Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers 2021 Equity Incentive Plan
At the Special Meeting, holders of 32,082,998 shares of FAII's common stock
(consisting of 23,457,998 shares of Class A Common Stock and 8,625,000 shares of
Class F common stock) were present in person or by proxy, representing 74.4% of
FAII's common stock outstanding and entitled to vote as of the record date of
In connection with the Special Meeting, FAII stockholders approved the ATI
Physical Therapy 2021 Equity Incentive Plan (the "2021 Plan"), which makes
available a number of shares of Class A Common Stock equal to 10% of the total
number of shares of common stock of FAII issued and outstanding as of
immediately after the consummation of the Business Combination. Based on FAII's
anticipated capital stock upon the Closing, this will be approximately
20,728,254 shares of Class A Common Stock, which shall be the maximum number of
shares of Class A Common Stock that may be issued pursuant to the exercise of
incentive stock options granted under the 2021 Plan. A summary of the 2021 Plan
is included in FAII's definitive Proxy Statement (the "Definitive Proxy") for
the Special Meeting filed with the
Item 5.07 Submission of Matters to a Vote of Security Holders.
At the Special Meeting, the following proposals were submitted to and approved by the Company's stockholders as follows:
1. The Business Combination Proposal: To consider and vote upon a proposal to
approve the Merger Agreement and the Business Combination, pursuant to which Wilco shall become a direct, wholly-owned subsidiary of FAII upon consummation of the Business Combination. For Against Abstain Broker Non-Votes 29,453,105 2,618,674 11,219 0
The Business Combination Proposal was approved, having received "for" votes from holders of at least 50.1% of the votes cast by holders of outstanding shares of common stock represented in person or by proxy at the Special Meeting.
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2. The NYSE Issuance Proposal: To consider and vote upon a proposal to approve,
for purposes of complying with applicable listing rules of theNew York Stock Exchange ("NYSE"), the issuance of shares of common stock pursuant to the Merger Agreement and the Subscription Agreements, dated as ofFebruary 21, 2021 , by and between FAII and each of the investors thereto. For Against Abstain Broker Non-Votes 29,452,365 2,618,574 12,059 0
The NYSE Issuance Proposal was approved, having received "for" votes from holders of at least 50.1% of the votes cast by holders of outstanding shares of common stock represented in person or by proxy at the Special Meeting.
3. The Charter Amendment Proposal: To consider and act upon a proposal to adopt
the proposed Second Amended and Restated Certificate of Incorporation of FAII (the "Proposed Charter"). For Against Abstain Broker Non-Votes 29,450,228 2,620,574 12,196 0
The Charter Amendment Proposal was approved, having received "for" votes from holders of at least 50.1% of the outstanding shares of common stock.
4. The Governance Proposal: To consider and act upon, on a non-binding, advisory
basis, a separate proposal with respect to certain governance provisions in FAII's Proposed Charter in accordance with the Commission requirement: a. Number of Authorized Shares: To consider and vote upon an amendment to FAII's current charter to approve the increase of the total number of all classes of capital stock to 471,000,000, consisting of (a) 470,000,000 shares of FAII common stock, including (i) 450,000,000 shares of Class A Common Stock and (ii) 20,000,000 shares of FAII Class F common stock, and (b) 1,000,000 shares of FAII preferred stock. For Against Abstain Broker Non-Votes 32,008,731 53,086 21,181 0 b. Board Classification: To consider and vote upon an amendment to FAII's current charter to require that the board of directors be divided into three classes, with only one class of directors being elected each year and members of each class (except for those initial directors appointed to Class I, Class II and Class III in connection with the Business Combination) serving a three-year term. For Against Abstain Broker Non-Votes 25,991,377 6,064,816 26,805 0 c. Opt Out of Section 203 of the Delaware General Corporate Law: To consider and vote upon an amendment to FAII's current charter providing that ATI Physical Therapy, Inc. (f/k/a Fortress Value Acquisition Corp. II) will not be governed by Section 203 of the Delaware General Corporation Law (the "DGCL") and, instead, includes a provision that is substantially similar to Section 203 of the DGCL, but excludes the investment funds affiliated with Advent International Corporation ("Advent") and their transferees, any person that acquires ownership of voting stock of the Company directly from Advent or any of its affiliates or successors, and any of their respective affiliates or successors or any "group," or any member of any such group to which such persons are a party from the definition of "interested stockholder," and to make certain related changes.
