Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On March 23, 2023, the board of directors (the “Board”) of Avantax, Inc. (the “Company”) approved and adopted, subject to stockholder approval, an amendment to the Avantax, Inc. 2016 Employee Stock Purchase Plan, as amended (the “ESPP Amendment”), in order to increase the number of shares authorized thereunder. The Board directed that the ESPP Amendment be submitted to the Company’s stockholders for approval at the Company’s 2023 annual meeting of stockholders (the “Annual Meeting”), which was held on May 4, 2023.
As described under Item 5.07 of this Current Report on Form 8-K, the Company’s stockholders approved the ESPP Amendment at the Annual Meeting. A description of the material terms of the ESPP Amendment is set forth under the heading “Proposal Five: Approval of an Amendment to the Avantax, Inc. 2016 Employee Stock Purchase Plan” in the Company’s Definitive Proxy Statement on Schedule 14A, as filed with the Securities and Exchange Commission (the “Commission”) on April 3, 2023 (as supplemented on April 5, 2023, the “Proxy Statement”), which description is incorporated herein by reference.
The aforementioned description of the ESPP Amendment is qualified in its entirety by reference to the full text of the ESPP Amendment, which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On March 23, 2023, the Board approved, subject to adoption by the Company’s stockholders, a Certificate of Amendment (the “Charter Amendment”) to the Company’s Restated Certificate of Incorporation, as amended (the “Charter”), to provide for the exculpation of certain of the Company’s officers, as permitted by recent amendments to the Delaware General Corporation Law. The Board directed that the Charter Amendment be submitted to the Company’s stockholders for adoption at the Annual Meeting.
As described under Item 5.07 of this Current Report on Form 8-K, the Company’s stockholders adopted the Charter Amendment at the Annual Meeting. A description of the material terms of the Charter Amendment is set forth under the heading “Proposal Six: Adoption of an Amendment to Our Restated Certificate of Incorporation to Provide for the Exculpation of Certain of Our Officers as Permitted by Delaware Law” in the Proxy Statement, which description is incorporated herein by reference. The Company filed the Charter Amendment with the Secretary of State of the State of Delaware on May 4, 2023.
The aforementioned description of the Charter Amendment is qualified in its entirety by reference to the full text of the Charter Amendment, which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On May 4, 2023, the Company held the Annual Meeting. There were six proposals acted upon at the Annual Meeting. More information about each of these proposals can be found in the Proxy Statement. At the close of business on March 10, 2023, the record date for the determination of stockholders entitled to vote at the Annual Meeting, there were 39,544,693 shares of common stock of the Company, par value $0.0001 per share (“Common Stock”), that were outstanding and entitled to vote. At the Annual Meeting, 38,050,598 shares of Common Stock that were outstanding and entitled to vote were present by means of remote communication or represented by proxy, representing approximately 96 percent of the outstanding shares of Common Stock. The results of the votes held at the Annual Meeting are set forth below.
Proposal One: The stockholders elected nine directors to serve on the Company’s board of directors until the Company’s 2024 annual meeting of stockholders, until their successors are duly elected and qualified or until their earlier death, resignation or removal. The votes cast on Proposal One were as follows:
| | | | | | | | | | | | | | | | | |
| Nominee | For | | Against | | Abstain |
| Georganne C. Proctor | 32,352,872 | | 369,204 | | 369,775 |
| Mark A. Ernst | 32,403,704 | | 318,409 | | 369,737 |
| E. Carol Hayles | 32,188,147 | | 526,688 | | 377,015 |
Kanayalal A. Kotecha | 32,560,911 | | 161,092 | | 369,847 |
J. Richard Leaman III | 32,455,523 | | 266,590 | | 369,738 |
| Tina Perry | 32,377,378 | | 331,470 | | 383,002 |
| Karthik Rao | 32,419,540 | | 287,828 | | 384,482 |
Jana R. Schreuder | 32,451,833 | | 266,474 | | 373,543 |
| Christopher W. Walters | 32,418,423 | | 301,794 | | 371,633 |
Proposal Two: The stockholders ratified, on an advisory (non-binding) basis, the appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for 2023. The votes cast on Proposal Two were as follows:
| | | | | | | | | | | | | | |
| For | | Against | | Abstain |
| 37,450,422 | | 233,725 | | 366,451 |
Proposal Three: The stockholders approved, on an advisory (non-binding) basis, the compensation of the Company’s named executive officers, as disclosed in the proxy statement for the Annual Meeting. The votes cast on Proposal Three were as follows:
| | | | | | | | | | | | | | |
| For | | Against | | Abstain |
| 31,870,622 | | 828,753 | | 392,472 |
Proposal Four: The stockholders voted, on an advisory (non-binding) basis, to maintain an annual advisory vote on the compensation of the Company’s named executive officers. The votes cast on Proposal Four were as follows:
| | | | | | | | | | | | | | | | | | | | |
| 1 Year | | 2 Years | | 3 Years | | Abstain |
| 30,816,798 | | 6,126 | | 1,846,926 | | 422,000 |
Proposal Five: The stockholders approved the ESPP Amendment. The votes cast on Proposal Five were as follows:
| | | | | | | | | | | | | | |
| For | | Against | | Abstain |
| 32,549,974 | | 175,353 | | 366,523 |
Proposal Six: The stockholders adopted the Charter Amendment. The votes cast on Proposal Six were as follows:
| | | | | | | | | | | | | | |
| For | | Against | | Abstain |
| 30,063,230 | | 2,615,416 | | 413,204 |
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