Bridgewater Bancshares Inc 8-K, filed Apr 27, 2023
Bridgewater Bancshares Inc (BWB)
About this 8-K
Bridgewater Bancshares Inc filed this 8-K on April 27, 2023.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 5.07: Shareholder vote results
- Item 9.01: Financial statements and exhibits
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
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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 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Bridgewater Bancshares, Inc. 2023 Equity Incentive Plan
At the 2023 Annual Meeting of Shareholders (the “Annual Meeting”) of Bridgewater Bancshares, Inc. (the “Company”) held on April 25, 2023, the Company’s shareholders approved the Bridgewater Bancshares, Inc. 2023 Equity Incentive Plan (the “2023 EIP”). The 2023 EIP was adopted by the Company’s Board of Directors on February 28, 2023, subject to shareholder approval at the Annual Meeting, to promote the Company’s long term financial success, to attract, retain and reward persons who can contribute to the Company’s success, and to further align the participants’ interest with those of the Company’s shareholders. The 2023 EIP will be administered by the Compensation Committee of the Board of Directors or subcommittee thereof, which will select award recipients from the eligible participants, determine the types of awards to be granted, and determine the applicable terms, conditions, performance criteria, restrictions and other provisions of such awards, including any vesting or accelerated vesting requirements or conditions applicable to an award or awards. The types of awards which may be granted under the 2023 EIP include incentive and nonqualified stock options, stock appreciation rights, stock awards, restricted stock units, restricted stock and cash incentive awards.
The 2023 EIP incorporates a broad variety of cash-based and equity-based incentive compensation elements to provide the Compensation Committee with significant flexibility to appropriately address the requirements and limitations of recently applicable legal, regulatory and financial accounting standards in a manner mutually consistent with the purposes of the 2023 EIP and shareholder interests.
Subject to permitted adjustments for certain corporate transactions, the maximum number of shares that may be delivered to participants, or their beneficiaries, under the 2023 EIP is 1,500,000 shares of the Company’s common stock.
The foregoing description of the 2023 EIP is qualified in its entirety by the text of the 2023 EIP, which is filed as Appendix C to the Company’s definitive proxy statement, filed with the SEC on March 13, 2023, and which is incorporated herein by reference.
Item 5.03Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As described below under Item 5.07, at the Annual Meeting the Company’s shareholders approved the Third Amended and Restated Articles of Incorporation and the Second Amended and Restated Bylaws to declassify the Company’s board of directors and increase the maximum number of directors of the Company from eleven (11) to fifteen (15). The Third Amended and Restated Articles of Incorporation became effective on April 26, 2023 upon filing with the Minnesota Secretary of State.
A copy of the Company’s Third Amended and Restated Articles of Incorporation and a copy of the Company’s Second Amended and Restated Bylaws are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
The Annual Meeting was held on April 25, 2023. The record date for determination of shareholders entitled to vote at the Annual Meeting was February 27, 2023. There were 27,756,170 shares of common stock outstanding as of that date, with each such share being entitled to one vote. At the Annual Meeting, the holders of 23,290,240 shares, or approximately 83.91 percent of the outstanding shares, were represented in person or by proxy, which constituted a quorum for the Annual Meeting. The proposals listed below were voted on at the Annual Meeting.
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Proposal 1: The election of three (3) Class II director nominees to serve a three-year term until the 2026 Annual Meeting of Shareholders or until their successors are duly elected and qualified:
Class III Director Nominee | | Votes For | | Votes Withheld | | Broker Non-Votes |
David B. Juran | | 18,596,792 | | 1,662,081 | | 0 |
Thomas P. Trutna | | 18,072,284 | | 2,186,589 | | 0 |
Todd B. Urness | | 18,567,075 | | 1,691,798 | | 0 |
Proposal 2: The approval of the Third Amended and Restated Articles of Incorporation and Second Amended and Restated Bylaws to Declassify the Company’s Board of Directors:
Votes For | | Votes Against | | Abstentions | | Broker Non-Votes |
20,148,297 | | 60,544 | | 50,032 | | 3,031,367 |
Proposal 3: The approval of the Third Amended and Restated Articles of Incorporation and Second Amended and Restated Bylaws to increase the maximum number of directors of the Company from eleven (11) to fifteen (15):
Votes For | | Votes Against | | Abstentions | | Broker Non-Votes |
22,471,721 | | 575,244 | | 243,275 | | 0 |
Proposal 4: The approval of the 2023 EIP:
Votes For | | Votes Against | | Abstentions | | Broker Non-Votes |
14,576,925 | | 5,596,525 | | 85,423 | | 3,031,367 |
Proposal 5: The ratification of the appointment of RSM US LLP as the Company’s independent registered public accounting firm for the year ending December 31, 2023:
Votes For | | Votes Against | | Abstentions | | Broker Non-Votes |
23,025,115 | | 30,373 | | 234,752 | | 0 |
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit 3.1 | Third Amended and Restated Articles of Incorporation of Bridgewater Bancshares, Inc. |
Exhibit 3.2 | Second Amended and Restated Bylaws of Bridgewater Bancshares, Inc. |
Exhibit 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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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.
