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
Date of Report (Date of earliest event reported): February 3, 2015
SEVCON, INC.
(Exact Name of Registrant as Specified in Charter)
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Delaware
(State or other jurisdiction of incorporation)
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001-9789
(Commission File Number)
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04-2985631
(IRS Employer Identification No.)
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155 Northboro Road
Southborough, MA 01772
(Address of principal executive offices and zip code)
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(508) 281-5510
(Registrant’s telephone number, including area code)
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N/A
(Former name or former address, if changed since last report)
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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 CFR 230.425)
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o
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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o
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 2.02. Results of Operations and Financial Condition
On February 3, 2015, the Registrant issued a press release announcing its financial results for the fiscal quarter ended January 3, 2015. A copy of the press release is hereby furnished as Exhibit 99.1 to this report and is incorporated by reference herein.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
On February 3, 2015, the Registrant (a) filed with the Secretary of State of the State of Delaware an Amended and Restated Certificate of Organization reflecting the changes described in the proxy statement for the annual meeting and referred to in Item 5.07 below and (b) amended the last sentence of Section 2.1 of its Amended and Restated By-Laws to provide, “Until the annual meeting of stockholders in 2018, stockholders may remove directors only for cause.” The Amended and Restated Certificate of Organization and Amended and Restated By-laws of the Registrant, as so amended, are filed herewith as Exhibits 3.1 and 3.2, respectively.
Item 5.07. Submission of Matters to a Vote of Security Holders
On February 3, 2015, the Registrant held its annual meeting of stockholders. Five proposals were before the meeting: (1) the election of Glenn J. Angiolillo, Ryan J. Morris, and Frederick A. Wang as directors of the Registrant to serve until the 2018 annual meeting; (2) to approve the amendment and restatement of the Company’s certificate of incorporation for the annual election of directors; (3) to approve the amendment of the Company’s certificate of incorporation to increase the authorized shares of common stock; (4) the ratification of the appointment of McGladrey LLP as the Registrant’s independent registered public accounting firm for the fiscal year ending September 30, 2015 (fiscal 2015); and (5) the approval of the compensation of the Registrant’s executive officers.
The votes with respect to the proposals are set forth below.
(1) Election of Directors of the Registrant to serve until the 2018 annual meeting:
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Broker
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1 Glenn J. Angiolillo
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2,694,315 |
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3,131 |
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619,104 |
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2) Ryan J. Morris
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2,694,315 |
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3,131 |
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619,104 |
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3) Frederick A. Wang
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2,694,315 |
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3,131 |
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619,104 |
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(2) To approve the amendment and restatement of the Company’s certificate of incorporation for the annual election of directors:
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2,694,893 |
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2,553 |
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0 |
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619,104 |
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(3) To approve the amendment of the Company’s certificate of incorporation to increase the authorized shares of common stock:
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2,539,944 |
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766,024 |
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10,582 |
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0 |
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(4) Ratification of the appointment of McGladrey LLP as the Registrant’s independent registered public accounting firm for the fiscal year ending September 30, 2015 (fiscal 2015):
(5) Approval of the compensation of the Registrant’s named executive officers:
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2,680,180 |
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15,978 |
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1,288 |
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619,104 |
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Item 9.01
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Financial Statements and Exhibits
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3.1
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Amended and Restated Certificate of Organization, effective as of February 3, 2015.
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3.2
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Amended and Restated By-laws, as amended effective as of February 3, 2015.
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99.1
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Press Release issued by the Registrant on February 3, 2015.
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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.
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SEVCON, INC. |
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| Dated: February 3, 2015 |
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By: |
/s/ Paul N. Farquhar |
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Paul N. Farquhar |
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Vice President and Chief Financial Officer
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EXHIBIT INDEX
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3.1
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Amended and Restated Certificate of Organization, effective as of February 3, 2015.
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3.2
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Amended and Restated By-laws, as amended effective as of February 3, 2015.
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99.1
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Press Release issued by the Registrant on February 3, 2015.
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Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEVCON, INC.
(Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware)
1. The name of the corporation is Sevcon, Inc. The corporation was originally incorporated under the name “Tech/Ops Sevcon, Inc.” pursuant to an original Certificate of Incorporation filed with the Secretary of State of the State of Delaware on November 23, 1987.
2. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware (the “Delaware General Corporation Law”).
3. The Restated Certificate of Incorporation of the corporation is hereby amended and restated to read in its entirety as follows:
FIRST: The name of the corporation is Sevcon, Inc.
SECOND: The address of the corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.
THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law.
FOURTH: The total number of shares of all classes of stock which the corporation shall have authority to issue is twenty-one million (21,000,000), of which one million (1,000,000) shares, $.10 par value, are to be of a class designated “Preferred Stock” and twenty million (20,000,000) shares, $.10 par value, are to be designated “Common Stock.”
I. Preferred Stock
The Board of Directors is authorized, subject to limitations prescribed by law and the provisions of this Article Fourth, to provide by resolution for the issuance of the shares of Preferred Stock in one or more 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 designations, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series shall include, but not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive designation of that series;
(b) The dividend rate, if any, on the shares of that series, whether dividends shall be cumulative, and if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of the series;
(c) Whether that series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the Board of Directors shall determine;
(e) Whether or not the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or dates upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund;
(g) The rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation, and the relative rights of priority, if any, of payment of shares of that series;
(h) Any other relative rights, preferences and limitations of that series.
Dividends on outstanding shares of Preferred Stock shall be paid or declared and set apart for payment before any dividends shall be paid or declared and set apart for payment on the outstanding shares of Common Stock with respect to the same dividend period.
If upon any voluntary or involuntary liquidation, dissolution or winding up of the corporation, the assets available for distribution to holders of shares of Preferred Stock of all series shall be insufficient to pay such holders the full preferential amount to which they are entitled, then such assets shall be distributed ratably among the shares of all series of Preferred Stock in accordance with the respective preferential amounts (including unpaid cumulative dividends, if any) payable with respect thereto.
II. Series A Convertible Preferred Stock
Section 1. Designation and Amount. Unless and until increased or decreased by the Board of Directors pursuant to the Delaware General Corporation Law, 465,500 of the authorized shares of Preferred Stock are designated Series A Convertible Preferred Stock (the “Series A Preferred”) with the following designations, powers, preferences and rights and qualifications, limitations and restrictions thereof as follows.
Section 2. Definitions. For the purposes hereof, the following terms shall have the fllowing meanings:
“Business Day” means any day except any Saturday, Sunday, day which is a federal legal holiday in the United States or day on which banking institutions in the Commonwealth of Massachusetts are authorized or required by law or other governmental action to close.
