UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 10,
2021 (
(Exact Name of Registrant as Specified in Charter)
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(Commission File Number) |
(IRS Employer Identification No.) |
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Registrant’s telephone number, including
area code:
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(Former Name or Former Address, if Changed Since Last Report)
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 (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
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Securities registered pursuant to Section 12(b) of the Act:
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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.
Item 1.01. Entry into a Material Definitive Agreement.
On August 4, 2021, the merger of Ardagh MP USA Inc., formerly known as Gores Holdings V, Inc. (“AMPUSA,” or “GHV”) and Ardagh MP MergeCo Inc. (“MergeCo”) was completed pursuant to the terms of the Business Combination Agreement, dated February 22, 2021, as amended from time to time (the “Business Combination Agreement”), by and among GHV, Ardagh Metal Packaging S.A., a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg (“AMPSA”), MergeCo, and Ardagh Group S.A., a public limited liability company (société anonyme) governed by the laws of the Grand Duchy of Luxembourg (“AGSA”), which provided for, among other things, the merger of MergeCo with and into GHV, with GHV surviving the merger as a wholly owned subsidiary of AMPSA (the “Merger” and, together with the other transactions contemplated by the Business Combination Agreement, the “Business Combination”). Following the Merger, “Gores Holdings V, Inc.” was renamed to “Ardagh MP USA Inc.” Capitalized terms used but not otherwise defined herein have the meanings given to them in the Business Combination Agreement.
Registration Rights and Lock-Up Agreement
At the consummation of the Merger (the “Closing”), AMPSA, Gores Sponsor V LLC, a Delaware limited liability company (the “Sponsor”), certain persons associated with the Sponsor (together with the Sponsor, the “Gores Holders”) and AGSA entered into a Registration Rights and Lock-Up Agreement which provides customary demand and piggyback registration rights. Pursuant to the Registration Rights and Lock-Up Agreement, AMPSA agreed that, as soon as practicable, and in any event within 30 days after the Closing, it will file with the U.S. Securities and Exchange Commission (the “SEC”) (at AMPSA’s sole cost and expense) a registration statement registering the public resale of any outstanding shares of AMPSA, with a nominal value of EUR 0.01 per share (the “Shares”), or any other equity security held by a party to the Registration Rights and Lock-Up Agreement and any other equity security of AMPSA issued or issuable with respect to any such Shares by way of a dividend or stock split in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise, and AMPSA will use its reasonable best efforts to have the registration statement declared effective as soon as practicable after the filing thereof, but no later than the 60th day (or the 90th day if the registration statement is reviewed by, and received comments from, the SEC) following the filing deadline.
Subject to certain exceptions, including in connection with certain exchanges involving AGSA shareholders, AGSA may not transfer any Shares beneficially owned or owned of record by it during the period ending 180 days following the date of the Registration Rights and Lock-Up Agreement (the “Share Lock-Up Period”). During the Share Lock-Up Period, no Gores Holder may transfer those Shares beneficially owned or owned of record by such Gores Holder which were received as part of the Merger consideration following the conversion of GHV Class F common stock owned by such Gores Holder immediately prior to the Closing. During the period ending 30 days after the date of the Registration Rights and Lock-Up Agreement, no Gores Holder may transfer any GHV warrants or any of the Shares issued or issuable upon the exercise or conversion of such GHV warrants beneficially owned or owned of record by such Gores Holder. The lock-up provisions are subject to a number of exceptions.
The foregoing description of the Registration Rights and Lock-Up Agreement and the rights and restrictions contemplated thereby does not purport to be complete and is qualified in its entirety by the terms and conditions of the Registration Rights and Lock-Up Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Warrant Assignment, Assumption and Amendment Agreement
In connection with the Closing, AMPSA entered into a Warrant Assignment, Assumption and Amendment Agreement with GHV and Computershare Inc., a Delaware corporation, and Computershare Trust Company, N.A., a federally chartered trust company and a wholly owned subsidiary of Computershare Inc., with the Computershare entities serving as successor warrant agent in place of Continental Stock Transfer & Trust Company, a New York corporation, to assume AMPSA’s obligations under the Warrant Agreement, dated August 11, 2020, with respect to AMPSA’s public and private warrants, into which GHV’s previously outstanding public and private warrants were converted at the Closing.
The foregoing description of the Warrant Assignment, Assumption and Amendment Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Warrant Assignment, Assumption and Amendment Agreement, a copy of which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.
Item 2.01. Completion of Acquisition or Disposition of Assets.