| Bridgewater Bancshares, Inc. |
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Date: April 27, 2023 | |
| By: /s/ Jerry Baack |
| Name: Jerry Baack |
| Title: Chairman, Chief Executive Officer and President |
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EXHIBIT 3.1
Third Amended and Restated Articles of Incorporation
of
Bridgewater Bancshares, Inc.
(Original Articles of Incorporation filed April 21, 2005;
Amendment to the Articles of Incorporation filed August 31, 2015;
Amended and Restated Articles of Incorporation filed February 28, 2018;
Second Amended and Restated of Articles of Incorporation filed April 24, 2019)
Bridgewater Bancshares, Inc., a Minnesota corporation originally incorporated on April 21, 2005 and organized and existing under Chapter 302A of the Minnesota Business Corporation Act, as amended (the “MBCA”), does hereby certify that the Third Amended and Restated Articles of Incorporation (the “Articles of Incorporation”) set forth below have been duly adopted in accordance with Sections 302A.131 and 302A.135 of the MBCA.
Article I
Name
The name of the corporation is Bridgewater Bancshares, Inc. (the “Corporation”).
Article II
Registered Office
The registered office of the Corporation is located at 4450 Excelsior Blvd., Suite 100, St. Louis Park, Minnesota 55416.
Article III
Capital Stock
Article IV
Purpose
The purpose of the Corporation is to engage in any business purpose or purposes for which corporations may be formed under the MBCA.
Article V
Powers
Subject to any limitations set forth by Minnesota statute or these Articles of Incorporation, the Corporation shall have all the powers necessary or convenient to carry out the purposes for which it is incorporated.
Article VI
Preemptive Rights
No preemptive rights shall exist with respect to shares of stock or securities convertible into shares of stock of the Corporation, except to the extent provided by written agreement with the Corporation.
Article VII
Cumulative Voting
The right to cumulate votes in the election of directors shall not exist with respect to shares of stock of the Corporation.
Article VIII
Annual Meeting of Shareholders
The annual meeting of the shareholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held at such date, time and place, if any, as shall be determined solely by the resolution of the Board of Directors in its sole and absolute discretion.
Article IX
Number, Class and Term of Directors
Article X
Indemnification of Officers and Directors
Subject to the limitations of applicable federal and state banking laws and regulations, the Corporation shall indemnify the present and former officers and directors of the Corporation
for such expenses and liabilities, in such manner, under such circumstances and to the fullest extent as required or permitted by the MBCA, as in effect from time to time, or as required or permitted by other provisions of law. Subject to the limitations of applicable federal and state banking laws and regulations, the Board may authorize the purchase and maintenance of insurance and the execution of individual agreements for the purpose of such indemnification, and the Corporation shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Article X, all in the manner, under the circumstances and to the extent permitted by the MBCA, as in effect from time to time. Unless otherwise approved by the Board, the Corporation shall not indemnify any employee of the Corporation who is not otherwise entitled to indemnification pursuant to this Article X.
Article XI
Limitation of Liability
No director of the Corporation shall be personally liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this Article XI shall not eliminate or limit the liability of a director to the extent provided by applicable law (i) for any breach of the director’s duty of loyalty to the Corporation or its shareholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under section 302A.559 or 80A.76 of the Minnesota Statutes, (iv) for any transaction from which the director derived an improper personal benefit, or (v) for any act or omission occurring prior to the effective date of this Article XI (including any predecessor provision). No amendment to or repeal of this Article XI shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.
Article XII
Director Action Without a Meeting
The Board of Directors of the Corporation may take any action, other than an action requiring shareholder approval, by written action signed, or consented to by authenticated electronic communication, by the number of directors that would be required to take the same action at a meeting of the Board of Directors at which all directors were present.
Article XIII
Control Share Acquisitions
The Corporation shall be subject to the provisions of Section 302A.671 of the MBCA.
