UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): August 27, 2014
‘mktg, inc.’
(Exact name of registrant as specified in its charter)
| Delaware | 0-20394 | 06-1340408 | ||
| (State or other jurisdiction | (Commission | (I.R.S. Employer | ||
| of incorporation) | File Number) | Identification Number) |
75 Ninth Avenue, New York, New York 10011
(Address of principal executive office) (Zip Code)
Registrant’s telephone number, including area code: (212) 366-3400
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13c-4(c))
Item 2.01. Completion of Acquisition or Disposition of Assets.
On August 27, 2014, Aegis Lifestyle, Inc., a Delaware corporation (“Aegis”), completed the previously announced acquisition of ‘mktg, inc.’, a Delaware corporation (the “Company”), through the merger of Morgan Acquisition, Inc., a Delaware corporation and a wholly-owned subsidiary of Aegis (“Merger Sub”), with and into the Company (the “Merger”), with the Company continuing as the surviving corporation and a wholly-owned subsidiary of Aegis, pursuant to the Agreement and Plan of Merger, dated as of May 27, 2014, by and among Aegis, Merger Sub and the Company (the “Merger Agreement”).
At the effective time of the Merger, except as set forth below, each share of the Company’s common stock issued and outstanding immediately prior to the effective time of the Merger (other than shares with respect to which appraisal rights were properly exercised and perfected under Delaware law, and any shares owned by the Company, Aegis, Company subsidiaries, Merger Sub or any other wholly-owned subsidiary of Aegis) was converted into the right to receive $2.80 per share in cash (the “Merger Consideration”), including all shares of common stock issued upon conversion of the Company’s Series D Convertible Participating Preferred Stock (“Series D Preferred Stock”), which were converted into the Company’s common stock prior to the Merger.
In addition, each of the Company’s warrants to purchase common stock that was outstanding immediately prior to the effective time of the Merger was canceled in exchange for the right to receive an amount in cash equal to the excess of the Merger Consideration over the per-share exercise price with respect to such warrant.
As a result of the Merger, each vested and unvested outstanding stock option under the Company’s equity plans or otherwise were canceled in exchange for the right to receive an amount in cash equal to the excess of the Merger Consideration over the per-share exercise price with respect to such stock option; provided, however, that that certain option to purchase 400,000 shares of common stock at an exercise price of $2.00 per share issued to the Charles Horsey, the Company’s Chief Executive Officer, which vests only upon a “Liquidity Event,” was exchanged for the right to receive an amount in cash equal to the excess of the Merger Consideration over the per-share exercise price only with respect to 200,000 shares subject to such stock option. The remaining shares subject to such option were canceled without payment. Each restricted share of common stock under the Company’s equity plans that was outstanding as of the effective time of the Merger vested and converted into the right to receive the Merger Consideration. The payments pursuant to this paragraph are subject to any applicable withholding taxes.
The foregoing description of the Merger Agreement and the Merger does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 27, 2014, which is incorporated by reference herein.
Item 3.03 Material Modifications to Rights of Security Holders.
The information set forth in Items 2.01 and 5.03 is incorporated by reference herein. Upon the effective time of the Merger, holders of the Company’s common stock, options and warrants ceased to have any rights as stockholders of the Company other than their right to receive the consideration described in Item 2.01 above.
Item 5.01 Changes in Control of Registrant.
The information set forth in Items 2.01 and 5.02 is incorporated by reference herein. On August 27, 2014, as a result of the Merger, the Company became a wholly owned subsidiary of Aegis. Aegis paid approximately $52 million of cash to the Company’s stockholders pursuant to the Merger Agreement. Aegis used cash on its balance sheet to fund the acquisition.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers.
Pursuant to the terms of the Merger Agreement, as of the effective time of the Merger, the members of the Company’s Board of Directors resigned, and were replaced by Scott Hughes and Dave Wein, the directors of Merger Sub prior to the effective time of the Merger.
