June 30
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 4, 2024 (February 29, 2024)
ARCBEST CORPORATION
(Exact name of registrant as specified in its charter)
Delaware | 0-19969 | 71-0673405 |
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
8401 McClure Drive Fort Smith, Arkansas (Address of principal executive offices) | | 72916 (Zip Code) |
Registrant’s telephone number, including area code: (479) 785-6000
Not Applicable
(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.
☐ | Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☒ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Securities Exchange Act of 1934:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
Common Stock $0.01 Par Value | ARCB | Nasdaq |
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 5.03 – AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR.
The Board of Directors (the “Board”) of ArcBest Corporation, a Delaware corporation (the “Company”), has recently approved the Company’s Third Amended and Restated Certificate of Incorporation (as amended and restated, the “New Charter”) that is subject to stockholder approval at the Company’s 2024 Annual Meeting of Stockholders (the “Annual Meeting”).
The Company’s Second Amended and Restated Certificate of Incorporation (the “Current Charter”) contains a provision that requires the affirmative vote of the holders of not less than 66-2/3% of the Company’s outstanding voting stock to approve of any (i) merger or consolidation of the Company with or into any other corporation; (ii) sale, lease, exchange or other disposition of all, or substantially all, of the assets of the Company to or with any other corporation, person or other entity; (iii) dissolution of the Company; or (iv) amendment of the Current Charter (collectively, the “Supermajority Voting Requirements”). If the New Charter is approved by stockholders, then the Current Charter would be amended to eliminate the Supermajority Voting Requirements, and such matters, except in accordance with applicable law, would require approval by a majority of the outstanding voting stock of the Company. The Company has made recommendations regarding the New Charter in its preliminary proxy statement filed with the U.S. Securities and Exchange Commission (the “SEC”) on March 4, 2024 in connection with the Annual Meeting.
Additionally, on February 29, 2024, the Board approved and adopted the Eighth Amended and Restated Bylaws (as amended and restated, the “Bylaws”), effective immediately. The Bylaws were amended to: (i) adopt a majority of votes cast standard for uncontested director elections (while retaining a plurality standard in contested elections); (ii) clarify the director resignation policy in uncontested elections; (iii) lower the voting requirement to amend the Bylaws at any annual or special meeting of the stockholders from 75% to a majority of the shares of stock issued and outstanding and entitled to vote thereat; and (iv) make various technical and other changes to conform to the foregoing and applicable law.
The complete text of the Bylaws is attached hereto as Exhibit 3.1 and is incorporated herein by reference. The foregoing description of the amendments to the Bylaws does not purport to be complete and is qualified in its entirety by Exhibit 3.1.
Important Additional Information
The Company, its directors and certain of its executive officers will be deemed to be participants in the solicitation of proxies from the Company’s stockholders in connection with the Annual Meeting. The Company intends to file a definitive proxy statement and proxy card with the SEC in connection with any solicitation of proxies from the Company’s stockholders. STOCKHOLDERS ARE STRONGLY ENCOURAGED TO READ SUCH PROXY STATEMENT, THE ACCOMPANYING PROXY CARD AND ALL OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE AS THEY WILL CONTAIN IMPORTANT INFORMATION. The Company’s definitive proxy statement for the 2023 Annual Meeting of Stockholders contains information regarding the direct and indirect interests, by security holdings or otherwise, of the Company’s directors and executive officers in the Company’s securities. Supplemental information regarding their holdings of the Company’s securities can be found in the SEC filings on Form 3 and Form 4. Updated information regarding the identity of potential participants, and their direct or indirect interests, by security holdings or otherwise, will be set forth in the definitive proxy statement and other materials that the Company anticipates filing with the SEC in connection with the Annual Meeting. Stockholders will be able to obtain the definitive proxy statement and other documents filed by the Company with the SEC, when they become available, at no charge at the SEC’s website at www.sec.gov. Copies will also be available at no charge on the Company’s website at https://arcb.com/investor-relations/list-sec-filings.
ITEM 9.01 – FINANCIAL STATEMENTS AND EXHIBITS
Exhibit No. | | Description of Exhibit |
| | |
3.1 | | Eighth Amended and Restated Bylaws of ArcBest Corporation, dated as of February 29, 2024. |
104 | | Cover Page Interactive Data File – The cover page interactive data file does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document |
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.
| | | ARCBEST CORPORATION |
| | | |
| | | (Registrant) |
| | | |
Date: | March 4, 2024 | | /s/ J. Matthew Beasley |
| J. Matthew Beasley | ||
| Chief Financial Officer | ||
|
EXHIBIT 3.1
EIGHTH AMENDED AND RESTATED BYLAWS
OF ARCBEST CORPORATION
(A Delaware corporation)
AS OF FEBRUARY 29, 2024
TABLE OF CONTENTS
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EIGHTH AMENDED AND RESTATED
BYLAWS
OF
ARCBEST CORPORATION
AS OF FEBRUARY 29, 2024
The Board of Directors may, at any time prior to the holding of a meeting of stockholders (annual or special), and for any reason, cancel, postpone or reschedule such meeting upon public notice given prior to the time previously scheduled for such meeting of stockholders. The meeting may be postponed or rescheduled to such time and place as is specified in the notice of postponement or rescheduling of such meeting.