At Closing, MergeCo merged with and into GHV, with GHV surviving as a wholly owned subsidiary of AMPSA, and all shares of GHV Class A common stock outstanding immediately prior to the Effective Time, other than any Excluded Shares, were contributed to AMPSA in exchange for Shares, and all warrants to acquire shares of GHV Class A common stock were converted into warrants of AMPSA (the “Warrants”) at the Effective Time.
Immediately following the consummation of the Merger, the issued share capital of AMPSA consisted of 603,283,097 Shares and 16,749,984 Warrants.
The Shares and Warrants commenced trading on the New York Stock Exchange under the ticker symbol “AMBP” and “AMBPW,” respectively, on August 5, 2021. The foregoing description of the Merger is qualified in its entirety by reference to the full text of the Business Combination Agreement, which is included as Exhibit 2.1, Exhibit 2.2, Exhibit 2.3 and Exhibit 2.3(a) to this Current Report and is incorporated herein by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing; Material Modification to Rights of Security Holders.
On August 4, 2021, in connection with the consummation of the Merger, GHV notified Nasdaq that the Merger had become effective and AMPUSA filed a Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on Form 25 to notify the SEC that GHV’s common stock, warrants and units were to be voluntarily delisted and deregistered under Section 12(b) of the Exchange Act. As a result of the Merger having become effective, Nasdaq determined to permanently suspend trading of GHV’s common stock, warrants and units prior to the opening of trading on August 5, 2021. The deregistration will become effective 10 days from the filing of the Form 25, which occurred on August 4, 2021. AMPUSA intends to file a Form 15 with the SEC in order to complete the deregistration of GHV’s securities under the Exchange Act.
Item 3.03. Material Modifications to Rights of Security Holders.
To the extent required by Item 3.03 of Form 8-K, the disclosure set forth in Items 1.01 and 2.01 of this Current Report on Form 8-K is incorporated by reference in this Item 3.03.
Item 5.01. Changes in Control of Registrant.
To the extent required by Item 5.01 of Form 8-K, the disclosure set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference in this Item 5.01.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection with the consummation of the Merger, each of Alec E. Gores, Jeffrey Rea, Randall Bort and William Patton ceased to be a director of GHV, and Claude Marbach, Michael MacGregor and Joshua Markus, who were appointed to serve as directors of MergeCo, became the directors of AMPUSA.
Also, in connection with consummation of the Merger, the following officers of GHV resigned their respective positions: Alec E. Gores resigned as Chairman, Mark R. Stone resigned as Chief Executive Officer and Andrew McBride resigned as Chief Financial Officer and Secretary. Following the consummation of the Merger, the following officers of MergeCo became officers of AMPUSA: Claude Marbach as President, Michael MacGregor as Vice President, Treasurer, Joshua Markus as Vice President, Secretary and Jason Sibbit as Assistant Secretary.
Item 5.03. Amendments to Certificate of Incorporation or Bylaws; Change in Fiscal Year.
At the effective time of the Merger, the amended and restated certificate of incorporation and bylaws of GHV were amended in their entirety to read the same as the certificate of incorporation and bylaws of MergeCo as in effect immediately prior to the Effective Time, except that the name of the surviving corporation was changed to “Ardagh MP USA Inc.” The amended and restated certificate of incorporation and bylaws of AMPUSA are attached as Exhibit 3.1 and Exhibit 3.2 hereto, respectively, and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
| (d) | Exhibits. |
* Filed herewith
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 hereunto duly authorized.
Dated: August 10, 2021
| ARDAGH MP USA INC. | ||
| By: | /s/ Joshua Markus | |
| Name: | Joshua Markus | |
| Title: | Vice President, Secretary | |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
ARDAGH MP USA INC.
Article I
Name
The name of the corporation is Ardagh MP USA Inc. (the “Corporation”).
Article II
Registered Office and Registered Agent
The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
Article III
Corporate Purpose
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the state of Delaware (the “General Corporation Law”).
Article IV
Capital Stock
The total number of shares of all classes of stock that the Corporation shall have authority to issue is 10,000, all of which shall be shares of Common Stock, par value $0.0001 per share.
Article V
Directors
(1) Elections of directors of the Corporation need not be by written ballot, except and to the extent provided in the bylaws of the Corporation.
(2) To the fullest extent permitted by the General Corporation Law of Delaware as it now exists and as it may hereafter be amended, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
Article VI
Indemnification of Directors, Officers and Others
(1) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
(2) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
(3) To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections (1) and (2) of this Article VI, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
(4) Any indemnification under Sections (1) and (2) of this Article VI (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in such Sections (1) and (2). Such determination shall be made, with respect to a person who is a director or officer of the Corporation at the time of such determination: (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; or (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; or (c) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion; or (d) by the stockholders of the Corporation.
