SUM Summit Materials Inc

 

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): February 10, 2025

 

 

Summit Materials, Inc.

(Exact name of registrant as specified in its charter)

 

 

Delaware	001-36873	47-1984212
(State or Other Jurisdiction	(Commission	(I.R.S. Employer
of Incorporation)	File Number)	Identification No.)

 

1801 California Street, Suite 3500

Denver, Colorado 80202

(Address of Principal Executive Offices) (Zip Code)

Registrant’s Telephone Number, Including Area Code: (303) 893-0012

 

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 communications 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 Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Class A Common Stock (par value, $0.01 per share)		SUM		New York Stock Exchange

 

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. ☐

 

Introduction

 

On February 10, 2025, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of November 24, 2024, among Summit Materials, Inc., a Delaware corporation (the “Company” or “Summit”), Quikrete Holdings, Inc., a Delaware corporation (“Purchaser” or “Parent”), and Soar Subsidiary, Inc., a Delaware corporation and a wholly owned subsidiary of Purchaser (“Merger Sub”), Merger Sub merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Purchaser.

 

Pursuant to the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each issued and outstanding share of the Company’s Class A common stock, par value $0.01 per share (“Company Common Shares” and each, a “Company Common Share”) (other than any Company Common Shares that were held by the Company as treasury stock or held by Purchaser, Merger Sub or any other subsidiary of Purchaser or the Company or any Company Common Shares as to which appraisal rights have been properly exercised in accordance with Delaware law), was canceled and retired and converted into the right to receive $52.50 per share in cash, without interest and subject to deduction for any required withholding (the “Merger Consideration”).

 

Pursuant to the Merger Agreement, at the Effective Time, the single share of preferred stock of the Company, par value $0.01 per share (the “Company Preferred Share”), outstanding immediately prior to the Effective Time was automatically canceled and retired for no consideration and ceased to exist. Aside from the Company Common Shares and Company Preferred Share there were no other classes or series of Summit’s stock outstanding at the Effective Time.

 

Effective as of immediately prior to the Effective Time, (i) each restricted stock unit award that was subject to vesting conditions based solely on continued employment or service granted under the Company’s Amended and Restated 2015 Omnibus Incentive Plan (the “Company Stock Plan”, and each such restricted stock unit, a “Company RSU”) and that was outstanding immediately prior to the Effective Time has fully vested (or, with respect to Company RSUs granted in 2025 to employees whose employment will continue following the Effective Time (a “Continuing Employee”), has pro rata vested) and was canceled and converted into the right to receive an amount in cash equal to the product of (a) the Merger Consideration, multiplied by (b) the number of shares of Company Common Shares subject to such vested Company RSUs, (ii) each restricted stock unit that was subject to vesting conditions based in whole or in part on performance goals granted under the Company Stock Plan (each, a “Company PSU”) and that was outstanding immediately prior to the Effective Time has vested (based on the level of achievement of the applicable performance goals set forth below) and been canceled and converted into the right to receive an amount in cash equal to (a) the Merger Consideration, multiplied by (b) the number of shares of Company Common Shares subject to such award of Company PSUs as determined based on target performance and (iii) each option to purchase Company Common Shares granted under the Company Stock Plan (each, a “Company Option”) that was outstanding immediately prior to the Effective Time has fully vested, to the extent not vested previously, and been canceled and converted into the right to receive an amount in cash equal to (a) the excess, if any, of the Merger Consideration over the applicable exercise price per share of Company Common Shares subject to such award of Company Options, multiplied by (b) the number of shares of Company Common Shares subject to such award of Company Options; provided that if the applicable exercise price per share of Company Common Shares of an award of Company Options was equal to or greater than the Merger Consideration, such award of Company Options was canceled at the Effective Time for no consideration. Notwithstanding the foregoing, with respect to any Company RSUs granted on or after January 1, 2025 to Continuing Employees (the “2025 Company RSUs”), any portion of such 2025 Company RSUs not subject to proration as of the Effective Time shall be forfeited for no consideration and the value of such forfeited 2025 Company RSUs (substantially equal to the number of the forfeited 2025 Company RSUs multiplied by the Merger Consideration) shall be granted to the applicable Continuing Employee in the form of a cash award, which shall vest, generally subject to continued employment, in equal installments on each of December 31, 2025, December 31, 2026 and December 31, 2027.

 

The foregoing description of the Merger Agreement and the transactions contemplated thereby, including the Merger, does not purport to be complete, and is subject to and qualified in its entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1, to this Current Report on Form 8-K and incorporated herein by reference.

 

Item 1.01.

Entry into a Material Definitive Agreement.

 

Concurrently with the closing of the Merger, the Company entered into that certain First Amendment to the Restrictive Covenant Agreement (the “RCA Amendment”) with Grupo Argos S.A., a sociedad anónima incorporated in the Republic of Colombia (“Grupo”), and Cementos Argos S.A., a sociedad anónima incorporated in the Republic of Colombia (“Cementos”), which amends that certain Restrictive Covenant Agreement, dated as of January 12, 2024, by and among the Company, Grupo and Cementos (the “RCA Agreement”). Among other things, as of the Effective Time, the RCA Amendment terminated non-compete and right of first offer obligations binding on Grupo and Cementos under the RCA Agreement. The foregoing description of the RCA Amendment is qualified in its entirety by reference to the full text of the RCA Amendment, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.

 

Item 1.02.

Termination of a Material Definitive Agreement.

 

Concurrently with the closing of the Merger, the Company repaid all loans and discharged all obligations and terminated all credit commitments, security agreements and liens outstanding under that certain Amended and Restated Credit Agreement, dated as of July 17, 2015, and as amended from time to time, among the Company, the lenders from time to time party thereto and Bank of America, N.A. as administrative agent and collateral agent.