“Common Stock” means the corporation’s shares of common stock, par value $0.10 per share, and shares of any other class of securities into which such shares may hereafter be reclassified or changed.
“Conversion Price” means $8.00, subject to adjustment as provided herein.
“Current Market Price” means, with respect to any particular security on any date of determination, the volume-weighted average trading price of such security for the thirty (30)-day period ending on the Trading Day immediately preceding the date of such determination, as reported for consolidated transactions on the Trading Market. If such security is not listed or traded in a manner that the trading prices referred to above are available for the period required hereunder, the Current Market Price for such security shall be deemed to be the fair value as determined in good faith by the Board of Directors.
“Fundamental Transaction” has the meaning set forth in Section 6(g)(ii).
“Holder” means a holder of record of Series A Preferred.
“Initial Issue Date” shall mean the date that shares of Series A Preferred are first issued by the corporation.
“Junior Stock” means the Common Stock and any other securities of the corporation ranking by its terms junior to the Series A Preferred as to payment of dividends or as to distribution of assets upon Liquidation.
“Liquidation” means any liquidation, dissolution or winding-up of the corporation, whether voluntary or involuntary. “Liquidation” shall not include any consolidation of the corporation with, or merger of the corporation into, any other entity, any merger of another entity into the corporation, any sale or transfer of assets of the corporation or any exchange of securities of the corporation.
“Mandatory Conversion Date” and “Mandatory Conversion Notice” have the meanings set forth in Section 6(b).
“Notice of Conversion” has the meaning set forth in Section 6(a).
“Optional Conversion Date” has the meaning set forth in Section 6(a).
“Parity Stock” means any capital stock of the corporation ranking by its terms on a parity with the Series A Preferred as to payment of dividends or as to distribution of assets upon Liquidation, as applicable.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Senior Stock” means any capital stock of the corporation ranking by its terms senior to the Series A Preferred as to payment of dividends or as to distribution of assets upon Liquidation, as applicable.
“Stated Value” means Twenty-four Dollars ($24.00), subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred.
“Trading Day” means a day on which the Trading Market is open for business.
“Trading Market” means the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the principal inter-dealer quotation system on which the Common Stock is quoted.
Section 3. Dividends.
(a) (i) Holders shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for such purpose, dividends at the rate of four percent (4.0%) of the Stated Value per annum on each share of Series A Preferred, and no more. Such dividends shall be cumulative, shall accrue without interest from the date of issuance of the respective share of Series A Preferred, and shall be payable at the election of the corporation in (A) cash, (B) shares of Common Stock or (C) any combination of cash and shares of Common Stock.
(ii) Such dividends shall be payable semi-annually in arrears, on the fifteenth (15th) day of each April and October following the Initial Issue Date (provided, that if any such date is not a Business Day, such dividend shall be payable without interest on the next Business Day), to Holders as they appear on the stock books of the corporation on such record dates as shall be fixed by the Board of Directors. Upon conversion of any share of Series A Preferred pursuant to Section 6 hereof, the Holder thereof shall also be entitled to receive an amount equal to all accrued and unpaid dividends on such share. Dividends payable with respect to any period that is less than two quarters in length will be computed on the basis of a ninety (90)-day quarterly period and actual days elapsed in such quarters.
(iii) When the corporation elects to pay all or any portion of a dividend by issuing shares of Common Stock, the number of shares so issuable shall be determined by dividing the amount of the dividend or portion thereof so payable by the Current Market Price determined as of the applicable declaration date.
(iv) When the corporation elects to pay all or any portion of a dividend by issuing shares of Common Stock, (A) all Holders entitled thereto shall receive equivalent pro rata proportions of any cash and/or shares of Common Stock, (B) such shares shall be deemed to be issued and outstanding and fully paid and nonassessable from and after the respective dividend payment date, and (C) no fractional shares of Common Stock shall be issued, and the corporation shall pay cash in respect of any fraction of a share of Common Stock that would otherwise be issuable in payment of such dividend or portion thereof. In no event shall any election by the corporation to pay dividends, in whole or in part, in cash and/or in shares of Common Stock preclude the corporation from making a different election with respect to all or a portion of the dividends to be paid on the Series A Preferred on any subsequent dividend payment date.
(v) In the event that funds legally available for payment of dividends are insufficient to permit payment in full to all Holders of the full amounts to which they are then entitled, the entire amount legally available for payment of dividends shall be distributed ratably among all Holders in proportion to the full amounts to which they would otherwise respectively be entitled.
(b) No dividends or other distributions in respect of shares of Junior Stock, other than dividends payable solely in Common Stock with respect to which an adjustment to the Conversion Price is made pursuant to Section 6(g)(i), shall be paid or set apart for payment on, and (except to the extent provided in this subsection) no purchase, redemption or other acquisition shall be made by the corporation of, any shares of Junior Stock unless and until:
(i) all accrued and unpaid dividends on the Series A Preferred, including the full dividend for the then-current semi-annual dividend period, shall have been paid or declared and set apart for payment, and
(ii) a dividend shall have been paid in respect of each share of then outstanding Series A Preferred equal to (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series A Preferred, in each case calculated on the applicable record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, the amount determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Stated Value; provided that, if the corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the corporation, the dividend payable to the holders of Series A Preferred pursuant to this Section 3(b) shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series A Preferred dividend;
provided that, without regard to the foregoing, the corporation may, if approved by the Board of Directors or a committee thereof, redeem, purchase or otherwise reacquire directly or indirectly shares of Junior Stock or rights or options to acquire Junior Stock from officers, directors or employees of the corporation or any of its subsidiaries (x) in connection with termination of service as such and/or (y) in order to pay withholding taxes due upon the vesting or exercise of equity compensation grants; provided that, while any shares of Series A Preferred remain outstanding, the amount paid by the corporation for such reacquisitions shall not exceed an aggregate of $250,000 in any fiscal year.
(c) If at any time any senior dividend on any shares of Senior Stock shall be in default, in whole or in part, no dividend shall be paid or declared and set apart for payment on the Series A Preferred unless and until all accrued and unpaid dividends with respect to the Senior Stock, including the full dividend for the then-current dividend period, shall have been paid or declared and set apart for payment, without interest.
