Attached files
| file | filename |
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| EX-2.1 - PROGINET CORP | v188760_ex2-1.htm |
| EX-99.1 - PROGINET CORP | v188760_ex99-1.htm |
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
June
21, 2010
(Date of
earliest event reported)
Proginet
Corporation
(Exact
Name of Registrant as Specified in its Charter)
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DELAWARE
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000-30151
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11-3264929
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(State
or other jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
No.)
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200
Garden City Plaza, Garden City, New York
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11530
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(516)
535-3600
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||
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(Address
of principal executive offices)
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(Zip
Code)
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(Registrant’s
telephone number
including
area code)
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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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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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x
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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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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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01 Entry into a Material Definitive
Agreement.
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On June
21, 2010, Proginet Corporation, a Delaware corporation (the “Company”), entered
into an Agreement and Plan of Merger (the “Merger Agreement”) with TIBCO
Software Inc., a Delaware corporation ("Parent"), and Perseus
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger
Sub”). The Merger Agreement provides that, upon the terms and
subject to the conditions set forth in the Merger Agreement, Merger Sub will be
merged with and into the Company, with the Company continuing as the surviving
corporation and a wholly-owned subsidiary of Parent (the “Merger”).
Pursuant
to the terms of the Merger Agreement, each issued and outstanding share of
Company common stock, other than shares held by the Company, Parent or Merger
Sub, or by any stockholders who are entitled to, and who properly exercise,
appraisal rights under Delaware law, will be cancelled and extinguished and
automatically converted into the right to receive cash in an amount equal to
$1.15, without interest (the “Per Share Merger
Consideration”) Outstanding options will be canceled at
closing, and each option holder will receive, with respect to each cancelled
option, the amount by which the Per Share Merger Consideration exceeds the
option exercise price, less any applicable withholding.
In
addition, concurrently with the execution of the Merger Agreement, each member
of the Board of Directors, and certain officers and stockholders who
collectively held approximately 21.4% of the Company’s issued and outstanding
common stock as of June 17, 2010, have entered into voting agreements whereby
they have agreed to vote all shares of Proginet common stock held by them in
favor of the Merger.
The
Company has agreed, among other things and subject to certain exceptions as
described in the Merger Agreement, (i) to conduct its business in the
ordinary and usual course of business and in a manner consistent with past
practice during the interim period between the execution of the Merger Agreement
and consummation of the Merger, (ii) not to take certain actions or engage
in certain transactions during such period, (iii) to cause a stockholder
meeting to be held to consider adoption and approval of the Merger Agreement and
the Merger, (iv) subject to certain limited exceptions to permit the board
of directors to comply with their fiduciary duties, for the Company’s board of
directors to recommend that the stockholders adopt the Merger Agreement and
thereby approve the Merger, and (v) not to solicit proposals relating to
alternative transactions and, subject to certain limited exceptions to permit
the board of directors to comply with their fiduciary duties, not to enter into
discussions or negotiations concerning, or to provide information in connection
with, alternative transactions.
The
Merger Agreement contains customary representations and warranties of the
parties and certain termination rights for both the Company and
Parent. In certain specified circumstances in connection with the
termination of the Merger Agreement, the Company will be required to pay Parent
a termination fee equal to $1,000,000.
Consummation
of the Merger is subject to certain conditions to closing, including, among
others, (i) the approval of the Company’s stockholders, (ii) the absence of any
law, order or injunction prohibiting the Merger, (iii) the accuracy of the
parties’ respective representations and warranties and (iv) the parties’
respective compliance with covenants and agreements contained in the Merger
Agreement.
The
Company expects to submit the Merger Agreement and the Merger to its
stockholders as promptly as practicable and to close the Merger promptly
following the receipt of stockholder approval.
On June
22, 2010, the Company issued a press release announcing that it had entered into
the Merger Agreement. A copy of the press release is attached hereto
as Exhibit
99.1.
The
foregoing description of the Merger Agreement is only a summary, does not
purport to be complete and is qualified in its entirety by reference to the
Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto
and is incorporated herein by reference.
