| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(d) On December 27, 2022, upon the recommendation of its Nominating and Corporate Governance Committee, the Board of Directors (the “Board”) of Neuronetics, Inc. (the “Company”) appointed Joseph H. Capper as a director and member of the Board’s Audit Committee effective January 1, 2023. The Board determined that Mr. Capper qualifies as an independent director under the director independence standards set forth by the Securities and Exchange Commission (the “SEC”) and applicable NASDAQ Stock Market LLC rules. Mr. Capper’s term will expire at the 2023 annual meeting of stockholders of the Company. The Company will enter into an indemnification agreement with Mr. Capper in connection with his appointment to the Board, in substantially the same form as that entered into with the Company’s other directors.
In connection with his appointment and as approved by the Board, Mr. Capper will receive compensation as a non-employee director as described in the Company’s proxy statement for the 2022 Annual Meeting of Stockholders. There are no arrangements or understandings between Mr. Capper and any other person pursuant to which he was selected as a director. Mr. Capper has no family relationship with any director or executive officer of the Company and he has no direct or indirect material interest in any transaction involving the Company required to be disclosed under Item 404(a) of Regulation S-K.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On December 27, 2022, the Board voted to adopt the Fourth Amended and Restated Bylaws (the “A&R Bylaws”), which became effective immediately upon adoption. The A&R Bylaws amend and restate the Company’s previously existing bylaws in their entirety to, among other things, (i) update provisions as a result of universal proxy rules adopted by the SEC with respect to the nomination of directors for election, including a requirement for a stockholder submitting a nomination notice to make a representation as to whether such stockholder intends to solicit proxies in support of director nominees other than the Company’s nominees in accordance with Rule 14a-19 under the Securities Exchange Act of 1934, as amended, and to provide reasonable evidence that certain requirements of such rule have been satisfied; and (ii) make certain other administrative, modernizing, clarifying and conforming changes.
The foregoing is qualified in its entirety by reference to the text of the A&R Bylaws, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference. In addition, a marked copy of the A&R Bylaws showing all changes made to the prior bylaws is filed as Exhibit 3.2 to this Current Report on Form 8-K.
