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)
May 2
, 2007
Evolving
Systems, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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0-24081 |
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84-1010843 |
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(State or other jurisdiction of |
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
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incorporation) |
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9777 Pyramid Court, Suite 100
Englewood, Colorado 80112
(Address of principal executive offices)
Registrant’s telephone number, including area code (303) 802-1000
N/A
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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
(a) On May 2, 2007, the Board of Directors of Evolving Systems, Inc. (“Company”) adopted a resolution to amend the Investor Rights Agreement, dated as of November 2, 2004, by and between the Company, Tertio Telecoms Group Ltd. and the investors listed therein (the “ Investor Rights Agreement ”) to terminate the right of the holders of the Series B Preferred Stock to elect one person to the Company’s Board of Directors, and to eliminate all references to the Series B Director. Pursuant to the Company’s Restated Certificate of Incorporation, the only stockholder approval required to authorize the amendment of the Investor Rights Agreement was from the holder of a majority of the Series B Preferred Stock, which was obtained on April 27, 2007.
Item 5.03 Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.
(a) On May 4, 2007, the Company filed a Certificate of Amendment to Certificate of Designation of Series B Convertible Preferred Stock (the “Certificate of Amendment”) with the Secretary of State of the State of Delaware. The Company’s Board of Directors authorized and approved the filing of the Certificate of Amendment on May 2, 2007. Pursuant to the Company’s Restated Certificate of Incorporation and the Certificate of Designation of Series B Convertible Preferred Stock (the “Certificate of Designation”), the only approval required to authorize the Certificate of Amendment was from the holder of a majority of the Company’s Series B Convertible Preferred Stock (the “Series B Preferred Stock”), which was obtained on April 27, 2007.
The Certificate of Amendment amends certain provisions of the Certificate of Designation to:
(i) terminate the right of the holder(s) of the Series B Preferred Stock to elect one person to the Company’s Board of Directors (the “Series B Director”); and
(ii) eliminate all references to the Series B Director in the Certificate of Designation.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits. The following exhibits are filed with this Report:
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Exhibit Number |
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Description |
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3.01 |
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Certificate of Amendment to Certificate of Designation of Series B Convertible Preferred Stock, dated as of May 2, 2007. |
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4.01 |
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Amendment No. 1 to Investor Rights Agreement, dated as of May 2, 2007, between the Company, Tertio Telecoms Group Ltd. and the Investors listed therein. |
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SIGNATURE
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.
Dated: May 4, 2007
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Evolving Systems, Inc. |
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By: |
/s/ANITA T. MOSELEY |
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Anita T. Moseley |
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Senior Vice President, General |
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Counsel and Secretary |
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Exhibit Index
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Exhibit Number |
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Description |
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3.01 |
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Certificate of Amendment to Certificate of Designation of Series B Convertible Preferred Stock, dated as of May 2, 2007. |
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4.01 |
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Amendment No. 1 to Investor Rights Agreement, dated as of May 2, 2007, between the Company, Tertio Telecoms Group Ltd. and the Investors listed therein. |
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Exhibit 3.01
EVOLVING SYSTEMS, INC.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF DESIGNATION
OF
SERIES B CONVERTIBLE PREFERRED STOCK
(PURSUANT TO SECTION 242 OF THE GENERAL CORPORATION LAW OF
THE STATE OF
DELAWARE)
Evolving Systems, Inc. (the “ Company ”), organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That the original Certificate of Designation of the Series B Convertible Preferred Stock (the “ Series B Preferred Stock ”) was originally filed with the Secretary of State of Delaware on November 1, 2004, with amendments thereto being filed on February 7, 2005 and November 14, 2005 (as amended, the “ Certificate of Designation ”).
SECOND: That the Board of Directors of the Company, in a meeting held on May 2, 2007, duly adopted a resolution authorizing and directing that the Certificate of Designation be amended as follows:
A. Section 3(b) of the Certificate of Designation, “Election of Directors”, including each of its subparagraphs, is deleted, provided, however, that the defined terms contained in Section 3(b) shall remain and are moved to Section 6, “Definitions,” as noted below.
B. Subparagraph 3(c)(iv) of the Certificate of Designation is deleted, and replaced by the following:
(iv) Intentionally deleted.
C. The final paragraph of Section 4(b) of the Certificate of Designation (the paragraph beginning “In the event of any...”) is deleted;
D. Section 6 of the Certificate of Designation is amended as follows:
(i) the definition of “Series B Director” is deleted; and
(ii) the reference to “Series B Director” in the definition of “Series B Approved Plan” is deleted;
(iii) the following defined terms previously contained in Section 3(b) are added to Section 6:
“ Common Stock Ownership Threshold Amount ” is defined as the aggregate number of shares of Series B Preferred Stock and such other convertible instruments (including convertible debt instruments) issued to the Primary Holders in connection with the Stock Purchase Agreement which would upon the conversion of such shares of Series B Preferred Stock and such other convertible instruments into Common Stock constitute no less than five (5%) percent of the Company’s issued and outstanding Common Stock.
THIRD: That the holders representing a majority of the issued and outstanding shares of Series B Preferred Stock of the Company approved said proposed amendment in accordance with Section 242 of the General Corporation Law of the State of Delaware. Accordingly, said proposed amendment has been duly adopted in accordance with the applicable provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF , the Company has caused this Certificate of Amendment to Certificate of Designation to be executed as of May 2, 2007.
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EVOLVING SYSTEMS, INC. |
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By: |
/s/ Anita T. Moseley |
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Anita T. Moseley |
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SVP & General Counsel |
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Exhibit 4.01
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT (this “ Amendment ”) is made this 2nd day of May, 2007, by and between Evolving Systems, Inc ., a Delaware corporation (the “ Company ”), and the Apax WW Nominees Ltd a/c AE4 (“ Apax ”). Other Defined terms used in this Amendment refer to terms defined in the Investor Rights Agreement.
BACKGROUND
A. On November 2, 2004, Company and the Investors entered into an Investor Rights Agreement (the “ Agreement ”).
B. Following the Agreement, the Advent Funds and Four Seasons Venture II AS converted their shares of Series B Stock to Common Stock.
C. Apax is the holder of 461,758 shares of Series B Stock, which represents approximately 88% of the outstanding Series B Stock.
D. Company and Apax now desire to amend the Agreement.
E. Section 7.3(a) of the Agreement provides that the Agreement may be amended by the Company and Investors holding at least a majority of the Series B Stock then held by Investors.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Amendment, the parties agree as follows:
1. Sections 4.1, 4.2 and 4.4(a)(iii) of the Agreement are deleted and any and all other references to “Series B Director” contained in the Agreement are also deleted.
2. Pursuant to Section 7.3(e) the Company shall give prompt written notice of this Amendment to the remaining Investors.
3. All of the remaining terms and conditions of the Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized signatories as of the date first above written.
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EVOLVING SYSTEMS, INC. |
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By: |
/s/ Anita T. Moseley |
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Name: |
Anita T. Moseley |
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Title: |
SVP & General Counsel |
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(Apax signature page follows) |
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APAX WW NOMINEES LTD A/C AE4
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By: |
/s/ Adrian Beecroft |
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Name: |
Adrian Beecroft |
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Title: |
Director |
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By: |
/s/ Peter Englander |
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Name: |
Peter Englander |
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Title: |
Director |
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(Apax signature page to Amendment No.1 to Investor Rights Agreement) |
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