 

Concurrently with the closing of the Merger, the Company (i) redeemed in full all of its outstanding (a) 6.500% senior notes due 2027 issued under the Indenture, dated as of March 15, 2019 (the “2027 Notes Indenture”), among Summit Materials, LLC (the “Issuer”), Summit Materials Finance Corp. (the “Co-Issuer” and together with the Issuer, the “Issuers”), the guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), (b) 5.250% senior notes due 2029 issued under the Indenture, dated as of August 11, 2020 (the “2029 Notes Indenture”), among the Issuers, the guarantors party thereto and the Trustee and (c) 7.250% senior notes due 2031 issued under the Indenture, dated as of December 14, 2023 (the “2031 Notes Indenture” and, together with the 2027 Notes Indenture and the 2029 Notes Indenture, the “Indentures”), among the Issuers, the guarantors party thereto and the Trustee, and (ii) satisfied and discharged all of the Issuers’ obligations under each of the Indentures.

 

Item 2.01

Completion of Acquisition or Disposition of Assets.

 

The information set forth in the Introduction, Item 1.01 and Item 1.02 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.

 

Item 3.01.

Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

 

The information set forth in the Introduction of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.

 

In connection with the consummation of the Merger, Summit requested that the New York Stock Exchange (“NYSE”) suspend trading of Company Common Shares on the NYSE and remove Company Common Shares from listing on the NYSE, in each case, prior to the opening of the market on February 10, 2025. Summit also requested that the NYSE file a notification of removal from listing of Company Common Shares on Form 25 with the SEC.

 

Summit intends to file Form 15 with the SEC to terminate the registration of Company Common Shares under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and suspend Summit’s reporting obligations under Sections 13 and 15(d) of the Exchange Act ten days after the filing of such Form 25.

 

Item 3.03.

Material Modification to Rights of Security Holders.

 

The information set forth in Item 1.01, Item 1.02, Item 2.01, Item 3.01, Item 5.01, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

 

At the Effective Time, each holder of Company Common Shares and of the Company Preferred Share immediately prior to the Effective Time ceased to have any rights as a shareholder of Summit other than the right to receive the Merger Consideration pursuant to the Merger Agreement.

 

Item 5.01.

Changes in Control of Registrant.

 

The information set forth in Item 1.01, Item 1.02, Item 2.01, Item 3.01, Item 3.03, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.

 

As a result of the Merger, a change in control of Summit occurred, and Summit is now a wholly-owned subsidiary of Parent. Parent obtained the funds necessary to fund the Merger through (i) an incremental term loan debt facility and an asset based revolving credit facility with Wells Fargo Bank, National Association, as administrative agent, (ii) the issuance of an aggregate principal amount of $3,950,000,000 senior secured notes and an aggregate principal amount of $1,500,000,000 senior unsecured notes and (iii) cash on hand.

 

Item 5.02.

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

As of the Effective Time, in accordance with the Merger Agreement, all of the directors and officers of Summit immediately prior to the Effective Time resigned as directors and officers, as applicable, of Summit. The positions on committees of the Company’s Board of Directors held by such resigning directors are as set forth in the Company’s Proxy Statement on Schedule 14A filed with the SEC on April 8, 2024, under the Section “Our Board of Directors—Board Meetings and Committees”, which is incorporated herein by reference.

 

Item 5.03.

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

The information set forth in Item 1.01, 1.02, Item 2.01, Item 3.03, Item 5.01 and Item 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.

 

Pursuant to the Merger Agreement, at the Effective Time, the certificate of incorporation of the Company was amended and restated and, as so amended and restated, shall be the certificate of incorporation of the Company until further amended. In addition, the bylaws of Merger Sub in effect at the Effective Time became the bylaws of the Company (except that references to the name of Merger Sub were replaced by reference to the name of the Company). Copies of Summit’s amended and restated certificate of incorporation and bylaws are attached as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and are incorporated by reference into this Item 5.03.

 

Item 8.01.

Other Events.

 

On February 10, 2025, Summit issued a press release announcing the completion of the Merger, a copy of which is attached hereto as Exhibit 99.1 and incorporated by reference into this Item 8.01.

 

Item 9.01.

Exhibits.

 

(d) Exhibits.

 

Exhibit Number		Description
2.1		Agreement and Plan of Merger, dated as of November 24, 2024, among Summit Materials, Inc., Quikrete Holdings, Inc. and Soar Subsidiary, Inc (incorporated by reference to Exhibit 2.1 to the Current Report on Summit Materials, Inc. 8-K (File No. 001-36873) filed on November 25, 2024).*
3.1		Third Amended and Restated Certificate of Incorporation of Summit Materials, Inc., dated February 10. 2025.
3.2		Fifth Amended and Restated Bylaws of Summit Materials, Inc., dated February 10, 2025.
10.1		First Amendment to the Restrictive Covenant Agreement by and among Summit Materials, Inc., Grupo Argos S.A. and Cementos Argos S.A.
99.1		Press Release, dated February 10, 2025.
104		Cover Page Interactive Data File – the cover page XBRL tags are embedded within the Inline XBRL document

 

*

Schedules and similar attachments have been omitted from this filing pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule or similar attachment will be furnished to the Securities and Exchange Commission upon request.

 

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.

 

	SUMMIT MATERIALS, INC.
DATED: February 10, 2025	By:	/s/ David Hamm
	Name:	David Hamm
	Title:	SVP, Deputy General Counsel & Assistant Secretary

 

 

Exhibit 3.1

 

 

THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

 

of

 

SUMMIT MATERIALS, INC.