(d) No full dividends shall be paid or declared and set apart for payment on any shares of Parity Stock for any period unless full accrued but unpaid dividends have been, or contemporaneously are, paid or declared and set apart for payment on the Series A Preferred for all dividend periods terminating on or before the date of payment of such dividends. No full dividends shall be paid or declared and set apart for payment on the Series A Preferred for any period unless full accrued but unpaid dividends have been, or contemporaneously are, paid or declared and set apart for payment on any Parity Stock for all dividend periods terminating on or before the date of payment of such dividends. When dividends are not paid in full upon the Series A Preferred and any Parity Stock, all dividends paid or declared and set apart for payment upon shares of Series A Preferred and Parity Stock shall be paid or declared and set apart for payment pro rata, so that the amount of dividends paid or declared and set apart for payment per share on the Series A Preferred and the Parity Stock shall in all cases bear to each other the same ratio that accrued and unpaid dividends per share on the shares of Series A Preferred and Parity Dividend Stock bear to each other.
Section 4. Voting Rights. Holders of Series A Preferred Stock shall not have any voting rights except as set forth in the following sentence and otherwise as required by law from time to time. Without the consent or affirmative vote of Holders of at least a majority of the outstanding shares of Series A Preferred, voting separately as a class, the corporation shall not, whether by merger, recapitalization or otherwise, (a) authorize, create or issue any shares of Senior Stock or (b) alter or change the powers, preferences or special rights of the Series A Preferred so as to affect them adversely.
Section 5. Liquidation.
(a) Upon any Liquidation, after the satisfaction in full of the debts of the corporation and the payment of any senior liquidation preference owed to the holders of shares of Senior Stock, the Holders shall be entitled to receive out of the assets of the corporation an amount equal to the dividends accrued and unpaid thereon to the date of final distribution to the Holders, whether or not declared, without interest, plus a sum in cash or property at its fair market value as determined by the Board of Directors equal to the greater of (a) the Stated Value per share and (b) such amount per share as would have been payable had all shares of Series A Preferred been converted into Common Stock pursuant to Section 6 immediately before such Liquidation, and no more, before any payment shall be made or any assets distributed to the holders of Junior Stock.
(b) If, upon any Liquidation, the assets of the corporation shall be insufficient to permit the payment in full of the amounts required by Section 5(a) and any amounts then payable to holders of Parity Stock, the assets of the corporation shall be ratably distributed among the Holders of Series A Preferred and the holders of Parity Stock in proportion to the full amounts to which they would otherwise be respectively entitled if all such amounts were paid in full.
(c) The corporation shall mail to each Holder written notice of any Liquidation not less than twenty (20) days before the payment date stated therein.
Section 6. Conversion.
(a) (i) Each Holder shall have the right, at such Holder's option, at any time and from time to time, to convert all or any portion of its shares of Series A Preferred into that number of fully paid and nonassessable shares of Common Stock determined by dividing the Stated Value by the Conversion Price.
(ii) A Holder shall exercise its right of conversion by delivering a duly signed and completed conversion notice in the form provided by the corporation (a “Conversion Notice”) accompanied by the certificate representing each share of Series A Preferred to be converted or, if not represented by a certificate, by an electronic book-entry transfer of such share for receipt by the transfer agent for the Series A Preferred at the address set forth on the form of Conversion Notice or as the corporation shall otherwise have specified in a written notice to the Holders. The "Optional Conversion Date" will be the date on which the duly signed and completed Conversion Notice and share(s) have been so received; provided that if such date is not a Business Day, the Optional Conversion Date will be the next Business Day. As promptly as practicable on or after the Optional Conversion Date, but in no event later than the third Trading Day thereafter, the corporation shall issue and deliver to the Holder (i) at the Holder's request, either a certificate or certificates or an electronic book entry transfer to the account specified by the Holder in the Conversion Notice for the number of full shares of Common Stock issuable upon conversion, together with payment in cash in lieu of any fraction of a share as provided in Section 6(c) and (ii) if less than the full number of shares of Series A Preferred evidenced by the surrendered certificate or certificates (if any) are being converted, a new certificate or certificates, of like tenor, for the number of shares evidenced by such surrendered certificate or certificates less the number of shares converted. Any such newly issued certificate shall be delivered to the Holder by tendering such certificate to an overnight courier service no later than such third Trading Day.
(b) (i) In the event that at any time on or after the fifth (5th) anniversary of the Initial Issue Date, the last reported sale prices of the Common Stock as reported for consolidated transactions on the Trading Market have been equal to or greater than $15.50 (such amount to be adjusted at the time of, and in proportion to, any adjustments made to the Conversion Price pursuant to Section 6(g)) for twenty (20) out of any thirty (30) consecutive Trading Days, the corporation may, in its discretion, elect that all, but not less than all, the outstanding shares of Series A Preferred shall be automatically converted into that number of fully paid and nonassessable shares of Common Stock determined by dividing the Stated Value by the Conversion Price. The date and time specified for such automatic conversion is referred to herein as the “Mandatory Conversion Date.”
(ii) The corporation shall send written notice of the mandatory conversion (the “Mandatory Conversion Notice”) to each holder of record of Series A Preferred not less than thirty (30) days before the Mandatory Conversion Date. Each Mandatory Conversion Notice shall state (A) that all shares of Series A Preferred are subject to such mandatory conversion, (B) the Mandatory Conversion Date and the Conversion Price, and (C) that the Holder is to surrender to the corporation, in the manner and at the place designated, its shares of Series A Preferred to be converted. Upon receipt of a Mandatory Conversion Notice, each Holder of shares of Series A Preferred shall surrender all such shares (or, if any certificate therefor has been lost, stolen or destroyed, comply with Section 7(c)) to the corporation at the place and manner designated in such notice.
(iii) As promptly as practicable after the later of (A) the Mandatory Conversion Date and (B) a Holder’s surrender of its shares of Series A Preferred (or lost certificate affidavit and agreement), but in no event later than the third Trading Day thereafter, the corporation shall issue and deliver to the Holder at the Holder's request, either a certificate or certificates or an electronic book entry transfer to the account specified by the Holder for the number of full shares of Common Stock issuable upon conversion, together with payment in cash, determined as provided in Section 6(c), in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion.
(c) The corporation will not issue any fractional share of Common Stock upon conversion of Series A Preferred but shall instead deliver to the respective Holder a check for an amount equal to the applicable fraction of a share multiplied by the Current Market Price of the Common Stock calculated as of the close of business on the respective Conversion Date, rounded to the nearest cent.
