JMBA Jamba, Inc. (delisted)

  

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):

April 2, 2015

 

Jamba, Inc.

(Exact name of registrant as specified in its charter)

 

 

Delaware	001-32552	20-2122262
(State or other jurisdiction of incorporation)	(Commission File No.)	(I.R.S. Employer Identification No.)

 

6475 Christie Avenue, Suite 150, Emeryville, California 94608

(Address of principal executive offices)

 

Registrant's telephone number, including area code:

(510) 596-0100

 

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 1.01. Entry into a Material Definitive Agreement.

 

On April 2, 2015, Jamba, Inc. (the “Company”) entered into Amendment No. 2 (the “Amendment”) to the Rights Agreement (the “Rights Agreement”), dated as of October 8, 2008 and amended as of June 16, 2009, by and between the Company and Continental Stock Transfer & Trust Company, as rights agent. The Amendment accelerates the outside expiration date of the Company’s preferred stock purchase rights (the “Rights”) from 5:00 p.m., New York time, on October 8, 2018, to 5:00 p.m., New York time, on April 2, 2015, and has the effect of terminating the Rights Agreement on that date. At the time of the termination of the Rights Agreement, all of the Rights distributed to holders of the Company’s common stock pursuant to the Rights Agreement expired.

 

The foregoing is a summary of the terms of the Amendment. The summary does not purport to be complete and is qualified in its entirety by reference to the Amendment, a copy of which is attached as Exhibit 4.1 and incorporated herein by reference.

 

Item 1.02. Termination of a Material Definitive Agreement

 

The information set forth under Item 1.01 is incorporated herein by reference.

 

Item 3.03. Material Modification to Rights of Security Holders.

 

The information set forth under Item 1.01 is incorporated herein by reference.

 

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

Promptly following the expiration of the Rights and the termination of the Rights Agreement, the Company filed a Certificate of Elimination (the “Certificate of Elimination”) with the Secretary of State of the State of Delaware eliminating the Series A Preferred Stock.

 

The foregoing is a summary of the terms of the Certificate of Elimination. The summary does not purport to be complete and is qualified in its entirety by reference to the Certificate of Elimination, a copy of which is attached as Exhibit 3.1 and incorporated herein by reference.

 

Item 8.01. Other Events.

 

On April 2, 2015, the Company issued a press release announcing the entering into of the Amendment. A copy of the press release is attached as Exhibit 99.1 and incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.		Description
3.1		Certificate of Elimination of Series A Preferred Stock of Jamba, Inc..
4.1		Amendment No. 2 to Rights Agreement by and between Jamba, Inc. and Continental Stock Transfer & Trust Company, dated as of April 2, 2015.
99.1		Press release of Jamba, Inc. dated April 2, 2015.

 

 

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.

 

	JAMBA, INC.
Date: April 2, 2015	By:	/s/ Karen L. Luey
		Karen L. Luey Chief Financial Officer, Chief Administrative Officer, Executive Vice President and Secretary

 

Exhibit 3.1

 

CERTIFICATE OF ELIMINATION

OF

SERIES A PREFERRED STOCK

OF JAMBA, INC.

 

(Pursuant to Section 151(g) of the General Corporation Law of the State of Delaware)

 

Jamba, Inc., a Delaware corporation (the “Company”), certifies as follows:

 

1. The Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), of the Company authorizes the issuance of 30,000 shares of preferred stock, par value $0.001 per share, of the Company, as adjusted for the 5-for-1 reverse stock split effected on May 31, 2013, designated as Series A Preferred Stock (the “Series A Preferred Stock”).

 

2. Pursuant to the provisions of Section 151(g) of the General Corporation Law of the State of Delaware (the “DGCL”), the Board of Directors of the Company adopted the following resolutions:

 

RESOLVED FURTHER: That none of the authorized shares of preferred stock, par value $0.001, of the Company designated as Series A Preferred Stock (the “Preferred Stock”), are outstanding, and none of the authorized shares of the Preferred Stock will be issued prior to the Expiration Time.

 

RESOLVED FURTHER: That the Company be, and hereby is, authorized and directed to file with the Secretary of State of the State of Delaware a certificate (the “Certificate of Elimination”) containing these resolutions, with the effect under the General Corporation Law of the State of Delaware of eliminating from the Company’s Amended and Restated Certificate of Incorporation, as amended, all matters set forth in the Certificate of Designation, Preferences and Rights of Series A Preferred Stock of the Company filed with the Secretary of State of the State of Delaware on October 9, 2008.

