CUTERA, INC. Item 1.01 Entry into a Material Definitive Agreement.
On
Pursuant to the terms of the Cooperation Agreements, the Board will, following
the Special Meeting of Stockholders currently scheduled for
Furthermore, the Board will, with respect to the Company's 2023 Annual Meeting
of Stockholders (the "2023 Annual Meeting"): (i) nominate the New Independent
Directors and
Following the 2023 Annual Meeting, the size of the Board will be fixed at seven (7) directors until the appointment of a new permanent Chief Executive Officer (the "Permanent CEO"), at which time the size of the Board will be increased accordingly, and the Permanent CEO will be appointed to the Board. If the appointment of the Permanent CEO occurs before the 2023 Annual Meeting, then the Permanent CEO will be included in the Board Slate and the size of the Board will be increased accordingly as of the 2023 Annual Meeting. Notwithstanding the foregoing, following the 2023 Annual Meeting, the Board will be permitted to increase the size of the Board if 66.6% of the directors so consent. The determination of the Permanent CEO will require consent of a majority of the directors of the Board.
The Cooperation Agreements further provide, among other things, that:
• As long as Pura Vida and its affiliates' Net Long Position (as defined in
the Cooperation Agreements) exceeds four percent (4%) or more of the
Company's common stock (the "Ownership Minimum"), if Mr. Harris ceases to
serve as a director of the Company for any reason whatsoever, Pura Vida
will be entitled to propose another individual to replace Mr. Harris (a
"Pura Vida Replacement Director").
• As long as RTW and its affiliates' Net Long Position (as defined in the
Cooperation Agreements) exceeds the Ownership Minimum, if Mr. Lewin
ceases to serve as a director of the Company for any reason whatsoever,
RTW will be entitled to propose another individual to replace Mr. Lewin
(an "RTW Replacement Director," and with the Pura Vida Replacement
Director, a "Replacement Director").
• The Board will have the right to approve any such Replacement Director,
such approval not to be unreasonably withheld; provided that the Board's
disapproval of such Replacement Director will be reasonable if the Board
determines that any such Replacement Director would not be independent,
would not comply with the Company's Corporate Governance Guidelines or
would be an affiliate or associate of J. Daniel Plants , David H. Mowry ,
Voce Capital Management LLC , Pura Vida or RTW. The Board will express its
approval or disapproval of such Replacement Director no later than
fifteen (15) business days following such proposal.
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• The Company has agreed to use its reasonable best efforts to enter into a
consulting agreement on customary terms with Taylor Harris .
• The Company has also agreed to use its reasonable best efforts to appoint
Dr. Ashish Bhatia and Dr. Emmy Graber as senior medical advisors to the
Board to serve in such advisory roles on customary terms.
• Until the termination date, each Investor will vote its respective shares
of Common Stock beneficially owned by it and over which it has voting
power (i) in favor of each director nominated and recommended by the
Board for election, (ii) against any nominations for directors that are
not approved and recommended by the Board for election and (iii) against
any proposals or resolutions to remove any member of the Board or
otherwise similar proposals. For the avoidance of doubt, (i) at the
Company's 2023 Annual Meeting of Stockholders (the "2023 Annual
Meeting"), each Investor will vote for any nominee to the Board who is a
member of the Board Slate and withhold or not vote for any other nominee
to the Board and (ii) each Investor will vote against the removal of the
Continuing Directors, Gregory A. Barrett , and Timothy J. O'Shea and
against all other proposals at the Special Meeting.
• Each Investor respectively will be subject to customary standstill
restrictions, including, among others, with respect to nominating persons
for election to the Board, submitting any proposal for consideration at
any stockholder meeting and soliciting any proxy, consent or other
authority to vote from stockholders or conducting any other referendum
(including any "withhold," "vote no" or similar campaign), and acquiring
beneficial ownership of, or economic exposure to, more than 10% of the
Company's common stock in the aggregate, proxy solicitation and related
matters, extraordinary transactions and other changes, each of the
foregoing subject to certain exceptions.
• The Company and the Investors will not make any public disparaging
statements about the counterparty, subject to certain exceptions.
• The Cooperation Agreements will terminate on the date that is forty-five
(45) days prior to the nomination deadline under the bylaws of the
Company in effect as of the date of each Cooperation Agreement for the
nomination of director candidates for election to the Board at the
Company's 2024 Annual Meeting of Stockholders.
The foregoing descriptions of the Cooperation Agreements are qualified in their entirety by reference to the full text of the agreements, which are filed as Exhibit 10.1 and 10.2 to this Current Report on Form 8-K and are incorporated by reference herein.
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Item 7.01 Regulation FD Disclosure.
On
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number Description 10.1 Cooperation Agreement, dated as ofMay 9, 2023 , betweenCutera, Inc. andPura Vida Investments, LLC . 10.2 Cooperation Agreement, dated as ofMay 9, 2023 , betweenCutera, Inc. andRTW Investments, LP . 99.1 Press Release datedMay 9, 2023 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL Document).
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