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
February 18, 2019
Date of Report (date of earliest event reported)
Cubic Corporation
(Exact name of registrant as specified in its charter)
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Delaware
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1-8931
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95-1678055
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9333 Balboa Avenue
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92123
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Registrant’s telephone number, including area code: (858) 277-6780
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 communication 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 14-d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)).
o Pre-commencement communications pursuant to Rule 13-e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)).
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company o
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. o
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Cubic Corporation (the “Company”) held its annual meeting of shareholders on February 18, 2019 (the “Annual Meeting”). At the Annual Meeting, the Company’s shareholders approved the amendment and restatement of the Cubic Corporation 2015 Incentive Award Plan (the “Restated Plan”), which authorizes 2,783,268 shares of the Company’s common stock for issuance pursuant to awards under the Restated Plan. The Restated Plan became effective on the date of the Annual Meeting.
Administration . The Restated Plan is administered by the Executive Compensation Committee of the Board of Directors (the “Board”) of the Company, which may delegate its duties and responsibilities to committees of the Company’s directors and/or officers, subject to certain limitations that may be imposed under Section 16 of the Securities Exchange Act of 1934, as amended, and/or stock exchange rules, as applicable. Notwithstanding the foregoing, the full Board will administer the Restated Plan with respect to awards to non-employee directors.
Awards . The Restated Plan authorizes the Executive Compensation Committee to grant stock options, restricted stock, restricted stock units, dividend equivalents, stock payment awards and stock appreciation rights. The Restated Plan also authorizes the Executive Compensation Committee to grant performance awards payable in the form of the Company’s common stock or cash, including equity awards and incentive cash bonuses. The Restated Plan authorizes the grant of awards to employees and consultants of the Company and its subsidiaries and to the Company’s non-employee directors. The maximum aggregate number of shares that may be subject to one or more awards granted to any participant, other than a non-employee director, under the Restated Plan during any calendar year cannot exceed 1,325,000 shares. In addition, the maximum aggregate amount of cash that may be paid in cash to any one person during any calendar year with respect to one or more awards initially payable in cash shall be $10,000,000. In addition, the maximum number of shares of our common stock that may be subject to one or more awards granted to any non-employee director pursuant to the Restated Plan during any calendar year for services as a non-employee director cannot exceed 100,000 shares.
Other Provisions . The Restated Plan also contains provisions with respect to payment of exercise or purchase prices, vesting and expiration of awards, adjustments and treatment of awards upon certain corporate transactions, including stock splits, recapitalizations and mergers, transferability of awards and tax withholding requirements. The Restated Plan may be amended or terminated by the Board at any time, subject to certain limitations requiring shareholder consent or the consent of the participant. The Restated Plan will expire in 2028.
The terms and conditions of the Restated Plan are described in the section entitled “Proposal 4: Approve the Amendment and Restatement of the Cubic Corporation 2015 Incentive Award Plan” in the Company’s Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on January 18, 2019 (the “Proxy Statement”). The Company’s executive officers and non-employee directors are eligible to participate in the Restated Plan. The foregoing description of the Restated Plan does not purport to be complete and is qualified in its entirety by reference to the complete text of the Restated Plan, which is filed as Exhibit 10.1 to this report and incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
At the Annual Meeting, the shareholders of the Company approved amendments to the Amended and Restated Certificate of Incorporation of the Company, as amended, to (a) eliminate the supermajority voting requirements for certain business combinations, (b) eliminate supermajority voting requirements relating to the amendment of the Company’s Bylaws to change the authorized number of directors of the Company, (c) eliminate supermajority voting requirements relating to the amendment of the Company’s Bylaws by shareholders, (d) eliminate supermajority voting requirements relating to the amendment of certain provisions of the Certificate, and (e) make certain technical and conforming changes related to the amendments in items (a) through (d). These changes are discussed more fully in the Company’s definitive Proxy Statement for the Annual Meeting. On February 19, 2019, the Company filed with the Secretary of State of the State of Delaware an Amended and Restated Certificate of Incorporation (the “Certificate”) reflecting those changes to the Certificate.
