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Share Name | Share Symbol | Market | Type |
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Carbonite Inc | NASDAQ:CARB | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 22.98 | 22.96 | 24.87 | 0 | 01:00:00 |
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Delaware
(State of incorporation
or organization)
|
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33-1111329
(IRS Employer
Identification No.)
|
Alfred Browne, Esq.
Richard C. Segal, Esq.
Cooley LLP
500 Boylston Street
Boston, Massachusetts 02116
(617) 937-2300
|
Danielle Sheer, Esq.
Vice President, General Counsel and Secretary
Carbonite, Inc.
Two Avenue de Lafayette
Boston, Massachusetts 02111
(617) 587-1100
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Title of Each Class of Securities to be Registered
|
Amount
to be
Registered (1)
|
Proposed Maximum Offering Price
per Share (2)
|
Proposed Maximum Aggregate Offering Price (2)
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Amount of Registration Fee
|
Common Stock, par value $0.01 per share
|
600,000 (3)
|
$19.68
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$11,808,000
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$1,368.55
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(1)
|
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “
Securities Act
”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock, par value $0.01 per share, (the “
Common Stock
”) that become issuable under the Carbonite, Inc. 2017 Employee Stock Purchase Plan (the “
2017 ESPP
”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon the average of the high and low prices of the Registrant’s Common Stock on May 15, 2017 as reported on The NASDAQ Stock Market.
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(3)
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Represents shares of Common Stock reserved for future issuance under the 2017 ESPP.
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ITEM 3.
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INCORPORATION OF DOCUMENTS BY REFERENCE.
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(a)
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016 filed with the Commission on March 16, 2017 (File No. 001-35264), which contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed;
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(b)
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The information specifically incorporated by reference into the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016 from its definitive proxy statement on Schedule 14A for the 2017 Annual Meeting of Stockholders, filed with the Commission on April 13, 2017 (File No. 001-35264);
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(c)
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All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (a) above; and
|
(d)
|
The description of the Registrant’s Common Stock contained in the Registrant’s registration statement on Form 8-A filed on August 1, 2011 (File No. 001-35264) under the Exchange Act, including any amendment or report filed for the purpose of updating such description.
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ITEM 4.
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DESCRIPTION OF SECURITIES.
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ITEM 5.
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INTERESTS OF NAMED EXPERTS AND COUNSEL.
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ITEM 6.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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•
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any breach of the director’s duty of loyalty to the Registrant or its stockholders;
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•
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acts or omissions not in good faith or that involve intentional misconduct or knowing violation of law;
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•
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unlawful payment of dividends or unlawful stock repurchases or redemptions; and
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•
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any transaction from which the director derived an improper personal benefit.
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ITEM 7.
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EXEMPTION FROM REGISTRATION CLAIMED.
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ITEM 8.
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EXHIBITS.
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Exhibit
Number
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Description
|
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4.1(1)
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Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.
|
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4.2(2)
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Amended and Restated Bylaws of the Registrant, as currently in effect.
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4.3(3)
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Form of Common Stock Certificate of the Registrant.
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23.1*
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
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24.1
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Power of Attorney. Reference is made to the signature page hereto.
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99.1(4)
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2017 Employee Stock Purchase Plan
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* filed herewith
No opinion of counsel is being filed because the Common Shares registered hereunder will consist exclusively of previously issued shares that are presently held as treasury shares and will not constitute original issuance shares.
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(1)
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Previously filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K (File No. 011-35264), originally filed with the Commission on November 10, 2011, and incorporated herein by reference.
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(2)
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Previously filed as Exhibit 3.2 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-174139), originally filed with the Commission on July 13, 2011, as amended, and incorporated herein by reference.
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(3)
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Previously filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-174139), originally filed with the Commission on July 25, 2011, as amended, and incorporated herein by reference.
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(4)
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Incorporated by reference to Appendix B to the Company's Definitive Proxy Statement on Schedule 14A filed on March 27, 2017.
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ITEM 9.
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UNDERTAKINGS.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
|
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4)
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That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the Registrant undertakes that in a primary offering of securities of the Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
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(i)
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Any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the Registrant to the purchaser.
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(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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CARBONITE, INC.
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By:
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/s/ Anthony Folger
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Anthony Folger
Chief Financial Officer
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Signature
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Title
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Date
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/s/ Mohamad Ali
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Chief Executive Officer and Director
(Principal Executive Officer)
|
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Mohamad Ali
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May 18, 2017
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/s/ Anthony Folger
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Chief Financial Officer (Principal Financial Officer)
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Anthony Folger
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May 18, 2017
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/s/ Cassandra Hudson
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Chief Accounting Officer (Principal Accounting Officer)
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Cassandra Hudson
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May 18, 2017
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/s/ Stephen Munford
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Stephen Munford
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Chairman of the Board
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May 18, 2017
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/s/ Marina Levinson
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Marina Levinson
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Director
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May 18, 2017
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/s/ Charles Kane
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Charles Kane
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Director
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May 18, 2017
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/s/ Todd Krasnow
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Todd Krasnow
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Director
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May 18, 2017
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/s/ Peter Gyenes
|
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Peter Gyenes
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Director
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May 18, 2017
|
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/s/ Scott Daniels
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Scott Daniels
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Director
|
May 18, 2017
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/s/ David Friend
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David Friend
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Director
|
May 18, 2017
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* filed herewith
No opinion of counsel is being filed because the Common Shares registered hereunder will consist exclusively of previously issued shares that are presently held as treasury shares and will not constitute original issuance shares.
|
|
(1)
|
Previously filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K (File No. 011-35264), originally filed with the Commission on November 10, 2011, and incorporated herein by reference.
|
(2)
|
Previously filed as Exhibit 3.2 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-174139), originally filed with the Commission on July 13, 2011, as amended, and incorporated herein by reference.
|
(3)
|
Previously filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-174139), originally filed with the Commission on July 25, 2011, as amended, and incorporated herein by reference.
|
(4)
|
Incorporated by reference to Appendix B to the Company's Definitive Proxy Statement on Schedule 14A filed on March 27, 2017.
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