For Against Abstain Broker Non-Votes 28,923,243 3,131,162 28,593
0 d. Stockholder Vote Required to Amend the Certificate of Incorporation: To consider and vote upon an amendment to FAII's current charter to require that any amendments relating to Article V (Board of Directors) may only be made, in addition to any vote required by applicable law, by the affirmative vote of the holders of at least 66.7% of the voting power of all the then-outstanding shares of stock of FAII entitled to vote in the election of directors, voting together as a single class.
For Against Abstain Broker Non-Votes 25,956,917 6,098,541 27,540
0
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e. Stockholder Vote Required to Amend the Bylaws: To consider and vote upon an amendment to FAII's current charter to require that any amendments relating to Article VIII of FAII's amended and restated bylaws (Indemnification) may only be made by the affirmative vote of the holders of at least 65% of the voting power of all the then-outstanding shares of capital stock of FAII. For Against Abstain Broker Non-Votes 25,995,106 6,064,072 23,820 0 5. The Director Election Proposal: To consider and vote upon a proposal to elect eight directors to serve on the FAII board of directors until the earlier of the closing and the 2023 annual meeting of stockholders, and until their respective successors are duly elected and qualified, subject to their earlier death, resignation or removal. a.Joshua A. Pack For Withhold Broker Non-Votes 26,743,087 5,339,911 0 b.Andrew A. McKnight For Withhold Broker Non-Votes 26,391,440 5,691,558 0 c. Marc Furstein For Withhold Broker Non-Votes 27,534,784 4,548,214 0 d. Leslee Cowen For Withhold Broker Non-Votes 27,537,161 4,545,837 0 e. Aaron F. Hood For Withhold Broker Non-Votes 30,794,475 1,288,523 0 f.Carmen A. Policy For Withhold Broker Non-Votes 32,044,112 38,886 0 g.Rakefet Russak-Aminoach For Withhold Broker Non-Votes 32,035,995 47,003 0 h. Sunil Gulati For Withhold Broker Non-Votes 32,038,914 44,084 0
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All nominees for election to the board of directors of FAII to serve on the FAII board until the earlier of the closing and the 2023 annual meeting of stockholders were elected, each such nominee having received "for" votes from holders of at least a plurality of the outstanding shares of common stock represented in person or by proxy at the Special Meeting.
6. The Incentive Plan Proposal: To consider and vote upon a proposal to approve
the 2021 Plan. For Against Abstain Broker Non-Votes 30,662,857 1,407,523 12,618 0
The Incentive Plan Proposal was approved, having received "for" votes from holders of at least 50.1% of the votes cast by holders of outstanding shares of common stock represented in person or by proxy at the Special Meeting.
In connection with the Special Meeting, FAII also solicited proxies with respect to the adjournment of the Special Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there were insufficient votes for, or for any other reason permitted by the Merger Agreement in connection with, the approval of one or more of the proposals at the Special Meeting. As there were sufficient votes at the time of the Special Meeting to approve proposals 1 through 6 and to ensure that a quorum was present at the Special Meeting, the adjournment of the Special Meeting to solicit additional proxies for such purpose was unnecessary and such proposal was not submitted to the holders of shares of FAII common stock for approval at the Special Meeting.
Item 7.01 Regulation FD Disclosure.
On
In accordance with General Instruction B.2 of Form 8-K, the information under this Item 7.01 shall not be deemed "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, nor shall such information be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number Description 99.1 Press Release, dated as ofJune 16, 2021 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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