The foregoing description of the Certificate does not purport to be complete, and is qualified in its entirety by reference to the full text of the Certificate, which is filed as Exhibit 3.1 to this report and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
The Company held its Annual Meeting on February 18, 2019. As of December 19, 2018, the record date for the Annual Meeting, 31,132,991 shares of the Company’s common stock were issued and outstanding. A quorum of 29,457,020 shares of common stock were present or represented at the Annual Meeting. The Company’s shareholders voted on the following proposals at the Annual Meeting and cast their votes as follows:
1. Election of Directors
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Nominee for Director |
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For |
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Withheld |
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Prithviraj Banerjee |
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26,912,801 |
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671,708 |
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Bruce G. Blakley |
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25,971,074 |
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1,613,435 |
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Maureen Breakiron-Evans |
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26,237,629 |
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1,346,880 |
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Bradley H. Feldmann |
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25,925,890 |
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1,658,619 |
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Edwin A. Guiles |
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25,959,575 |
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1,624,934 |
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Janice M. Hamby |
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26,239,044 |
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1,345,465 |
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David F. Melcher |
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26,936,604 |
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647,905 |
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Steven J. Norris |
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26,232,864 |
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1,351,645 |
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John H. Warner, Jr. |
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25,683,210 |
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1,901,299 |
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In accordance with the above results, each nominee was elected to serve as a director.
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For |
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Against |
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Abstain |
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Broker
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2. To approve, on an advisory basis, the compensation of the Company’s named executive officers. |
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25,510,372 |
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1,041,129 |
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1,033,088 |
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1,872,511 |
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In accordance with the above results, the compensation of the Company’s named executive officers was approved on an advisory basis.
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3. To approve the Amendments to the Amended and Restated Certificate of Incorporation as follows: |
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For |
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Against |
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Abstain |
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Broker
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3a. To approve the Amendments to the Amended and Restated Certificate of Incorporation of Cubic Corporation to eliminate Supermajority Voting Requirements for Certain Business Combinations. |
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26,888,475 |
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129,689 |
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566,345 |
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1,872,511 |
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In accordance with the above results, the Amendments to the Amended and Restated Certificate of Incorporation of Cubic Corporation to eliminate Supermajority Voting Requirements for Certain Business Combinations were approved.
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For |
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Against |
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Abstain |
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Broker
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3b. To approve the Amendments to the Amended and Restated Certificate of Incorporation of Cubic Corporation to eliminate Supermajority Voting Requirements for the Board of Directors to Amend Cubic Corporations’ Bylaws to Change the Authorized Number of Directors. |
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26,879,660 |
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133,223 |
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571,626 |
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1,872,511 |
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In accordance with the above results, the Amendments to the Amended and Restated Certificate of Incorporation of Cubic Corporation to eliminate Supermajority Voting Requirements for the Board of Directors to Amend Cubic Corporations’ Bylaws to Change the Authorized Number of Directors were approved.
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For |
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Against |
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Abstain |
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Broker
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3c. To approve the Amendments to the Amended and Restated Certificate of Incorporation of Cubic Corporation to eliminate Supermajority Voting Requirements for Shareholders to Amend Cubic Corporation’s Bylaws. |
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26,878,463 |
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133,173 |
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572,873 |
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1,872,511 |
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In accordance with the above results, the Amendments to the Amended and Restated Certificate of Incorporation of Cubic Corporation to eliminate Supermajority Voting Requirements for Shareholders to Amend Cubic Corporation’s Bylaws were approved.
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For |
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Against |
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Abstain |
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Broker
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3d. To approve the Amendments to the Amended and Restated Certificate of Incorporation of Cubic Corporation to eliminate Supermajority Voting Requirements for Amendments to Certain Provisions of the Amended and Restated Certificate of Incorporation of Cubic Corporation. |
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26,874,735 |
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132,453 |
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577,321 |
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1,872,511 |
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In accordance with the above results, the Amendments to the Amended and Restated Certificate of Incorporation of Cubic Corporation to eliminate Supermajority Voting Requirements for Amendments to Certain Provisions of the Amended and Restated Certificate of Incorporation of Cubic Corporation were approved.
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For |
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Against |
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Abstain |
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Broker
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4. To approve the Restated Plan. |
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24,290,152 |
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2,014,662 |
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1,279,695 |
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1,872,511 |
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In accordance with the above results, the Restated Plan was approved.
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For |
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Against |
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Abstain |
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5. To confirm the selection of Ernst & Young LLP as the Company’s independent registered public accountants for fiscal year 2019. |
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27,942,455 |
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1,494,549 |
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20,016 |
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In accordance with the above results, the selection of Ernst & Young LLP was approved.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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Exhibit No. |
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Description |
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3.1 |
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Amended and Restated Certificate of Incorporation of Cubic Corporation. |
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10.1 |
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— |
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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.
