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): July 16, 2013
PFSweb, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 000-28275 | 75-2837058 | ||
| (State or other jurisdiction Of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 505 Millennium Drive Allen, TX |
75013 | |
| (Address of principal executive offices) | (zip code) |
Registrant’s telephone number, including area code (972) 881-2900
N/A
(Former name or former address, if changed since last report.)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 3.03. Material Modification to Rights of Security Holders
See Item 5.03 below incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As described in Item 5.07 below, at the Company’s Annual Meeting of Stockholders:
(a) the Company’s stockholders approved an amendment (the “Amendment”) to the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws (the “Bylaws”) to provide for the elimination of the classification of the Board of Directors over a three-year period. The Amendment became effective upon filing with the Secretary of State of Delaware on July 16, 2013. A copy of the Amendment is attached hereto as Exhibit 3.1 and is incorporated herein by reference. The amendment to the Bylaws became effective upon the filing of the Amendment with the Secretary of State of Delaware on July 16, 2013. A copy of the amendment to the Bylaws is attached hereto as Exhibit 3.2 and is incorporated herein by reference
(b) the Company’s stockholders approved an amendment to the Company’s Bylaws, which will be effective for the 2014 Annual Meeting of Stockholders, to provide for a majority vote standard in uncontested elections of directors. A copy of the amendment to the Bylaws is attached hereto as Exhibit 3.2 and is incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders
The Company held its Annual Meeting of Stockholders on July 16, 2013. Matters submitted to shareholders at the Annual Meeting and voting results were as follows:
Item 1 – Approval of Amendment of Amended and Restated Certificate of Incorporation and Bylaws to Declassify the Board of Directors. The Company’s stockholders approved an amendment to the Company’s Amended and Restated Certificate of Incorporation and Bylaws to declassify the Board of Directors over a three year period, based upon the following voting results:
| For | Against | Abstained | Broker Non-Votes | |||||||||||
| 12,268,047 | 171,430 | 2,911 | 2,503,405 | |||||||||||
Item 2 – Election of Directors. The Company’s stockholders elected the two director nominees listed below for a one-year term expiring in 2014, based upon the following voting results:
| Nominee |
For | Withheld | ||||||
| Dr. Neil Jacobs |
8,264,258 | 4,178,130 | ||||||
| Benjamin Rosenzweig |
12,202,684 | 239,704 | ||||||
Item 3 –Approval of Amendment of Amended and Restated Bylaws. The Company’s stockholders approved an amendment to the Company’s Amended and Restated Bylaws to provide for a majority vote standard in uncontested elections of directors, based upon the following voting results:
| For | Against | Abstained | Broker Non-Votes | |||||||||||
| 12,263,590 | 171,538 | 7,260 | 2,503,405 | |||||||||||
Item 4 – Advisory Vote to Approve Executive Compensation. The Company’s stockholders approved, on an advisory basis, the compensation of the Company’s named executive officers, based upon the following voting results:
| For | Against | Abstained | Broker Non-Votes | |||||||||||
| 12,229,297 | 185,621 | 27,470 | 2,503,405 | |||||||||||
Item 5 – Advisory Vote to Approve Frequency of Advisory Vote on Executive Compensation. The Company’s stockholders approved, on an advisory basis, and the Company adopted, one year as the frequency of the advisory votes on compensation of the Company’s named executive officers, based upon the following voting results:
| 1 Year | 2 Years | 3 Years | Abstain | |||||||||||
| 11,473,175 | 69,218 | 831,695 | 68,300 | |||||||||||
Item 6 – Ratification of Appointment of Independent Registered Public Accounting Firm. The Company’s stockholders ratified the appointment of Grant Thornton LLP as the Company’s independent auditors for the fiscal year ending December 31, 2013, based upon the following voting results:
| For | Against | Abstained | Broker Non-Votes | |||||||||||
| 14,904,074 | 9,759 | 31,960 | 0 | |||||||||||
Item 8.01. Other Events.
On July 16, 2013, the Company issued a press release announcing the results of the Company’s Annual Meeting. A copy of the press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit Number |
Description | |
| 3.1 | Amendment to Amended and Restated Certificate of Incorporation | |
| 3.2 | Amendments to Amended and Restated Bylaws | |
| 99.1 | Press Release, issued July 16, 2013. | |
2
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.