Article XIV
Business Combination Act
The Corporation shall be subject to the provisions of Section 302A.673 of the MBCA.
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I, the undersigned, certify that I am signing this document as the person whose signature is required, or as agent of the person whose signature would be required who has authorized me to sign this document on such person’s behalf, or in both capacities. I further certify that the information in this document is true and correct and in compliance with the MBCA. I further certify that these Third Amended and Restated Articles of Incorporation have been approved by the shareholders pursuant to the MBCA. I understand that by signing this document, I am subject to the penalties of perjury as set forth in Minn. Stat. Ann. § 609.48 as if I had signed this document under oath.
These Third Amended and Restated Articles of Incorporation shall be effective on the day they are filed with the Secretary of State.
Date: April 26, 2023
| /s/ Jerry Baack |
| Signature of Authorized Person |
| Printed or Typed Name of Authorized Person |
| President and CEO |
| Title of Authorized Person |
EXHIBIT 3.2
Second Amended and Restated
Bylaws
of
Bridgewater Bancshares, Inc.
Article I
Notwithstanding the preceding paragraph, to the extent required by Section 302A.613 of the MBCA, notice of a shareholder meeting to be held for the purpose of voting on a plan of merger or exchange must be given to every shareholder of the Corporation, whether or not entitled to vote, not later than 14 days before the meeting. Notice of such action shall comply with any other requirements set by law.
A shareholder may give waiver of notice either before, at or after the meeting in writing or orally, or shall be deemed to have given waiver of notice by attendance at the meeting or by delivery of a proxy in connection with such meeting except when the shareholder attends for the purpose of objecting to the lawfulness of the meeting or objects to an item considered at the meeting and does not participate.
A voting list shall be prepared as of the record date fixed for any shareholder meeting. Upon written demand or request by any shareholder, the list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting and five days before the meeting.
The presiding officer shall determine the order of business and, in the absence of a rule adopted by the Board, shall establish rules for the conduct of the meeting. The presiding officer shall announce the close of the polls for each matter voted upon at the meeting, after which no ballots, proxies, votes, changes, or revocations will be accepted. Polls for all matters before the meeting will be deemed to be closed upon final adjournment of the meeting.
Shareholders take action (other than the election of directors) upon the affirmative vote of the holders of a majority of the voting power of the shares present and entitled to vote on the action at a meeting of shareholders at which a quorum is present (unless the MBCA or Articles of Incorporation require a larger percentage).
If the holders of a class or series of shares are entitled or required to vote separately as a class or series, a separate affirmative vote of a majority of the voting power of the shares of that class or series is required (unless the MBCA or the Articles of Incorporation require a larger percentage) in addition to any other vote required.
Directors are elected by a plurality of the voting power of the shares present and entitled to vote in the election at a meeting at which a quorum is present.
Shareholders are prohibited from cumulating their votes in any election of directors of the Corporation.
No proxy shall be valid 11 months from the date of its execution unless otherwise provided in the proxy. A proxy may be terminated at will unless the proxy is coupled with an interest in which case it may be terminated only according to the terms of any agreement between the parties to the appointment. The termination may be executed in the same manner as the proxy. The death or incapacity of the shareholder appointing a proxy shall not affect the right of the Corporation to accept the proxy’s authority unless notice of the death or incapacity is received by an officer of the Corporation.
The Shareholder Notice shall be updated not later than 10 days after the record date for the determination of shareholders entitled to vote at the meeting to provide any material changes in the foregoing information as of the record date. Any Shareholder Notice relating to the nomination of directors must also contain (1) the information regarding each nominee required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by the Securities and Exchange Commission (or the corresponding provisions of any successor regulation), (2) each nominee’s signed consent to serve as a director of the Corporation if elected and (3) whether each nominee is eligible for consideration as an independent director under the relevant standards contemplated by Item 407(a) of Regulation S-K (or the corresponding provisions of any successor regulation). The Corporation may also require any proposed nominee to furnish such other information, including completion of the Corporation’s director questionnaire, as it may reasonably require to determine whether the nominee would be considered “independent” as a director or as a member of any applicable committee of the Board under the various rules and standards applicable to the Corporation. Any
Shareholder Notice with respect to a matter other than the nomination of directors must contain (x) the text of the proposal to be presented, including the text of any resolutions to be proposed for consideration by shareholders and (y) a brief written statement of the reasons why such shareholder favors the proposal. Notwithstanding anything in this Section 12(c) of Article II to the contrary, in the event that the number of directors to be elected to the Board is increased and either all of the nominees for director or the size of the increased Board is not publicly announced or disclosed by the Corporation at least 100 days prior to the first anniversary of the preceding year’s annual meeting, a Shareholder Notice shall also be considered timely hereunder, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive office of the Corporation not later than the close of business on the tenth day following the first date all of such nominees or the size of the increased Board shall have been publicly announced or disclosed.