(5) Expenses (including attorneys’ fees) incurred by an officer or director of the Corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article VI. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents of the Corporation or by persons serving at the request of the Corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.
(6) The indemnification and advancement of expenses provided by, or granted pursuant to, the other sections of this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
(7) The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under Section 145 of the General Corporation Law.
(8) For purposes of this Article VI, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article VI with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
(9) For purposes of this Article VI, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VI.
(10) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Article VII
Bylaws
The directors of the Corporation shall have the power to adopt, amend or repeal bylaws.
Article VIII
Reorganization
Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under §291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under §279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.
Article IX
Amendment
The Corporation reserves the right to amend, alter, change or repeal any provision of this Certificate of Incorporation in the manner now or hereafter prescribed by law, and all the provisions of this Certificate of Incorporation and all rights conferred on stockholders, directors, officers and other persons in this Certificate of Incorporation are subject to this reserved power.
Exhibit 3.2
BYLAWS
OF
ARDAGH MP USA INC.
Article I
OFFICES
Section 1.1 Registered Office. The registered office of Ardagh MP USA Inc. (the “Corporation”) shall be the registered office named in the original Certificate of Incorporation of the Corporation (as may be amended and restated from time to time, the “Certificate of Incorporation”), or such other office as may be designated by the Board of Directors in the manner provided by law.
Section 1.2 Other Offices. The Corporation may have other offices, either within or outside of the State of Delaware at such place or places as the Board of Directors may from time to time appoint or the business of the Corporation may require.
Article II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. All meetings of stockholders shall be held at the principal office of the Corporation or at such other place as shall be fixed by the Board of Directors or by vote of the stockholders.
Section 2.2 Annual Meetings. The annual meeting of stockholders for the election of directors and the transaction of other business shall be held once per calendar year at such time as shall be fixed by the Board of Directors or by vote of the stockholders. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.
Section 2.3 Voting. Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and in accordance with the provisions of these Bylaws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the Delaware General Corporation Law (the “DGCL”).
Section 2.4 Quorum. Except as otherwise required by the Certificate of Incorporation, these Bylaws or the DGCL, the presence, in person or by proxy, of stockholders holding a majority of the stock of the Corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.
Section 2.5 Special Meetings. Special meetings of the stockholders for any purpose or purposes may be called by the Board of Directors, the Chairman of the Board, if any, the President, any Vice President, the Secretary or any Assistant Secretary or by vote of the stockholders. No business other than that stated in the notice of the meeting shall be transacted at any special meeting.
Section 2.6 Notice of Meetings. Notice of any meeting, stating the place, date and hour of the meeting, and in the case of a duly called special meeting, the purpose or purposes for which the meeting is called, shall be given by the Chairman of the Board, if any, the President, any Vice President, the Secretary or any Assistant Secretary by written, telegraphic, or by any other means of communication to each stockholder entitled to vote at his address as it appears on the records of the Corporation not less than ten days nor more than sixty days before the meeting.
Section 2.7 Action Without Meeting. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken in connection with any corporate action by any provisions of the Certificate of Incorporation, these Bylaws or the DGCL, the meeting and vote of stockholders may be dispensed with, if, subject to the provisions of the DGCL, a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all stockholders entitled to vote thereon were present and voted.
Section 2.8 Organization. Meetings of the stockholders shall be presided over by the Chairman of the Board, if any, the President, any Vice President, or in their absence by a chairman to be chosen by a majority of the stockholders entitled to vote at the meeting who are present in person or by proxy. The Secretary, an Assistant Secretary, or in their absence, any person appointed by the chairman of the meeting shall act as secretary of the meeting.
Article III
DIRECTORS
Section 3.1 Number and Term. The number of directors which shall constitute the whole board shall be one or more, with the specific number thereof to be determined from time to time by the Board of Directors or by the stockholders. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3.3, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders.
Section 3.2 Resignations. Any director may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or the Secretary. The acceptance of a resignation shall not be necessary to make it effective.
Section 3.3 Vacancies. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. If at any time, by reason of death or resignation or other cause, the Corporation should have no directors in office, then any officer or any stockholder may call a special meeting of stockholders in accordance with the provisions of the Certificate of Incorporation or these Bylaws to elect one or more directors.
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Section 3.4 Removal. Any director or directors may be removed with or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote.
Section 3.5 Powers. The Board of Directors shall exercise all of the powers of the Corporation except such as are conferred upon or reserved to the stockholders by the Certificate of Incorporation, these Bylaws or otherwise by law.