 

RESOLVED FURTHER: That the President, Vice President, Treasurer, Secretary and any other officer of the Company (each such person, an “Authorized Officer”) be, and each of them hereby is, authorized and directed, for and on behalf of the Company and in its name, to execute and file the Certificate of Elimination at such time as they deem appropriate, and to take such further actions as they may deem necessary or appropriate to carry out the intent of the foregoing resolutions in accordance with the applicable provisions of the General Corporation Law of the State of Delaware.

 

3. Pursuant to the provisions of Section 151(g) of the DGCL, all references to the Series A Preferred Stock in the Certificate of Incorporation are hereby eliminated, and the shares designated as Series A Preferred Stock are hereby returned to the status of authorized but unissued shares of preferred stock of the Company.

 

*

*

*

 

 

IN WITNESS WHEREOF, the Company has caused this Certificate of Elimination to be signed by an authorized officer as of April 2, 2015.

 

	JAMBA, INC.
	By:	/s/ Karen L. Luey
		Karen L. Luey Chief Financial Officer, Chief Administrative Officer, Executive Vice President and Secretary

 

Exhibit 4.1

 

JAMBA, INC.

AND

CONTINENTAL STOCK TRANSFER & TRUST COMPANY

AS RIGHTS AGENT

AMENDMENT NO. 2 TO RIGHTS AGREEMENT

 

This AMENDMENT NO. 2 TO RIGHTS AGREEMENT (this “Amendment”) is dated as of April 2, 2015 (the “Effective Date”) and amends that certain Rights Agreement, dated as of October 8, 2008 and amended as of June 16, 2009 (the “Rights Agreement”), by and between Jamba, Inc., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company (the “Rights Agent”). All capitalized terms used herein, but not defined, shall have the meaning given to such terms in the Rights Agreement.

 

RECITALS

 

A. Pursuant to the Rights Agreement, the Board of Directors of the Company (i) authorized the issuance and declared a dividend of one right (a “Right”) for each share of the common stock, par value $0.001 per share, of the Company outstanding as of the Close of Business on October 20, 2008 (the “Record Date”), each Right representing the right to purchase one one-thousandth (0.001) of a share of Series A Preferred Stock of the Company, having the rights, powers and preferences as set forth in a Certificate of Designation filed with the Secretary of State of Delaware and made a part of the Company’s Certificate of Incorporation, upon the terms and subject to the conditions set forth in the Rights Agreement, and (ii) further authorized the issuance of one Right with respect to each share of common stock of the Company that shall become outstanding between the Record Date and the Distribution Date.

 

B. Pursuant to Section 27 of the Rights Agreement, the Company and the Rights Agent may, so long as the Rights are then redeemable, amend any provision of the Rights Agreement, as determined by the Company in its sole and absolute discretion.

 

C. To the knowledge of the Board of Directors of the Company, there has been no occurrence of a Flip-In Event, nor has the Expiration Date occurred, and accordingly the Rights are currently redeemable pursuant to Section 23 of the Rights Agreement.

 

D. The Board of Directors of the Company has determined that it is in the best interest of the Company and its stockholders to amend the Rights Agreement as set forth herein.

 

E. The Company has requested that the Rights Agreement be amended in accordance with Section 27 of the Rights Agreement, as set forth herein, and the Rights Agent is willing to amend the Rights Agreement as set forth herein

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties hereby agree as follows:

 

1. Amendment of the Rights Agreement. Section 7(a) of the Rights Agreement is hereby amended and restated in its entirety to read as follows:

 

"(a) Subject to Section 11(a)(ii) hereof, the Rights shall become exercisable, and may be exercised to purchase Preferred Stock, except as otherwise provided herein, in whole or in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof duly executed (with such signature duly guaranteed), to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the Purchase Price with respect to each Right exercised, subject to adjustment as hereinafter provided, at or prior to the Close of Business on the earlier of (i) April 2, 2015 (the “Final Expiration Date”), (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (such date being herein referred to as the “Redemption Date”) or (iii) the time at which all such Rights are exchanged as provided in Section 24 hereof (the earliest of (i), (ii) and (iii) being herein referred to as the “Expiration Date”). Except for those provisions herein which expressly survive the termination of this Rights Agreement, this Rights Agreement shall terminate at such time as the Rights are no longer exercisable hereunder."