Date: July 18, 2013
| PFSweb, Inc. | ||
| By: | /s/ Thomas J. Madden | |
| Name: | Thomas J. Madden | |
| Title: | Executive Vice President and Chief Financial and Accounting Officer | |
3
EXHIBIT INDEX
| Exhibit Number |
Exhibit Description | |
| 3.1 | Amendment to Amended and Restated Certificate of Incorporation | |
| 3.2 | Amendments to Amended and Restated Bylaws | |
| 99.1 | Press Release, issued July 16, 2013. | |
EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PFSWEB, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the “Corporation”) is PFSWEB, INC.
2. The Amended and Restated Certificate of Incorporation of the Corporation is hereby amended by striking out Article TENTH thereof and by substituting the following in its place:
“1. Except as otherwise provided in this Certificate of Incorporation or the General Corporation Law of the State of Delaware, the business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors consisting of such number of members as may be fixed, subject to the rights of the holders of any series of Preferred Stock then outstanding, from time to time, by the affirmative vote of the majority of the members of the Board of Directors of the Corporation, but not less than the minimum number authorized by the State of Delaware.
2. Subject to the rights of the holders of any series of Preferred Stock then outstanding:
(a) Until the election of directors at the 2015 Annual Meeting of Stockholders, the Board of Directors shall be divided into three classes of directors, as nearly equal in number as possible. Subject to the provisions set forth below and Sections 3 and 4 of this Article TENTH, each class of directors shall be elected for a three-year term and the terms of each class shall be staggered so that only one class of directors will be elected at each annual meeting of stockholders. Until the election of directors at the 2015 Annual Meeting of Stockholders, the directors of the Corporation (exclusive of directors who are elected pursuant to the terms of, and serve as representatives of the holders of, any series of Preferred Stock) are sometimes referred to herein as “Classified Directors.”
(b) Each director elected at the 2013 Annual Meeting of Stockholders shall be elected for a one-year term and shall hold such office until the term for which they were elected or appointed expires and their successor is duly elected and qualified, or until their earlier death, resignation or removal from office.
(c) Each director serving as a director immediately following the 2013 Annual Meeting of Stockholders, or elected or appointed thereafter, shall hold office until the term for which they were elected or appointed expires and their successor is duly elected and qualified, or until their earlier death, resignation or removal from office.
(d) Each director elected at the 2014 Annual Meeting of Stockholders shall be elected for a one-year term and shall hold such office until the term for which they were elected or appointed expires and their successor is duly elected and qualified, or until their earlier death, resignation or removal from office.
(e) From and after the election of directors at the 2015 Annual Meeting of Stockholders, the Board of Directors shall cease to be classified and all directors shall be elected for one-year terms expiring at the next annual meeting of stockholders.
3. Subject to the rights of the holders of any series of Preferred Stock then outstanding:
(a) Until the 2015 Annual Meeting of Stockholders, any director, or the entire Board of Directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least a majority of the voting power of all of the shares of the Corporation entitled to vote for the election of directors. For purposes of this Article TENTH, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction or has been adjudged by a court of competent jurisdiction to be liable for negligence or misconduct in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation.
(b) From and after the 2015 Annual Meeting of Stockholders, any director, or the entire Board of Directors, may be removed from office at any time, with or without cause, only by the affirmative vote of the holders of at least a majority of the voting power of all of the shares of the Corporation entitled to vote for the election of directors.
4. Subject to the rights of the holders of any series of Preferred Stock then outstanding:
(a) Newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or other cause shall be filled by a majority vote of the directors then in office.
(b) Until the election of directors at the 2015 Annual Meeting of Stockholders, each director chosen to fill a vacancy in the Board of Directors shall receive the classification of the vacant directorship to which he or she has been appointed or, if it is a newly created directorship, shall receive the classification that at least a majority of the directors then in office designate and shall hold office until the first meeting of stockholders held after his or her appointment for the purpose of electing directors of that classification, and until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal from office.
(c) From and after the 2015 Annual Meeting of Stockholders, each director chosen to fill a vacancy in the Board of Directors shall hold office until the first meeting of stockholders held after his or her appointment for the purpose of electing directors and until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal from office.”
3. The Amendment of the Amended and Restated Certificate of Incorporation herein certified has been duly adopted and approved by the requisite number of holders of outstanding stock of the Corporation entitled to vote thereon in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware and the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Corporation.