(d) In the event a transfer is involved in the issue or delivery of the shares of Common Stock in a name other than that of the converting Holder, such Holder will be required to pay any tax or duty that may be payable in respect of such transfer and any certificate surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the corporation, duly executed by the Holder or by its attorney duly authorized in writing. Shares of Common Stock will not be issued unless all taxes and duties, if any, payable by the respective Holder have been paid.
(e) All rights with respect to any share of Series A Preferred converted pursuant to this Section 6, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at the respective Conversion Date (notwithstanding any failure of the Holder thereof to surrender the respective shares at or before such time), except only the rights of the Holders thereof, upon surrender of such shares (or compliance with Section 7(c)), to receive the shares of Common Stock, any payment in lieu of a fractional share, and payment of accrued but unpaid dividends pursuant to section 3(a)(ii) with respect to the share of Series A Preferred being converted. All shares of Series A Preferred converted pursuant to this Section 6 shall be automatically retired and restored to the status of authorized and unissued shares of Preferred Stock, without designation as to series, and may thereafter be reissued as shares of any series of Preferred Stock.
(f) The corporation shall continue to reserve out of its authorized but unissued Common Stock or its Common Stock held in treasury enough shares of Common Stock to permit the conversion of all outstanding shares of Series A Preferred in full as of the next succeeding dividend payment date assuming that such conversion took place at the Conversion Price then in effect. The corporation shall take all commercially reasonable steps to comply with all securities laws regulating the offer and delivery of shares of Common Stock upon conversion of Series A Preferred, provided, however, that the corporation shall not be required to file a registration statement with respect to such securities.
(g) (i) The Conversion Price shall be subject to adjustment as follows. If the corporation shall (A) pay a dividend or make a distribution on any class or series of its capital stock in shares of its Common Stock (other than a dividend or distribution on shares of Series A Preferred provided for by this Certificate of Designations), (B) subdivide its outstanding shares of Common Stock into a greater number of shares, (C) combine its outstanding shares of Common Stock into a smaller number of shares, or (D) issue any shares of its capital stock by reclassification of its Common Stock, the Conversion Price in effect immediately before such action shall be adjusted as provided below so that each Holder of shares of Series A Preferred thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock that such Holder would have owned or have been entitled to receive immediately after such action had such shares of Series A Preferred been converted immediately before such action. The Conversion Price as adjusted shall be determined by multiplying the Conversion Price at which the shares of Series A Preferred were theretofore convertible by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately before such action and the denominator shall be the number of shares of Common Stock outstanding immediately after such action. Such adjustment shall be made whenever any event listed above shall occur and shall become effective retroactively immediately after the record date in the case of a dividend or distribution and immediately after the effective date in the case of a subdivision or combination.
(ii) In case of any reclassification of the Common Stock, any consolidation of the corporation with, or merger of the corporation into, any other entity, any merger of another entity into the corporation (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the corporation), any sale or transfer of all or substantially all of the assets of the corporation or any compulsory share exchange pursuant to which share exchange the Common Stock is converted into other securities, cash or other property (each, a “Fundamental Transaction”), lawful provision shall be made as part of the terms of such transaction whereby each Holder shall have the right thereafter, during the period such Holder’s shares of Series A Preferred are convertible, to convert its shares of Series A Preferred only into the kind and amount of securities, cash and other property receivable upon the Fundamental Transaction by a holder of the number of shares of Common Stock of the corporation into which such Holder's shares of Series A Preferred would have been convertible immediately before the Fundamental Transaction. If in connection with any such transaction, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or other property upon completion of such transaction, the corporation shall provide or cause to be provided to each holder of Series A Preferred the right to elect the securities, cash or other property into which the Series A Preferred held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election). The corporation or the Person formed by the consolidation, resulting from the merger or acquiring such assets or the corporation's shares, as the case may be, shall make provisions in its certificate of incorporation or other constituent document to establish such rights and such rights shall be clearly provided for in the definitive transaction documents relating to such transaction. The certificate of incorporation or other constituent document shall provide for adjustments, which, for events following the effective date of the certificate of incorporation or other constituent document, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 6(g). The provisions of this Section 6(g)(ii) shall similarly apply to successive Fundamental Transactions.
(iii) All calculations hereunder shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be. However, no adjustment in the Conversion Price shall be required unless the adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided, that any adjustments that by reason of this Section 6(g)(iii) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(iv) Whenever the Conversion Price is adjusted as herein provided, the corporation shall promptly send to each Holder a certificate of an officer of the corporation setting forth the Conversion Price after the adjustment and a brief statement of the facts requiring such adjustment and a computation thereof. The certificate shall be conclusive evidence of the correctness of the adjustment.
Section 7. Miscellaneous.
(a) Exclusion of Other Rights. Except as may otherwise be required by law, the shares of Series A Preferred shall not have any voting powers, preferences, relative, participating, optional or other special rights or qualifications, limitations or restrictions other than those specifically set forth in this Certificate of Designations and in the corporation’s certificate of incorporation. Without limiting the generality of the foregoing, the Series A Preferred shall not be redeemable or (except as contemplated by Section 6(a)) exchangeable for other capital stock or indebtedness of the corporation or other property upon the request of Holders thereof or the corporation, shall not be subject to any mandatory redemption or the operation of a purchase, retirement or sinking fund, and shall not have any stated maturity date.
(b) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder (other than any Notice of Conversion, which shall be sent to the corporation’s transfer agent) shall be in writing and delivered personally or by facsimile, or sent by a recognized overnight courier service, addressed to the corporation, at:
155 Northboro Road
Southborough, MA 01772
Attention: Chief Financial Officer
Facsimile: (508) 281-5341
or to such other facsimile number or address as the corporation may specify for such purposes by notice to the Holders delivered in accordance herewith. Any and all notices or other communications or deliveries to be provided by or on behalf of the corporation hereunder shall be in writing and delivered personally or by facsimile, or sent by a recognized overnight courier service, addressed to the respective Holder at the facsimile number or address of such Holder appearing on the books of the corporation, or if no such facsimile number or address appears on the books of the corporation, at the principal place of business of such Holder as set forth in the corporation’s records. Except as otherwise provided in this Certificate of Designations, any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in or pursuant to this Section before 5:00 p.m. Boston time on any Trading Day or, otherwise, on the next Trading Day or (ii) upon actual receipt by the party to whom such notice is required to be given.
(c) Lost or Mutilated Certificate. If a Holder’s certificate representing shares of Series A Preferred shall be mutilated, lost, stolen or destroyed, the corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series A Preferred so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the corporation and, if such certificate was lost, stolen or destroyed, upon receipt from the Holder of a lost certificate affidavit and agreement reasonably acceptable to the corporation to indemnify the corporation against any claim that may be made against the corporation with respect to such shares, and a customary bond.