Pursuant to the terms of the Merger Agreement, as of the effective time of the Merger, each of the executive officers of the Company resigned as officers of the Company, except that Charlie Horsey remains the Company’s Chief Executive Officer and Paul Trager remains the Company’s Chief Financial Officer, and Dave Wein, the President and Treasurer of Merger Sub prior to the effective time of the Merger became the President and Treasurer of the Company; Scott Hughes, the Secretary of Merger Sub prior to the effective time of the Merger became the Secretary of the Company; and Rose Zory, the Chief Talent Officer of Merger Sub prior to the effective time of the Merger became the Chief Talent Officer of the Company.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Pursuant to the Merger Agreement, at the effective time of the Merger, the Company’s certificate of incorporation and bylaws were amended and restated in their entirety. The amended and restated certificate of incorporation and the amended and restated bylaws of the Company are attached hereto as Exhibits 3.1 and 3.2, respectively, and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit 3.1 Amended and Restated Certificate of Incorporation of ‘mktg, inc.’
Exhibit 3.2 Second Amended and Restated Bylaws of ‘mktg, inc.’
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
August 27, 2014
| ‘mktg, inc.’ | |||
| By: | /s/ Paul Trager | ||
| Paul Trager Chief Financial Officer | |||
EXHIBIT INDEX
| No. | Description |
| Exhibit 3.1 | Amended and Restated Certificate of Incorporation of ‘mktg, inc.’ |
| Exhibit 3.2 | Second Amended and Restated Bylaws of ‘mktg, inc.’ |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
‘MKTG,
INC.’
FIRST: The name of the corporation (hereinafter sometimes referred to as the “Corporation”) shall be ‘mktg, inc.’
SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the registered agent of the Corporation in Delaware for service of process at such address is The Corporation Trust Company.
THIRD: The nature of the business and purposes of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware (the “GCL”).
FOURTH: The aggregate number of shares which the Corporation shall have the authority to issue is 1,000 shares, all of which have a par value of $0.001 per share. All of such shares are of one class and are shares of common stock.
FIFTH: The election of Directors of the Corporation need not be by written ballot.
SIXTH: The Board of Directors of the Corporation from time to time may make, alter or repeal the By-Laws of the Corporation, except any particular By-Law which is specified as not subject to alteration or repeal by the Board of Directors.
SEVENTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of Subsection of 102(b) of the GCL, as the same may be amended and supplemented. No amendment to or repeal of this Article Seventh 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.
EIGHTH: The corporation shall, to the fullest extent permitted by law, indemnify any and all current and former officers and directors of the Corporation, and may, to the fullest extent permitted by Section 145 of the GCL or to such lesser extent as is determined in the discretion of the Board of Directors of the Corporation, indemnify persons whom it shall have power to indemnify, from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-Law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such person. Any appeal or modification of this Article Eighth shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
NINTH: The Corporation reserves the right at any time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred in this Certificate of Incorporation on shareholders, directors and officers are subject to this reserved power.
Exhibit 3.2
SECOND AMENDED AND RESTATED
BY-LAWS
OF
‘mktg, inc.’
(a Delaware corporation hereinafter called the “Corporation”)
ARTICLE
I.
Offices
Section 1.1. Office. The office of the Corporation shall be located at such address within or without the State of Delaware as the board of directors of the Corporation (the “Board”) shall fix.
ARTICLE
II.
Stockholders
Section 2.1. Annual Meeting. The annual meeting of stockholders for the election of directors and the transaction of such other business as may come before it shall be held on such date and at such place, within or without the State of Delaware, as shall be fixed by the Board.
Section 2.2. Special Meetings. Special meetings of the stockholders, for any purpose or purposes, may be called by president of the Corporation and shall be called by the president or the secretary of the Corporation at the written request of a majority of the Board or at the request of stockholders representing fifty percent (50%) or more of the shares issued and outstanding and entitled to vote, which request shall state the purpose or purposes of the proposed meeting. Business transacted at a special meeting shall be confined to the purposes stated in the notice.
Section 2.3. Fixing Record Date for Meetings. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may fix, in advance, a record date for any such determination of stockholders. Such date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed it shall be determined in accordance with the provisions of law.
