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 9, 2014
CBEYOND, INC.
(Exact
name of registrant as specified in charter)
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Delaware |
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000-51588 |
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59-3636526 |
(State or Other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification Number) |
320 Interstate North Parkway, Suite 500
Atlanta, Georgia 30339
(Address of principal executive offices, including zip code)
(678) 424-2400
(Registrants telephone number, including area code)
Not Applicable
(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:
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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 5.07 |
Submission of Matters to a Vote of Security Holders. |
On July 9, 2014, at the
annual meeting of stockholders of Cbeyond, Inc. (the Company), the Companys stockholders approved the following proposals (with the final results for each matter indicated below): (1) to adopt the Agreement and Plan of Merger,
dated as of April 19, 2014 (the Merger Agreement), by and among the Company, Birch Communications, Inc., a Georgia corporation (Birch), and Hawks Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of
Birch, and approve the merger and other transactions contemplated by the Merger Agreement; (2) to approve certain compensation payable or that may become payable to the Companys named executive officers in connection with the merger;
(3) to approve, if necessary, the adjournment of the annual meeting to a later date to solicit additional votes in favor of the proposal to adopt the Merger Agreement if there are insufficient votes to adopt the Merger Agreement; (4) to
elect two Class III directors to hold office until the effective time of the merger, or, if the merger is not completed, until the 2017 Annual Meeting of Stockholders (or until such time as their respective successors are elected and qualified or
their earlier resignation, death, or removal from office); (5) to ratify the appointment by the Audit Committee of Ernst & Young LLP as Cbeyonds independent registered public accounting firm for the fiscal year ending
December 31, 2014; and (6) to approve the compensation that was paid to Cbeyonds named executive officers.
These
proposals are described in more detail in the definitive proxy statement, dated June 5, 2014, filed by the Company with the Securities and Exchange Commission on June 5, 2014. A copy of the press release relating to the stockholder
approval of the Merger Agreement is attached as Exhibit 99.1 hereto.
Proposal 1: Adoption of the Merger Agreement
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FOR |
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AGAINST |
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ABSTAIN |
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BROKER NON-VOTES |
27,236,266 |
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45,021 |
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682,568 |
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3,159,487 |
Proposal 2: Approval of Certain Compensation Payable or That May Become Payable to our Named Executive
Officers in Connection with the Merger
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FOR |
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AGAINST |
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ABSTAIN |
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BROKER NON-VOTES |
22,160,203 |
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3,607,889 |
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2,195,763 |
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3,159,487 |
Proposal 3: Approval, If Necessary, of the Adjournment of the Special Meeting to a Later Date to Solicit
Additional Proxies in Favor of the Adoption and Approval of the Merger Agreement
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FOR |
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AGAINST |
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ABSTAIN |
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29,117,235 |
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1,566,639 |
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439,468 |
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Proposal 4: Election of Directors
Elected the following two nominees to the Board of Directors to serve as directors until the effective time of the merger, or, if the merger
is not completed, until the 2017 Annual Meeting of Stockholders (or until such time as their respective successors are elected and qualified or their earlier resignation, death, or removal from office)
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NOMINEES |
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FOR |
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WITHHELD |
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ABSTENTIONS AND BROKER NON-VOTES |
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James F. Geiger |
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27,218,958 |
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744,897 |
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3,159,487 |
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Kevin Costello |
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27,266,659 |
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697,196 |
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3,159,487 |
Proposal 5: Ratification of Independent Auditor
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FOR |
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AGAINST |
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ABSTAIN |
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30,605,667 |
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98,618 |
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419,057 |
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Proposal 6: Approval of the Compensation of our Named Executive Officers
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FOR |
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AGAINST |
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ABSTAIN |
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BROKER NON-VOTES |
25,437,657 |
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369,801 |
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2,156,397 |
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3,159,487 |
Item 7.01 Regulation FD Disclosure
On July 9, 2014, the Company issued a press release announcing the results of the annual meeting, which press release is furnished
herewith as Exhibit 99.1 and is incorporated by reference herein.
In accordance with General Instruction B.2 of Form 8-K, the information
under this item, Exhibit 99.1 shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall such information be deemed incorporated by reference in any filing under the Securities Act of
1933, as amended, except as shall be expressly set forth by specific reference in such a filing. This report will not be deemed an admission as to the materiality of any information required to be disclosed solely to satisfy the requirements of
Regulation FD.
Forward-Looking Statements
Certain statements contained in this filing may be considered forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,
as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, including statements regarding the merger, the range of consideration of the merger and the ability of the parties to consummate the merger. These forward-looking
statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as believes, plans, anticipates, projects,
estimates, expects, intends, strategy, future, opportunity, may, will, should, could, potential, or similar
expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based on current beliefs and assumptions that are subject to risks and uncertainties. Forward-looking statements speak only as of
the date they are made, and Cbeyond undertakes no obligation to update any of them publicly in light of new information or future events. Actual results could differ materially from those contained in any forward-looking statement as a result of
various factors, including, without limitation: (1) conditions to the closing of the merger may not be satisfied and required regulatory approvals may not be obtained; (2) the merger may involve unexpected costs, liabilities or delays;
(3) the business of Cbeyond may suffer as a result of uncertainty surrounding the merger; (4) the outcome of any legal proceedings related to the merger; (5) Cbeyond may be adversely affected by other economic, business, and/or
competitive factors; (6) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement; (7) risks that the merger disrupts current plans and operations and the potential
difficulties in employee retention as a result of the merger; and (8) other risks to consummation of the merger, including the risk that the merger may not be consummated within the expected time period or at all. If the merger is consummated,
Cbeyond stockholders will cease to have any equity interest in Cbeyond and will have no right to participate in its earnings and future growth. Additional factors that may affect the future results of Cbeyond are set forth in its filings with the
SEC, including its Annual Report on Form 10-K for the year ended December 31, 2013, which are available on the SECs website at www.sec.gov. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak
only as of the date thereof.