(d) Severability. If any provision of this Part II of Article FOURTH is invalid, illegal or unenforceable, the remaining provisions shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.
(e) Headings. The headings contained herein are for convenience only and shall not be deemed to limit or affect the interpretation of any of the provisions hereof.
III. Common Stock
The Common Stock is subject to the rights and preferences of the Preferred Stock as hereinbefore set forth or authorized.
Subject to the provisions of any applicable law or of the by-laws of the corporation, as from time to time amended, with respect to the fixing of a record date for the determination of stockholders entitled to vote, and except as otherwise provided by law or by the resolution or resolutions providing for the issue of any series of Preferred Stock, the holders of outstanding shares of Common Stock shall have exclusive voting rights for the election of directors and for all other purposes, each holder of record of shares of Common Stock being entitled to one vote for each share of Common Stock standing in his name on the books of the corporation.
Subject to the rights of any one or more series of Preferred Stock, the holders of Common Stock shall be entitled to receive such dividends as from time to time may be declared by the Board of Directors out of any funds of the corporation legally available for the payment of such dividends.
In the event of the liquidation, dissolution, or winding up of the corporation, whether voluntary or involuntary, after payment shall have been made to the holders of the Preferred Stock of the full amount to which they are entitled, the holders of Common Stock shall be entitled to share, ratably according to the number of shares of Common Stock held by them, in all remaining assets of the corporation available for distribution to its stockholders.
IV. Issuance
Subject to the provisions of this Amended and Restated Certificate of Incorporation and except as otherwise provided by law, the shares of stock of the corporation, regardless of class, may be issued for such consideration and for such corporate purposes as the Board of Directors may from time to time determine.
FIFTH: Reserved.
SIXTH: The Board of Directors shall consist of not less than three nor more than fifteen directors, the exact number to be determined from time to time by the Board of Directors. Any vacancy in the Board of Directors for any reason, including any resulting from an increase in the number of directors, may be filled by the Board of Directors, acting by a majority of the directors then in office although less than a quorum. All directors in office or elected as such on the date of adoption by the stockholders of this Amended and Restated Certificate of Incorporation (the “Adoption Date”) shall serve until the end of the respective terms to which they were elected, and any director chosen to fill a vacancy among such directors shall hold office until the end of the term of the director he or she succeeded. At each annual meeting of stockholders beginning with the first annual meeting after the Adoption Date, the successor to each director whose respective term ends at such annual meeting shall be elected for a one-year term expiring at the next annual meeting, and any director chosen to fill a vacancy among such directors shall hold office until the next annual meeting. Until the third annual meeting of stockholders following the Adoption Date, no director may be removed by the stockholders other than for cause. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a class, to elect one or more directors of the corporation, the election, terms of office, right of removal, and other features of such directorships shall be governed by the terms of this Amended and Restated Certificate of Incorporation and certificates of designation applicable thereto.
SEVENTH: The Board of Directors is expressly authorized to exercise all powers granted to the directors by law except insofar as such powers are limited or denied herein or in the by-laws of the corporation. In furtherance of such powers, the Board of Directors shall have the right to adopt, amend or repeal the by-laws of the corporation, but the stockholders may adopt additional by-laws and may amend or repeal any by-law whether adopted by them or otherwise.
EIGHTH: Election of directors need not be by written ballot unless the by-laws of the corporation shall so provide.
NINTH: No action required to be taken or which may be taken at any annual or special meeting of stockholders of the corporation may be taken by written consent without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied.
This Article NINTH may not be amended, revised or revoked, in whole or in part, except by the affirmative vote of the holders of 80% of the shares of all classes of stock of the corporation entitled to vote for the election of directors, considered for the purposes of this Article NINTH as one class of stock.
TENTH: (i) Except as set forth in Part 2 of this Article TENTH, the affirmative vote of the holders of 80% of the shares of all classes of stock of the corporation entitled to vote for the election of directors, considered for the purposes of this Article as one class, shall be required (a) for the adoption of any agreement for the merger or consolidation of the corporation or any Subsidiary (as hereinafter defined) with or into any Other Corporation (as hereinafter defined), (b) to authorize any sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of the assets of the corporation or any Subsidiary to any Other Corporation, (c) to authorize the issuance or transfer by the corporation of any Substantial Amount (as hereinafter defined) of securities of the corporation in exchange for the securities or assets of any Other Corporation, or (d) to engage in any other transaction the effect of which is to combine the assets and business of the corporation or any Subsidiary with any Other Corporation. Such affirmative vote shall be in addition to the vote of the holders of the stock of the corporation otherwise required by law, the certificate of incorporation of the corporation or any agreement or contract to which the corporation is a party.
(ii) The provisions of part (i) of this Article TENTH shall not be applicable to any transaction described herein if such transaction is approved by a resolution of the Board of Directors of the corporation, provided that the directors voting in favor of such resolution consist of a majority of the persons who were duly elected and acting members of the Board of Directors prior to the time any such Other Corporation became a Beneficial Owner (as hereinafter defined) of 5% or more of the shares of stock of the corporation entitled to vote for the election of directors (a "Continuing Director"), including any successor of a Continuing Director who is not an affiliate or an associate or a representative of such Other Corporation and is recommended or elected to succeed such Continuing Director by a majority of Continuing Directors. In considering such transaction, the Board of Directors shall give due consideration to all relevant factors, including without limitation the social and economic effects on the employees, customers, suppliers and other constituents of the corporation and its Subsidiaries and on the communities in which the corporation and its Subsidiaries operate or are located.
(iii) The Board of Directors shall have the power and duty to determine for the purposes of this Article TENTH, on the basis of information known to such Board, if and when any Other Corporation is the Beneficial Owner of 5% or more of the outstanding shares of stock of the corporation entitled to vote for the election of directors. Any such determination, if made in good faith, shall be conclusive and binding for all purposes of this Article TENTH.
(iv) As used in this Article TENTH, the following terms shall have the meanings indicated:
“Other Corporation” means any person, firm, corporation or other entity, other than a Subsidiary of the corporation, which is the Beneficial Owner of 5% or more of the shares of stock of the corporation entitled to vote in the election of directors.
“Subsidiary” means any corporation in which the corporation owns, directly or indirectly, more than 50% of the voting securities.
“Substantial Amount” means any securities of the corporation having a then fair market value of more than $500,000.
