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

June 2, 2016

Date of Report (date of earliest event reported)

 

 

SALESFORCE.COM, INC.

(Exact name of Registrant as specified in charter)

 

 

 

Delaware   001-32224   94-3320693

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I. R. S. Employer

Identification No.)

The Landmark @ One Market, Suite 300

San Francisco CA 94105

(Address of principal executive offices)

Registrant’s telephone number, including area code: (415) 901-7000

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 (see General Instruction A.2. below):

 

¨ 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))

 

 

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

As noted below, on June 2, 2016, the stockholders of salesforce.com, inc. (the “Company”) approved the amendment and restatement of the Company’s Amended and Restated Certificate of Incorporation (i) to remove the words “only for cause” in Article Sixth, Section C to confirm that any members of the Company’s Board of Directors (the “Board”) may be removed with or without cause, and (ii) to make other conforming changes consistent with the declassification of the Board that was completed at the Company’s 2015 annual meeting of stockholders. The Amended and Restated Certificate of Incorporation became effective upon its filing with the Secretary of State of the State of Delaware on June 3, 2016.

The foregoing description is qualified in its entirety by the full text of the Amended and Restated Certificate of Incorporation, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K.

 

Item 5.07 Submission of Matters to a Vote of Security Holders

The Company held its 2016 Annual Meeting of Stockholders on June 2, 2016 (the “Meeting”). The proposals considered at the Meeting are described in detail in the Company’s 2016 Proxy Statement. The following proposals were voted upon and the final voting results with respect to each such proposal are set forth below:

 

1. Elect the following twelve directors, to serve until the next Annual Meeting of Stockholders and until their successors are duly elected and qualified:

 

     For      Against      Abstain      Broker Non-Votes  

Marc Benioff

     571,050,747         8,948,639         1,425,568         44,031,777   

Keith Block

     568,523,828         12,754,485         146,641         44,031,777   

Craig Conway

     511,611,833         65,174,662         4,638,459         44,031,777   

Alan Hassenfeld

     573,043,066         8,225,037         156,851         44,031,777   

Neelie Kroes

     579,055,220         2,171,564         198,170         44,031,777   

Colin Powell

     577,630,321         3,654,028         140,605         44,031,777   

Sanford Robertson

     569,858,447         11,374,324         192,183         44,031,777   

John V. Roos

     552,665,465         24,070,983         4,688,506         44,031,777   

Lawrence Tomlinson

     571,467,490         9,800,693         156,771         44,031,777   

Robin Washington

     575,932,490         5,299,652         192,812         44,031,777   

Maynard Webb

     513,299,017         63,414,959         4,710,978         44,031,777   

Susan Wojcicki

     578,767,362         2,467,190         190,402         44,031,777   

 

2. Approve the amendment and restatement of the Company’s Amended and Restated Certificate of Incorporation to clarify provisions related to the removal of directors:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

623,152,088

  2,076,718   227,925   0

 

3. Ratify the appointment of Ernst & Young LLP as the Company’s independent public accounting firm for the fiscal year ending January 31, 2017:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

575,458,109

  49,871,459   127,163   0

 

4. Approve, on an advisory basis, the compensation of the named executive officers, as disclosed in the Company’s 2016 Proxy Statement:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

349,830,261

  231,285,488   309,205   44,031,777

5. Stockholder proposal for policy limiting change in control benefits:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

162,239,495

  414,285,589   4,899,870   44,031,777

 

6. Stockholder proposal for share retention policy for senior executives:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

97,463,097

  483,497,175   464,682   44,031,777

 

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits .

 

Exhibit
No.

  

Description

3.1    Amended and Restated Certificate of Incorporation of salesforce.com, inc.

Signature

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Dated: June 3, 2016       salesforce.com, inc.
     

/s/ Burke F. Norton

     

Burke F. Norton

Chief Legal Officer & Chief of Corporate and

Government Affairs

EXHIBIT INDEX

 

Exhibit
No.

  

Description

3.1    Amended and Restated Certificate of Incorporation of salesforce.com, inc.

Exhibit 3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

SALESFORCE.COM, INC.

(Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware)

salesforce.com, inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

A.         The name of the corporation is salesforce.com, inc. The date of filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware was February 3, 1999.

