,623 | 6,268,129 | 34,040,779 | ||||||||||||
| Peter S. Hellman |
389,880,292 | 23,572,504 | 351,502 | 34,040,779 | ||||||||||||
| Michael F. Mahoney |
401,357,935 | 12,096,939 | 349,424 | 34,040,779 | ||||||||||||
| Patricia B. Morrison |
410,121,031 | 3,368,893 | 314,374 | 34,040,779 | ||||||||||||
| Stephen N. Oesterle |
405,592,708 | 7,856,986 | 354,604 | 34,040,779 | ||||||||||||
| Nancy M. Schlichting |
399,354,971 | 14,134,459 | 314,868 | 34,040,779 | ||||||||||||
| Cathy R. Smith |
407,895,932 | 5,599,580 | 308,786 | 34,040,779 | ||||||||||||
| Albert P.L. Stroucken |
386,615,470 | 26,844,274 | 344,554 | 34,040,779 | ||||||||||||
| Amy A. Wendell |
406,527,028 | 6,962,497 | 314,773 | 34,040,779 | ||||||||||||
| David S. Wilkes |
411,552,025 | 1,901,999 | 350,274 | 34,040,779 | ||||||||||||
| (b) | By the following vote, stockholders approved, on an advisory basis, the 2021 compensation paid to the Company’s named executive officers: |
| For |
Against |
Abstain |
Broker Non-Votes | |||
| 375,423,883 | 37,478,137 | 902,278 | 34,040,779 |
| (c) | The appointment of PricewaterhouseCoopers LLP as the Company’s independent registered public accounting firm for 2022 was ratified by the following vote: |
| For |
Against |
Abstain | ||
| 417,865,402 | 29,622,889 | 356,786 |
| (d) | By the following vote, stockholders approved the Written Consent Charter Amendment to permit stockholder action by written consent (as described in Item 5.03 of this Current Report): |
| For |
Against |
Abstain |
Broker Non-Votes | |||
| 409,319,021 | 3,979,369 | 505,908 | 34,040,779 |
| (e) | By the following vote, stockholders approved the Special Meeting Charter Amendment to lower the special meeting threshold (as described in Item 5.03 of this Current Report): |
| For |
Against |
Abstain |
Broker Non-Votes | |||
| 404,787,410 | 7,212,995 | 1,803,893 | 34,040,779 |
| (f) | By the following vote, stockholders did not approve the stockholder proposal relating to special shareholder meeting improvement: |
| For |
Against |
Abstain |
Broker Non-Votes | |||
| 144,332,872 | 268,232,028 | 1,239,398 | 34,040,779 |
| (g) | By the following vote, stockholders did not approve the stockholder proposal relating to an independent board chairman: |
| For |
Against |
Abstain |
Broker Non-Votes | |||
| 94,067,610 | 318,684,398 | 1,052,290 | 34,040,779 |
| Item 9.01 | Financial Statements and Exhibits. |
| Description | ||
| 3.1 | Amended and Restated Certificate of Incorporation of Baxter International Inc. dated May 5, 2022 | |
| 3.2 | Amended and Restated Bylaws dated May 5, 2022 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
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.
Date: May 6, 2022
| BAXTER INTERNATIONAL INC. | ||
| /s/ Ellen K. Bradford | ||
| By: | Ellen K. Bradford | |
| Senior Vice President and Corporate Secretary | ||