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
April 17, 2013
Date of Report (Date of earliest event reported)
Rally Software Development Corp.
(Exact name of registrant as specified in its charter)
Delaware |
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001-35868 |
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84-1597294 |
(State or other jurisdiction |
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(Commission |
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(IRS Employer |
of incorporation) |
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File Number) |
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Identification No.) |
3333 Walnut Street |
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Boulder, Colorado |
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80301 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (303) 565-2800
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
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 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
Upon the closing of the initial public offering (the IPO) of shares of common stock of Rally Software Development Corp. (the Company) on April 17, 2013, each outstanding warrant to purchase shares of preferred stock of the Company, including the portion of such warrants held by Silicon Valley Bancshares and Square 1 Bank, automatically, and pursuant to its terms, became a warrant to purchase shares of common stock of the Company. Pursuant to the terms of the warrants held by Silicon Valley Bancshares and Square 1 Bank, the Company is obligated to issue to each of those parties an amended or new warrant.
Item 3.02 Unregistered Sale of Equity Securities
On April 17, 2013 the Company issued 24,793 shares of its common stock to Entrepreneurs Foundation of Colorado LLC and 22,396 shares of its common stock to The Community Foundation. The shares were issued in connection with the closing of the IPO upon the automatic net exercise of certain warrants to purchase shares of the Companys common stock held by such parties. The Company did not receive any cash or other consideration as the warrants were net exercised in full. The issuance of the shares of common stock upon exercise of the warrants was exempt from registration pursuant to Section 3(a)(9) of the Securities Act of 1933, as amended.
The shares of common stock issued upon exercise of the warrants are subject to lock-up agreements that each of Entrepreneurs Foundation of Colorado LLC and The Community Foundation entered into with the underwriters for the IPO restricting their sale for 180 days after April 11, 2013 (the date of the Companys final prospectus for the IPO).
Item 5.03 Amendments to Certificate of Incorporation or Bylaws
Amendment and Restatement of Certificate of Incorporation
On April 17, 2013, the Company filed an amended and restated certificate of incorporation (the Restated Certificate) with the Secretary of State of the State of Delaware in connection with the closing of the IPO. The Companys board of directors and stockholders previously approved the Restated Certificate to be effective upon the closing of the IPO.
The Restated Certificate amends and restates in its entirety the Companys certificate of incorporation to, among other things:
· eliminate all references to the various series of preferred stock that were previously authorized, except for 10,000,000 shares of undesignated preferred stock that may be issued, and with terms to be set, by the Companys board of directors, which rights could be senior to those of the Companys common stock;
· eliminate class rights to elect members of the board of directors and rights to vote as a separate class and/or series on certain matters;
· permit the size of the board of directors to be fixed by resolution adopted by a majority of the board of directors;
· establish a classified board of directors with staggered three-year terms;
· provide that directors may be removed by stockholders only for cause;
· provide that all vacancies on the board of directors, including newly created directorships, may, except as determined by the board of directors, be filled only by the affirmative vote of a majority of directors then in office, even if less than a quorum; and
· eliminate the ability of stockholders to take action by written consent or electronic transmission and provide that no action may be taken by the stockholders except at an annual or special meeting of the stockholders called in accordance with the Companys bylaws.
The foregoing description is qualified in its entirety by reference to the Restated Certificate, a copy of which is filed herewith as Exhibit 3.1 and is incorporated herein by reference.
Amendment and Restatement of Bylaws
Effective as of April 17, 2013, the Company adopted amended and restated bylaws (the Restated Bylaws) in connection with the closing of the IPO. The Companys board of directors and stockholders previously approved the Restated Bylaws to be effective upon the closing of the IPO.
The Restated Bylaws amend and restate in their entirety the Companys bylaws to, among other things:
· require advance notice for nominations for election to the Companys board of directors or for proposing matters that may be acted upon at a stockholders meeting;
· provide that special meetings of stockholders may be called only by the chairman of the board of directors, the chief executive officer or president, or a majority of the total number of authorized directors; and
· require that the number of directors constituting the board of directors is fixed in accordance with the Companys certificate of incorporation.
