MMSI Merit Medical Systems Inc

The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”). This Amendment No. 2 amends the Schedule 13D as specifically set forth herein.

Item 2 is hereby amended to add the following:

In connection with the Agreement defined and described in Item 4 below, Lonny J. Carpenter, Timothy P. Collins, Wendy F. DiCicco, David K. Floyd, Thomas A. McEachin and Gavin T. Molinelli are no longer members of the Section 13(d) group and shall cease to be Reporting Persons immediately after the filing of this Amendment No. 2. The remaining Reporting Persons will continue filing as a group statements on Schedule 13D with respect to their beneficial ownership of securities of the Issuer to the extent required by applicable law. Each of the remaining Reporting Persons is party to the Joint Filing Agreement defined and described in Item 6 below.

Item 3 is hereby amended and restated to read as follows:

The Shares purchased by each of Starboard V&O Fund, Starboard S LLC, Starboard C LP, Starboard L Master and held in the Starboard Value LP Account were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted.

The aggregate purchase price of the 2,973,623 Shares beneficially owned by Starboard V&O Fund is approximately $93,919,920, excluding brokerage commissions. The aggregate purchase price of the 484,183 Shares beneficially owned by Starboard S LLC is approximately $15,295,538, excluding brokerage commissions. The aggregate purchase price of the 280,827 Shares beneficially owned by Starboard C LP is approximately $8,871,440, excluding brokerage commissions. The aggregate purchase price of the 269,893 Shares beneficially owned by Starboard L Master is approximately $8,558,121, excluding brokerage commissions. The aggregate purchase price of the 833,334 Shares held in the Starboard Value LP Account is approximately $27,055,750, excluding brokerage commissions.

The Shares purchased by Mr. Carpenter were purchased with personal funds in the open market. The aggregate purchase price of the 370 Shares beneficially owned by Mr. Carpenter is approximately $14,896, excluding brokerage commissions.

The Shares purchased by Mr. Collins were purchased with personal funds in the open market. The aggregate purchase price of the 1,760 Shares beneficially owned by Mr. Collins is approximately $64,972, excluding brokerage commissions.

The Shares purchased by Ms. DiCicco were purchased with personal funds in the open market. The aggregate purchase price of the 3,000 Shares beneficially owned by Ms. DiCicco is approximately $101,512, excluding brokerage commissions.

The Shares purchased by Mr. Floyd were purchased with personal funds in the open market. The aggregate purchase price of the 425 Shares beneficially owned by Mr. Floyd is approximately $16,951, excluding brokerage commissions.

The Shares purchased by Mr. McEachin were purchased with personal funds in the open market. The aggregate purchase price of the 425 Shares beneficially owned by Mr. McEachin is approximately $16,907, excluding brokerage commissions.

Item 4 is hereby amended to add the following:

On May 26, 2020, Starboard Value LP and certain of its affiliates (collectively, “Starboard”) entered into an agreement with the Issuer (the “Agreement”) regarding the composition of the Issuer’s Board of Directors (the “Board”) and certain other matters. The following description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.

Pursuant to the terms of the Agreement, the Issuer agreed (i) to nominate Lonny J. Carpenter and David K. Floyd (the “Starboard Independent Appointees”) and James T. Hogan (together with the Starboard Independent Appointees, the “Independent Appointees”) for election to the Board at the Issuer’s 2020 annual meeting of shareholders (the “2020 Annual Meeting”) for terms expiring at the Issuer’s 2023 annual meeting of shareholders and to recommend, support and solicit proxies for the election of the Independent Appointees at the 2020 Annual Meeting; (ii) to accept the resignation tendered by Franklin J. Miller, M.D. to be effective no later than immediately following the conclusion of the 2020 Annual Meeting; (iii) to use its reasonable best efforts to hold the 2020 Annual Meeting no later than June 30, 2020; provided, however, that if the 2020 Annual Meeting is not held by June 30, 2020, then the Board shall immediately (A) accept the resignations tendered by Nolan E. Karras, Kent W. Stanger, and David M. Liu, M.D. and (B) appoint the Independent Appointees to the Board for terms expiring at the 2020 Annual Meeting; and (iv) that the Board shall, upon the resignation of Dr. Miller, appoint Lynne N. Ward to fill the unexpired portion of Dr. Miller’s term expiring at the Issuer’s 2021 annual meeting of shareholders (the “2021 Annual Meeting”). The Issuer also agreed that, subject to entering into a customary non-disclosure agreement, each of the Independent Appointees may attend and participate in any meeting of the Board held from the date of the Agreement until the earlier of the appointment of the Independent Appointees to the Board (if applicable) or the conclusion of the 2020 Annual Meeting as a non-voting observer.