Section 2.4. Notice of Meeting of Stockholders; Waiver. Written notice of each meeting of stockholders shall state the purpose or purposes for which the meeting is called, the place, date and hour of the meeting and unless it is the annual meeting, shall indicate that it is being issued by or at the direction of the person or persons calling the meeting. Notice shall be given either personally or by mail, facsimile or telephone to each stockholder entitled to vote at such meeting, not less than ten (10) nor more than sixty (60) days before the date of the meeting. If mailed, the notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation. Notice of any meeting need not be given to any stockholder who signs a waiver of notice, in person or by proxy, whether before or after the meeting. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the commencement of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by such stockholder.
Section 2.5. Quorum. The presence at a duly organized meeting of the stockholders entitled to cast at least a majority of the votes that all stockholders are entitled to cast on a particular matter shall constitute a quorum for the purpose of considering the matter. The stockholders present at a meeting may adjourn the meeting despite the absence of a quorum.
Section 2.6. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent in writing without a meeting may authorize another person or persons to act for him by proxy. Every proxy must be signed by the stockholder or his attorney-in-fact. No proxy shall be valid after expiration of three years from the date thereof unless otherwise provided in the proxy.
Section 2.7. Voting. Except as otherwise provided in the Certificate of Incorporation of the Corporation (as in effect as of the date of these By-laws or hereafter amended or restated, the “Certificate of Incorporation”) or otherwise required by law, whenever any corporate action is to be taken by vote of the stockholders, it shall be authorized upon requiring the affirmative vote of a majority of the votes cast by all the stockholders entitled to vote thereon and, if any stockholders are entitled to vote on such matter as a class, upon receiving the affirmative vote of a majority of the votes cast by the stockholders entitled to vote as a class.
Section 2.8. Ballots. The vote upon any question before any stockholders’ meeting need not be by ballot.
Section 2.9. Action Without a Meeting of the Stockholders. Any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were in attendance.
ARTICLE
III.
Directors
Section 3.1. General Powers. The property, business and affairs of the Corporation shall be managed under the direction of the Board. The Board may exercise all such powers of the Corporation and have such authority and do all such lawful acts and things as are permitted by law, the Certificate of Incorporation of the Company and these By-laws.
Section 3.2. Number of Directors. The Board shall consist of two (2) or more members, the exact number thereof to be determined from time to time by resolution of the Board. Directors need not be stockholders of the Corporation.
Section 3.3. Term. Each director shall hold office until such director’s successor is elected and qualified or until such director’s earlier resignation or removal.
Section 3.4. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board or the President of the Corporation.
Section 3.5. Vacancies and Newly Created Directorships. Any vacancy in any directorship, including a vacancy caused by an increase in the number of directors, shall be filled by the majority vote or written consent of the stockholders.
Section 3.6. Removal. Any director may be removed during his or her term of office, without cause, by and only by a majority vote or written consent of the stockholders.
Section 3.7. Quorum of Directors. At all meetings of the Board, a majority of the entire Board shall be necessary for the transaction of business.
Section 3.8. Action of the Board. The vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. Each director present at a meeting shall have one vote.
Section 3.9. Regular Meetings. Regular meetings of the Board may be held at such time and place as shall from time to time be fixed by the Board and no notice thereof shall be necessary.
Section 3.10. Special Meetings. Special meetings of the Board shall be held upon notice to the directors by the President or the Secretary, or by resolution of the Board or by waiver of notice. Unless waived, notice of each special meeting of the Board, stating the time and place of the meeting, shall be given to each director by letter, by telegram or by personal communication either over the telephone or otherwise, in each such case at least twenty-four (24) hours prior to the meeting. Special meetings of the Board shall be held at such place, within or without the State of Delaware, as the Board determines or, if not so determined, at the principal business office of the Corporation.
Section 3.11. Committees. The Board, by resolution adopted by a majority of the entire Board, may designate from among its members one or more committees, each consisting of one or more directors, and each of which, to the extent provided in the resolution constituting such committee, shall have all the authority of the Board, except as otherwise required by law. Vacancies in the membership of any committee shall be filled by the Board at a regular or special meeting of the Board.
Section 3.12. Unanimous Written Consent in Place of Meeting. An action required or permitted to be taken by the Board or any committee thereof may be taken without a meeting if all the members of the Board or committee consent in writing to the adoption of a resolution authorizing the action.