A regular meeting of the Board shall be held without other notice immediately after and at the place of each regular meeting of shareholders, at which the Board shall elect officers and transact any other business as shall come before the meeting. Other regular meetings of the Board may be held at such times and places within or without Minnesota as the Board may fix by resolution.
Special meetings of the Board may be called by the Chief Executive Officer, by the Chairman of the Board, by any two directors, or by one director if there is only one director.
The Board may permit a director to participate in a meeting of the Board by conference telephone, two-way teleconference or other means of remote communication authorized by the Board by which the director, other directors participating by remote communication, and all directors physically present at the meeting may participate with each other during the meeting.
Participation by remote communication shall constitute presence in person at the meeting.
If the action need not be approved by the shareholders, written action may be taken by written action signed or consented to by authenticated electronic communication by the number of directors or committee members that would be required to take the same action at a meeting at which all directors or committee members were present. When written action is taken by less than all directors or committee members, all directors and committee members shall be notified promptly of its text and effective date.
The written action is effective when signed or consented to by authenticated electronic communication by the required number of directors or committee members unless a different effective time is provided in the written action.
Officers shall be elected annually at each regular meeting of the Board held after each regular meeting of shareholders. Each officer shall serve until a successor is elected and qualified or until the death, resignation or removal of that officer. Vacancies or new offices shall be filled at the next regular or special meeting of the Board.
Any officer may resign at any time by giving written notice to the Corporation. Resignation is effective, without acceptance, when the notice is given to the Corporation, unless the notice provides a later effective date.
A vacancy due to death, resignation, removal, disqualification, or other cause may, or in the case of a vacancy in the office of the Chief Executive Officer or Chief Financial Officer shall, be filled for the unexpired portion of the term in the manner determined by the Board.
The powers, rights, duties, responsibilities, and terms in office of any other officers shall be as set forth from time to time by resolution of the Board.
In the absence of a designation of the powers, rights, duties, responsibilities, and terms in office, the respective officers shall have the powers and shall discharge the duties customarily and usually held and performed by like officers of corporations similar in organization and business purposes to the Corporation subject to the control of the Board. Officers may delegate some or all of the duties and powers of an office to other persons.
Subject to the limitations of applicable federal and state banking laws and regulations, the Corporation shall indemnify the present and former officers and directors of the Corporation for such expenses and liabilities, in such manner, under such circumstances and to the fullest extent as required or permitted by the MBCA, as in effect from time to time, or as required or permitted by other provisions of law. Subject to the limitations of applicable federal and state banking laws and regulations, the Board may authorize the purchase and maintenance of insurance and the execution of individual agreements for the purpose of such indemnification, and the Corporation shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Article V, all in the manner, under the circumstances and to the extent permitted by the MBCA, as in effect from time to time. Unless otherwise approved by the Board, the Corporation shall not indemnify any employee of the Corporation who is not otherwise entitled to indemnification pursuant to this Article V.
Article VI
Share Certificates and Transfer
Notwithstanding the foregoing, the Corporation shall issue a share certificate upon request by a shareholder, and each such certificate shall be signed by the Chief Executive Officer and Secretary of the Corporation.
Article VII
Amendment of Bylaws
Subject to the rights of shareholders under and any limitations imposed by the MBCA, the Board may adopt, amend, or repeal Bylaws; provided, however, the Board shall not adopt, amend, or repeal a Bylaw fixing a quorum for meetings of shareholders, prescribing procedures for removing directors or filling vacancies in the Board, or fixing the number of directors or their classifications, qualifications, or terms of office, but may adopt or amend a Bylaw to increase the number of directors.
Article VIII
Forum Selection
Unless the Corporation consents in writing to the selection of an alternative forum, the state or federal courts in Hennepin County, Minnesota shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee, or agent of the Corporation to the Corporation or the Corporation’s shareholders, (iii) any action asserting a claim arising pursuant to any provision of the MBCA, the Articles of Incorporation, or the Bylaws of the Corporation, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said courts having personal jurisdiction over the indispensable parties named as defendants therein.
Article IX
Miscellaneous