 

 

1.   Name. The name of the corporation is Summit Materials, Inc. (the “Corporation”).

 

2.   Address; Registered Office and Agent. The address of the Corporation’s registered office is 1521 Concord Pike Suite 201, City of Wilmington, County of New Castle, State of Delaware 19803; and the name of its registered agent at such address is Corporate Creations Network Inc.

 

3.   Corporate Purposes. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

 

4.   Number of Shares. The total number of shares of stock that the Corporation shall have authority to issue is One Thousand (1,000), all of which shall be shares of Common Stock with the par value of one cent ($0.001) per share.

 

5.   Election of Directors. Unless and except to the extent that the Bylaws of the Corporation (the “Bylaws”) shall so require, the election of directors of the Corporation need not be by written ballot.

 

6.   Limitation of Liability.

 

(a)   To the fullest extent permitted under the DGCL or any other law of the State of Delaware (as they exist on the date hereof or as they may hereafter be amended), no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty owed to the Corporation or its stockholders.

 

(b)   Neither any amendment or repeal of Section 6(a), nor the adoption of any provision of this Certificate of Incorporation, nor, to the fullest extent permitted by the DGCL or any other law of the State of Delaware (as they exist on the date hereof or as they may hereafter be amended), any modification of law shall adversely affect any right or protection of a current or former director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment or repeal.

 

7.   Indemnification.

 

7.1   Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil,

 

criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another entity or enterprise, including service with respect to employee benefit plans, against all liability and loss suffered and  expenses (including attorneys’ fees) reasonably incurred by such Covered Person whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, agent or trustee or in any other capacity while serving as a director, officer, employee, or agent, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Cover Person in connection therewith. Notwithstanding the preceding sentence, except as otherwise provided in Section 7.3 (Claims), the Corporation shall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered Person was authorized by the Board of Directors of the Corporation (the “Board”).

 

7.2   Prepayment of Expenses. To the extent not prohibited by applicable law, the Corporation shall pay the expenses (including attorneys’ fees) incurred by a Covered Person in appearing at, participating in or defending any Proceeding in advance of its final disposition or in connection with a Proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Section 7.2; provided, however, that, to the extent required by applicable law or in the case of a payment made in a Proceeding brought to establish or enforce a right to indemnification or advancement of expenses, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined by final judicial decision from which there is no further right to appeal that the Covered Person is not entitled to be indemnified under this Article 7 or otherwise.

 

7.3   Claims. If a claim for indemnification or advancement of expenses under this Article 8 is not paid in full within 30 days after a written claim therefor by the Covered Person has been received by the Corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

7.4   Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article 7 shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, the Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

 

7.5   Other Sources. The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another entity or enterprise shall not be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other entity or enterprise. In the event that any such other entity or enterprise shall make any payment to a Covered Person in respect of indemnification or advancement of expenses with respect to any Proceeding for which such Covered Person is also indemnified under this Section 7, such other entity or enterprise shall be subrogated to the extent of such payment to all of the rights of recovery of the Covered Person against the Corporation, and the Covered Person shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable such entity or enterprise effectively to bring suit to enforce such rights.

 

7.6   Amendment or Repeal. Any amendment or repeal of the foregoing provisions of this Article 7 shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such amendment or repeal.

 

7.7   Other Indemnification and Prepayment of Expenses. This Article 7 shall not limit the right of the Corporation, to the extent and in the manner permitted by applicable law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

8.   Adoption Amendment or Repeal of Bylaws. The Board is authorized to adopt, amend or repeal the Bylaws.

 

9.   Certificate Amendments. The Corporation reserves the right at any time, and from time to time, to amend or repeal any provision contained in this Certificate of Incorporation, and add other provisions authorized by the laws of the State of Delaware at the time in force, in the manner now or hereafter prescribed by applicable law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons  whomsoever by and pursuant to this Certificate of Incorporation (as amended) are granted subject to the rights reserved in this Article 9.

 

 

Exhibit 3.2

 

 

FIFTH AMENDED AND RESTATED BYLAWS

 

Of

 

SUMMIT MATERIALS, INC.

 

(a Delaware Corporation)

 

 

________________________

 

 

TABLE OF CONTENTS

 

Page

 

Article 1 DEFINITIONS	1
Article 2 STOCKHOLDERS	2
Article 3 DIRECTORS	7
Article 4 COMMITTEES OF THE BOARD	9
Article 5 OFFICERS	9
Article 6 GENERAL PROVISIONS	11

Article 1

DEFINITIONS

 

As used in these Bylaws, unless the context otherwise requires, the term:

 

1.1    “Assistant Secretary” means an Assistant Secretary of the Corporation.

 

1.2    “Assistant Treasurer” means an Assistant Treasurer of the Corporation.

 

1.3    “Board” means the Board of Directors of the Corporation.

 

1.4    “Bylaws” means the initial bylaws of the Corporation, as amended from time to time.

 

1.5    “Certificate of Incorporation” means the certificate of incorporation of the Corporation, as amended, supplemented or restated from time to time.

 

1.6    “Chairman” means the Chairman of the Board of Directors of the Corporation.

 

1.7    “Corporation” means Summit Materials, Inc.

 

1.8     “DGCL” means the General Corporation Law of the State of Delaware, as amended.

 

1.9    “Directors” means the directors of the Corporation.

 

1.10    “law” means any U.S. or non-U.S., federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a governmental authority (including any department, court, agency or official, or non-governmental self-regulatory organization, agency or authority and any political subdivision or instrumentality thereof).