Section 3.13. Meetings by Conference Telephone or Similar Device. Any meeting of the Board or a committee thereof may be conducted by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.
ARTICLE
IV.
Officers
Section 4.1. Executive Officers. The Board shall elect a President and a Secretary, and may also elect and such number of Vice Presidents and such other officers, if any, as it may from time to time determine. Any director may also serve as an officer. Any number of offices may be held by the same person.
Section 4.2. President. The President shall be the chief executive officer of the Corporation and shall have all powers customarily appertaining to his office; he shall preside at all meetings of the stockholders; he shall manage the business of the Corporation and shall see that all orders and resolutions of the Board are carried into effect, subject to the right of the Board to delegate any specific powers to any other officer or officers of the Corporation.
Section 4.3. Secretary. The Secretary shall have the duties which customarily appertain to his office, and shall have the duty to record the proceedings of the meetings of the stockholders and directors in a book to be kept for that purpose.
Section 4.4. Vice President. Any Vice President of the Corporation shall have such duties as the Board may from time to time prescribe.
Section 4.5. Term; Removal. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the Board may be removed at any time by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the corporation shall be filled by the Board.
Section 4.6. Compensation. The Board shall fix the compensation of the President and shall fix, or delegate to the President authority to fix, the compensation of each other officer of the Corporation.
ARTICLE
V.
Capital Shares and Other Securities
Section 5.1. Form of Certificate. The shares of the Corporation shall be represented by certificates in such form as shall be determined by the Board; provided, that the Board may provide by resolution that some or all classes or series of capital stock shall be uncertificated shares.
Section 5.2. Transfer Agents. The Board may appoint one or more transfer agents and/or registrars, the duties of which may be combined and prescribe their duties.
Section 5.3. Record Ownership. The Corporation shall be entitled to treat the holder of record of any share as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of the State of Delaware.
Section 5.4. Dividends. Subject to the provisions of the Certificate of Incorporation and to applicable law, dividends on the outstanding shares of the corporation may be declared in such amounts and at such time or times as the Board may determine.
ARTICLE
VI.
Indemnification and Insurance
Section 6.1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, or appeal thereof, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law (“GCL”), as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including, but not limited to, all attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 6.2 of these By-laws, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board. The right to indemnification conferred in this Article VI shall be a contract right and shall include the right to be paid by the Corporation the expenses (including, without limitation, attorneys’ fees) incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCL requires, the payment of such expenses incurred by a director or officer in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article VI or otherwise. The Corporation may, by action of the Board, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers, or on such other terms and conditions as the Board may deem necessary or desirable.
Section 6.2. Right of Claimant to Bring Suit. If a claim under Section 6.1 of these By-laws is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense (including, without limitation, attorneys’ fees) of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the GCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of providing such defense shall be on the Corporation. Neither the failure of the Corporation (including the Board, or any portion thereof, independent legal counsel, or the Corporation’s stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCL, nor an actual determination by the Corporation (including the Board, or any portion thereof, independent legal counsel, or the Corporation’s stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 6.3. Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article VI shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Section 6.4. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, to the fullest extent allowed by law, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the GCL.
ARTICLE
VII.
Miscellaneous
Section 7.1. Seal. The Corporation may have a corporate seal which shall be in such form as may be approved by the Board from time to time. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or any other manner reproduced.
Section 7.2. Fiscal Year. The fiscal year of the Corporation shall be fixed from time to time by resolution of the Board.
Section 7.3. Entire Board. As used in these By-laws, “entire Board” means the total number of directors which the Corporation would have if there were no vacancies.
Section 7.4. Section Headings. The headings of the Articles and Sections of these By-laws are inserted for convenience of reference only and shall not be deemed to be a part thereof or used in the construction or interpretation thereof.
Section 7.5. Gender. Whenever words of the masculine gender appear in these By-laws, they shall be deemed to refer to both male and female persons.
Section 7.6. Amendment. These By-laws, as now in effect or as hereafter amended from time to time, may be amended or repealed and new or additional By-laws adopted by the Board.