An Other Corporation (as defined above) shall be deemed to be the “Beneficial Owner” of stock if such Other Corporation or any "affiliate" or "associate" of such Other Corporation (as those terms are defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934 (15 U.S.C. 78 aaa et seq.), as amended from time to time), directly or indirectly, controls the voting of such stock or has any options, warrants, conversion or other rights to acquire such stock.
(v) This Article TENTH may not be amended, revised or revoked, in whole or in part, except by the affirmative vote of the holders of 80% of the shares of all classes of stock of the corporation entitled to vote for the election of directors, considered for the purposes of this Article Tenth as one class of stock.
ELEVENTH: 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 Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article ELEVENTH 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.
TWELFTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
Signed this 3rd day of February, 2015.
/s/ Matthew Boyle
Matthew Boyle
President and CEO
Exhibit 3.2
As Amended February 3, 2015
AMENDED AND RESTATED BY-LAWS
of
SEVCON, INC.
ARTICLE 1
STOCKHOLDERS
SECTION 1.1. Annual Meetings. The annual meeting of the stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held at such place either within or without the State of Delaware on such date and at such hour as the Board of Directors or an officer designated by the Board may determine from time to time.
SECTION 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be held at any date, time and place within or without the State of Delaware upon the call of the Secretary pursuant to a resolution of a majority of the directors then in office. Business conducted at a special meeting of stockholders shall be limited to the purpose or purposes of the meeting as stated in the notice of such meeting given by the person calling such special meeting. Any previously scheduled special meeting of stockholders may be rescheduled or canceled by the Board of Directors.
SECTION 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting. Unless otherwise provided by law, the written notice of any meeting shall be given not less than ten nor more than fifty days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation.
SECTION 1.4. Stockholder Nominations of Directors. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors at any annual or special meeting. Nominations of persons for election as directors may be made by or at the direction of the Board of Directors, or by any stockholder entitled to vote for the election of directors at the meeting who complies with the notice procedures set forth in this Section 1.4. Such nominations, other than those made by or at the direction of the Board, shall be made pursuant to timely notice in writing to the Chairman of the Board, if any, the President, any Vice President, the Secretary or the Treasurer. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than 50 days nor more than 75 days prior to the meeting; provided, however, that (except as to an annual meeting held on the date specified in these by-laws, such date not having been changed since the last annual meeting), if less than 65 days’ notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the 15th day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. Such stockholder's notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director, (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation which are beneficially owned by the person and (iv) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (b) as to the stockholder giving the notice (i) the name and record address of such stockholder and (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by such stockholder. No person shall be eligible for election as a director at any annual or special meeting to stockholders unless nominated in accordance with the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
SECTION 1.5. Advance Notice of Stockholder-Proposed Business at Annual Meetings. At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be brought properly before an annual meeting, business must be either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the President or the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board, or (c) otherwise properly brought before the meeting by a stockholder. In addition to any other applicable requirements, for business to be brought properly before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Chairman of the Board, if any, the President, any Vice President, the Secretary or the Treasurer. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than 50 days nor more than 75 days prior to the meeting; provided, however, that (except as to an annual meeting held on the date specified in these by-laws, such date not having been changed since the last annual meeting), if less than 65 days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the 15th day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made. A stockholder's notice shall set forth as to each matter the stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of the stockholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the stockholder, and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in these by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Section 1.5, provided, however, that (a) any stockholder proposal that complies with Rule 14a-8 (or any successor provision) under the Exchange Act and is to be included in the corporation's proxy statement for an annual meeting of stockholders shall be deemed to comply with the notice requirements of this Section 1.5 and (b) nothing in this Section 1.5 shall be deemed to preclude discussion by any stockholder of any business properly brought before the annual meeting in accordance with said procedure.
The chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section 1.5, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.
SECTION 1.6. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
SECTION 1.7. Quorum. At each meeting of stockholders, except where otherwise provided by the law or the Certificate of Incorporation or these by-laws, the holders of a majority of the outstanding shares of stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum. In the absence of a quorum, the holders of a majority of the shares present may adjourn the meeting from time to time in the manner provided in Section 1.6 of these by-laws until a quorum shall attend. Shares of its own stock belonging to this corporation, or to another corporation if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by this corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of any corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.
SECTION 1.8. Organization. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in his absence by the Vice Chairman of the Board, if any, or in his absence by the President, or in his absence by a Vice President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
SECTION 1.9. Voting; Proxies. Each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by him which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the corporation. Voting at meetings of stockholders need not be by written ballot and need not be conducted by inspectors unless the holders of a majority of the outstanding shares of all classes of stock entitled to vote thereon present in person or by proxy at such meeting shall so determine. At all meetings of stockholders for the election of directors a plurality of the votes cast shall be sufficient to elect.
All other elections and questions shall, unless otherwise provided by law or by the Certificate of Incorporation or these by-laws, be decided by the vote of the holders of the majority of the shares of stock entitled to vote thereon present in person or by proxy at the meeting, provided that (except as otherwise required by law or by the Certificate of Incorporation) the Board of Directors may require a larger vote upon any election or question.
SECTION 1.10. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the day next preceding the day on which notice is given, or, if notice is waived, the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders for any other purpose shall be the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 1.11. List of Stockholders Entitled to Vote. The Secretary shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1. Number; Terms; Manner of Election; Qualifications; Election; Resignation; Removal. The number, terms and manner of election of directors shall be governed by the Certificate of Incorporation. Directors need not be stockholders. Any director may resign at any time upon written notice to the corporation. Until the annual meeting of stockholders in 2018, stockholders may remove directors only for cause.
SECTION 2.2. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine, and if so determined notices thereof need not be given.
SECTION 2.3. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chairman of the Board, if any, the President or by any two members of the Board of Directors. Reasonable notice thereof shall be given by the person and persons calling the meeting, not later than the second day before the date of the special meeting.
SECTION 2.4. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board, may participate in a meeting of such Board or committee by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.
SECTION 2.5. Quorum; Vote Required for Action. At all meetings of the Board of Directors a majority of the total number of directors shall constitute a quorum, except that when a vacancy or vacancies exist in the Board, a majority of the directors then in office (but not less than two directors nor less than one-third of the total number of directors) shall constitute a quorum, and except that a lesser number of directors consisting of a majority of the directors then in office who are not officers (but not less than two directors nor less than one-third of the total number of directors) may constitute a quorum for the purpose of acting on any matter relating to the compensation (including fringe benefits) of any officer of the corporation. A number of directors which is less than a quorum may adjourn any meeting from time to time. The vote of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except where a larger vote is required by law, by the Certificate of Incorporation, or by these by-laws.