The foregoing description is qualified in its entirety by reference to the Restated Bylaws, a copy of which is filed herewith as Exhibit 3.2 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. |
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Description |
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3.1 |
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Amended and Restated Certificate of Incorporation of Rally Software Development Corp. |
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3.2 (1) |
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Amended and Restated Bylaws of Rally Software Development Corp. |
(1) Previously filed as Exhibit 3.5 to the Companys Registration Statement on Form S-1, as amended (File No. 333-187173), filed with the Securities and Exchange Commission on March 11, 2013, and incorporated herein by reference.
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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Rally Software Development Corp. | |
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Dated: April 17, 2013 |
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By: |
/s/ Timothy A. Miller |
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Timothy A. Miller |
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Chief Executive Officer |
INDEX TO EXHIBITS
Exhibit No. |
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Description |
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3.1 |
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Amended and Restated Certificate of Incorporation of Rally Software Development Corp. |
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3.2 (1) |
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Amended and Restated Bylaws of Rally Software Development Corp. |
(1) Previously filed as Exhibit 3.5 to the Companys Registration Statement on Form S-1, as amended (File No. 333-187173), filed with the Securities and Exchange Commission on March 11, 2013, and incorporated herein by reference.
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RALLY SOFTWARE DEVELOPMENT CORP.
Timothy A. Miller hereby certifies that:
ONE: The original name of this corporation is F4 Technologies, Inc. and the date of filing the original Certificate of Incorporation of this corporation with the Secretary of State of the State of Delaware was July 12, 2001.
TWO: He is the duly elected and acting President and Chief Executive Officer of Rally Software Development Corp., a Delaware corporation.
THREE: The Certificate of Incorporation of this corporation is hereby amended and restated to read as follows:
I.
The name of this company is Rally Software Development Corp. (the Company).
II.
The address of the registered office of the Company in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, Zip Code 19801, and the name of the registered agent of this Corporation in the State of Delaware at such address is The Corporation Trust Company.
III.
The purpose of this Company 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 DGCL).
IV.
A. This Company is authorized to issue two classes of stock to be designated, respectively, Common Stock and Preferred Stock. The total number of shares that the Company is authorized to issue is two hundred and ten million (210,000,000) shares. Two hundred million (200,000,000) shares shall be Common Stock, each having a par value of one-hundredth of one cent ($0.0001). Ten million (10,000,000) shares shall be Preferred Stock, each having a par value of one-hundredth of one cent ($0.0001).
B. The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby expressly authorized to provide for the issue of all of any of the shares of the Preferred Stock in one or more series, and to fix the number of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting powers,
and such designation, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such shares and as may be permitted by the DGCL. The Board of Directors is also expressly authorized to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the stock of the Company entitled to vote thereon, without a separate vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of any certificate of designation filed with respect to any series of Preferred Stock.
C. Each outstanding share of Common Stock shall entitle the holder thereof to one vote on each matter properly submitted to the stockholders of the Company for their vote; provided, however, that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon by law or pursuant to this Amended and Restated Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock).
V.
For the management of the business and for the conduct of the affairs of the Company, and in further definition, limitation and regulation of the powers of the Company, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that:
A. MANAGEMENT OF BUSINESS. The management of the business and the conduct of the affairs of the Company shall be vested in its Board of Directors. The number of directors that shall constitute the Board of Directors shall be fixed exclusively by resolutions adopted by a majority of the authorized number of directors constituting the Board of Directors.
B. BOARD OF DIRECTORS. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, and for so long as permitted by applicable law, the directors shall be divided into three classes designated as Class I, Class II and Class III, respectively. The Board of Directors is authorized to assign members of the Board of Directors already in office to such classes at the time the classification becomes effective. At the first annual meeting of stockholders following the filing of this Amended and Restated Certificate of Incorporation, the term of office of the Class I directors shall expire and Class I directors shall be elected for a full term of three years. At the second annual meeting of stockholders following the filing of this Amended and Restated Certificate of
Incorporation, the term of office of the Class II directors shall expire and Class II directors shall be elected for a full term of three years. At the third annual meeting of stockholders following the filing of this Amended and Restated Certificate of Incorporation, the term of office of the Class III directors shall expire and Class III directors shall be elected for a full term of three years. At each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this section, each director shall serve until his successor is duly elected and qualified or until his earlier death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
C. REMOVAL OF DIRECTORS.
1. Subject to the rights of any series of Preferred Stock to elect additional directors under specified circumstances, neither the Board of Directors nor any individual director may be removed without cause.