Dated: July 16, 2013
| PFSWEB, INC. | ||
| By: |
/s/ Michael Willoughby | |
| Name: Michael Willoughby | ||
| Title: Chief Executive Officer | ||
EXHIBIT 3.2
AMENDMENTS TO AMENDED AND RESTATED BYLAWS OF PFSWEB, INC.
| 1. | Section 3.2 is hereby amended to read in its entirety as follows: |
“3.2.1. Except as otherwise provided in this Certificate of Incorporation or the General Corporation Law of the State of Delaware, the business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors consisting of such number of members as may be fixed, subject to the rights of the holders of any series of Preferred Stock then outstanding, from time to time, by the affirmative vote of the majority of the members of the Board of Directors of the Corporation, but not less than the minimum number authorized by the State of Delaware.
3.2.2. Subject to the rights of the holders of any series of Preferred Stock then outstanding:
(a) Until the election of directors at the 2015 Annual Meeting of Stockholders, the Board of Directors shall be divided into three classes of directors, as nearly equal in number as possible. Subject to the provisions set forth below and Sections 3.2.3 and 3.2.4 herein, each class of directors shall be elected for a three-year term and the terms of each class shall be staggered so that only one class of directors will be elected at each annual meeting of stockholders. Until the election of directors at the 2015 Annual Meeting of Stockholders, the directors of the Corporation (exclusive of directors who are elected pursuant to the terms of, and serve as representatives of the holders of, any series of Preferred Stock) are sometimes referred to herein as “Classified Directors.”
(b) Each director elected at the 2013 Annual Meeting of Stockholders shall be elected for a one-year term and shall hold such office until the term for which they were elected or appointed expires and their successor is duly elected and qualified, or until their earlier death, resignation or removal from office.
(c) Each director serving as a director immediately following the 2013 Annual Meeting of Stockholders, or elected or appointed thereafter, shall hold office until the term for which they were elected or appointed expires and their successor is duly elected and qualified, or until their earlier death, resignation or removal from office.
(d) Each director elected at the 2014 Annual Meeting of Stockholders shall be elected for a one-year term and shall hold such office until the term for which they were elected or appointed expires and their successor is duly elected and qualified, or until their earlier death, resignation or removal from office.
(e) From and after the election of directors at the 2015 Annual Meeting of Stockholders, the Board of Directors shall cease to be classified and all directors shall be elected for one-year terms expiring at the next annual meeting of stockholders.
3.2.3. Subject to the rights of the holders of any series of Preferred Stock then outstanding:
(a) Until the 2015 Annual Meeting of Stockholders, any director, or the entire Board of Directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least a majority of the voting power of all of the shares of the Corporation entitled to vote for the election of directors. For purposes of this Section, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction or has been adjudged by a court of competent jurisdiction to be liable for negligence or misconduct in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation.
(b) From and after the 2015 Annual Meeting of Stockholders, any director, or the entire Board of Directors, may be removed from office at any time, with or without cause, only by the affirmative vote of the holders of at least a majority of the voting power of all of the shares of the Corporation entitled to vote for the election of directors.
3.2.4. Subject to the rights of the holders of any series of Preferred Stock then outstanding:
(a) Newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or other cause shall be filled by a majority vote of the directors then in office.
(b) Until the election of directors at the 2015 Annual Meeting of Stockholders, each director chosen to fill a vacancy in the Board of Directors shall receive the classification of the vacant directorship to which he or she has been appointed or, if it is a newly created directorship, shall receive the classification that at least a majority of the directors then in office designate and shall hold office until the first meeting of stockholders held after his or her appointment for the purpose of electing directors of that classification, and until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal from office.
(c) From and after the 2015 Annual Meeting of Stockholders, each director chosen to fill a vacancy in the Board of Directors shall hold office until the first meeting of stockholders held after his or her appointment for the purpose of electing directors and until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal from office.”