Forward-Looking
Statements
This
Current Report on Form 8-K contains certain “forward-looking statements” within
the meaning of the safe harbor provisions of the United States Private
Securities Litigation Reform Act of 1995. Forward-looking statements
are statements that are not historical facts. Words such as “expect(s)”,
“feel(s)”, “believe(s)”, “will”, “may”, “anticipate(s)”, “intend(s)” and similar
expressions are intended to identify such forward-looking
statements. These statements include, but are not limited to, the
expected timing of the acquisition; the ability of Parent and the Company to
close the acquisition; the performance of the parties under the terms of the
Merger Agreement and related transaction documents; and statements regarding
future performance. All of such information and statements are
subject to certain risks and uncertainties, the effects of which are difficult
to predict and generally beyond the control of the Company, that could cause
actual results to differ materially from those expressed in, or implied or
projected by, the forward-looking information and statements. These
risks and uncertainties include, but are not limited to: (i) uncertainties
associated with the acquisition of the Company by Parent, (ii) uncertainties as
to the timing of the Merger; (iii) failure to receive approval of the
transaction by the stockholders of Proginet; (iv) the ability of the parties to
satisfy closing conditions to the transaction; (v) changes in economic,
business, competitive, technological and/or regulatory factors; and (vi) those
risks identified and discussed by the Company in its filings with the
SEC. Investors are cautioned not to place undue reliance on these
forward-looking statements that speak only as of the date hereof. The
Company undertakes no obligation to republish revised forward-looking statements
to reflect events or circumstances after the date hereof or to reflect the
occurrence of unanticipated events. Investors are also urged to
carefully review and consider the various disclosures in the Company’s SEC
periodic and interim reports, including but not limited to its Annual Report on
Form 10-K for the fiscal year ended July 31, 2009, Quarterly Reports on
Form 10-Q for the fiscal quarters ended October 31, 2009, January 31, 2010,
and April 30, 2010 and Current Reports on Form 8-K filed from time to time by
the Company. All forward-looking statements are qualified in their
entirety by this cautionary statement.
Additional
Information and Where to Find It
This Form
8-K may be deemed to be proxy solicitation material in respect of the proposed
transaction. In connection with the proposed transaction, the
Company will file or furnish relevant documents, including a proxy statement,
concerning the proposed transaction with the SEC. Investors and stockholders of the
Company are urged to read the proxy statement and other relevant materials when
they become available because they will contain important information about the
Company and the proposed transaction. The final proxy
statement will be mailed to the Company’s stockholders.
Investors
and stockholders may obtain a free copy of the proxy statement and any other
relevant documents filed or furnished by the Company with the SEC (when
available) at the SEC’s Web site at www.sec.gov. In addition,
investors and stockholders may obtain free copies of the documents filed with
the SEC by the Company by contacting Proginet’s Corporate Secretary at (516)
535-3600 or by going to the investor relations website portion of the Proginet
website at http://www.proginet.com/about-us/investor-relations/.
The
Company and its directors and certain executive officers may be deemed to be
participants in the solicitation of proxies from the Company’s stockholders in
respect of the proposed transaction. Information about the directors
and executive officers of the Company and their respective interests in the
Company by security holdings or otherwise will be set forth in the proxy
statement that will be filed by Proginet with the SEC. Stockholders
may obtain additional information regarding the interests of the Company and its
directors and executive officers in the Merger, which may be different than
those of the Company’s stockholders generally, by reading the proxy statement
and other relevant documents regarding the Merger, when filed with the
SEC. Each of these documents is, or will be, available as described
above.
Item
9.01 Financial Statements and Exhibits.
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(d)
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Exhibits
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2.1
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Agreement
and Plan of Merger by and among Proginet Corporation, TIBCO Software Inc.,
and Perseus Acquisition Corporation, dated as of June 21,
2010*
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99.1
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Press
Release issued by Proginet Corporation dated June 22,
2010
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* The
Company has omitted exhibits and disclosure schedules in accordance with
Regulation S-K 601(b)(2). The Company will furnish the omitted
exhibits and disclosure schedules to the SEC upon request.
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.
| Proginet Corporation | |||
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Date:
June 25, 2010
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By:
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/s/ Sandison Weil | |
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Name:
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Sandison Weil | ||
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Title:
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President
and Chief Executive Officer
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EXHIBIT
INDEX
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2.1
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Agreement
and Plan of Merger by and among Proginet Corporation, TIBCO Software Inc.,
and Perseus Acquisition Corporation, dated as of June 21,
2010*
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99.1
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Press
Release issued by Proginet Corporation dated June 22,
2010
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* The
Company has omitted exhibits and disclosure schedules in accordance with
Regulation S-K 601(b)(2). The Company will furnish the omitted
exhibits and disclosure schedules to the SEC upon request.