Section 3.6 Committees. The Board of Directors may, by resolution or resolutions, passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation, which, to the extent provided in said resolution or resolutions or in these Bylaws, shall have and may exercise the powers of the Board in the management of the business and affairs of the Corporation. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. The committees shall keep regular minutes of their proceedings and report the same to the Board when required. The Board shall have power at any time to fill vacancies in, change the membership of, designate one or more directors as alternate members of, or discharge any such committee.
Section 3.7 Meetings.
(a) Annual Meetings. An annual organizational meeting of the Board of Directors may be held without notice immediately after the annual meeting of the stockholders or at such other time and place as may be fixed by consent in writing of all the directors.
(b) Regular Meetings. Regular meetings of the Board of Directors may be held without notice at the principal office of the Corporation or at such place as shall be determined from time to time by resolution of the Board. Regular meetings shall be held at such times as shall be determined from time to time by resolution of the Board.
(c) Special Meetings. Special meetings of the Board of Directors may be called by Chairman of the Board, if any, the President, the Secretary or the greater of one director or one-third of the entire Board on at least two days’ notice to each director and shall be held at such place or places as may be agreed upon by the directors, or as shall be stated in the call of the meeting.
(d) Members of the Board of Directors or any committee designated by the Board, may participate in a meeting of the Board or of such committee, as the case may be, by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this procedure shall constitute presence in person at such meeting.
(e) Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or in his absence by the President, or in their absence by a chairman chosen at the meeting. The Secretary or an Assistant Secretary shall act as secretary of the meeting, but in their absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
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Section 3.8 Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all the members of the Board or of such committee, as the case may be, consent thereto in writing and such written consent is filed with the minutes of the proceedings of the Board or committee.
Section 3.9 Quorum.
(a) At all meetings of the Board of Directors or of any committee thereof, one-third of the entire Board or committee shall constitute a quorum for the transaction of business. However, whenever the Board or the stockholders shall determine that there be two or less members of the Board or committee, then and only then, one director shall constitute a quorum.
(b) Except as otherwise provided by the Certificate of Incorporation, these Bylaws or the DGCL, the act of a majority of the directors at a meeting at which a quorum is present shall be the act of the Board of Directors. If at any meeting of the Board a quorum shall not be present, the members of the Board present may adjourn the meeting from time to time until a quorum shall have been obtained.
Section 3.10 Compensation. Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the Board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.
Article IV
OFFICERS
Section 4.1 Officers. The officers of the Corporation shall be a President, one or more Vice Presidents, a Treasurer and a Secretary and such Assistant Treasurers and Assistant Secretaries as the Board of Directors may deem proper. In addition, the Board may elect a Chairman of the Board. All of such officers shall be elected by the Board. None of the officers, except the Chairman of the Board, if any, need be directors. The officers shall be elected at the first meeting of the Board after each annual meeting of stockholders and each officer elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any number of offices may be held by the same person.
Section 4.2 Other Officers and Agents. The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board.
Section 4.3 Chairman. The Chairman of the Board, if one be elected, shall preside at all meetings of the Board of Directors and shall have and perform such other duties as from time to time may be assigned to him by the Board.
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Section 4.4 President. The President shall be the chief executive officer of the Corporation and shall have the general powers and duties of supervision and management and execution usually vested in the office of President of a Corporation. He shall preside, in the absence or non-election of the Chairman of the Board, at all meetings of the stockholders and of the Board of Directors, shall have general supervision, direction and control of the business of the Corporation and shall perform such other duties as from time to time may be specified by the Board.
Section 4.5 Treasurer. The Treasurer shall have the care and custody of the funds and securities of the Corporation and shall have such powers and perform such duties as are incident to the office of Treasurer, or as may from time to time be specified by the Board of Directors. The Treasurer shall be subject to the control of the Board and to the powers of the President.
Section 4.6 Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders and shall have the care and custody of the seal and the minute books of the Corporation and shall have such powers and perform such duties as are incident to the office of the Secretary or as may from time to time be specified by the Board The Secretary shall be subject to the control of the Board.
Section 4.7 Assistant Officers. Unless otherwise provided in these Bylaws, the Vice Chairman of the Board, any Vice President, any Assistant Secretary and any Assistant Treasurer, if any, shall, in the order of their respective seniorities, in the absence or disability of the Chairman of the Board, President, Secretary or Treasurer, respectively, perform the duties of such officer and shall generally assist the Chairman of the Board, President, Secretary or Treasurer, respectively.
Section 4.8 Resignations. Any officer may resign at any time upon written notice to the Corporation. Such resignation shall take effect at the time specified therein, or if no time specified, at the time of its receipt by the President, the Secretary or the Board of Directors.