 

1.11    “Office of the Corporation” means the executive office of the Corporation, anything in Section 131 of the DGCL to the contrary notwithstanding.

 

1.12    “President” means the President of the Corporation.

 

1.13    “Secretary” means the Secretary of the Corporation.

 

1.14    “Stockholders” means the stockholders of the Corporation.

 

1.15    “Treasurer” means the Treasurer of the Corporation.

 

 

1.16     “Vice President” means a Vice President of the Corporation.

 

Article 2

STOCKHOLDERS

 

2.1     Place of Meetings.  Meetings of Stockholders may be held at such place or solely by means of remote communication or otherwise, within or without the State of Delaware, as may be designated by the Board from time to time.

 

2.2     Annual Meeting.  If required by applicable law, a meeting of Stockholders for the election of Directors and other business shall be held annually at such date and time as may be designated by the Board from time to time.

 

2.3     Special Meetings.  Unless otherwise prescribed by applicable law, special meetings of Stockholders may be called at any time by the Board and may not be called by any other person or persons.  Business transacted at any special meeting of Stockholders shall be limited to the purpose(s) stated in the notice.

 

2.4     Record Date.

 

(A)     For the purpose of determining the Stockholders entitled to notice of any meeting of Stockholders or any adjournment thereof, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date (the “Notice Record Date”), which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than 60 or less than 10 days before the date of such meeting.  The Notice Record Date shall also be the record date for determining the Stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such Notice Record Date, that a later date on or before the date of the meeting shall be the date for making such determination (the “Voting Record Date”).  For purposes of determining the Stockholders entitled to express consent to corporate action in writing without a meeting, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date, which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than 60 days or less than 10 days after the date on which the record date was fixed by the Board.  For purposes of determining the Stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, exercise any rights in respect of any change, conversion or exchange of stock or take any other lawful action, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date, which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than 60 days or less than 10 days prior to such action.

 

 

(B)     If no such record date is fixed:

 

(i)     The record date for determining Stockholders entitled to notice of and to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;

 

(ii)     The record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting (unless otherwise provided in the Certificate of Incorporation), when no prior action by the Board is required by applicable law, shall be the first day on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law; and when prior action by the Board is required by applicable law, the record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board takes such prior action; and

 

(iii)     When a determination of Stockholders of record entitled to notice of or to vote at any meeting of Stockholders has been made as provided in this Section 2.4, such determination shall apply to any adjournment thereof, unless the Board fixes a new Voting Record Date for the adjourned meeting, in which case the Board shall also fix such Voting Record Date or a date earlier than such date as the new Notice Record Date for the adjourned meeting.

 

2.5     Notice of Meetings of Stockholders.  Whenever under the provisions of applicable law, the Certificate of Incorporation or these Bylaws, Stockholders are required or permitted to take any action at a meeting, notice shall be given stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which Stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the Voting Record Date, if such date is different from the Notice Record Date, and, in the case of a special meeting, the purposes for which the meeting is called.  Unless otherwise provided by these Bylaws or applicable law, notice of any meeting shall be given, not less than 10 nor more than 60 days before the date of the meeting, to each Stockholder entitled to vote at such meeting as of the Notice Record Date.  If mailed, such notice shall be deemed to be given when deposited in the U.S. mail, with postage prepaid, directed to the Stockholder at his or her address as it appears on the records of the Corporation.  An affidavit of the Secretary, an Assistant Secretary or the transfer agent of the Corporation that the notice required by this Section 2.5 has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.  If a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken.  Any business that might have been transacted at the meeting as originally called may be transacted at the adjourned meeting.  If, however, the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting.  If, after the adjournment, a new Voting Record Date is fixed for the adjourned meeting, the Board shall fix a new Notice Record Date in accordance with

 

 

Section 2.4(B)(iii) (Record Date) hereof and shall give notice of such adjourned meeting to each Stockholder entitled to vote at such meeting as of the Notice Record Date.

 

2.6     Waivers of Notice.  Whenever the giving of any notice to Stockholders is required by applicable law, the Certificate of Incorporation or these Bylaws, a waiver thereof, given by the person entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice.  Attendance by a Stockholder at a meeting shall constitute a waiver of notice of such meeting except when the Stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened.  Neither the business to be transacted at, nor the purposes of, any regular or special meeting of the Stockholders need be specified in any waiver of notice.

 

2.7     List of Stockholders.  The Secretary shall prepare and make, at least 10 days before every meeting of Stockholders, a complete, alphabetical list of the Stockholders entitled to vote at the meeting, and showing the address of each Stockholder and the number of shares registered in the name of each Stockholder.  Such list may be examined by any Stockholder, at such Stockholder’s expense, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting, during ordinary business hours at the principal place of business of the Corporation or on a reasonably accessible electronic network as provided by applicable law.  If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any Stockholder who is present.  If the meeting is held solely by means of remote communication, the list shall also be open for inspection as provided by applicable law.  Except as provided by applicable law, the stock ledger shall be the only evidence as to who are the Stockholders entitled to examine the list of Stockholders or to vote in person or by proxy at any meeting of Stockholders.

 

2.8     Quorum of Stockholders; Adjournment.  Except as otherwise provided by these Bylaws, at each meeting of Stockholders, the presence in person or by proxy of the holders of a majority of the voting power of all outstanding shares of stock entitled to vote at such meeting of Stockholders, shall constitute a quorum for transaction of any business at such meeting.  In the absence of a quorum, the holders of a majority in voting power of the shares of stock present in person or represented by proxy at any meeting of Stockholders, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to another time and place.  Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of Directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

2.9     Voting; Proxies.  At any meeting of Stockholders, all matters other than the election of directors, except as otherwise provided by the Certificate of Incorporation, these Bylaws or any applicable law, shall be decided by the affirmative vote

 

 

of a majority in voting power of shares of stock present in person or represented by proxy and entitled to vote thereon.  At all meetings of Stockholders for the election of Directors, a plurality of the votes cast shall be sufficient to elect the Directors.  Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such Stockholder by proxy but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.  A proxy shall be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power.  A Stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or by delivering a new proxy bearing a later date.