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Date: February 19, 2019 |
CUBIC CORPORATION |
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By: |
/s/ James R. Edwards |
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Name: |
James R. Edwards |
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Title: |
Senior Vice President, |
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General Counsel & Secretary |
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CUBIC CORPORATION
Cubic Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
FIRST: The name of the corporation is Cubic Corporation.
SECOND: The date of filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware was December 13, 1984.
THIRD: The Amended and Restated Certificate of Incorporation of said corporation, as amended by that certain Certificate of Amendment of Amended and Restated Certificate of Incorporation dated as of February 23, 2016, shall be amended and restated to read in full as follows:
1. The name of the corporation is Cubic Corporation.
2. The address of its registered office in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is Corporation Service Company.
3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law (“ DGCL ”) .
4. The corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares of all classes of capital stock which the corporation shall have authority to issue is 55,000,000, of which 50,000,000 shares shall be Common Stock, without par value (the “ Common Stock ”), and 5,000,000 shares shall be Preferred Stock, without par value (the “ Preferred Stock ”).
The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby expressly authorized to provide for the issue of any or all of the remaining unissued and undesignated shares of the Preferred Stock in one or more series, and to fix the number of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting powers, and such designation, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such shares and as may be permitted by the DGCL. The Board of Directors is also expressly authorized to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series.
Each outstanding share of Common Stock shall entitle the holder thereof to one vote on each matter properly submitted to the stockholders of the corporation for their vote; provided, however , that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled, either separately or together as a class with the holders of one or more other series of Preferred Stock, to vote thereon by law or pursuant to this Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock).
5. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The number of Directors that shall constitute the Board of Directors shall be fixed exclusively by resolutions adopted by a majority of the authorized number of Directors constituting the Board of Directors. Each Director shall serve until his or her successor is duly elected and qualified or until his or her death, resignation or removal. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
6. Elections of Directors need not be by written ballot unless required by the Bylaws of the corporation.
7. No action shall be taken by the Stockholders except at an annual or special meeting of Stockholders.
8. Special meetings of the Stockholders of the corporation for any purpose or purposes may be called at any time by the Board of Directors, or by a committee of the Board of Directors which has been duly designated by the Board of Directors and whose powers and authority, as provided in a resolution of the Board of Directors or in the Bylaws of the corporation, include the power to call such meetings, but such Special meetings may not be called by any other person or persons.
9. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and rescind the Bylaws of this corporation. Bylaws shall not be made, repealed, altered, amended or rescinded by the Stockholders of the corporation except by the vote of the holders of not less than a majority of the total voting power of all outstanding shares of voting stock of the corporation.
10. The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on Stockholders herein are granted subject to this reservation.
Notwithstanding the foregoing, the provisions set forth in Articles 7, 8, 9 and this Article 10 may not be repealed or amended in any respect unless such repeal or amendment is approved by the affirmative vote of the holders of not less than a majority of the total voting power of all outstanding shares of voting stock of this corporation.
11. Subject to the rights of the holders of any series of Preferred Stock that may come into existence from time to time, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of Directors, shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders, except as otherwise provided by law, be filled only by the affirmative vote of a majority of the Directors then in office, even though less than a quorum of the Board of Directors, and not by the stockholders. Any Director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such Director’s successor shall have been elected and qualified.
12. No action shall be taken by the stockholders of the corporation by written consent.
13. Advance notice of stockholder nominations for the election of Directors and of business to be brought by stockholders before any meeting of the stockholders of the corporation shall be given in the manner provided in the Bylaws of the corporation.
14. No Director shall be personally liable to the corporation or its Stockholders for monetary damages for any breach of fiduciary duty by such Director, as a Director. Notwithstanding the foregoing sentence, a Director shall be liable to the extent provided by applicable law (i) for breach of the Director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL, or (iv) for any transaction from which the Director derived an improper personal benefit.
No amendment to, or repeal of, this Article shall apply to, or have any effect on, the liability or alleged liability of any Director of the corporation for, or with respect to, any acts or omissions of such Director, occurring prior to such amendment.
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FOURTH: This Amended and Restated Certificate of Incorporation has been duly adopted and approved by the Board of Directors.
FIFTH: This Amended and Restated Certificate of Incorporation has been duly adopted and approved by written consent of the stockholders in accordance with sections 245 and 242 of the DGCL.
IN WITNESS WHEREOF, said Cubic Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by James R. Edwards, its Senior Vice President, General Counsel and Secretary, on February 19, 2019.
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CUBIC CORPORATION |
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By: |
/s/ James R. Edwards |
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Name: |
James R. Edwards |
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Its: |
Senior Vice President, General Counsel and Secretary |