 

2. Amendment of Exhibits. The exhibits to the Rights Agreement shall be deemed to be restated to reflect this Amendment, including all conforming changes.

 

3. Other Amendment; Effect of Amendment. This Amendment will be deemed an amendment to the Rights Agreement and will become effective on the Effective Date. In the event of a conflict or inconsistency between this Amendment and the Rights Agreement and the exhibits thereto, the provisions of this Amendment will govern.

 

4. Counterparts. This Amendment may be executed in any number of counterparts and each of such counterparts will for all purposes be deemed to be an original, and all such counterparts will together constitute one and the same instrument, it being understood that all parties need not sign the same counterpart. A signature to this Amendment transmitted electronically (including by fax and .pdf) will have the same authority, effect and enforceability as an original signature. No party hereto may raise the use of such electronic transmission to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through such electronic transmission, as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent such defense relates to lack of authenticity.

 

 

5. Severability. If any term, provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment will remain in full force and effect and will in no way be affected, impaired or invalidated.

 

6. Descriptive Headings. The descriptive headings of the several Sections of this Amendment are inserted for convenience only and will not control or affect the meaning or construction of any of the provisions hereof.

 

7. Further Assurances. Each of the parties to this Amendment will cooperate and take such action as may be reasonably requested by the other party in order to carry out the provisions and purposes of this Amendment, the Rights Agreement and the transactions contemplated hereunder and thereunder.

 

8. Governing Law. This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such state applicable to contracts to be made and performed entirely within such state.

 

[Remainder of page intentionally left blank]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to Rights Agreement to be duly executed as of the date first written above.

 

	JAMBA, INC.
	By:	/s/ Karen Luey
	Name:	Karen Luey
	Title:	Chief Financial Officer, Chief Administrative Officer,
		Executive Vice President and Secretary

 

	CONTINENTAL STOCK TRANSFER &
	TRUST COMPANY
	As Rights Agent
	By:	/s/ Margaret Villani
	Name:	Margaret Villani
	Title:	Vice President

 

  

[Signature Page to Amendment No. 2 to Rights Agreement]

 

 

Exhibit 99.1

 

[JAMBA LETTERHEAD]

 

Jamba, Inc. Announces Termination of Stockholder Rights Agreement

 

Emeryville, CA — April 2, 2015 — Jamba, Inc. (NASDAQ:JMBA)  ("Jamba" or the "Company") today announced the Board of Directors of the Company approved, and the Company entered into, an amendment to the Company’s stockholders rights agreement that accelerates the expiration date of the preferred stock purchase rights granted thereunder from 5:00 p.m., New York time, on October 8, 2018, to 5:00 p.m., New York time, on April 2, 2015, effectively terminating the rights agreement as of that date.

 

The Board of Directors made its decision to accelerate the expiration date of the rights agreement after receiving feedback from investors and after considering its current corporate governance practices. However, the Board of Directors reserved the right to adopt a new shareholder rights agreement in the future, consistent with its fiduciary responsibilities.

 

Stockholders are not required to take any action as a result of the termination of the rights agreement. Jamba will be taking routine actions to terminate, deregister and delist the related preferred stock purchase rights under applicable law, including the Securities Exchange Act of 1934. These actions are administrative in nature and will have no effect on Jamba’s common stock.

 

About Jamba, Inc.

 

Jamba, Inc. owns and franchises Jamba Juice® stores through its wholly-owned subsidiary, Jamba Juice Company. Jamba Juice Company is a leading restaurant retailer of better-for-you, specialty beverage and food offerings, which include great tasting, whole fruit smoothies, fresh-squeezed juices and juice blends, hot teas and a variety of food items including, Energy Bowls™, hot oatmeal, breakfast wraps, sandwiches, Artisan Flatbreads™, baked goods and snacks. As of December 30, 2014, there were 868 store locations globally. There were 263 Company-owned and operated stores and 543 franchise-operated stores in the United States, and 62 franchise-operated international stores. Jamba Juice Company expands the Jamba® brand by direct selling of consumer packaged goods (“CPG”) and licensing its trademarks. CPG products for at-home enjoyment are available online, through select retailers across the nation and in Jamba® outlets in the United States. Fans of Jamba Juice® can find out more about Jamba Juice's locations as well as specific offerings and promotions by visiting the Jamba Juice website at www.JambaJuice.com or by contacting Jamba’s Guest Services team at 1-866-4R-FRUIT (473-7848).