 

2.10     Voting Procedures and Inspectors at Meetings of Stockholders.  The Board, in advance of any meeting of Stockholders, may appoint one or more inspectors, who may be employees of the Corporation, to attend the meeting and make a written report thereof.  The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act.  If no inspector or alternate is able to act at a meeting, the person presiding at the meeting may appoint one or more inspectors to act at the meeting.  Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability.  The inspectors shall (A) ascertain the number of shares outstanding and the voting power of each, (B) determine the shares represented at the meeting and the validity of proxies and ballots, (C) count all votes and ballots, (D) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and (E) certify their determination of the number of shares represented at the meeting and their count of all votes and ballots.  The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of their duties.  Unless otherwise provided by the Board, the date and time of the opening and the closing of the polls for each matter upon which the Stockholders will vote at a meeting shall be determined by the person presiding at the meeting and shall be announced at the meeting.  No ballot, proxies, votes or any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware upon application by a Stockholder shall determine otherwise.  In determining the validity and counting of proxies and ballots cast at any meeting of Stockholders, the inspectors may consider such information as is permitted by applicable law.  No person who is a candidate for office at an election may serve as an inspector at such election.

 

2.11     Conduct of Meetings; Adjournment.  The Board may adopt such rules and procedures for the conduct of Stockholder meetings as it deems appropriate.  At each meeting of Stockholders, the President or, in the absence of the President, the Chairman or, if there is no Chairman or the Chairman is absent, a Vice President and, in case more than one Vice President shall be present, that Vice President designated by the Board (or in the absence of any such designation, the most senior Vice President present), shall preside over the meeting.  Except to the extent inconsistent with the rules and procedures as adopted by the Board, the person presiding over the meeting of Stockholders

 

 

shall have the right and authority to convene, adjourn and reconvene the meeting from time to time, to prescribe such additional rules and procedures and to do all such acts as, in the judgment of such person, are appropriate for the proper conduct of the meeting.  Such rules and procedures, whether adopted by the Board or prescribed by the person presiding over the meeting, may include, (A) the establishment of an agenda or order of business for the meeting, (B) rules and procedures for maintaining order at the meeting and the safety of those present, (C) limitations on attendance at or participation in the meeting to Stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the person presiding over the meeting shall determine, (D) restrictions on entry to the meeting after the time fixed for the commencement thereof and (E) limitations on the time allotted to questions or comments by participants.  The person presiding over any meeting of Stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, may determine and declare to the persons present at the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, he or she shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered.  Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of Stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.  The Secretary or, in his or her absence, one of the Assistant Secretaries, shall act as secretary of the meeting.  If none of the officers above designated to act as the person presiding over the meeting or as secretary of the meeting shall be present, a person presiding over the meeting or a secretary of the meeting, as the case may be, shall be designated by the Board or, if the Board has not so acted, with respect to designation of a person to act as secretary of the meeting, designated by the person presiding over the meeting.

 

2.12     Order of Business.  The order of business at all meetings of Stockholders shall be as determined by the person presiding over the meeting.

 

2.13     Written Consent of Stockholders Without a Meeting.  Any action to be taken at any annual or special meeting of Stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action to be so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered (by hand, by certified or registered mail, return receipt requested, attached to an email in form of a PDF or by facsimile) to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of Stockholders are recorded.  Every written consent shall bear the date of signature of each Stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this Section 2.13, written consents signed by a sufficient number of holders to take action are delivered to the Corporation pursuant to the foregoing.  Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by applicable law, be given to those

 

 

Stockholders who have not consented in writing, and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation.

 

Article 3

DIRECTORS

 

3.1     General Powers.  The business and affairs of the Corporation shall be managed by or under the direction of the Board.  The Board may adopt such rules and procedures, consistent with the Certificate of Incorporation, these Bylaws or applicable law, as it may deem proper for the conduct of its meetings and the management of the Corporation.

 

3.2     Number; Qualification; Term of Office.  The Board shall consist of one or more members, the number thereof to be determined from time to time by the Board.  Directors need not be Stockholders.  Each Director shall hold office until a successor is duly elected and qualified or until the Director’s earlier death, resignation, disqualification or removal.

 

3.3     Newly Created Directorships and Vacancies.  Any newly created directorships resulting from an increase in the authorized number of Directors or any vacancies occurring in the Board may be filled by the affirmative vote of a majority of the remaining members of the Board, although less than a quorum.  A Director so elected shall be elected to hold office until the earlier of the expiration of the term of office of the Director whom he or she has replaced, election and qualification of a successor or the predecessor Director’s death, resignation or removal.

 

3.4     Resignation.  Any Director may resign at any time by notice given in writing or by electronic transmission to the Corporation.  Such resignation shall take effect at the date of receipt of such notice or at such later time as is specified therein.

 

3.5     Regular Meetings.  Regular meetings of the Board may be held without notice at such times and at such places as may be determined from time to time by the Board or its Chairman, within or without the State of Delaware, as considered necessary or desirable by the Directors.

 

3.6     Special Meetings.  Special meetings of the Board may be held at such times and at such places, within or without the State of Delaware, as may be determined by the Chairman, the President or the Secretary on at least 24 hours’ notice to each Director given by one of the means specified in Section 3.9 (Notice Procedure) hereof other than by mail (in which case such notice period shall be at least be 3 days).  Special meetings shall be called by the Chairman, President or Secretary in like manner and on like notice on the written request of any two or more Directors.

