Current Report Filing (8-k)
July 16 2015 - 3:08PM
Edgar (US Regulatory)
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): July 13, 2015
EnerNOC, Inc.
(Exact
Name of Registrant as Specified in Charter)
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Delaware |
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001-33471 |
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87-0698303 |
(State or Other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
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One Marina Park Drive, Suite 400, Boston, Massachusetts |
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02210 |
(Address of Principal Executive Offices) |
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(Zip Code) |
Registrants telephone number, including area code: (617) 224-9900
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 (see General Instruction A.2.
below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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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)) |
Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On July 13, 2015, based on the recommendation of the
Nominating and Governance Committee of the Board of Directors (the Board) of EnerNOC, Inc. (the Company), the Board elected Mr. Gary Haroian as a Class II director of the Company with a term expiring at the
Companys 2018 annual meeting of stockholders. In addition, Mr. Haroian was appointed as a member of the Audit Committee and the Compensation Committee of the Board effective as of July 14, 2015. In connection with his election
to the Board, Mr. Haroian will be awarded a restricted stock grant under the Companys 2014 Long-Term Incentive Plan for 24,812 shares of the Companys common stock, such shares to vest at a rate of 8.33% per quarter.
Mr. Haroian will also be entitled to receive an annual cash retainer of $50,000, payable in arrears in equal installments on a quarterly basis, and will be eligible to receive annual equity grants and applicable committee fees, as more fully
described in the Companys definitive proxy statement (File No. 001-33471) filed with the Securities and Exchange Commission (the SEC) on April 24, 2015. In addition, Mr. Haroian and the Company will enter into an
indemnification agreement, the form of which is attached as an exhibit to the Companys Registration Statement on Form S-1, as amended (File No. 333-140632), filed with the SEC on May 3, 2007. There are no understandings or
arrangements between Mr. Haroian and any other person pursuant to which Mr. Haroian was elected as a director.
Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On and
effective July 14, 2015, the Board approved and adopted an amendment to the Companys Second Restated Bylaws (the Bylaws Amendment). The Bylaws Amendment added Article IX, Section 7 to include a forum selection provision for
the adjudication of certain disputes. Article IX, Section 7 provides that, unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for
(i) any derivative action brought on behalf of the Company, (ii) any action asserting a claim of a breach of fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Companys stockholders,
(iii) any action asserting a claim against the Company, its directors, officers or employees arising pursuant to any provision of the Delaware General Corporation Law, the Companys Certificate of Incorporation, or the Companys
Second Restated Bylaws (in each case, as amended from time to time), or (iv) any action asserting a claim against the Company, its directors, officers or employees governed by the internal affairs doctrine, except as to each of (i) through
(iv) above, for any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of
the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction.
The preceding summary of the Bylaws Amendment does not purport to be complete and is qualified in its entirety by reference to the Bylaws
Amendment, a copy of which is attached as Exhibit 3.1 to this Current Report on Form 8-K and are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
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3.1 |
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First Amendment to Second Restated Bylaws of EnerNOC, 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.
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ENERNOC, INC. |
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Date: July 16, 2015 |
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By: |
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/s/ Neil Moses |
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Name: |
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Neil Moses |
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Title: |
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Chief Operating Officer & Chief Financial Officer |
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(Principal Financial and Accounting Officer) |
EXHIBIT INDEX
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Exhibit No. |
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Exhibit |
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3.1 |
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First Amendment to Second Restated Bylaws of EnerNOC, Inc. |
Exhibit 3.1
FIRST AMENDMENT TO
SECOND RESTATED BYLAWS
OF
ENERNOC, INC.
The Second Restated Bylaws of EnerNOC, Inc., a Delaware corporation, are hereby amended, effective July 14, 2015, to add the
following new Section 7 to Article IX of the Bylaws:
Unless the Corporation consents in writing to the selection of an alternative forum, the Court
of Chancery of the State of Delaware (the Court of Chancery) shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) 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, officer or other employee of the Corporation to the Corporation or the Corporations stockholders, (iii) any action asserting a claim
against the Corporation, its directors, officers or employees arising pursuant to any provision of the Delaware General Corporation Law, the Corporations Certificate of Incorporation or these Bylaws, or (iv) any action asserting a claim
against the Corporation, its directors, officers or employees governed by the internal affairs doctrine, except as to each of (i) through (iv) above, for any claim as to which the Court of Chancery determines that there is an indispensable
party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive
jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. If any provision or provisions of this Section 7 shall be held to be invalid, illegal or
unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining
provisions of this Section 7 (including, without limitation, each portion of any sentence of this Section 7 containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or
unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.
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