SECTION 2.6. Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or in his absence by the Vice Chairman of the Board, if any, or in his absence by the President, or in their absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
SECTION 2.7. Action by Written Consent of Directors. Unless otherwise restricted by the Certificate of Incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.
SECTION 2.8. Director Emeritus. The Board of Directors may appoint as a Director Emeritus any person who has retired from the Board of Directors. A Director Emeritus may participate in all meetings of the Board of Directors, will be given the same notice of all meetings of the Board as is given the directors and will be furnished by management of the corporation with the same information provided by it to the directors, subject to any need to preserve attorney-client privilege. A Director Emeritus shall not be taken into consideration for determining the total number of directors of the corporation, shall not be counted for determining whether a quorum is present, shall have no vote, and shall not be counted for determining whether action has been duly taken by the directors, and the signature of any Director Emeritus shall not be required for action taken by written consent of the directors.
ARTICLE III
COMMITTEES
SECTION 3.1. Committees. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have power or authority in reference to amending the Certificate of Incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors as provided in Section 151(a) of the General Corporation Law, fix any of the preferences or rights of the shares), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of dissolution, or amending these by-laws; and, unless the resolution expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.
SECTION 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to these by-laws.
ARTICLE IV
OFFICERS
SECTION 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall choose a President, a Treasurer and a Secretary, and it may, if it so determines, choose a Chairman of the Board (in which event it shall designate the President or the Chairman as Chief Executive Officer) and a Vice Chairman of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, and one or more Assistant Treasurers. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his election, and until his successor is elected and qualified or until his earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.
SECTION 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his duties.
ARTICLE V
STOCK
SECTION 5.1. Stock Certificates; Uncertificated shares. The stock of the corporation shall be represented by certificates or the Board of Directors may provide that some or all of any or all classes or series of stock shall be uncertificated shares. Every holder of stock represented by certificates shall be entitled to have a certificate signed in a manner that complies with applicable law representing the number of shares owned by such holder in certificate form. Any of or all the signatures on a certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. Except as may be otherwise required by law, by the Certificate of Incorporation or by these by-laws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock, until the stock has been transferred on the books of the corporation.
SECTION 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate or uncertificated shares in the place of any stock certificate theretofore issued by it alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1. Power to Indemnify in Actions, Suits or Proceedings other than those by or in the Right of the Corporation. Subject to Section 6.3, the corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than (i) an action by or in the right of the corporation or (ii) an action, or part thereof, initiated by such indemnitee that was not authorized by the Board of Directors) by reason of the fact that he is or was a director or officer of the corporation, or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, trustee, or in a similar capacity of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against costs and expenses (including attorneys' fees), judgments, fines, penalties, ERISA excise taxes, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, or, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 6.2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 6.3, the corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstance of the case, such person is fairly and reasonably entitled to indemnify for such expenses which the Court of Chancery or such other court shall deem proper.
SECTION 6.3. Authorization of Indemnification. Any indemnification under this Article VI (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 6.1 or Section 6.2 of this Article VI, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific case.
SECTION 6.4. Good Faith Defined. For purposes of any determination under Section 6.3, a person shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of the corporation or another enterprise, or on information supplied to him by the officers of the corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the corporation or another enterprise or on information or records given or reports made to the corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the corporation or another enterprise. The term "another enterprise" as used in this Section 6.4 shall mean any other corporation or any partnership, joint venture, trust or other enterprise of which such person is or was serving at the request of the corporation as a director or officer. The provisions of this Section 6.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 6.1 or 6.2, as the case may be.
SECTION 6.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 6.3, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 6.1 and 6.2. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because he has met the applicable standards of conduct set forth in Section 6.1 or 6.2, as the case may be. Notice of any application for indemnification pursuant to this Section 6.5 shall be given to the corporation promptly upon the filing of such application.
SECTION 6.6. Expenses Payable in Advance. Expenses incurred in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this Article VI.
SECTION 6.7. Non-Exclusivity and Survival of Indemnification. The indemnification and advancement of expenses provided by or granted pursuant to this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, it being the policy of the corporation that indemnification of the persons specified in Sections 6.1 and 6.2 shall be made to the fullest extent permitted by law. The provisions of this Article VI shall not be deemed to preclude the indemnification of any person who is not specified in Sections 6.1 or 6.2 of this Article VI but whom the corporation has the power or obligation to indemnify under the provisions of the General Corporation Law of the State of Delaware, or otherwise.
The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such person. Any amendment or termination of this Article VI shall only apply prospectively, and no amendment or termination of this Article VI or the relevant provisions of any law of the State of Delaware shall diminish in any way the rights of any indemnitee to indemnification and advancement of expenses provided by this Article VI with respect to any action, suit or proceeding arising out of or relating to any actions or failures to act, transactions or facts occurring before the amendment or termination.
SECTION 6.8. Insurance. The corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power or the obligation to indemnify him against such liability under the provisions of this Article VI.
SECTION 6.9. Meaning of "Corporation" for Purposes of Article VI. For purposes of this Article VI, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers so that any person who is or was a director or officer of such constituent corporation. or, while a director or officer of such corporation, is or was serving at the request of such constituent corporation as a director, officer, trustee, or in a similar capacity of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Fiscal Year. Except as from time to time otherwise provided by the Board of Directors, the fiscal year of the corporation shall end September 30.
SECTION 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.
SECTION 7.3. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any written waiver of notice, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice.
SECTION 7.4. Exclusive Forum. Unless the corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim against the corporation or any director or officer or other employee of the corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the corporation’s Certificate of Incorporation or by-laws (as either may be amended from time to time), or (iv) any action asserting a claim against the corporation or any director or officer or other employee of the corporation governed by the internal affairs doctrine shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware).
SECTION 7.5. Amendment of By-Laws. The Board of Directors shall have the right to adopt, amend or repeal by-laws of the corporation, but the stockholders may adopt additional by-laws and may amend or repeal any by-law whether adopted by them or otherwise.
EXHIBIT 99.1
Sevcon Reports Financial Results for First Quarter Fiscal 2015
SOUTHBOROUGH, Mass., Feb. 3, 2015 (GLOBE NEWSWIRE) -- Sevcon, Inc. (Nasdaq:SEV) reported financial results for the first quarter of fiscal 2015 ended January 3, 2015.