Item 9.01 |
Exhibits and Financial Statements. |
(d) Exhibits
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99.1 |
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Press release, dated July 9, 2014. |
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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CBEYOND, INC. |
Date: July 9, 2014 |
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By: |
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/s/ J. Robert Fugate |
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J. Robert Fugate |
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Executive Vice President and Chief Financial
Officer |
Exhibit 99.1
Investor Contact:
Cbeyond, Inc.
Rob Clancy
Senior Vice President of Finance
678-486-8023
rob.clancy@cbeyond.com
STOCKHOLDERS OF
CBEYOND, INC. APPROVE MERGER AGREEMENT
ATLANTA (July 9, 2014)
Cbeyond, Inc. (NASDAQ: CBEY), (Cbeyond), the technology ally to small and mid-sized businesses, announced that at Cbeyonds annual meeting of stockholders held today, stockholders [overwhelmingly] approved the merger
agreement by and among Birch Communications, Inc., Cbeyond, and a wholly owned subsidiary of Birch.
Approximately 97.4 percent of the shares voting at
todays annual meeting were voted in favor of the adoption of the merger agreement, which represented approximately 83.9 percent of Cbeyonds total outstanding shares of common stock as of June 2, 2014, the record date for the annual
meeting. In addition, the Cbeyond stockholders, with at least a majority of the votes cast in favor, (i) voted affirmatively for a non-binding, advisory resolution on certain compensation payable or that may become payable to Cbeyonds
named executive officers in connection with the merger; (ii) elected both of the Class III nominees for director, James F. Geiger and Kevin Costello, to hold office until the effective time of the merger, or, if the merger is not completed,
with a term to expire in 2017; (iii) ratified the appointment of Ernst & Young LLP as Cbeyonds independent registered public accounting firm for the fiscal year ending December 31, 2014; and (iv) voted affirmatively for
a non-binding, advisory resolution on the compensation that was paid to Cbeyonds named executive officers.
As previously announced on
April 21, 2014, Birch and Cbeyond entered into a definitive agreement under which Birch will acquire Cbeyond in an all-cash merger transaction valued at approximately $323 million.
Upon the closing of the merger transaction, Cbeyond will become a wholly owned subsidiary of Birch, and the Cbeyond stockholders (other than Cbeyond
stockholders that have exercised rights of appraisal) will be entitled to receive the per share merger consideration for each share of Cbeyond common stock owned at the time of the merger transactions closing. Based on the information
available as of July 9, 2014, Cbeyond believes that the per share merger consideration in the merger will be $10.00. Cbeyond expects the merger transaction to close on or around July 18, 2014, subject to the satisfaction of the closing
conditions set forth in the merger agreement.
About Cbeyond
Cbeyond, Inc. (NASDAQ: CBEY), is the technology ally for small and mid-sized businesses. We enable our customers to focus on their core business activities by
shifting the burden of IT infrastructure management to us. We deliver cloud services, communications and connectivity through award-winning enterprise data centers and a private, IP enterprise network. Founded in 1999, Cbeyond is a technology
service provider with a long history of delivering technology and service innovation for small and mid-sized businesses. Please visit www.cbeyond.com for more information.
Cautionary Note Regarding Forward-Looking Statements
Certain statements contained in this filing may be considered forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,
as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, including statements regarding the merger, the range of consideration of the merger and the ability of the parties to consummate the merger. These forward-looking
statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as believes, plans, anticipates, projects,
estimates, expects, intends, strategy, future, opportunity, may, will, should, could, potential, or similar
expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based on current beliefs and assumptions that are subject to risks and uncertainties. Forward-looking statements speak only as of
the date they are made, and Cbeyond undertakes no obligation to update any of them publicly in light of new information or future events. Actual results could differ materially from those contained in any forward-looking statement as a result of
various factors, including, without limitation: (1) conditions to the closing of the merger may not be satisfied and required regulatory approvals may not be obtained; (2) the merger may involve unexpected costs, liabilities or delays;
(3) the business of Cbeyond may suffer as a result of uncertainty surrounding the merger; (4) the outcome of any legal proceedings related to the merger; (5) Cbeyond may be adversely affected by other economic, business, and/or
competitive factors; (6) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement; (7) risks that the merger disrupts current plans and operations and the potential
difficulties in employee retention as a result of the merger; and (8) other risks to consummation of the merger, including the risk that the merger may not be consummated within the expected time period or at all. If the merger is consummated,
Cbeyond stockholders will cease to have any equity interest in Cbeyond and will have no right to participate in its earnings and future growth. Additional factors that may affect the future results of Cbeyond are set forth in its filings with the
SEC, including its Annual Report on Form 10-K for the year ended December 31, 2013, which are available on the SECs website at www.sec.gov. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak
only as of the date thereof.
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