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To be in proper form, a stockholder’s notice (whether given pursuant to Section 2.13(a)(i) or pursuant to Section 2.13(b)) to the Secretary must:
(i) | the name and address of each Proposing Person, as they appear on the corporation’s books, and the business address and telephone number of each Proposing Person, |
(ii) | the class or series and number of shares of the corporation which are, directly or indirectly, owned beneficially and of record (within the meaning of Rule 13d-3 under the Exchange Act) by each Proposing Person and a description of the source and the amount of funds or other consideration used to acquire such capital stock, |
(iii) | (A) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the corporation or with a value derived in whole or in part from the value of any class or series of shares of the corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by each Proposing Person and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the |
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corporation of each Proposing Person, (B) any proxy, contract, arrangement, understanding or relationship pursuant to which any Proposing Person has, whether alone or with any other person, a right to vote, or the ability to control or otherwise influence, explicitly or implicitly, any other stockholder’s or Stockholder Associated Person’s voting of, any security of the corporation, (C) any short interest in any security of the corporation (for purposes of this Bylaw a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security) of such Proposing Person, (D) any rights to dividends on the shares of the corporation owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the corporation, (E) any proportionate interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such Proposing Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (F) any performance-related fees (other than an asset-based fee) that such Proposing Person is entitled to based on any increase or decrease in the value of shares of the corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such Proposing Person’s immediate family sharing the same household (which information shall be supplemented by such Proposing not later than ten (10) days after the record date for the meeting to disclose such ownership as of the record date), |
(iv) | a reasonably detailed description of any agreement, arrangement or understanding between or among such Proposing Person and any other Proposing Person, any of their respective affiliates or associates, and any other person or persons (including their names) in connection with the proposal of such nomination, |
(v) | a reasonably detailed description of any agreement, arrangement or understanding (including, regardless of the form of settlement, any derivative, long or short positions, profit interests, forwards, futures, swaps, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of, or any other agreement, arrangement or understanding that has been made, the effect or intent of which is to create or mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, any such Proposing Person or any director nominee with respect to the corporation’s securities, |
(vi) | any other information relating to each Proposing Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant |
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to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including Regulation 14A), |
(vii) | a representation that the Proposing Person is a holder of record of stock of the corporation entitled to vote at such meeting, will continue to be a holder of record of stock of the corporation entitled to vote at such meeting through the date of such meeting and intends to appear in person or by proxy at the annual or special meeting, as may be the case, to propose such business or nomination, |
(viii) | a representation as to whether any such Proposing Person intends or is part of a group that intends to (i) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the voting power of the corporation’s outstanding capital stock required to elect each such nominee and/or (ii) otherwise to solicit proxies from stockholders in support of such nomination, |
(x) | a reasonably detailed description of the source of funds to be used by any such Proposing Person to fund the solicitation of votes in connection with the proposed nomination or business, and |
(xi) | such other information relating to the proposed business or nomination as the corporation may reasonably request to determine whether such proposed business or nomination is a proper matter for stockholder action; and |
(B) | if the notice relates to any business other than a nomination of a director or directors that the stockholder proposes to bring before the meeting, set forth: |
(i) | a reasonably detailed description of the business desired to be brought before the meeting, |
(ii) | the text of the proposed business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the Certificate of Incorporation or any policy of the corporation, the language of the proposed amendment), |
(iii) | a reasonably detailed description of the reasons for conducting such business at the meeting, |
(iv) | a reasonably detailed description of any interest, direct or indirect, monetary or non-monetary, of each Proposing Person in the proposed business, including any anticipated benefit therefrom to be received by each Proposing Person, and |
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(v) | any other information relating to the proposed business that is required to be disclosed under applicable law; |
(C) | set forth, as to each person, if any, whom the Proposing Person proposes to nominate for election or reelection to the Board of Directors: |
(i) | the name, age, business address and residence address of such person, |
(ii) | the principal occupation or employment of such person (present and for the past five (5) years), |
(iii) | the class or series and number of shares of capital stock of the corporation which are owned beneficially and of record by such person, |
(iv) | all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, including but not limited to Regulation 14A, including, without limitation, such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected, |
(v) | a complete and accurate description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among each Proposing Person, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all biographical and related party transaction and other information that would be required to be disclosed pursuant to the federal and state securities laws as if each Proposing Person were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, and |
(vi) | any other information relating to the proposed nomination that is required to be disclosed under applicable law; |
(D) | with respect to each nominee for election or reelection to the Board of Directors, include a completed and signed questionnaire, representation and agreement required by Section 2.13(d). |
“Stockholder Associated Person” of any stockholder means (1) any beneficial owner of shares of stock of the corporation on whose behalf any proposal or nomination is made by such stockholder; (2) any affiliates or associates of such stockholder or any beneficial owner described in clause (1); and (3) each other person with whom any of the persons described in the foregoing clauses (1) and (2) either is acting in concert with respect to the corporation or has any agreement, arrangement or understanding (whether written or oral) for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy given to such person in response to a public proxy solicitation made
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generally by such person to all stockholders entitled to vote at any meeting) or disposing of any capital stock of the corporation or to cooperate in obtaining, changing or influencing the control of the corporation (except independent financial, legal and other advisors acting in the ordinary course of their respective businesses).