 

 

3.7     Telephone Meetings.  The meetings of the Board or any Board committee may be held by means of telephone conference or other communication equipment by means of which all persons participating in the meeting can hear each other.  Participation by a Director in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting.

 

3.8     Adjourned Meetings.  A majority of the Directors present at any meeting of the Board, including an adjourned meeting, whether or not a quorum is present, may adjourn and reconvene such meeting to another time and place.  At least 24 hours’ notice of any adjourned meeting of the Board shall be given to each Director whether or not present at the time of the adjournment, if such notice shall be given by one of the means specified in Section 3.9 (Notice Procedure) hereof other than by mail (in which case such notice period shall be at least be 3 days).  Any business may be transacted at a meeting held following an adjournment if such business might have been transacted at the meeting as originally called.

 

3.9     Notice Procedure.  Subject to Sections 3.6 (Special Meetings) and 3.10 (Waiver of Notice) hereof, whenever notice is required to be given to any Director by applicable law, the Certificate of Incorporation or these Bylaws, such notice shall be deemed given effectively if given in person or by telephone, mail addressed to such Director at such Director’s address as it appears on the records of the Corporation, telecopy or by other means of electronic transmission.

 

3.10     Waiver of Notice.  Whenever the giving of any notice to Directors is required by applicable law, the Certificate of Incorporation or these Bylaws, a waiver thereof, given by the Director entitled to such notice, whether before or after such notice is required, shall be deemed equivalent to notice.  Attendance by a Director at a meeting shall constitute a waiver of notice of such meeting except when the Director attends a meeting for the express purpose of objecting, at the beginning of such meeting, to transaction of any business on the ground that the meeting was not lawfully called or convened.  Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board or a Board committee need be specified in any waiver of notice.

 

3.11     Organization.  At each meeting of the Board, the Chairman or, in his or her absence, another Director selected by the Board shall preside.  The Secretary shall act as secretary at each meeting of the Board.  If the Secretary is absent from any meeting of the Board, an Assistant Secretary shall perform the duties of secretary at such meeting.  In the absence from any such meeting of the Secretary and all Assistant Secretaries, the person presiding at the meeting may appoint any person to act as secretary of the meeting.

 

3.12     Quorum of Directors.  The presence of a majority of the Board shall be necessary and sufficient to constitute a quorum for transaction of business at any meeting of the Board.

 

3.13     Action by Majority Vote.  Except as otherwise expressly required by these Bylaws or the Certificate of Incorporation, the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board.

 

 

3.14     Action Without Meeting.  Unless otherwise restricted by these Bylaws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all Directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee.

 

Article 4

COMMITTEES OF THE BOARD

 

4.1     Committees.  The Board may designate one or more committees, each committee to consist of one or more of the Directors of the Corporation.  The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee.  If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may, by a unanimous vote, appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.  Any such committee, to the extent permitted by applicable law, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers that may require it to the extent so authorized by the Board.  Unless the Board provides otherwise, at all meetings of such committee, a majority of the members of the committee shall constitute a quorum for transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee.  Each committee shall keep regular minutes of its meetings.  Unless the Board provides otherwise, each committee designated by the Board may make, alter and repeal rules and procedures for the conduct of its business.  In the absence of such rules and procedures each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article 3.

 

Article 5

OFFICERS

 

5.1     Positions; Election.  The officers of the Corporation shall be a President, a Secretary, a Treasurer and any other officers as the Board may elect from time to time, including a Chairman, one or more Vice Presidents and one or more Assistant Secretaries and Assistant Treasurers, who shall exercise such powers and perform such duties as shall be determined by the Board from time to time.  Any number of offices may be held by the same person.

 

5.2     Term of Office.  Each officer of the Corporation shall hold office until such officer’s successor is elected and qualifies or until such officer’s earlier death,

 

 

resignation or removal.  Any officer may resign at any time upon written notice to the Corporation.  Such resignation shall take effect at the date of receipt of such notice or at such later time as is therein specified.  The resignation of an officer shall be without prejudice to the contract rights of the Corporation, if any.  Any officer may be removed at any time with or without cause by the Board.  Any vacancy occurring in any office of the Corporation may be filled by the Board.  The election of an officer shall not of itself create contract rights.

 

5.3     Chairman.  The Chairman, if one shall have been elected, shall preside at all meetings of the Board and shall exercise such powers and perform such other duties as shall be determined from time to time by the Board.

 

5.4     President.  The President shall have general supervision over the business of the Corporation and other duties incident to the office of President, and any other duties as may from time to time be assigned to the President by the Board and subject to the control of the Board in each case.  The President shall preside at all meetings of the Stockholders and at all meetings of the Board at which the Chairman (if there be one) is not present.  The President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by the Board or by these Bylaws to some other officer or agent of the Corporation, or shall be required by applicable law to be signed or executed by a different person.

 

5.5     Vice Presidents.  Vice Presidents shall have the duties incident to the office of Vice President and any other duties that may from time to time be assigned to the Vice President by the President or the Board.  Any Vice President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by the Board or by these Bylaws to some other officer or agent of the Corporation, or shall be required by applicable law to be signed or executed by a different person.

