UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
(Amendment No. 1)
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 8, 2016
CARBONITE, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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001-35264
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33-1111329
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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Two Avenue de Lafayette, Boston, Massachusetts 02111
(Address of principal executive offices, including ZIP code)
(617) 587-1100
(Registrant’s telephone number, including area code)
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 C.F.R. §230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 C.F.R. §230.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 C.F.R. §14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 C.F.R. §13e-4(c))
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Explanatory Note
This Amendment No. 1 to Current Report on Form 8-K is being filed solely to correct a technical filing error with the original Current Report on Form 8-K filed with the Securities and Exchange Commission (the “Commission”) by the Registrant on January 11, 2016 (the “Original Filing”). The submission header for the Original Filing in the Commission’s EDGAR filing system was tagged as an Item 3.01 and Item 9.01 filing and should have been tagged as an Item 3.03, Item 5.03 and Item 9.01 filing. No other changes to the Original Filing or to any exhibit thereto are being made by this Amendment No. 1.
Item 3.03. Material Modification to Rights of Security Holders.
As of the close of business on January 8, 2016, the rights (the “Rights”) issued under that certain Rights Agreement, dated as of January 9, 2015 (the “Rights Agreement”), between Carbonite, Inc., a Delaware corporation (the “Company”), and American Stock Transfer & Trust Company, LLC, as the rights agent, to purchase, under certain circumstances, from the Company one one-thousandth of a share of Series A Junior Participating Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”), of the Company expired pursuant to the terms of the Rights Agreement, and the Rights Agreement was effectively terminated. As a result, shares of common stock of the Company, par value $0.01 per share, are no longer accompanied by the Rights, and the Rights Agreement is of no further force or effect.
The foregoing description of the terms of the Rights Agreement and the Rights issued thereunder does not purport to be complete and is qualified in its entirety by reference to the full text of the Rights Agreement, which is incorporated herein by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 9, 2015.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
In connection with the effective termination of the Rights Agreement and the expiration of the Rights issued thereunder as described in Item 3.03 above, the Company filed a certificate of elimination (the “Certificate of Elimination”) with the Secretary of State of the State of Delaware on January 11, 2016, which Certificate of Elimination eliminated from the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) all matters with respect to the Series A Preferred Stock set forth in the Certificate of Incorporation, and as a result, under the Delaware General Corporation Law, the Series A Preferred Stock shall no longer be an authorized series of the Company. Prior to the filing, the Series A Preferred Stock would have been issuable, under certain circumstances, upon the exercise of the Rights.
The foregoing description of the Certificate of Elimination does not purport to be complete and is qualified in its entirety by reference to the full text of the Certificate of Elimination, which is incorporated herein by reference to Exhibit 3.1 to this Current Report on Form 8-K.
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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Certificate of Elimination of Series A Junior Participating Preferred Stock, dated as of January 11, 2016.
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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 on January 13, 2016.
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CARBONITE, INC.
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By:
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/s/ Danielle Sheer
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Name:
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Danielle Sheer
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Title:
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General Counsel, Vice President and Corporate Secretary
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CERTIFICATE OF ELIMINATION
OF
CARBONITE, INC.
* * * * * * * *
Pursuant to the provisions of Section 151(g) of the General Corporation Law of the State of Delaware (the “
DGCL
”), Carbonite, Inc., a Delaware corporation (the “
Company
”), hereby certifies as follows:
FIRST: That at a meeting of the Board of Directors of the Company, resolutions were duly adopted setting forth the proposed elimination of the series of stock as set forth herein:
NOW, THEREFORE, BE IT RESOLVED, that no shares of Series A Junior Participating Preferred Stock, par value $0.01 per share, of the Company (the “
Series A Preferred Stock
”) are outstanding and none will be issued;
RESOLVED FURTHER, that all the matters set forth in the Amended and Restated Certificate of Incorporation of the Company (the “
Amended and Restated Certificate of Incorporation
”) with respect to the Series A Preferred Stock shall be eliminated from the Amended and Restated Certificate of Incorporation, effective at 5:00 P.M. New York, New York time on January 11, 2016;
RESOLVED FURTHER, that the proper officers of the Company be, and each of them hereby is, authorized to, personally or by attorney, in the name and on behalf of the Company, execute, deliver and cause to be filed with the Secretary of State of the State of Delaware a Certificate of Elimination pursuant to the provisions of Section 151(g) of the General Corporation Law of the State of Delaware for the purpose of eliminating from the Amended and Restated Certificate of Incorporation all matters with respect to the Series A Preferred Stock and all references to the Series A Preferred Stock;
SECOND: That the Certificate of Designation with respect to the Series A Preferred Stock was filed in the office of the Secretary of State of the State of Delaware effective January 9, 2015. None of the authorized shares of the Series A Preferred Stock are outstanding and none will be issued.
THIRD: That in accordance with the provisions of Section 151 of the DGCL, the Company’s Amended and Restated Certificate of Incorporation is hereby further amended to eliminate all matters with respect to the Series A Preferred Stock and all reference to the Series A Preferred Stock.
IN WITNESS WHEREOF, the Company has caused this Certificate of Elimination to be signed by Danielle Sheer, its General Counsel, Vice President and Secretary, this 11th day of January, 2016.
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CARBONITE, INC.
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By:
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/s/ Danielle Sheer
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Name:
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Danielle Sheer
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Title:
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General Counsel, Vice President and Corporate Secretary
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Commonwealth of Massachusetts
County of Suffolk
On this 11th day of January, 2016, before me, the undersigned notary public, personally appeared Jenna Toohey, proved to me through satisfactory evidence of identification, which were personally known to me, to be the person whose name is signed on the preceding or attached document in my presence.
Attest:
By:
/s/ Jenna Toohey
Name: Jenna Toohey
Title: Corporate Paralegal