Section 4.9 Vacancies. A vacancy in any office arising from any cause may be filled by the Board of Directors.
Section 4.10 Removal. The Board of Directors may remove any officer with or without cause at any time.
Article V
MISCELLANEOUS
Section 5.1 Certificates of Stock. Except as provided in this Section 5.1, Certificates of stock, numbered and with the seal of the Corporation affixed, signed by the President or Vice President, and the Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the Corporation. When such certificates are signed by a transfer agent or an assistant transfer agent or by a transfer clerk acting on behalf of the Corporation and a registrar, the signatures of such officers may be facsimiles. The Board of Directors may deem that any outstanding shares of the Corporation will be uncertificated and registered in such form on the stock books of the Corporation.
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Section 5.2 Lost Certificate. A new certificate of stock may be issued in the place of any certificate issued by the Corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the Corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.
Section 5.3 Transfer of Shares. The shares of stock of the Corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the Corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer, and a duplicate thereof mailed to the Delaware office, and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.
Section 5.4 Closing of Transfer Books. The Board of Directors shall have power to close the stock transfer books of the Corporation for a period not more than five days preceding the date of any meeting of stockholders, the date for payment of any dividend, the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect; provided, however, that in lieu of closing the stock transfer books as aforesaid, the Board of Directors may fix in advance a date not more than sixty days, and in the case of any meeting of stockholders not less than ten days, preceding the day of any meeting of stockholders or the date for the payment of any dividend, the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, or entitled to receive payment of any such dividends or any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock, and in such case such stockholders only as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend or to receive such allotment of rights or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid.
Section 5.5 Dividends. Subject to the provisions of the Certificate of Incorporation and the DGCL, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the Corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the Corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the Corporation.
Section 5.6 Seal. The Board of Directors may prepare a corporate seal that shall be kept in the custody of the Secretary of the Corporation (if any). The seal or a facsimile thereof may be impressed, affixed or reproduced, and attested to by the Secretary or an Assistant Secretary, for the authentication of documents or instruments requiring the seal and bearing the signature of a duly authorized officer or agent.
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Section 5.7 Fiscal Year. The fiscal year of the Corporation shall be the calendar year, unless otherwise determined by the Board of Directors.
Section 5.8 Checks. All checks, drafts or other orders for the payment of money, note or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation, and i_n such manner as shall be determined from time to time by resolution of the Board of Directors.
Section 5.9 Notice and Waiver of Notice.
(a) Whenever any notice is required by these Bylaws to be given, personal notice is not meant unless expressly so stated and any notice so required shall be deemed to be sufficient if given by depositing the same in a post office box in a sealed post-paid wrapper, addressed to the person entitled thereto at his last known post office address, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by the DGCL.
(b) Whenever any notice whatsoever is required to be given under the provisions of the Certificate of Incorporation, these Bylaws or the DGCL, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
Section 5.10 Voting Other Stocks. Unless otherwise directed by the Board of Directors, the Chairman of the Board, if any, the President, any Vice President, the Treasurer or the Secretary may vote any shares of stock issued by another Corporation and owned by the Corporation at any stockholders’ meeting of such other Corporation and the Chairman of the Board, if any, the President, any Vice President, the Treasurer or the Secretary shall have the authority on behalf of the Corporation to execute and deliver a proxy or proxies for any stockholders’ meeting or give any stockholders’ consent in respect of the shares of stock of such other Corporation owned by the Corporation.
Article VI
AMENDMENTS
These Bylaws may be altered or repealed and Bylaws may be made at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal of Bylaw or Bylaws to be made, be contained in the notice of such special meeting, by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal or Bylaws to be made, be contained in the notice of such special meeting.
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Cover |
Aug. 04, 2021 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Aug. 04, 2021 |
| Current Fiscal Year End Date | --12-31 |
| Entity File Number | 001-39429 |
| Entity Registrant Name | Ardagh MP USA Inc. |
| Entity Central Index Key | 0001816816 |
| Entity Tax Identification Number | 84-1653565 |
| Entity Incorporation, State or Country Code | DE |
| Entity Address, Address Line One | 8770 W. Bryn Mawr Ave. |
| Entity Address, Address Line Two | Suite 800 |
| Entity Address, City or Town | Chicago |
| Entity Address, State or Province | IL |
| Entity Address, Postal Zip Code | 60631 |
| City Area Code | 773 |
| Local Phone Number | 399-3000 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Entity Emerging Growth Company | true |
| Elected Not To Use the Extended Transition Period | false |