 

5.6     Secretary.  The Secretary shall attend all meetings of the Board and of the Stockholders, record all the proceedings of the meetings of the Board and of the Stockholders in a book to be kept for that purpose and perform like duties for committees of the Board, when required.  The Secretary shall give, or cause to be given, notice of all special meetings of the Board and of the Stockholders and perform such other duties as may be prescribed by the Board or by the President.  The Secretary shall have custody of the corporate seal of the Corporation, and the Secretary, or an Assistant Secretary, shall have authority to affix the same on any instrument that may require it, and when so affixed, the seal may be attested by the signature of the Secretary or by the signature of such Assistant Secretary.  The Board may give general authority to any other officer to affix the seal of the Corporation and to attest the same by such officer’s signature.  The Secretary or an Assistant Secretary may also attest all instruments signed by the President or any Vice President.  The Secretary shall have charge of all the books, records and papers of the Corporation relating to its organization and management, see that the reports, statements and other documents required by applicable law are properly kept and filed and, in general,

 

 

perform all duties incident to the office of secretary of a corporation and such other duties as may from time to time be assigned to the Secretary by the Board or the President.

 

5.7     Treasurer.  The Treasurer shall have charge and custody of, and be responsible for, all funds, securities and notes of the Corporation, receive and give receipts for moneys due and payable to the Corporation from any sources whatsoever; deposit all such moneys and valuable effects in the name and to the credit of the Corporation in such depositaries as may be designated by the Board, against proper vouchers, cause such funds to be disbursed by checks or drafts on the authorized depositaries of the Corporation signed in such manner as shall be determined by the Board and be responsible for the accuracy of the amounts of all moneys so disbursed, regularly enter or cause to be entered in books or other records maintained for the purpose full and adequate account of all moneys received or paid for the account of the Corporation, have the right to require from time to time reports or statements giving such information as the Treasurer may desire with respect to any and all financial transactions of the Corporation from the officers or agents transacting the same, render to the President or the Board, whenever the President or the Board shall require the Treasurer so to do, an account of the financial condition of the Corporation and of all financial transactions of the Corporation, disburse the funds of the Corporation as ordered by the Board and, in general, perform all duties incident to the office of Treasurer of a corporation and such other duties as may from time to time be assigned to the Treasurer by the Board or the President.

 

5.8     Assistant Secretaries and Assistant Treasurers.  Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary or by the Treasurer, respectively, or by the Board or the President.

 

Article 6

GENERAL PROVISIONS

 

6.1     Certificates Representing Shares.  The shares of any or all classes or series of capital stock of the Corporation shall be uncertificated shares, unless the Board otherwise provides by resolution.  If shares are represented by a certificate, such certificate shall be signed by or in the name of the Corporation by the Chairman, if any, or the President or any Vice President, and by the Secretary, or any Assistant Secretary or the Treasurer or any Assistant Treasurer, certifying the number of shares owned by such Stockholder in the Corporation.  Any or all of the signatures upon a certificate may be facsimiles.  Although any officer, transfer agent or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be an officer, a transfer agent or a registrar before such certificate has been issued, such certificate may nevertheless be issued by the Corporation with the same effect as if such officer, transfer agent or registrar were still holding such office on the issue date of such certificate.

 

6.2     Transfer and Registry Agents.  The Corporation may from time to time maintain one or more transfer offices or agents and registry offices or agents at such place or places as may be determined from time to time by the Board.

 

 

6.3     Lost, Stolen or Destroyed Certificates.  The Corporation may issue a new certificate of stock to replace a certificate alleged to have been lost, stolen or destroyed.  The Corporation may require the owner of such lost, stolen or destroyed certificate or his/her/its legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made against the corporation on account of the alleged loss, theft or destruction of such certificate or the issuance of such new certificate.

 

6.4     Form of Records.  Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be maintained on any information storage device or method; provided that the records so kept can be converted into clearly legible paper form within a reasonable time.  The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to applicable law.

 

6.5     Seal.  The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board.  The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

 

6.6     Fiscal Year.  The fiscal year of the Corporation shall be determined by the Board.

 

6.7     Amendments.  These Bylaws may be amended or repealed and new Bylaws may be adopted by the Board, but the Stockholders may from time to time make additional Bylaws or alter and repeal any Bylaws whether such Bylaws were originally adopted by them or otherwise.

 

6.8     Conflict with Applicable Law or Certificate of Incorporation.  These Bylaws are adopted subject to any applicable law and the Certificate of Incorporation.  Whenever these Bylaws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of Incorporation.

 

Adopted: February 10, 2025

 

 

 

Exhibit 10.1

 

 

Amendment to Restrictive Covenant Agreement

 

This FIRST AMENDMENT TO THE RESTRICTIVE COVENANT AGREEMENT (this “Amendment”) dated as of February 10, 2025, is entered into by and among Summit Materials, Inc., a Delaware corporation (the “Company”), Grupo Argos S.A., a sociedad anónima incorporated in the Republic of Colombia (“Grupo”), and Cementos Argos S.A., a sociedad anónima incorporated in the Republic of Colombia (“Cementos”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Restrictive Covenant Agreement, dated as of January 12, 2024 (the “Agreement” and as amended, modified, supplemented or restated hereby and from time to time, the “Amended Agreement”), by and among Grupo, Cementos, and the Company.  Each of the Company, Grupo and Cementos are sometimes referred to as a “Party” and collectively as the “Parties.”

 

WHEREAS, contemporaneously with the execution and delivery of this Amendment, pursuant to the Agreement and Plan of Merger, dated as of November 24, 2024, by and among Quikrete Holdings, Inc., a Delaware corporation (“Parent”), the Company, and Soar Subsidiary, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), Merger Sub is merging with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent;

 

WHEREAS, the Company, Grupo, and Cementos desire to amend the Agreement as set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows:  

 

1.       Amendments. The Agreement is hereby amended as follows:

 

(a)       Each of the definitions in Section 1 of the Agreement that is used solely in Section 3 and/or Section 4 of the Agreement is hereby deleted.