Additionally, pursuant to the terms of the Agreement, the Issuer agreed (i) to form an operating committee of the Board (the “Operating Committee”) to work with management to establish operating targets for the business with such targets to be publicly announced in conjunction with the Issuer’s financial results for the third quarter 2020; (ii) to appoint the Starboard Independent Appointees to the Operating Committee, plus Mr. Hogan and Fred P. Lampropoulos, with Mr. Carpenter serving as Chair; (iii) to appoint (A) Mr. Floyd to the Audit Committee and the Environmental, Social and Governance Committee of the Board and (B) Mr. Carpenter to the Compensation Committee and the Finance Committee of the Board; (iv) that from the date of the Agreement until the conclusion of the 2020 Annual Meeting, the Board shall not (A) increase the size of the Board to more than ten (10) directors or (B) seek to change the classes on which the Board members serve, in each case without the prior written consent of Starboard; (v) that effective upon the conclusion of the 2020 Annual Meeting through the expiration of the Standstill Period (as defined below), the Board shall not (A) increase the size of the Board to more than nine (9) directors or (B) seek to change the classes on which the Board members serve (other than appointing Ms. Ward to fill the unexpired portion of Dr. Miller’s term), in each case without the prior written consent of Starboard; and (vi) that no later than fifteen (15) days following the 2020 Annual Meeting, the Board shall appoint a new Lead Independent Director.

The Agreement also provides that if any Starboard Independent Appointee (or any replacement director) is unable or unwilling to serve as a director for any reason prior to his or her election or appointment to the Board, as the case may be, or at any time thereafter, if any Starboard Independent Appointee (or any replacement director) ceases to be a director for any reason prior to the end of the Standstill Period and at such time Starboard beneficially owns in the aggregate at least the lesser of three percent (3.0%) of the Issuer’s then outstanding Shares and 1,661,521 Shares, then Starboard has the ability to recommend a substitute person to serve on the Board who meets certain independence and experience criteria, in accordance with the terms of the Agreement.

Pursuant to the terms of the Agreement, Starboard agreed, among other things, that Starboard shall appear in person or by proxy at the 2020 Annual Meeting and vote all of the Shares beneficially owned by Starboard at the 2020 Annual Meeting (i) in favor of all directors nominated by the Board for election, (ii) in favor of the ratification of the Issuer’s registered public accounting firm for the fiscal year ended December 31, 2020, (iii) in accordance with the Board’s recommendation with respect to the Issuer’s “say-on-pay” proposal, and (iv) in accordance with the Board’s recommendation with respect to any other Issuer proposal or shareholder proposal or nomination presented at the 2020 Annual Meeting; provided, however, that in the event that Institutional Shareholder Services Inc. (“ISS”) or Glass Lewis & Co., LLC (“Glass Lewis”) recommends otherwise with respect to the Issuer’s “say-on-pay” proposal or any other Issuer proposal or shareholder proposal presented at the 2020 Annual Meeting (other than proposals relating to the election of directors), then, in each case, Starboard shall be permitted to vote in accordance with the ISS or Glass Lewis recommendation.

Starboard also agreed to certain customary standstill provisions, effective as of the date of the Agreement through the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of shareholder nominations for the 2021 Annual Meeting and (y) the date that is one hundred (100) days prior to the first anniversary of the 2020 Annual Meeting (the “Standstill Period”), prohibiting it from, among other things: (i) soliciting proxies or consents with respect to securities of the Issuer; (ii) entering into a voting agreement or forming, joining or participating in a “group” with other shareholders of the Issuer, other than certain affiliates of Starboard; (iii) seeking or submitting or encouraging any person to submit nominees in furtherance of a contested solicitation for the appointment, election or removal of directors; provided, however, that Starboard may take actions to identify director candidates in connection with the 2021 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Issuer; (iv) submitting any proposal for consideration by shareholders of the Issuer at any annual or special meeting of shareholders or through any written consent, soliciting a third party to make an acquisition proposal, commenting on any third-party acquisition proposal or calling or seeking a special meeting of shareholders or act by written consent; (v) seeking, alone or in concert with others, representation on the Board other than as described in the Agreement; or (vi) advising, encouraging, supporting, or influencing any person with respect to the voting or disposition of the Shares.

The Issuer and Starboard also made certain customary representations, agreed to mutual non-disparagement provisions and agreed to jointly issue a press release announcing certain terms of the Agreement.

Items 5(a) – (c) are hereby amended and restated to read as follows:

The aggregate percentage of Shares reported owned by each person named herein is based upon 55,384,036 Shares outstanding, as of May 5, 2020, which is the total number of Shares outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 11, 2020.

Percentage: Approximately 5.4%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Approximately 8.7%

Percentage: Approximately 8.7%

Percentage: Approximately 8.7%

Percentage: Approximately 8.7%

Percentage: Approximately 8.7%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: 0%

As of the date hereof, the Reporting Persons collectively beneficially owned an aggregate of 4,847,840 Shares, constituting approximately 8.8% of the Shares outstanding.

The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owners of any securities of the Issuer that he, she or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the securities reported herein that he, she or it does not directly own.

Item 6 is hereby amended to add the following:

On May 26, 2020, Starboard and the Issuer entered into the Agreement defined and described in Item 4 above and attached as Exhibit 99.1 hereto.

On May 27, 2020, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons who will remain Reporting Persons subsequent to this Amendment No. 2 agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent as required by applicable law. A copy of this agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

Item 7 is hereby amended to add the following exhibits:

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: May 27, 2020