2. Subject to any limitations imposed by applicable law, any individual director or directors may be removed with cause by the affirmative vote of the holders of a majority of the voting power of all then-outstanding shares of capital stock of the Company entitled to vote generally at an election of directors.
D. VACANCIES. Subject to any limitations imposed by applicable law and subject to the rights of the holders of any series of Preferred Stock, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders and except as otherwise provided by applicable law, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors, and not by the stockholders. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such directors successor shall have been elected and qualified.
E. BYLAW AMENDMENTS.
1. The Board of Directors is expressly empowered to adopt, amend or repeal the Bylaws of the Company. Any adoption, amendment or repeal of the Bylaws of the Company by the Board of Directors shall require the approval of a majority of the authorized number of directors. The stockholders shall also have power to adopt, amend or repeal the Bylaws of the Company; provided, however, that, in addition to any vote of the holders of any class or series of stock of the Company required by law or by this Amended and Restated Certificate of Incorporation, such action by stockholders shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then-
outstanding shares of the capital stock of the Company entitled to vote generally in the election of directors, voting together as a single class.
2. The directors of the Company need not be elected by written ballot unless the Bylaws so provide.
3. No action shall be taken by the stockholders of the Company except at an annual or special meeting of stockholders called in accordance with the Bylaws, and no action shall be taken by the stockholders by written consent or electronic transmission.
4. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Company shall be given in the manner provided in the Bylaws of the Company.
VI.
A. The liability of the directors for monetary damages shall be eliminated to the fullest extent under applicable law.
B. To the fullest extent permitted by applicable law, the Company is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Company (and any other persons to which applicable law permits the Company to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise in excess of the indemnification and advancement otherwise permitted by such applicable law. If applicable law is amended after approval by the stockholders of this Article VI to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director to the Company shall be eliminated or limited to the fullest extent permitted by applicable law as so amended.
C. Any repeal or modification of this Article VI shall only be prospective and shall not affect the rights or protections or increase the liability of any director under this Article VI in effect at the time of the alleged occurrence of any act or omission to act giving rise to liability or indemnification.
VII.
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 (A) any derivative action or proceeding brought on behalf of the Company; (B) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Companys stockholders; (C) any action asserting a claim against the Company arising pursuant to any provision of the DGCL, this Amended and Restated Certificate of Incorporation or the Bylaws of the Company; or (D) any action asserting a claim against the Company governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Company shall be deemed to have notice of and to have consented to the provisions of this Article VII.
VIII.
A. The Company 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, except as provided in paragraph B. of this Article VIII, and all rights conferred upon the stockholders herein are granted subject to this reservation.
B. Notwithstanding any other provisions of this Amended and Restated Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the Company required by law or by this Amended and Restated Certificate of Incorporation or any certificate of designation filed with respect to a series of Preferred Stock, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding shares of capital stock of the Company entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or repeal Articles V, VI, VII and VIII.
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FOUR: This Amended and Restated Certificate of Incorporation has been duly approved by the Board of Directors of this corporation.
FIVE: This Amended and Restated Certificate of Incorporation was approved by the holders of the requisite number of shares of said corporation in accordance with Section 228 of the General Corporation Law of the State of Delaware. This Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware by the stockholders of this corporation.
IN WITNESS WHEREOF, Rally Software Development Corp. has caused this Amended and Restated Certificate of Incorporation to be signed by its President and Chief Executive Officer this 17th day of April, 2013.
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RALLY SOFTWARE DEVELOPMENT CORP. | |
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Signature: |
/s/ Timothy A. Miller |
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Timothy A. Miller |
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President and Chief Executive Officer |