B.         Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware, this Amended and Restated Certificate of Incorporation restates and integrates and further amends the provisions of the Certificate of Incorporation of this corporation.

C.         The Board of Directors duly adopted resolutions proposing to amend and restate the Certificate of Incorporation of this corporation, declaring said amendment and restatement to be advisable and in the best interests of this corporation and its stockholders, and authorizing the appropriate officers of this corporation to solicit the approval of the stockholders therefor, which resolution setting forth the proposed amendment and restatement is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation is hereby amended and restated in its entirety to read in full as follows:

 

FIRST:    The name of the corporation is salesforce.com, inc. (hereinafter sometimes referred to as the “Corporation”).
SECOND:    The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Zip Code 19801. The name of the registered agent at that address is The Corporation Trust Company.
THIRD:    The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware.
FOURTH:    A.        The total number of shares of all classes of stock which the Corporation shall have authority to issue is One Billion Six Hundred Five Million (1,605,000,000) shares consisting of:
  

1.     One Billion Six Hundred Million (1,600,000,000) shares of common stock, par value of one-tenth of one cent ($.001) per share (the “Common Stock”).

  

2.     Five Million (5,000,000) shares of preferred stock, par value of one-tenth of one cent ($.001) per share (the “Preferred Stock”).

   B.        The Board of Directors is authorized, subject to any limitations prescribed by law, to provide for the issuance of shares of Preferred Stock in series and, by filing a certificate pursuant to the applicable law of the State of Delaware, to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of the shares of each such series and any qualifications, limitations or restrictions thereon. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the Common Stock without a vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the certificate or certificates establishing the series of Preferred Stock.
FIFTH:    The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
   A.        The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred upon them by statute or by this Certificate of Incorporation or the Bylaws of the Corporation, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation.
   B.        The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.

   C.        Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders.
   D.        Special meetings of stockholders of the Corporation may be called only by either the Board of Directors, the Chairman of the Board or the President of the Corporation.
SIXTH:    A.        Subject to the rights of the holders of any series of Preferred Stock then outstanding, the number of directors shall be fixed from time to time exclusively by the Board of Directors. All directors shall be elected to hold office for a term expiring at the first annual meeting of stockholders held following their election and until their respective successors are duly elected and qualified or until their earlier death, resignation or removal.
   B.        Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation or other cause (including removal from office by a vote of the stockholders) may be filled only by the affirmative vote of a majority of the directors then in office, though less than a quorum, or by the sole remaining director, and directors so chosen shall hold office for a term expiring at the first annual meeting of stockholders held following their election and until their respective successors are duly elected and qualified or until their earlier death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
   C.        Subject to the rights of the holders of any series of Preferred Stock then outstanding, any directors, or the entire Board of Directors, may be removed from office at any time, but only by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class.
SEVENTH:    The Board of Directors is expressly empowered to adopt, amend or repeal the Bylaws of the Corporation. The stockholders shall also have power to adopt, amend or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of the Corporation by the stockholders shall require, in addition to any vote of the holders of any class or series of stock of the Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
EIGHTH:    A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any 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 involved intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
   If the Delaware General Corporation Law is hereafter amended to authorize the further elimination or limitation of the liability of a director, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
   Any repeal or modification of the foregoing provisions of this Article EIGHTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
NINTH:    The Corporation reserves the right to amend or repeal any provision contained in this Amended and Restated Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and all rights conferred upon stockholders are granted subject to this reservation; provided , however , that, notwithstanding any other provision of this Amended and Restated Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of this Corporation required by law or by this Amended and Restated Certificate of Incorporation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal this Article NINTH, Sections C and D of Article FIFTH, Article SIXTH, Article SEVENTH or Article EIGHTH.

D.        The stockholders of the Corporation took action on June 2, 2016 at an annual meeting of stockholders in accordance with the applicable provisions of Sections 222 and 242 of the Delaware General Corporation Law in order to approve the foregoing amendment and restatement.

[Signature page follows]

IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by its duly authorized officer this 2nd day of June 2016.

 

SALESFORCE.COM, INC.
By:  

/s/ Burke Norton

Name:   Burke Norton
Title:   Chief Legal Officer & Chief of Corporate and Government Affairs