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)
June 16, 2011
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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9777 Pyramid Court, Suite 100, Englewood, Colorado 80112
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code: (303) 802-1000
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:
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 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
At the Annual Meeting of Stockholders, held June 16, 2011, Evolving Systems, Inc.’s (“Evolving Systems” or “Company”) stockholders approved a proposal to amend the Company’s Amended and Restated Certificate of Incorporation to eliminate the classified Board structure. A copy of Article V(A)(2) of the Certificate of Incorporation, as amended and restated, is filed with this Current Report as Exhibit 3(i). The amendment became effective on June 16, 2011, the date the certificate of amendment was filed with the Delaware Secretary of State. A copy of the Certificate of Amendment is filed with this Current Report as Exhibit 3(i)(a). As a result of this amendment, all Board members will have a one-year term of office.
In connection with the stockholders’ approval to amend the Company’s Certificate of Incorporation, effective June 17, 2011, the Board of Directors approved an amendment to Article IV, Section 17 of the Company’s Bylaws to eliminate the Board’s classified structure. A copy of the amended and restated Article IV is filed with this Current Report as Exhibit 3(ii).
Item 5.07 Submission of Matters to a Vote of Security Holders
Evolving Systems held its Annual Meeting of Stockholders on June 16, 2011 (“Annual Meeting”) at the Company’s headquarters in Englewood, Colorado. The Company is providing the following information regarding the results of the matters voted on by stockholders at the Annual Meeting.
Thaddeus Dupper and David S. Oros were elected to the Board of Directors. The stockholders also approved an amendment to the Company’s Amended and Restated Certificate of Incorporation, as described in item 5.03 above and in the Proxy Statement, eliminating the classified Board structure and ratified the Board of Directors’ appointment of Grant Thornton LLP as the Company’s independent registered public accounting firm for the year ended December 31, 2011.
The final voting results on these matters were as follows:
1. Election of Directors
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Name |
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Votes For |
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Votes Withheld |
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Percentage For |
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Thaddeus Dupper |
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6,029,815 |
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306,515 |
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55.99 |
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David S. Oros |
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5,981,015 |
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355,315 |
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55.54 |
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2. Approval of an amendment to the Amended and Restated Certificate of Incorporation to Eliminate the Classified Board Structure and Provide for Annual Election of All Directors.
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Votes For |
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Votes Against |
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Votes Abstained |
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Broker Non-Votes |
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Percentage For |
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8,600,174 |
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558,280 |
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11,873 |
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— |
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79.86 |
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3. Ratification of the selection of Grant Thornton LLP as our independent registered public accounting firm to audit the consolidated financial statements of Evolving Systems for its fiscal year ending December 31, 2011.
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Votes For |
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Votes Against |
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Votes Abstained |
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Broker Non-Votes |
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Percentage For |
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9,005,252 |
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137,411 |
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3,331 |
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24,335 |
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83.63 |
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Item 9.01 Financial Statements and Exhibits
(d) Exhibits. The following exhibits are filed with this report.
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Exhibit |
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Number |
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Description |
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3(i) |
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Amendment to Amended and Restated Certificate of Incorporation, amended and restated Article V(A)(2) |
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3(i)(a) |
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of Evolving Systems, Inc. |
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3(ii) |
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Amendment to Article IV, Section 17 of the Evolving Systems, Inc. Bylaws |
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: June 16, 2011
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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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Sr. Vice President & General Counsel |
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EXHIBIT INDEX
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Exhibit
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Description |
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3(i) |
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Amendment to Amended and Restated Certificate of Incorporation, amended and restated Article V(A)(2) |
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3(i)(a) |
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of Evolving Systems, Inc. |
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3(ii) |
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Amendment to Article IV, Section 17 of the Evolving Systems, Inc. Bylaws |
EXHIBIT 3(i)
Amendment to the Amended and Restated Certificate of Incorporation, as amended,
to Declassify the Board of Directors
Article V
* * * * *
A.
* * * * *
2.
Following the closing of the initial public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”). covering the offer and sale of Common Stock to the public (the “Initial Public Offering”), the
Each
director
s shall be divided into three classes designated as Class I, Class II and Class III, respectively. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the Board of Directors. At the first annual meeting of stockholders following the closing of the Initial Public Offering, the term of office of the Class I directors shall expire and Class I directors shall be elected for a full term of three years. At the second annual meeting of stockholders following the closing of the Initial Public Offering, the term of office of the Class II directors shall expire and Class II directors shall be elected for a full term of three years. At the third annual meeting of stockholders following the closing of the Initial Public Offering, the term of office of the Class III directors shall expire and Class III directors
shall be elected
for a full term of three years. At
at
each
succeeding
annual meeting of stockholders
, directors shall be elected
for a
full
term
of three years to succeed the directors of the class whose terms
expir
e
ing
at
such
the next succeeding
annual meeting.
Notwithstanding the foregoing provisions of this Article, each director shall serve until his successor is duly elected and qualified or until his death, resignation or removal. If the number of directors is increased at or following the 2011 annual meeting of stockholders, any additional director elected to fill a newly created directorship shall hold office for a term expiring at the next annual meeting of stockholders. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
EXHIBIT 3(i)(a)
CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
EVOLVING SYSTEMS, INC.
Evolving Systems, Inc. (the “ Corporation ”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that:
1. The name of this Corporation is Evolving Systems Inc., a Delaware corporation, and the date of the filing of the original Certificate of Incorporation of this Corporation is January 10, 1996.
2. This Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation has been duly adopted in accordance with the provisions of Section 242 of the DGCL by the directors and stockholders of the Corporation.
3. Article V, Paragraph A.2. of the Corporation’s Amended and Restated Certificate of Incorporation is hereby amended and restated in its entirety to read in full as follows:
“2. Each director shall be elected at each annual meeting of stockholders for a term expiring at the next succeeding annual meeting. Notwithstanding the foregoing provisions of this Article, each director shall serve until his successor is duly elected and qualified or until his death, resignation or removal. If the number of directors is increased at or following the 2011 annual meeting of stockholders, any additional director elected to fill a newly created directorship shall hold office for a term expiring at the next annual meeting of stockholders. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.”
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its President and Chief Executive Officer this 16th day of June, 2011.
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By: |
/s/THADDEUS DUPPER |
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Name: |
Thaddeus Dupper |
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Title: |
President and Chief Executive Officer |
EXHIBIT 3(ii)
Amendment to the Amended and Restated Bylaws, as amended,
Adopted by the Board of Directors June 17, 2011
ARTICLE IV
DIRECTORS
* * * * *
SECTION 17.
CLASSES OF
DIRECTORS AND TERMS OF OFFICE. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances,
following the closing of the initial public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), covering the offer and sale of Common Stock to the public (the “Initial Public Offering”), the
directors shall be
divided into three classes designated as Class I, Class II and Class III, respectively. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the Board of Directors. At the first annual meeting of stockholders following the closing of the Initial Public Offering, the term of office of the Class I directors shall expire and Class I directors shall be
elected
at each annual meeting of stockholders
for a
full
term
of three years. At the second annual meeting of stockholders following the closing of the Initial Public Offering, the term of office of the Class II directors shall expire and Class II directors shall be elected for a full term of three years. At the third annual meeting of stockholders following the closing of the Initial Public Offering, the term of office of the Class III directors shall expire and Class III directors shall be elected for a full term of three years. At each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose terms
expir
ing
at
such
the next succeeding
annual meeting. Notwithstanding the foregoing, each director shall serve until his successor is duly elected and qualified or until his death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.