 

(b)       Section 3 of the Agreement is hereby deleted and replaced in its entirety with the following:

 

“Section 3.   Intentionally Omitted.”

 

(c)       Section 4 of the Agreement is hereby deleted and replaced in its entirety with the following:

 

“Section 4.   Intentionally Omitted.”

 

(d)       Section 10 of the Agreement is hereby deleted and replaced in its entirety with the following:

 

“Section 10.   Termination.  This Amended Agreement shall terminate and be of no further force and effect on the second anniversary of the Closing Date.”

 

2.       Document References.  Each reference in the Agreement to the Agreement shall be deemed to be a reference to the Amended Agreement.  

 

3.       Effectiveness. This Amendment shall be effective from and after the completion of the Merger.

 

4.       Full Force and Effect; Ratification.  As amended, terminated or released by this Amendment, the Amended Agreement shall continue to remain in full force and effect. The Amended Agreement constitutes the valid and binding obligations of the Company, Grupo and Cementos.

 

5.       Miscellaneous. Sections 8 (Rights and Remedies), 9 (Severability), 11 (Amendments and Waivers), 12 (Counterparts), 13 (Governing Law), 14 (Jurisdiction), 15 (WAIVER OF JURY TRIAL), 16 (Successors and Assigns) and 17 (Entire Agreement) of the Agreement shall apply to this Amendment mutatis mutandis.

 

 

[signature pages follow]

 

IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first set forth above.

 

 

	GRUPO ARGOS S.A.
	By:	/s/ Rafael Olivella
		Name:	Rafael Olivella
		Title:	Legal Representative

 

 

	CEMENTOS ARGOS S.A.
	By:	/s/ Maria Isabel Echeverri
		Name:	Maria Isabel Echeverri
		Title:	Vice President

 

 

	Summit Materials, Inc.
	By:	/s/ Christopher B. Gaskill
		Name:	Christopher B. Gaskill
		Title:	Executive Vice President, Chief Legal Officer & Secretary

 

 

Exhibit 99.1

 

 

 

Summit Materials Completes Merger with Quikrete

 

Denver, Co. February 10, 2025 – Summit Materials, Inc. (NYSE: SUM) (“Summit,” “Summit Materials” or the “Company”), a leading producer of aggregates and cement, today announced the closing of its previously announced definitive agreement to be acquired by Quikrete Holdings, Inc. (“Quikrete”) for $52.50 per share in cash, for a total enterprise value of approximately $11.5 billion, including debt.

 

Summit’s common stock has ceased trading on the NYSE and will no longer be listed on any public market. Additionally, the Company has become a privately held subsidiary of Quikrete.

 

Advisors
Morgan Stanley & Co. LLC and Evercore are acting as financial advisors to Summit, and Davis Polk & Wardwell LLP is acting as legal advisor. Wells Fargo is acting as exclusive financial advisor to Quikrete, and Troutman Pepper Locke LLP and Covington & Burling LLP are acting as legal counsel. Wells Fargo has provided a debt financing commitment for the Merger.

 

About Summit Materials, Inc.
Summit Materials is a market-leading producer of aggregates and cement with vertically integrated operations that supply ready-mix concrete and asphalt in select markets. Summit is a geographically diverse, materials-led business of scale that offers customers in the United States and British Columbia, Canada high quality products and services for the public infrastructure, residential and non-residential end markets. Summit has a strong track record of successful acquisitions since its founding and continues to pursue high-return growth opportunities in new and existing markets. For more information about Summit Materials, please visit www.summit-materials.com.

 

About Quikrete Holdings, Inc.
Quikrete Holdings, Inc. (Quikrete) is a privately owned family business founded in 1940. It is a leading building materials company based in Atlanta, Georgia. From the original yellow bag of premixed concrete, today Quikrete’s portfolio of brands includes Quikrete, Spec Mix, Rinker Materials, U.S. Pipe, Contech Engineered Solutions, Keystone Hardscapes, Pavestone, Custom Building Products, QPR, and other leading brands. The products produced by the collection of brands include packaged cementitious products, pavers, retaining wall systems, masonry units, tile grouts and thin sets, concrete pipe, box culverts, corrugated metal pipe, ductile iron pipe, engineered storm water systems, structural precast, and steel pedestrian and vehicular bridges. The company services the US and Canadian commercial construction, residential, and infrastructure markets. This broad array of products and expertise allows Quikrete to provide nearly every product required for most any type of construction project.

 

Contacts:

 

Andy Larkin
VP, Investor Relations
Summit Materials, Inc.
andy.larkin@summit-materials.com 
720-618-6013

 

Jim Barron/Benjamin Spicehandler/Danielle Berg
FGS Global
Summit@fgsglobal.com

 

Patrick Lenow
Vice President, Marketing & Communications
Quikrete Holdings, Inc.
404-634-9100
Patrick.Lenow@quikrete.com

 

v3.25.0.1

Cover	Feb. 10, 2025
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Feb. 10, 2025
Current Fiscal Year End Date	--12-31
Entity File Number	001-36873
Entity Registrant Name	Summit Materials, Inc.
Entity Central Index Key	0001621563
Entity Tax Identification Number	47-1984212
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	1801 California Street
Entity Address, Address Line Two	Suite 3500
Entity Address, City or Town	Denver
Entity Address, State or Province	CO
Entity Address, Postal Zip Code	80202
City Area Code	303
Local Phone Number	893-0012
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Class A Common Stock (par value, $0.01 per share)
Trading Symbol	SUM
Security Exchange Name	NYSE
Entity Emerging Growth Company	false

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