First-Quarter Fiscal 2015 Results Summary
-
Revenues increased 10% to $9.9 million, from $9.0 million in the first quarter of fiscal 2014, reflecting the startup of new electrification programs with on-road OEMs and volume production with new customers. Foreign currency fluctuations decreased reported sales by $268,000, or 3%, mainly due to a stronger U.S. Dollar compared with the Euro and the British Pound than in the first quarter of fiscal 2014.
-
Operating income was $282,000, compared with $710,000 in the first quarter last year. The $428,000 reduction in operating income was due to operating expenses being $605,000 higher than in the same fiscal quarter last year partially offset by a $177,000 increase in gross profit. The increase in operating expenses reflects increased investment in sales and engineering.
-
Net income attributable to common stockholders was $171,000, or $0.06 per diluted share, after a preference share dividend of $111,000 or $0.02 per diluted share, compared with $488,000, or $0.14 per diluted share, in the first quarter of fiscal 2014.
Management Comments
"Sevcon is off to a solid start in fiscal 2015," said President and CEO Matt Boyle. "Sales were up 10% from the first quarter of fiscal 2014.This was driven primarily by increased product shipments for on-road hybrid and pure EV applications in all three of the geographic regions we serve. In addition, the increase reflects the commencement of the electrification program with a large German on-road OEM we announced today. This is the 3rd major on-road win in the last 90 days. Foreign exchange was a major factor this quarter, primarily due to the strength of the U.S. Dollar versus the Euro and the British Pound. Adjusted for currency, our total sales were up 13% year-over-year. Since the first quarter of fiscal 2013, market demand has been improving and it has translated into order and revenue growth."
"Looking forward, our strategy to develop modular-based technology platforms that can be adapted across multiple applications is gaining acceptance. We are working on an expanding pipeline of projects related to the electrification of passenger cars and commercial vehicles with customers in the U.S., Europe and Asia. In addition, we are gaining momentum in pursuit of electrification of ancillary powertrain systems in motor vehicles and various industrial traction and power applications. Our broadening customer base is increasingly embracing the easily adaptable electrification solutions that only Sevcon's engineering expertise and application knowledge can provide. Leveraging our expertise, we expect to continue expanding our business both organically and through acquisitions, and look forward to reporting continued growth and improved profitability as fiscal 2015 progresses," Boyle concluded.
First-Quarter Fiscal 2015 Conference Call Details
Sevcon has scheduled a conference call to review its results for the first quarter tomorrow, February 4, 2015 at 9:00 a.m. ET. Those who wish to listen to the conference call webcast should visit the investor relations section of the company's website at http://ir.sevcon.com. The live call also can be accessed by dialing (877) 407-5790 or (201) 689-8328 prior to the start of the call. If you are unable to listen to the live call, the webcast will be archived on the company's website.
First-Quarter Fiscal 2015 Financial Highlights
|
|
(in thousands except per share data) |
|
|
|
|
January 3
2015 |
December 28
2013 |
|
|
(unaudited) |
(unaudited) |
|
Revenues |
$ 9,933 |
$ 9,049 |
|
Operating income |
282 |
710 |
|
Income before income taxes |
305 |
609 |
|
Income taxes provision |
(40) |
(121) |
|
Net income |
265 |
488 |
|
Net loss attributable to non-controlling interest |
17 |
-- |
|
Net income attributable to Sevcon, Inc. and subsidiaries |
282 |
488 |
|
Series A Preference Share dividends |
(111) |
-- |
|
Net income attributable to common stockholders |
171 |
488 |
|
Basic income per share |
$ 0.05 |
$ 0.14 |
|
Diluted income per share |
$ 0.06 |
$ 0.14 |
|
Average shares outstanding -- Basic |
3,427 |
3,375 |
|
Average shares outstanding - Diluted |
4,895 |
3,390 |
|
|
|
Summarized Balance Sheet Data |
|
|
|
|
|
|
January 3
2015 |
September 30
2014 |
|
|
(unaudited) |
(derived from
audited statements) |
|
Cash and cash equivalents |
$ 8,111 |
$ 11,238 |
|
Receivables |
7,246 |
6,877 |
|
Inventories |
6,289 |
6,258 |
|
Prepaid expenses and other current assets |
1,741 |
1,747 |
|
Total current assets |
23,387 |
26,120 |
|
Long-term assets |
7,683 |
7,847 |
|
Total assets |
$ 31,070 |
$ 33,967 |
|
|
|
|
|
Current liabilities |
$ 5,437 |
$ 6,276 |
|
Liability for pension benefits |
8,929 |
9,529 |
|
Other long-term liabilities |
-- |
1,700 |
|
Stockholders' equity |
16,601 |
16,342 |
|
Non-controlling interest |
103 |
120 |
|
Total liabilities and stockholders' equity |
$ 31,070 |
$ 33,967 |
About Sevcon, Inc.
Sevcon is a world leader in the design and manufacture of controls for zero emission electric and hybrid vehicles. The controls are used to vary the speed and movement of vehicles, to integrate specialized functions and to optimize the energy consumption of the vehicle's power source. The Company supplies customers throughout the world from its operations in the USA, the U.K., France and the Asia Pacific region and through an international dealer network. Sevcon's customers are manufacturers of on and off-road vehicles including cars, trucks, buses, motorcycles, fork lift trucks, aerial lifts, mining vehicles, airport tractors, sweepers and other electrically powered vehicles. For more information visit www.sevcon.com.
Forward-Looking Statements
Statements in this release about Sevcon's future financial results are forward-looking statements subject to risks and uncertainties that could cause actual results to differ materially from those we anticipate. In particular: capital markets are cyclical and weakness in the United States and international economies may harm our business; global demand for electric and hybrid vehicles incorporating our products may not grow as much as we expect; our customers' products may not be as successful as those of other entrants in the electric vehicle market who are supplied by our competitors; we may not be able to attract and retain the level of high quality engineering staff that we need to develop the new and improved products we need to be successful; we are dependent on a few key suppliers and subcontractors for most components, sub-assemblies and finished products, and we may not be able to establish alternative sources of supply in time if supplies are interrupted; we may not be able to raise the capital we anticipate needing to grow our business; and companies we acquire may be more costly to acquire and integrate, or may not generate as much revenue and earnings, as we anticipate. Please see the Company's most recent Forms 10-K and 10-Q on file with the SEC for further information regarding Sevcon's risk factors.
CONTACT: David Calusdian
Sharon Merrill Associates
1 (617) 542 5300
SEV@InvestorRelations.com
Matt Boyle
President and CEO
1 (508) 281 5503
matt.boyle@Sevcon.com
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