The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation (a) to determine the character, fitness and eligibility of such proposed nominee to serve as a director of the corporation, including with respect to qualifications established by any committee of the Board, (b) to determine whether such nominee qualifies as an “independent director” or “audit committee financial expert” under applicable law, securities exchange rule or regulation, or any publicly-disclosed corporate governance guideline or committee charter of the corporation, and (c) that could be material to a reasonable stockholder’s understanding of the independence and qualifications, or lack thereof, of such nominee. The nominee will provide facts, statements and other information in all communications with the corporation and its stockholders that are or will be true and correct in all material respects and have not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
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In the event another executive officer has been designated Chief Executive Officer of the corporation by the Board of Directors, then (i) such other executive officer shall have all of the powers granted by these Bylaws to the President and such other responsibilities, duties and powers as may from time to time be designated by the Board of Directors; and (ii) the President shall, subject to the powers of supervision and control thereby conferred upon the Chief Executive Officer, be the chief operating officer of the corporation and shall have all necessary powers to discharge such responsibility including general supervision of the affairs of the corporation and general and active control of all of its business.
The President or, if applicable, the Chief Executive Officer, shall perform all the duties and have all the powers of the Chairman of the Board in the absence, inability to act or refusal to act, of the Chairman of the Board. As between the corporation and third parties, any action taken by the President in the performance of the duties of the Chairman of the Board shall be conclusive evidence that there is no Chairman of the Board or that the Chairman of the Board is absent or unable or refuses to act.
He or she shall be authorized to execute bonds, mortgages, and other contracts on behalf of the corporation, except where required or permitted by law or these Bylaws to be otherwise executed and except where the execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation.
As between the corporation and third parties, any action taken by a Vice President in the performance of the duties of the President shall be conclusive evidence of the absence or inability or refusal to act of the President at the time such action was taken.
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He shall record, or cause to be recorded, all the proceedings of the meetings of the corporation and of directors in a book to be kept for that purpose. He or she shall keep in safe custody the seal of the corporation, and when authorized by the Board of Directors, affix the same to any instrument requiring it, and when so affixed, it shall be attested by his or her signature or by the signature of any Assistant Secretary.
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Any notice required or permitted to be given by overnight courier service shall be deemed to be delivered and given at the time delivered to such service with all charges prepaid and addressed as aforesaid. Any notice required or permitted to be given by telegram, telex or telefax shall be deemed to be delivered and given at the time transmitted with all charges prepaid and addressed as aforesaid.
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These Bylaws may be altered, amended or repealed or new bylaws may be adopted at any annual meeting of the stockholders, or at any special meeting of the stockholders if notice thereof is contained in the notice of such special meeting, by the affirmative vote of a majority of the shares of stock issued and outstanding and entitled to vote thereat, or by the affirmative vote 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 thereof is contained in the notice of such special meeting.
Unless the corporation consents in writing to the selection of an alternative forum (which consent may be given at any time, including during pendency of litigation), the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim against the corporation or any director or officer or other employee of the corporation arising pursuant to any provision of the Delaware General Corporation Law or the corporation’s Certificate of Incorporation or Bylaws (as either may be amended from time to time), or (iv) any action asserting a claim against the corporation or any director or officer or other employee of the corporation governed by the internal affairs doctrine shall be the Court of Chancery of the State of Delaware or, if the Court of Chancery does not have jurisdiction, a state court located within the State of Delaware or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware.
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