| 2. | The following is added as Section 2.8.1: |
“2.8.1 Majority Vote Provision. At the 2014 annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect directors by a majority of the votes cast unless the number of nominees exceeds the number of directors to be elected, in which case the directors shall be elected by a plurality of the shares represented in person or by proxy at such meeting and entitled to vote on the election of directors. A majority of votes cast means that the number of shares entitled to vote on the election of directors and represented in person or by proxy at such meeting casting their vote “for” a director must exceed the number of such votes cast “against” that director. Broker non-votes, if any, and abstentions shall not be treated as votes cast. If a nominee for director, who is not serving as a director of the Corporation at the time of such election, does not receive a majority of the votes cast at a meeting of stockholders for the election of directors, such nominee shall not be elected. If a nominee for director, who is serving as a director of the Corporation at the time of such election, does not receive a majority of the votes cast at a meeting of stockholders for the election of directors, such nominee shall tender his or her resignation to the Board of Directors. The Nominating Committee shall then make a recommendation to the Board of Directors as to whether to accept or reject the resignation. The Board of Directors will consider the Nominating Committee’s recommendation and such other factors as it deems appropriate, and publicly disclose (by press release, filing of a Form 8-K with the Securities Exchange Commission or any other means of public disclosure) its decision and the reasons for it within 90 days from the date that the election results are certified. The director who tenders his or resignation will not participate in the Board’s decision.”
Exhibit 99.1
| PFSweb Contact: | ||
| Mike Willoughby | Todd Fromer / Garth Russell | |
| Chief Executive Officer | Investor Relations | |
| or Thomas J. Madden | KCSA Strategic Communications | |
| Chief Financial Officer | (212) 896-1215 / (212) 896-1250 | |
| (972) 881-2900 | tfromer@kcsa.com / grussell@kcsa.com |
PFSweb Announces Results of 2013 Annual Meeting of Stockholders
ALLEN, Texas, July 16, 2013 – PFSweb, Inc. (Nasdaq: PFSW), an international provider of end-to-end eCommerce solutions, today announced that all corporate proposals were approved at the Company’s 2013 Annual Meeting of Stockholders held on July 16, 2013.
At the meeting, stockholders approved an amendment to the Company’s Certificate of Incorporation and Bylaws to declassify the Board and provide for the annual election of all directors; elected Neil W. Jacobs and Benjamin Rosenzweig as directors; approved an amendment to the Company’s Bylaws to adopt majority voting for uncontested election of directors; approved, on a non-binding advisory basis, the compensation of the Company’s named executive officers; adopted, on a non-binding basis, an annual advisory vote on named executive officers’ compensation; and ratified the appointment of Grant Thornton LLP as the Company’s independent auditors for the fiscal year ending December 31, 2013.
About PFSweb, Inc.
PFSweb is engaged by iconic brands to enable and manage customized eCommerce and omni-channel commerce initiatives. PFSweb’s iCommerce Hub(SM) technology ecosystem offers retailers a multi-channel order management system that allows partner/client data integration and international payment processing. PFSweb’s iCommerce Professional Service(SM) provides interactive marketing services, eCommerce web site development and support services, IT development services, product content management, customer intelligence and relationship and account management services. PFSweb’s iCommerce Centers of Excellence(SM) provides global fulfillment and logistics, high-touch customer care and client financial services.
Together, PFSweb’s iCommerce Solutions allow for international reach and expertise in both direct-to-consumer and business-to-business initiatives. PFSweb supports organizations across multiple industries including Procter & Gamble, L’Oreal, LEGO, Columbia Sportswear, Sorel, Carter’s, AAFES, Riverbed, Ricoh, Hawker Beechcraft Corp, Roots Canada Ltd., Diageo, BCBGMAXAZRIA, BCBGENERATION and HERVÉ LÉGER BY MAX AZRIA. PFSweb is headquartered in Allen, TX with additional locations in Tennessee, Mississippi, Canada, Belgium, and the Philippines.
To find out more about PFSweb (NASDAQ: PFSW), visit the company’s website at http://www.PFSweb.com.
The matters discussed herein consist of forward-looking information under the Private Securities Litigation Reform Act of 1995 and is subject to and involves risks and uncertainties, which could cause actual results to differ materially from the forward-looking information. PFSweb’s Annual Report on Form 10-K for the year ended December 31, 2012 and Quarterly Report on Form 10-Q for the three months ended March 31, 2013 identify certain factors that could cause actual results to differ materially from those projected in any forwardlooking statements made and investors are advised to review the Annual and Quarterly Reports of the Company and the Risk Factors described therein. PFSweb undertakes no obligation to update publicly any forward-looking statement for any reason, even if new information becomes available or other events occur in the future. There may be additional risks that we do not currently view as material or that are not presently known.
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